[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]
[[Page 2941]]
_______________________________________________________________________
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.
[[Page 2945]]
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