[Federal Register Volume 64, Number 11 (Tuesday, January 19, 1999)]
[Rules and Regulations]
[Pages 2942-2949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1020]



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_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 300



National Priorities List for Uncontrolled Hazardous Waste Sites; Final 
Rule and Proposed Rule

  Federal Register / Vol. 64, No. 11 / Tuesday, January 19, 1999 / 
Rules and Regulations  

[[Page 2942]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-6220-6]


National Priorities List for Uncontrolled Hazardous Waste Sites

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

SUMMARY: The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (``CERCLA'' or ``the Act''), as amended, requires 
that the National Oil and Hazardous Substances Pollution Contingency 
Plan (``NCP'') include a list of national priorities among the known 
releases or threatened releases of hazardous substances, pollutants, or 
contaminants throughout the United States. The National Priorities List 
(``NPL'') constitutes this list. 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 adds a total of 17 new sites to 
the NPL; 16 sites to the General Superfund Section of the NPL and 1 
site to the Federal Facilities Section of the NPL.

EFFECTIVE DATE: The effective date of this final rule is February 18, 
1999.

ADDRESSES: For addresses for the Headquarters and Regional dockets, as 
well as further details on what these dockets contain, see section II, 
``Availability of Information to the Public'' in the SUPPLEMENTARY 
INFORMATION portion of this preamble.

FOR FURTHER INFORMATION CONTACT: Yolanda Singer, phone (703) 603-8835, 
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. Availability of Information to the Public
    A. Can I Review the Documents Relevant to this Final Rule?
    B. What Documents are Available for Review at the Headquarters 
Docket?
    C. What Documents are Available for Review at the Regional 
Dockets?
    D. How Do I Access the Documents?
    E. How Can I Obtain a Current List of NPL Sites?
III. Contents of This Final Rule
    A. Additions to the NPL
    B. Status of NPL
    C. What did EPA Do with the Public Comments It Received?
IV. Executive Order 12866
    A. What is Executive Order 12866?
    B. Is this Final 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 Final Rule?
VI. Effects on Small Businesses
    A. What is the Regulatory Flexibility Act?
    B. Has EPA Conducted a Regulatory Flexibility Analysis for This 
Rule?
VII. Possible Changes to the Effective Date of the Rule
    A. Has This Rule Been Submitted to Congress and the General 
Accounting Office?
    B. Could the Effective Date of This Final Rule Change?
    C. What Could Cause the Effective Date of This Rule to Change?
VIII. 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 Final Rule?
IX. Executive Order 13045
    A. What is Executive Order 13045?
    B. Does Executive Order 13045 Apply to This Final Rule?
X. Paperwork Reduction Act
    A. What is the Paperwork Reduction Act?
    B. Does the Paperwork Reduction Act Apply to This Final Rule?
XI. Executive Order 12875
    What is Executive Order 12875 and is it Applicable to This Final 
Rule?
XII. Executive Order 13084
    What is Executive Order 13084 and is it Applicable to this Final 
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''), Public Law 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. 
The NPL is only of limited significance, however, 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.
    The NPL includes two sections, one of sites that are generally 
evaluated and cleaned up by EPA (the ``General Superfund section''), 
and one of sites that are owned or operated by other Federal agencies 
(the ``Federal Facilities

[[Page 2943]]

section''). With respect to sites in the Federal Facilities section, 
these sites are generally being addressed by other Federal agencies. 
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 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 (see 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 29, 1998 (43 FR 51882).

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 respond to 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, the approach generally used to describe the 
relevant release(s) 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 that contamination 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 300.5). 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 known 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.

G. How are Sites Removed From the NPL?

    EPA may delete sites from the NPL where no further response is 
appropriate under Superfund, as

[[Page 2944]]

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.
    As of January 4, 1999, the Agency has deleted 181 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 January 4, 
1999, EPA has deleted portions of 15 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.
    Of the 181 sites that have been deleted from the NPL, 172 sites 
were deleted because they have been cleaned up (the other 9 sites were 
deleted based on deferral to other authorities and are not considered 
cleaned up). In addition, there are 413 sites also on the NPL CCL. 
Thus, as of January 4, 1999, the CCL consists of 585 sites. For the 
most up-to-date information on the CCL, see EPA's Internet site at 
http://www.epa.gov/superfund/.

II. Availability of Information to the Public

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

    Yes, documents relating to the evaluation and scoring of the site 
in this final rule are contained in dockets located both at EPA 
Headquarters and in the appropriate Regional office.

