[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Rules and Regulations]
[Pages 62523-62526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30518]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5925-3]
The National Priorities List for Uncontrolled Hazardous Waste
Sites; Listing and Deletion Policy for Federal Facilities
AGENCY: Environmental Protection Agency.
[[Page 62524]]
ACTION: Notice of interim final policy statement.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing two
interim final policy revisions relating to the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300,
which was promulgated pursuant to section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA) (amended by the Superfund Amendments and Reauthorization Act
of 1986 (SARA)). CERCLA requires that the NCP include a list of
national priorities among the known or threatened releases of hazardous
substances, pollutants, or contaminants throughout the United States,
and that the list be revised at least annually. The National Priorities
List (NPL), which is Appendix B of 40 CFR part 300, constitutes this
list.
This document announces an interim final revision to the Agency's
policy on placing Federal facility sites on the NPL. For those Federal
facility sites already on the NPL, this document describes an interim
final policy revision for deleting such sites from the NPL. The interim
final policy revisions apply to Federal facility sites that are RCRA-
regulated facilities engaged in treatment, storage, or disposal of
hazardous waste (``TSDs'' under the RCRA program). EPA requests public
comments on these interim final policy revisions.
DATES: Effective date: These interim final policy revisions are
effective November 24, 1997.
Comment date: The EPA will accept comments concerning these interim
final policy revisions on or before January 23, 1998.
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; 703/603-9232.
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.DOCKET@EPAMAIL.
EPA.GOV. E-mailed comments must be followed up by an original and three
copies sent by mail or Federal Express.
FOR FURTHER INFORMATION CONTACT: Seth Thomas Low, Federal Facilities
Restoration and Reuse Office, Office of Solid Waste and Emergency
Response (Mail Code 5101), U.S. Environmental Protection Agency, 401 M
Street, SW, Washington, DC 20460, (202) 260-8692, or the Superfund
Hotline, Phone (800) 424-9346 or (703) 412-9810 in the Washington, DC,
metropolitan area.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Existing Policy for Listing Federal Facility Sites on the NPL
III. Interim Final Revisions to Policy for Listing Federal Facility
Sites on the NPL
IV. Policy for Deleting Sites From the NPL Based Upon RCRA Deferral
I. Introduction
In 1980, Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601, et seq. (CERCLA or
``the Act''), in response to the dangers of uncontrolled or abandoned
hazardous waste sites. CERCLA was amended on October 17, 1986, by the
Superfund Amendments and Reauthorization Act (SARA), Pub. L. 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 guidelines and procedures for responding 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, 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). Although Federal facility sites are
eligible for the NPL pursuant to 40 CFR 300.425(b)(3), section
111(e)(3) of CERCLA limits the expenditure of Superfund monies at
Federally-owned facilities. Federal facility sites also are subject to
the requirements of CERCLA section 120, added by SARA.
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. As a matter of Agency policy,
those sites that score 28.50 or greater on the HRS are eligible for the
NPL.
Under a second mechanism for adding sites to the NPL, each State
may designate a single site as its top priority, regardless of the HRS
score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2)
requires that, to the extent practicable, the NPL include within the
100 highest priorities, one facility designated by each State
representing the greatest danger to public health, welfare, or the
environment among known facilities in the State (see 42 U.S.C.
9605(a)(8)(B)).
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.
[[Page 62525]]
II. Existing Policy for Listing Federal Facility Sites on the NPL
On March 13, 1989 (54 FR 10520), the Agency adopted a policy for
listing Federal facility sites that are eligible for the NPL, even if
they are also subject to the corrective action authorities of Subtitle
C of RCRA.
III. Interim Final Revisions to Policy for Listing Federal Facility
Sites on the NPL
A. Purpose of Today's Document
This document announces an interim final revision to the Agency's
policy on placing Federal facility sites on the NPL. This document also
announces an interim final policy revision for deleting Federal
facility sites from the NPL. See discussion under section IV, below.
Under current EPA policy, the Agency does not consider whether a
Federal facility site is also subject to RCRA cleanup authorities in
determining whether to place the site on the NPL. Likewise, EPA does
not currently consider RCRA cleanup authorities when deciding whether
to delete a Federal facility site from the NPL. With today's document,
EPA is revising these polices to allow consideration of RCRA cleanup
authorities in making listing and deletion decisions for Federal
facility sites. EPA requests public comments on these interim final
policy revisions.
B. RCRA/NPL Deferral Policy
In the preamble to the final rule promulgating the initial NPL (48
FR 40662, September 8, 1983), EPA announced the RCRA/NPL deferral
policy,1 which provided that ``where a site consists of
regulated units of a RCRA facility operating pursuant to a permit or
interim status, it will not be included on the NPL but will instead be
addressed under the authorities of RCRA.'' Since that time, EPA has
amended the RCRA/NPL deferral policy on a number of occasions.
