[Federal Register Volume 63, Number 188 (Tuesday, September 29, 1998)]
[Proposed Rules]
[Pages 51882-51888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25890]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-6169-2]


National Priorities List for Uncontrolled Hazardous Waste Sites, 
Proposed Rule No. 26

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

[[Page 51883]]

SUMMARY: The Comprehensive Environmental Response, Compensation, and 
Liability Act (``CERCLA'' or ``the Act''), 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 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. This rule proposes to add 12 new sites to 
the NPL, all to the General Superfund section.

DATES: Comments regarding any of these proposed listings must be 
submitted (postmarked) on or before November 30, 1998.

ADDRESSES: By Postal 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 Express Mail: 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 express mail.
    For additional Docket addresses and further details on their 
contents, see section II, ``Public Review/Public Comment,'' of the 
Supplementary Information portion of this preamble.

FOR FURTHER INFORMATION CONTACT: Terry Keidan, phone (703) 603-8852, 
State, Tribal 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:

Table of Contents

I. Background
    A. What are CERCLA and SARA?
    B. What is the NCP?
    C. What is the National Priorities List (NPL)?
    D. How are Sites Listed on the NPL?
    E. What Happens to Sites on the NPL?
    F. How Are Site Boundaries Defined?
    G. How Are Sites Removed From the NPL?
    H. Can Portions of Sites Be Deleted from the NPL as They Are 
Cleaned Up?
    I. What is the Construction Completion List (CCL)?
II. Public Review/Public Comment
    A. Can I Review the Documents Relevant to This Proposed Rule?
    B. How do I Access the Documents?
    C. What Documents Are Available for Public Review at the 
Headquarters Docket?
    D. What Documents Are Available for Public Review at the 
Regional Dockets?
    E. How Do I Submit My Comments?
    F. What Happens to My Comments?
    G. What Should I Consider When Preparing My Comments?
    H. Can I Submit Comments After the Public Comment Period Is 
Over?
    I. Can I View Public Comments Submitted by Others?
    J. Can I Submit Comments Regarding Sites Not Currently Proposed 
to the NPL?
III. Contents of This Proposed Rule
    A. Proposed Additions to the NPL
    B. Status of NPL
IV. Executive Order 12866
    A. What is Executive Order 12866?
    B. Is This Proposed Rule Subject to Executive Order 12866 
Review?
V. Unfunded Mandates
    A. What is the Unfunded Mandates Reform Act (UMRA)?
    B. Does UMRA Apply to This Proposed Rule?
VI. Effect on Small Businesses
    A. What is the Regulatory Flexibility Act?
    B. Does the Regulatory Flexibility Act Apply to This Proposed 
Rule?
VII. National Technology Transfer and Advancement Act
    A. What is the National Technology Transfer and Advancement Act?
    B. Does the National Technology Transfer and Advancement Act 
Apply to This Proposed Rule?
VIII. Executive Order 13045
    A. What is Executive Order 13045?
    B. Does Executive Order 13045 Apply to this Proposed Rule?
IX. Paperwork Reduction Act
    A. What is the Paperwork Reduction Act?
    B. Does the Paperwork Reduction Act Apply to this Proposed Rule?
X. Executive Order 12875
    What is Executive Order 12875 and is it Applicable to this 
Proposed Rule?
XI. Executive Order 13084
    What is Executive Order 13084 and is it Applicable to this 
Proposed Rule?

I. Background

A. What Are CERCLA and SARA?

    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 releases of 
hazardous substances. CERCLA was amended on October 17, 1986, by the 
Superfund Amendments and Reauthorization Act (``SARA''), Pub. L. 99-
499, 100 Stat. 1613 et seq.

B. What Is the NCP?

    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 
guidelines and procedures for responding to releases and threatened 
releases of hazardous substances, pollutants, or contaminants under 
CERCLA. EPA has revised the NCP on several occasions. The most recent 
comprehensive revision was on March 8, 1990 (55 FR 8666).
    As required under section 105(a)(8)(A) of CERCLA, the NCP also 
includes ``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).)