B. What Documents are Available for Review at the Headquarters Docket?

    The Headquarters docket for this rule contains HRS score sheets, 
the Documentation Record describing the information used to compute the 
score, pertinent information regarding statutory requirements or EPA 
listing policies that affect the site, and a list of documents 
referenced in the Documentation Record. The Headquarters docket also 
contains comments received, and the Agency's responses to those 
comments. The Agency's responses are contained in the ``Support 
Document for the Revised National Priorities List Final Rule, January 
1999.''

C. What Documents are Available for Review at the Regional Dockets?

    The Regional dockets contains all the information in the 
Headquarters docket, plus the actual reference documents containing the 
data principally relied upon by EPA in calculating or evaluating the 
HRS score for the site. These reference documents are available only in 
the appropriate Regional docket.

D. How Do I Access the Documents?

    You may view the documents, by appointment only, after the 
publication of this document. 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 the Regional dockets for 
hours.
    Following is the contact information for the EPA Headquarters: 
Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, 
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, 
VA, 703/603-8917. The contact information for the Regional dockets are 
as follows:

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, Region 3 (DE, DC, MD, PA, VA, WV), 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

E. How Can I Obtain a Current List of NPL Sites?

    You may obtain a current list of NPL sites via the Internet at 
http://www.epa.gov/superfund/ (look under site information category) or 
by contacting the Superfund Docket (see contact information above).

III. Contents of This Final Rule

A. Addition to the NPL

    This final rule adds 17 sites to the NPL; 16 sites to the General 
Superfund Section of the NPL and 1 site to the Federal Facility Section 
of the NPL. Table 1 presents the 16 sites in the General Superfund 
Section and Table 2 contains the 1 site in the Federal Facilities 
Section. Sites in each table are arranged alphabetically by State. 
Please note that EPA is reclassifying the Middlesex Sampling Plant in 
Middlesex, New Jersey as a Federal Facility site and is changing the 
name to the Middlesex Sampling Plant (USDOE). The Middlesex Sampling 
Plant (USDOE) was proposed to the NPL on September 29,1998 (63 FR 
51882) as a General Superfund site and is being added to the NPL today 
as a Federal Facility. EPA believes this change more accurately 
reflects the site.

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Table 1.--National Priorities List Final Rule, General Superfund Section
------------------------------------------------------------------------
        State                Site name                City/county
------------------------------------------------------------------------
CA...................  Lava Cap Mine........  Nevada City.
CA...................  Omega Chemical         Whittier.
                        Corporation.
CA...................  Pemaco Maywood.......  Maywood.
LA...................  Delatte Metals.......  Ponchatoula.
MN...................  Fridley Commons Park   Fridley.
                        Well Field.
NC...................  Davis Park Road TCE..  Gastonia.
NM...................  North Railroad Avenue  Espanola.
                        Plume.
NJ...................  Federal Creosote.....  Manville Borough.
NY...................  Hiteman Leather......  West Winfield.
NY...................  Lehigh Valley          Le Roy.
                        Railroad.
NY...................  Mohonk Road            High Falls.
                        Industrial Plant.
NY...................  Smithtown Ground       Smithtown.
                        Water Contamination.
OK...................  Tulsa Fuel and         Collinsville.
                        Manufacturing.
TX...................  City of Perryton Well  Perryton.
                        No. 2.
TX...................  Many Diversified       Houston.
                        Interests, Inc..
VT...................  Pownal Tannery.......  Pownal.
------------------------------------------------------------------------

    Number of Sites Added to the General Superfund Section: 16.

    Table 2.--National Priorities List Final Rule, Federal Facilities
                                 Section
------------------------------------------------------------------------
        State                Site name                City/county
------------------------------------------------------------------------
NJ...................  Middlesex Sampling     Middlesex.
                        Plant (USDOE).
------------------------------------------------------------------------

    Number of Sites Added to the Federal Facilities Section: 1.

B. Status of NPL

    With the 17 new sites added in today's rule, the NPL now contains 
1,206 sites (1,053 in the General Superfund section and 153 in the 
Federal Facilities section). With a rule proposing to add 11 new sites 
to the NPL published elsewhere in today's Federal Register, there are 
now 59 sites proposed and awaiting final agency action, 50 in the 
General Superfund section and 9 in the Federal Facilities section. 
Final and proposed sites now total 1,265.