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\1\ The terms deferral and deletion as used in the context of
the NPL refer to the following: Deferral refers to the decision not
to list a site on the NPL, or not retain a site on the NPL, to allow
another authority (RCRA corrective action in this case) to handle
the remediation of the site in lieu of CERCLA. Deletion is the act
of taking a site off the NPL, which may occur because cleanup at a
site is complete or because another authority (such as RCRA
corrective action) can be used to bring about remediation at the
site and further CERCLA action is not needed.
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On June 10, 1986 (51 FR 21057), EPA announced several components of
a policy for placing RCRA-regulated sites on the NPL, but made clear
that the policy applied only to non-Federal sites. The policy stated
that the listing of non-Federal sites with releases that can be
addressed under RCRA Subtitle C corrective action authorities generally
would be deferred. However, EPA would continue to list certain RCRA
facilities at which Subtitle C corrective action authorities are
available if they had an HRS score of 28.50 or greater and fell within
at least one of the following categories: (1) facilities owned by
persons who have demonstrated an inability to finance a cleanup as
evidenced by their invocation of the bankruptcy laws; (2) facilities
that have lost authorization to operate, or for which there are
additional indications that the owner or operator will be unwilling to
undertake corrective action; or (3) facilities, analyzed on a case-by-
case basis, whose owners or operators have a clear history of
unwillingness to undertake corrective action. EPA noted that it would
consider at a later date whether this policy for deferring non-Federal
RCRA regulated sites from the NPL should apply to Federal facilities.
As noted in section II above, on March 13, 1989 the Agency adopted
a policy for listing Federal facility sites that are eligible for the
NPL, even if they are also subject to the corrective action authorities
of RCRA Subtitle C.
C. Rationale For Revising the Policy For Placing Federal Facilities
Sites on the NPL
Recently Congress amended CERCLA section 120(d) to expressly grant
EPA the discretion to consider non-CERCLA cleanup authorities when
making a listing determination for Federal facility sites. Section
120(d), as amended by section 330 of the Defense Authorization Act of
FY 97, now provides that:
It shall be an appropriate factor to be taken into consideration
for the purposes of section 105(a)(8)(A) that the head of the
department, agency, or instrumentality that owns or operates a
facility has arranged with the Administrator or appropriate State
authorities to respond appropriately, under authority of a law other
than this Act [CERCLA], to a release or threatened release of a
hazardous substance. [CERCLA section 120(d)(2)(B)]
EPA believes that amended section 120(d) provides EPA with clear
legal authority to consider cleanup under RCRA Subtitle C corrective
action when making a listing decision for Federal facility sites. The
legislative history of this provision supports EPA's view. The
conference committee report states that the revised section 120(d)
gives EPA ``the discretion to withhold National Priorities List
designation of a Federal facility cleanup action if the site is already
subject to an approved Federal or State cleanup plan.'' H.R. Conf. Rep.
No. 724, 104th Cong., 2d Sess. 724 (1996). In light of this amendment
to CERCLA and the ongoing Agency efforts for administrative reforms to
CERCLA that allow greater flexibility to address Superfund sites, EPA
is revising its listing policy for Federal facility sites. The Agency
believes that this revision may free CERCLA oversight resources for use
in situations where another authority is not available.
D. Criteria for RCRA/NPL Deferral of Federal Facility Sites
In today's document, EPA sets forth the criteria the Agency will
consider in determining when a Federal facility site may not be placed
on the NPL because the cleanup is being conducted pursuant to RCRA
Subtitle C corrective action authorities (``RCRA/NPL deferral for
Federal facility sites''). A site should satisfy all of these criteria
to be eligible for deferral. Where there is uncertainty as to whether
the criteria have been met, deferral generally will be inappropriate.
The criteria are the following:
1. The CERCLA site is currently being addressed by RCRA Subtitle C
corrective action authorities under an existing enforceable order or
permit containing corrective action provisions.
2. The response under RCRA is progressing adequately.
3. The state and community support deferral of NPL listing.
E. Discussion of Each Criterion
The first criterion states that the site is being addressed by RCRA
corrective action authorities under an existing order or permit. The
criterion specifies that the requirement applies to sites as defined by
CERCLA, and that the authority addressing the site is RCRA Subtitle C
corrective action.