C. What Is the National Priorities List (NPL)?

    The NPL is a list of national priorities among the known or 
threatened releases of hazardous substances, pollutants, or 
contaminants throughout the United States. The list, which is appendix 
B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) 
of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as 
a list of ``releases'' and the highest priority ``facilities'' and 
requires that the NPL be revised at least annually. 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 a release of hazardous substances. 
However, the NPL is only of limited significance, as it does not assign 
liability to any party or to the owner of any specific property. 
Neither does placing a site on the NPL mean that any remedial or 
removal action necessarily need be taken. See Report of the Senate 
Committee on Environment and Public

[[Page 51884]]

Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), 48 FR 
40659 (September 8, 1983).
    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.

D. How Are Sites Listed on the NPL?

    There are three mechanisms for placing sites on the NPL for 
possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site 
may be included on the NPL if it scores sufficiently high on the Hazard 
Ranking System (``HRS''), which EPA promulgated as a appendix A of the 
NCP (40 CFR part 300). 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. 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. As a 
matter of Agency policy, those sites that score 28.50 or greater on the 
HRS are eligible for the NPL; (2) Each State may designate a single 
site as its top priority to be listed on the NPL, 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 (42 U.S.C. 
9605(a)(8)(B)); (3) 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 
September 18, 1998 (63 FR 49855).

E. What Happens to Sites on the NPL?

    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). (``Remedial actions'' are those ``consistent with 
permanent remedy, taken instead of or in addition to removal actions. * 
* *'' 42 U.S.C. 9601(24).) 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.

F. How Are Site Boundaries Defined?

    The NPL does not describe releases in precise geographical terms; 
it would be neither feasible nor consistent with the limited purpose of 
the NPL (to identify releases that are priorities for further 
evaluation), for it to do so.
    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 (if the HRS is used to list a site) upon which the NPL 
placement was based will, to some extent, describe the release(s) at 
issue. That is, the NPL site would include all releases evaluated as 
part of that HRS analysis.
    When a site is listed, to describe the relevant release(s) 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

[[Page 51885]]

more information about the location of the contamination or release.

G. How Are Sites Removed From the NPL?

    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 176 sites from the 
NPL.

H. Can Portions of Sites Be Deleted From the NPL as They Are Cleaned 
Up?

    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 September 
1998, EPA has deleted portions of 11 sites.

I. What Is the Construction Completion List (CCL)?

    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). Inclusion of a site on the CCL has no legal 
significance.
    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.
    In addition to the 167 sites that have been deleted from the NPL 
because they have been cleaned up (9 additional sites have been deleted 
based on deferral to other authorities and are not considered cleaned 
up), an additional 368 sites are also on the NPL CCL. Thus, as of 
September 1998, the CCL consists of 535 sites.

II. Public Review/Public Comment

A. Can I Review the Documents Relevant to This Proposed Rule?

    Yes, 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 in Washington, D.C. and in the appropriate Regional 
offices.

B. How Do I Access the Documents?

    You may view the documents, by appointment only, in the 
Headquarters or the appropriate Regional docket after the appearance of 
this proposed rule. The hours of operation for the Headquarters docket 
are from 9 a.m. to 4 p.m., Monday through Friday excluding Federal 
holidays. Please contact individual Regional dockets for hours.
    You may also request copies from EPA Headquarters or the 
appropriate Regional docket. An informal request, rather than a formal 
written request under the Freedom of Information Act, should be the 
ordinary procedure for obtaining copies of any of these documents.
    Following is the contact information for the EPA Headquarters 
docket (see ``How do I submit my comments?'' section below for Regional 
contacts): Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket 
Office, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, 
Arlington, VA 22202, 703/603-9232. (Please note this is a visiting 
address only. Mail comments to EPA Headquarters as detailed at the 
beginning of this preamble, or contact Regional offices as detailed in 
the ``How do I submit my comments?'' section below.)

C. What Documents Are Available for Public Review at the Headquarters 
Docket?

    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. 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.

