[Federal Register Volume 69, Number 156 (Friday, August 13, 2004)]
[Proposed Rules]
[Pages 50115-50122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18655]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-7796-6]


National Priorities List for Uncontrolled Hazardous Waste Site, 
Proposed Rule

AGENCY: Environmental Protection Agency.

ACTION: Proposed Rule.

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SUMMARY: The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (``CERCLA'' or ``the Act''), as amended, requires 
that the National Oil and Hazardous Substances Pollution Contingency 
Plan (``NCP'') include a list of national priorities among the known 
releases or threatened releases of hazardous substances, pollutants, or 
contaminants throughout the United States. The National Priorities List 
(``NPL'') constitutes this list. The NPL is intended primarily to guide 
the Environmental Protection Agency (``EPA'' or ``the Agency'') in 
determining which sites warrant further investigation. These further 
investigations will allow EPA to assess the nature and extent of public 
health and environmental risks associated with the site and to 
determine what CERCLA-financed remedial action(s), if any, may be 
appropriate. This rule proposes two different options to add certain 
areas on and around the islands of Vieques and Culebra, Commonwealth of 
Puerto Rico, to the NPL. The Commonwealth has identified these areas 
collectively in its listing request as the Atlantic Fleet Weapons 
Training Area (``AFWTA'').

DATES: Comments regarding this proposed listing must be submitted 
(postmarked) on or before October 12, 2004.

ADDRESSES: By electronic access: Go directly to EPA Dockets at http://www.epa.gov/edocket and follow the online instructions for submitting 
comments. Once in the system, select ``search,'' and then key Docket ID 
No. SFUND-2004-0011. The system is an ``anonymous access'' system, 
which means EPA will not know your identity, e-mail address, or other 
contact information unless you provide it in the body of your comment.
    By Postal Mail: Mail original and three copies of comments (no 
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. 
Environmental Protection Agency; CERCLA Docket Office; (Mail Code 
5305T); 1200 Pennsylvania Avenue NW.; Washington, DC 20460, Attention 
Docket ID No. SFUND-2004-0011.
    By Express Mail or Courier: Send original and three copies of 
comments (no facsimiles or tapes) to Docket Coordinator, Headquarters; 
U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 
Constitution Avenue; EPA West, Room B102, Washington, DC 20004, 
Attention Docket ID No. SFUND-2004-0011. Such deliveries are only 
accepted during the Docket's normal hours of operation (8:30 a.m. to 
4:30 p.m., Monday through Friday excluding Federal holidays).
    By E-Mail: Comments in ASCII format only may be mailed directly to 
[email protected]. Cite the Docket ID No. SFUND-2004-0011 in 
your electronic file. Please note that EPA's e-mail system 
automatically captures your e-mail address and is included as part of 
the comment that is placed in the public dockets, and made available in 
EPA's electronic public docket.
    For additional Docket addresses and further details on their 
contents, see section II, ``Public Review/Public Comment,'' of the 
Supplementary Information portion of this preamble.

FOR FURTHER INFORMATION CONTACT: Terry Jeng, phone (703) 603-8852, 
State, Tribal and Site Identification Branch; Assessment and 
Remediation Division; Office of Superfund Remediation and Technology 
Innovation (Mail Code 5204G); U.S. Environmental Protection Agency; 
1200 Pennsylvania Avenue NW., 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?

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    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. May EPA Delete Portions of Sites From the NPL as They Are 
Cleaned Up?
    I. What Is the Construction Completion List (CCL)?
II. Public Review/Public Comment
    A. May I Review the Documents Relevant to This Proposed Rule?
    B. How Do I Access the Documents?
    C. What Documents Are Available for Public Review at the 
Headquarters and Region 2 Dockets?
    D. How Do I Submit My Comments?
    E. What Happens to My Comments?
    F. What Should I Consider When Preparing My Comments?
    G. May I Submit Comments After the Public Comment Period Is 
Over?
    H. May I View Public Comments Submitted by Others?
    I. May I Submit Comments Regarding Sites Not Currently Proposed 
to the NPL?
III. Contents of This Proposed Rule
    A. Proposed Addition to the NPL
    B. Status of NPL
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    1. What Is Executive Order 12866?
    2. Is This Proposed Rule Subject to Executive Order 12866 
Review?
    B. Paperwork Reduction Act
    1. What Is the Paperwork Reduction Act?
    2. Does the Paperwork Reduction Act Apply to This Proposed Rule?
    C. Regulatory Flexibility Act
    1. What Is the Regulatory Flexibility Act?
    2. How Has EPA Complied With the Regulatory Flexibility Act?
    D. Unfunded Mandates
    1. What Is the Unfunded Mandates Reform Act (UMRA)?
    2. Does UMRA Apply to This Proposed Rule?
    E. Executive Orders on Federalism
    1. What Are the Executive Orders on Federalism and Are They 
Applicable to This Proposed Rule?
    F. Executive Order 13175
    1. What Is Executive Order 13175?
    2. Does Executive Order 13175 Apply to This Proposed Rule?
    G. Executive Order 13045
    1. What Is Executive Order 13045?
    2. Does Executive Order 13045 Apply to This Proposed Rule?
    H. Executive Order 13211
    1. What Is Executive Order 13211?
    2. Is This Rule Subject to Executive Order 13211?
    I. National Technology Transfer and Advancement Act
    1. What Is the National Technology Transfer and Advancement Act?
    2. Does the National Technology Transfer and Advancement Act 
Apply to This Proposed Rule?