Under the first criterion, corrective action orders or permits
issued by EPA or an authorized state program that address corrective
action at the facility must generally be in place as a condition for
deferral. 2 This criterion serves as an objective indicator
that contamination at a site is addressable under RCRA corrective
action authorities. The term ``addressable'' in this context means that
a CERCLA site is fully remediable by a permit or order with a schedule
of compliance, whether or not actual cleanup has begun. Corrective
action permits or orders should require the cleanup of all releases at
the CERCLA site (e.g., if
[[Page 62526]]
contamination stemming from the CERCLA ``release'' extends beyond the
boundaries of a particular RCRA facility, such releases must be
addressable under RCRA sections 3004(v) and 3008(h) or other
enforcement authority under RCRA). 3 Corrective action
orders or permits which do not require cleanup of all releases at the
CERCLA site should be modified to address such releases; otherwise the
CERCLA site would not be a candidate for deferral.
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\2\ It should be noted that the RCRA/NPL deferral does not
relieve a Federal facility from the CERCLA section 120(d)
requirement to conduct preliminary assessments.
\3\ Under CERCLA, the term facility is meant to be synonymous
with ``site'' or ``release'' and is not meant to suggest that the
listing is geographically defined (56 FR 5600, February 11, 1991).
The size or extent of a facility listed on the NPL may extend to
those areas where the contamination has ``come to be located.'' (See
CERCLA section 101(9)). On the other hand, a ``facility'' as defined
under RCRA is ``all contiguous property under the control of the
owner or operator seeking a Subtitle C permit'' (58 FR 8664,
February 16, 1993). Thus, a RCRA site relates more to property
boundaries, and a CERCLA site/facility/release includes
contamination irrespective of RCRA facility boundaries.
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Under the second criterion, EPA evaluates whether response under
RCRA is progressing adequately. Under this criterion, noncompliance
with corrective action orders or permits generally would be regarded as
an indicator that response under RCRA is not progressing adequately.
However, even if a Federal facility site (i.e., the owner/operator) is
in compliance with a corrective action order or permit, EPA may
determine that response is not progressing adequately based upon other
factors. For example, the Agency may consider whether there has been a
history of protracted negotiations due primarily to an uncooperative
owner or operator.
Under the third criterion, EPA evaluates whether the affected state
and community where the Federal facility site is located support
deferral of the NPL listing of such site. Under this criterion, EPA
expects the state and Federal facility which are interested in NPL
deferral to take appropriate steps to inform the affected community and
other affected parties (e.g., communities downstream from the site,
Natural Resource Trustees, etc.), as appropriate, of such interest and
seek community participation on such issue. EPA believes that community
participation will be facilitated by the establishment of Restoration
Advisory Boards or Site Specific Advisory Boards by the affected
Federal agencies in conjunction with the state. The state and Federal
facility which are interested in NPL deferral should also document all
of their interactions with the community and inform EPA of any possible
opposition to NPL deferral of the site.
IV. Policy for Deleting Sites From the NPL Based Upon RCRA Deferral
A. RCRA Deletion Policy
On March 20, 1995 (60 FR 14641), the Agency announced the adoption
of a policy for deleting RCRA facilities from the NPL before a cleanup
is complete, if the site is being, or will be, adequately addressed by
the RCRA corrective action program, provided certain criteria were met.
The Agency based its action on the goals of freeing CERCLA oversight
resources for sites where another authority is not available and
avoiding possible duplication of effort. The Agency made clear that
such policy does not pertain to Federal facility sites, even if such
facilities are also subject to the corrective action authorities of
Subtitle C of RCRA.
B. Revision to RCRA Deletion Policy
This document announces that EPA is revising the RCRA deletion
policy to also be applicable to Federal facility sites. As noted in
section III. C, above CERCLA section 120(d) was amended to expressly
authorize EPA to consider other cleanup authorities in making Federal
facility site listing decisions. In light of EPA's express discretion
under section 120(d), EPA believes that it is also now appropriate to
apply the Agency's RCRA deletion policy to Federal facility sites on
the NPL. The first criterion under the RCRA deletion policy is that a
site be eligible for RCRA deferral under EPA's current RCRA/NPL
deferral policy. Until EPA revised the 1989 Federal facility site
listing policy no Federal facility could satisfy the RCRA deletion
policy criteria.
The Agency believes that revising the RCRA deletion policy to be
applicable to Federal facility sites is consistent with CERCLA section
120(d), as amended, and the ongoing Agency efforts for administrative
reforms to CERCLA that allow greater flexibility to address Superfund
sites. The Agency believes that this revision may free CERCLA oversight
resources for use in situations where another authority is not
available. By this interim final revision, the criteria and process
stated in the March 20, 1995 RCRA deletion policy are now applicable
for deleting Federal facility sites from the NPL.
[Notice: This document does not represent final agency action,
but is intended solely as guidance. It does not create any legal
obligations. EPA officials may decide to follow the policies
discussed in this document, or to act at variance with such
policies, based on an analysis of specific site circumstances.]
Dated: November 13, 1997.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency
Response.
[FR Doc. 97-30518 Filed 11-21-97; 8:45 am]
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