D. What Documents Are Available for Public Review at the Regional 
Dockets?

    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.

E. How Do I Submit My Comments?

    Comments must be submitted to EPA Headquarters as detailed at the 
beginning of this preamble. Regional offices may be reached at the 
following:
Jim Kyed, Region 1 (CT, ME, MA, NH, RI, VT), 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 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New 
York, NY 10007-1866, 212/637-4435
Kevin Wood, U.S. EPA Region 3, 1650 Arch Street, Philadelphia, PA 
19103, Mail Code: 3HS33, 215/814-3303
Sherryl Decker, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 
100 Alabama Street, SW, Atlanta, GA 30303, 404/562-8127 Region 5 (IL, 
IN, MI, MN, OH, WI), U.S. EPA, Records Center, Waste Management 
Division 7-J, Metcalfe Federal Building, 77 West Jackson Boulevard, 
Chicago, IL 60604, 312/886-7570
Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, 
Mail Code 6SF-RA, Dallas, TX 75202-2733, 214/655-7436
Carole Long, Region 7 (IA, KS, MO, NE), U.S. EPA, 726 Minnesota Avenue, 
Kansas City, KS 66101, 913/551-7224
David Williams, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th 
Street, Suite 500, Denver, CO 80202-2466, 303/312-6757
Carolyn Douglas, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 
Hawthorne Street, San Francisco, CA 94105, 415/744-2343
David Bennett, Region 10 (AK, ID, OR, WA), U.S. EPA, 11th Floor, 1200 
6th Avenue, Mail Stop ECL-115, Seattle, WA 98101, 206/553-2103

F. What Happens to My Comments?

    EPA considers all comments received during the comment period. 
Significant comments will be addressed in a support document that EPA 
will publish concurrently with the Federal Register document if, and 
when, the site is listed on the NPL.

[[Page 51886]]

G. What Should I Consider When Preparing My Comments?

    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 or other listing criteria (Northside 
Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988)). EPA will 
not address voluminous comments that are not specifically cited by page 
number and referenced to the HRS or other listing criteria. EPA will 
not address comments unless they indicate which component of the HRS 
documentation record or what particular point in EPA's stated 
eligibility criteria is at issue.

H. Can I Submit Comments After the Public Comment Period Is Over?

    Generally, EPA will not respond to late comments. EPA can only 
guarantee that it will consider 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.

I. Can I View Public Comments Submitted by Others?

    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.

J. Can I Submit Comments Regarding Sites Not Currently Proposed to the 
NPL?

    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.

III. Contents of This Proposed Rule

A. Proposed Additions to the NPL

    Table 1 identifies the 12 sites in the General Superfund section 
being proposed to the NPL in this rule. This table follows this 
preamble. All sites are proposed based on HRS scores of 28.50 or above. 
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 an HRS score that falls within the range of scores covered by the 
fourth group of 50 sites on the NPL.

B. Status of NPL

    A final rule published elsewhere in today's Federal Register, 
results in an NPL of 1,194 sites, 1,041 in the General Superfund 
section and 153 in the Federal Facilities section. With this proposal 
of 12 new sites, there are now 66 sites proposed and awaiting final 
agency action, 57 in the General Superfund section and 9 in the Federal 
Facilities section. Final and proposed sites now total 1,260.

IV. Executive Order 12866

A. What Is Executive Order 12866?

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.

B. Is This Proposed Rule Subject to Executive Order 12866 Review?

    No, the Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866 review.

V. Unfunded Mandates

A. What Is the Unfunded Mandates Reform Act (UMRA)?

    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 by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before EPA promulgates a rule for which a written statement 
is needed, 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, enabling 
officials of affected small governments to have 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.

B. Does UMRA Apply to This Proposed Rule?

    No, EPA has determined that this rule does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate. This rule 
will not impose any federal intergovernmental mandate because it 
imposes no enforceable duty upon State, tribal or local governments. 
Listing a site on the NPL does not itself impose any costs. Listing 
does not mean that EPA necessarily will undertake remedial action. Nor 
does listing require any action by a private party or determine 
liability for response costs. Costs that arise out of site responses 
result from site-specific decisions regarding what actions to take, not 
directly from the act of listing a site on the NPL.