I. Background

A. What Are CERCLA and SARA?

    In 1980, Congress enacted the Comprehensive Environmental Response, 
Compensation, and Liability Act, 42 U.S.C. 9601-9675 (``CERCLA'' or 
``the Act''), in response to the dangers of uncontrolled releases or 
threatened releases of hazardous substances and releases or substantial 
threats of releases into the environment of any pollutant or 
contaminant which may present an imminent or substantial danger to the 
public health or welfare. CERCLA was amended on October 17, 1986, by 
the Superfund Amendments and Reauthorization Act (``SARA''), Pub. L. 
99-499, 100 Stat. 1613 et seq. As part of SARA, Congress created the 
Defense Environmental Restoration Program (DERP), 10 U.S.C. 2701, et 
seq., which authorized the Secretary of Defense to carry out 
restoration activities on current and former military facilities. Under 
Executive Order 12580, the Secretary of Defense exercises the 
President's authority under sections 104(a), (b) and (c)(4), 113(k), 
117(a) and (c)), 119, and 121 of CERCLA with respect to releases or 
threatened releases where either the release is on or the sole source 
of the release is from any facility or vessel under the jurisdiction, 
custody, or control of the Department of Defense. The Secretary of 
Defense has delegated this authority to the Secretary of the Navy for 
sites the Department of the Navy controlled after 1986, which includes 
both the eastern and western portions of Vieques. The U.S. Army, 
through the U.S. Army Corps of Engineers (USACE), executes DERP's 
Formerly Used Defense Sites (FUDS) Program in accordance with CERCLA 
and the National Contingency Plan (NCP), and is authorized under this 
program to conduct investigation and response actions relating to areas 
on Culebra that were once under Defense jurisdiction.

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, or releases or substantial threats of 
releases into the environment of any pollutant or contaminant which may 
present an imminent or substantial danger to the public health or 
welfare. 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 of hazardous substances, pollutants or contaminants 
(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, 
pollutants or contaminants. 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.
    For purposes of listing, 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 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

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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. This listing proposal is not based on 
scoring pursuant to the HRS. (2) Pursuant to 42 U.S.C. 9605(a)(8)(B), 
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)). This is the option chosen by 
Puerto Rico for the Vieques and Culebra areas addressed in this listing 
proposal; (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 
July 22, 2004 (69 FR 43755).
    In addition, as a matter of policy, EPA may defer sites or portions 
of sites from the NPL. (See, e.g., 56 FR 5601-5602, See also ``Guidance 
on Deferral of NPL Listing Determinations While States Oversee Response 
Actions,'' OSWER Directive 9375.6-11.)

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. Response 
activities undertaken by DoD components pursuant to DERP receive their 
funding from specific environmental restoration accounts under 10 
U.S.C. 2703, not from the Trust Fund.

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 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. Because Puerto Rico has proposed to add 
certain areas on and around Vieques and Culebra as the Commonwealth's 
``single highest priority facility'' pursuant to 42 U.S.C. 
9605(a)(8)(B), no specific HRS analysis is applicable to this listing 
proposal.
    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 name ``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 problem 
presented by the 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 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

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more information about the location of the contamination or release.

G. How Are Sites Removed From the NPL?

    EPA may delete sites from the NPL where no further response is 
appropriate under Superfund, as explained in the NCP at 40 CFR 
300.425(e). This section also provides that EPA shall consult with 
States on proposed deletions and shall consider whether any of the 
following criteria have been met:
    (vii) Responsible parties or other persons have implemented all 
appropriate response actions required;
    (viii) All appropriate Superfund-financed response has been 
implemented and no further response action is required; or
    (ix) 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 August 9, 2004, the Agency 
has deleted 285 sites from the NPL.

H. May EPA Delete Portions of Sites 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 August 9, 
2004, EPA has deleted 45 portions of 37 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.
    As of August 9, 2004, there are a total of 899 sites on the CCL. 
For the most up-to-date information on the CCL, see EPA's Internet site 
at http://www.epa.gov/superfund.

II. Public Review/Public Comment

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

    Yes, documents that form the basis for evaluations by Puerto Rico, 
EPA, and other agencies concerning the site in this rule are contained 
in public dockets located both at EPA Headquarters in Washington, DC 
and in the Region 2 office.