C. What did EPA do With the Public Comments it Received?

    EPA reviewed all comments received on the site in this rule. The 
following sites were proposed on July 28, 1998 (63 FR 40188): Pemaco 
Maywood, Delatte Metals, North Railroad Avenue Plume, Davis Park Road 
TCE, Federal Creosote, and Lehigh Valley Railroad. The remaining sites 
were proposed on September 29, 1998 (63 FR 51882).
    For the Pemaco Maywood, Delatte Metals, Federal Creosote, Many 
Diversified Interests, and Pownal Tannery sites, EPA received only 
comments in favor of placing the site on the NPL. EPA received no 
comments on the actual scoring of these sites and the Agency has 
identified no other reason to change the original HRS scores for the 
sites. Therefore, EPA is placing these sites on the final NPL at this 
time.
    Based on comments received on the Smithtown Ground Water 
Contamination site, as well as investigation by EPA and the State 
(generally in response to comment), EPA responded to all relevant 
comments received. EPA's responses to site-specific public comments are 
addressed in the ``Support Document for the Revised National Priorities 
List Final Rule, January 1999.''
    No comments were received on the remainder of sites and therefore, 
EPA is placing them on the final NPL at this time.

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 Final 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

[[Page 2946]]

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 Final Rule?

    No, EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures costs of $100 million or more 
for State, local, and tribal governments in the aggregate, or the 
private sector in any one year. 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.
    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?

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), EPA generally is required to conduct a regulatory flexibility 
analysis describing the impact of the rule on small entities.

B. Has EPA Conducted a Regulatory Flexibility Analysis for This Rule?

    No. Under section 605(b) of the RFA, EPA is not required to prepare 
a regulatory flexibility analysis if the Agency certifies that the rule 
will not have a substantial economic impact on a substantial number of 
small entities.
    While this rule revises the NPL, an NPL revision is not a typical 
regulatory change since it does not automatically impose costs. As 
stated above, adding a site 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 any cleanup at the site. Further, no identifiable 
groups are affected. 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 site in this rule on the 
NPL could significantly affect certain industries, or firms within 
industries, that have caused a proportionately high percentage of waste 
site problems. However, EPA does not expect the listing of this site 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 deciding on enforcement 
actions, including not only a firm's contribution to the problem, but 
also its ability to pay. The impacts (from cost recovery) on small 
governments and nonprofit organizations would be determined on a 
similar case-by-case basis.
    For the foregoing reasons, I hereby certify that this rule will not 
have a significant economic impact on a substantial number of small 
entities. Therefore, this regulation does not require a regulatory 
flexibility analysis.

VII. Possible Changes to the Effective Date of the Rule

A. Has This Rule Been Submitted to Congress and the General Accounting 
Office?

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A ``major 
rule'' cannot take effect until 60 days after it is published in the 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

B. Could the Effective Date of This Final Rule Change?

    Provisions of the Congressional Review Act (CRA) or section 305 of 
CERCLA may alter the effective date of this regulation.
    Under the CRA, 5 U.S.C. 801(a), before a rule can take effect the 
federal agency promulgating the rule must submit a report to each House 
of the Congress and to the Comptroller General. This report must 
contain a copy of the rule, a concise general statement relating to the 
rule (including whether it is a major rule), a copy of the cost-benefit 
analysis of the rule (if any), the agency's actions relevant to 
provisions of the Regulatory Flexibility Act (affecting small 
businesses) and the Unfunded Mandates Reform Act of 1995 (describing 
unfunded federal requirements imposed on state and local governments 
and the private sector), and any other relevant information or 
requirements and any relevant Executive Orders.
    EPA has submitted a report under the CRA for this rule. The rule 
will take effect, as provided by law, within 30 days of publication of 
this document, since it is not a major rule. Section 804(2) defines a 
major rule as any rule that the Administrator of the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB) finds has resulted in or is likely to result in: an 
annual effect on the economy of $100,000,000 or more; a major increase 
in costs or prices for consumers, individual industries, Federal, 
State, or local government

[[Page 2947]]

agencies, or geographic regions; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets. NPL listing is not a 
major rule because, as explained above, the listing, itself, imposes no 
monetary costs on any person. It establishes no enforceable duties, 
does not establish that EPA necessarily will undertake remedial action, 
nor does it require any action by any party or determine its liability 
for site response costs. Costs that arise out of site responses result 
from site-by-site decisions about what actions to take, not directly 
from the act of listing itself. Section 801(a)(3) provides for a delay 
in the effective date of major rules after this report is submitted.