[[Page 51887]]

    For the same reasons, EPA also has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. In addition, as discussed above, the 
private sector is not expected to incur costs exceeding $100 million. 
EPA has fulfilled the requirement for analysis under the Unfunded 
Mandates Reform Act.

VI. Effect on Small Businesses

A. What Is the Regulatory Flexibility Act?

    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.

B. Does the Regulatory Flexibility Act Apply to This Proposed Rule?

    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, 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.

VII. National Technology Transfer and Advancement Act

A. What Is the National Technology Transfer and Advancement Act?

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA requires EPA 
to provide Congress, through OMB explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.

B. Does the National Technology Transfer and Advancement Act Apply to 
This Proposed Rule?

    No. This proposed rulemaking does not involve technical standards. 
Therefore, the Agency did not consider the use of any voluntary 
consensus standards.

VIII. Executive Order 13045

A. What Is Executive Order 13045?

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.

B. Does Executive Order 13045 Apply to This Proposed Rule?

    This rule is not subject to E.O. 13045 because it is not an 
economically significant rule as defined by E.O. 12866, and because it 
does not involve decisions based on environmental health or safety 
risks.

IX. Paperwork Reduction Act

A. What Is the Paperwork Reduction Act?

    According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., an agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information that requires OMB 
approval under the PRA, unless it has been approved by OMB and displays 
a currently valid OMB control number. The OMB control numbers for EPA's 
regulations, after initial display in the preamble of the final rules, 
are listed in 40 CFR part 9. The information collection requirements 
related to this action have already been approved by OMB pursuant to 
the PRA under OMB control number 2070-0012 (EPA ICR No. 574).

B. Does the Paperwork Reduction Act Apply to This Proposed Rule?

    This action does not impose any burden requiring OMB approval under 
the Paperwork Reduction Act.

XI. Executive Order 12875

What Is Executive Order 12875 and Is It Applicable to This Proposed 
Rule?

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    This final rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

[[Page 51888]]

XII. Executive Order 13084

What Is Executive Order 13084 and Is It Applicable to This Proposed 
Rule?

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments because it does not 
significantly or uniquely affect their communities. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

               Table 1.--National Priorities List Proposed Rule No. 26, General Superfund Section
----------------------------------------------------------------------------------------------------------------
                State                            Site name                     City/county              Group
----------------------------------------------------------------------------------------------------------------
CA...................................  Lava Cap Mine................  Nevada City..................           21
CA...................................  Omega Chemical Corporation...  Whittier.....................           22
MN...................................  Fridley Commons Park Well      Fridley......................          4/5
                                        Field.
NJ...................................  Middlesex Sampling Plant.....  Middlesex....................          4/5
NJ...................................  United States Avenue Burn....  Gibbsboro....................          4/5
NY...................................  Hiteman Leather..............  West Winfield................          4/5
NY...................................  Mohonk Road Industrial Plant.  High Falls...................          4/5
NY...................................  Smithtown Ground Water         Smithtown....................          4/5
                                        Contamination.
OK...................................  Tulsa Fuel and Manufacturing.  Collinsville.................          4/5
TX...................................  City of Perryton Well No. 2..  Perryton.....................          4/5
TX...................................  Many Diversified Interests,    Houston......................           19
                                        Inc.
VT...................................  Pownal Tannery...............  Pownal.......................          4/5
----------------------------------------------------------------------------------------------------------------

    Number of Sites Proposed to General Superfund Section: 12.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Intergovernmental relations, 
Natural resources, Oil pollution, Penalties, Reporting and 
recordkeeping requirements, Superfund, 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: September 22, 1998.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.
[FR Doc. 98-25890 Filed 9-28-98; 8:45 am]
BILLING CODE 6560-50-U