C. What Could Cause the Effective Date of This Rule to Change?

    Under 5 U.S.C. 801(b)(1) a rule shall not take effect, or continue 
in effect, if Congress enacts (and the President signs) a joint 
resolution of disapproval, described under section 802.
    Another statutory provision that may affect this rule is CERCLA 
section 305, which provides for a legislative veto of regulations 
promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. 
Ct. 2764 (1983) and Bd. of Regents of the University of Washington v. 
EPA, 86 F.3d 1214,1222 (D.C. Cir. 1996) cast the validity of the 
legislative veto into question, EPA has transmitted a copy of this 
regulation to the Secretary of the Senate and the Clerk of the House of 
Representatives.
    If action by Congress under either the CRA or CERCLA section 305 
calls the effective date of this regulation into question, EPA will 
publish a document of clarification in the Federal Register.

VIII. 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 directs 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 Final Rule?

    EPA is not using technical standards as part of today's rule, which 
adds sites to the NPL. Therefore, the Agency did not consider the use 
of any voluntary consensus standards.

IX. 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 Final 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.

X. 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 Final Rule?

    No. EPA has determined that the PRA does not apply because this 
rule does not contain any information collection requirements that 
require the approval of OMB.

XI. Executive Order 12875

What is Executive Order 12875 and is it Applicable to This Final 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, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to 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, 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.''
    Today's 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.

XII. Executive Order 13084

What is Executive Order 13084 and is it Applicable to This Final 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to 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

[[Page 2948]]

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 
officials 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. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

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.

    Dated: January 11, 1999.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.

    40 CFR part 300 is amended as follows:

PART 300--[AMENDED]

    1. The authority citation for part 300 continues to read as 
follows:

    Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 
2923, 3 CFR, 1987 Comp., p. 193.

    2. Table 1 and Table 2 of Appendix B to part 300 are amended by 
adding the following sites in alphabetical order to read as follows:

Appendix B to Part 300--National Priorities List

                                       Table 1.--General Superfund Section
----------------------------------------------------------------------------------------------------------------
         State                  Site name                         City/county                      Notes(a)
----------------------------------------------------------------------------------------------------------------
 
      *                   *                   *                   *                   *                   *
                                                           *
CA.....................  Lava Cap Mine..........  Nevada City
 
      *                   *                   *                   *                   *                   *
                                                           *
CA.....................  Omega Chemical           Whittier
                          Corporation.
 
      *                   *                   *                   *                   *                   *
                                                           *
CA.....................  Pemaco Maywood.........  Maywood
 
      *                   *                   *                   *                   *                   *
                                                           *
LA.....................  Delatte Metals.........  Ponchatoula
 
      *                   *                   *                   *                   *                   *
                                                           *
MN.....................  Fridley Commons Park     Fridley
                          Well Field.
 
      *                   *                   *                   *                   *                   *
                                                           *
NC.....................  Davis Park Road TCE....  Gastonia
 
      *                   *                   *                   *                   *                   *
                                                           *
NJ.....................  Federal Creosote.......  Manville Borough
 
      *                   *                   *                   *                   *                   *
                                                           *
NM.....................  North Railroad Avenue    Espanola
                          Plume.
 
      *                   *                   *                   *                   *                   *
                                                           *
NY.....................  Hiteman Leather........  West Winfield
 
      *                   *                   *                   *                   *                   *
                                                           *
NY.....................  Lehigh Valley Railroad.  Le Roy
 
      *                   *                   *                   *                   *                   *
                                                           *
NY.....................  Mohonk Road Industrial   High Falls
                          Plant.
 
      *                   *                   *                   *                   *                   *
                                                           *
NY.....................  Smithtown Ground Water   Smithtown
                          Contamination.
 
      *                   *                   *                   *                   *                   *
                                                           *
OK.....................  Tulsa Fuel and           Collinsville
                          Manufacturing.
 
      *                   *                   *                   *                   *                   *
                                                           *
TX.....................  City of Perryton Well    Perryton
                          No. 2.
 
      *                   *                   *                   *                   *                   *
                                                           *
TX.....................  Many Diversified         Houston
                          Interests, Inc.
 
      *                   *                   *                   *                   *                   *
                                                           *
VT.....................  Pownal Tannery.........  Pownal
 
      *                   *                   *                   *                   *                   *
                                                           *
----------------------------------------------------------------------------------------------------------------


[[Page 2949]]


                                      Table 2.--Federal Facilities Section
----------------------------------------------------------------------------------------------------------------
         State                  Site name                         City/county                      Notes(a)
----------------------------------------------------------------------------------------------------------------
 
      *                   *                   *                   *                   *                   *
                                                           *
NJ.....................  Middlesex Sampling       Middlesex
                          Plant (USDOE).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 99-1020 Filed 1-15-99; 8:45 am]
BILLING CODE 6560-50-P