B. How Do I Access the Documents?

    You may view the documents, by appointment only, in the 
Headquarters or the Regional docket after the publication of this 
proposed rule. The hours of operation for the Headquarters docket are 
from 9 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. Please contact the Region 2 docket for hours.
    The following is the contact information for the EPA Headquarters 
docket: Docket Coordinator, Headquarters; U.S. Environmental Protection 
Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room 
B102, Washington, DC 20004, (202) 566-0276. (Please note this is a 
visiting address only. Mail comments to EPA Headquarters as detailed at 
the beginning of this preamble.)
    The contact information for the Region 2 docket is as follows: 
Dennis Munhall, Region 2, U.S. EPA, 290 Broadway, New York, NY 10007-
1866; (212) 637-4343.
    You may also request copies from either the EPA Headquarters or the 
Region 2 docket. An informal request, rather than a formal written 
request under the Freedom of Information Act, should be the ordinary 
procedure for obtaining copies of any of these documents.
    You may also access this Federal Register document electronically 
through the EPA Internet under the ``Federal Register'' listings at 
http://www.epa.gov/fedrgstr. You may use EPA Dockets at http://www.epa.gov/edocket to access the index listing of the contents of the 
Headquarters docket, and to access those documents in the Headquarters 
docket. Once in the system, select ``search'', then key in the Docket 
ID No. SFUND-2004-0011. The documents contained in the Headquarters and 
Region 2 Dockets are outlined below.

C. What Documents Are Available for Public Review at the Headquarters 
and Region 2 Dockets?

    The Headquarters and Region 2 dockets for this rule contain: The 
June 13, 2003 letter from Governor Sila M. Calderon of Puerto Rico 
designating certain areas on and around Vieques and Culebra, identified 
by the Governor as AFWTA, as her highest priority facility and 
requesting listing of AFWTA on the NPL; additional letters from Puerto 
Rico clarifying the June 13, 2003 letter; maps; ecological information 
for Vieques and Culebra; Corps of Engineers Archive search for Culebra; 
and Navy supporting material.

D. How Do I Submit My Comments?

    Comments must be submitted to EPA Headquarters as detailed at the 
beginning of this preamble in the Addresses section. Please note that 
the addresses differ according to method of delivery. There are two 
different addresses that depend on whether comments are sent by express 
mail or by postal mail.

E. What Happens to My Comments?

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

F. What Should I Consider When Preparing My Comments?

    EPA is soliciting comments on the listing of certain areas on and 
around Vieques and Culebra, identified by the Governor collectively as 
the AFWTA, and requested by the Governor of Puerto Rico pursuant to 42 
U.S.C. 9605(a)(8)(b). EPA is also soliciting comments on an approach 
for final listing that would separate the final listing decision for 
the Culebra from Vieques (see a more detailed description of this 
approach below under Section III.A. ``Contents of this Proposed 
Rule''). In addition EPA is seeking comment on treating the 
noncontiguous islands of Vieques and Culebra as one facility, 
considering court decisions such as Mead Corp. v. Browner, 100 F 3d 152 
(D.C. Cir. 1996).

G. May I Submit Comments After the Public Comment Period Is Over?

    Generally, EPA will not respond to late comments. EPA can only 
guarantee that it will consider those comments postmarked by the close 
of the formal comment period. EPA has a policy of not delaying a final 
listing decision solely to accommodate consideration of late comments.

H. May I View Public Comments Submitted by Others?

    During the comment period, comments are placed in the Headquarters 
docket and are available to

[[Page 50119]]

the public on an ``as received'' basis. A complete set of comments will 
be available for viewing in the Regional dockets approximately one week 
after the formal comment period closes.
    All public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, Confidential Business Information (CBI), 
or other information whose disclosure is restricted by statute. For 
additional information about EPA's electronic public docket, visit EPA 
Dockets online at http://www.epa.gov/edocket or see the May 31, 2002 
Federal Register (67 FR 38102).

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

    In certain instances, interested parties have written to EPA 
concerning sites which were not at that time proposed to the NPL. If 
those sites are later proposed to the NPL, parties should review their 
earlier concerns and, if still appropriate, resubmit those concerns for 
consideration during the formal comment period. Site-specific 
correspondence received prior to the period of formal proposal and 
comment will not generally be included in the docket.

III. Contents of This Proposed Rule

A. Proposed Addition to the NPL

    Pursuant to section 105 (a)(8)(B) of CERCLA, Puerto Rico has 
requested that EPA propose to list certain areas on and around Vieques 
and Culebra, identified by the Governor as the AFWTA, on the NPL. The 
AFWTA includes certain land areas, waters and keys in and around the 
islands of Vieques and Culebra where military exercises carried out 
primarily by the Department of Defense have potentially left CERCLA 
hazardous substances, pollutants or contaminants.
    Section 105(a)(8)(B) of CERCLA provides that the NPL ``to the 
extent practicable, shall include among the one hundred highest 
priority facilities one such facility from each State which shall be 
the facility designated by the State as presenting the greatest danger 
to public health or welfare or the environment among the known 
facilities in such State. A State shall be allowed to designate its 
highest priority facility only once.'' In a letter from Governor Sila 
M. Calderon to former EPA Administrator Christine Todd Whitman dated 
June 13, 2003, Puerto Rico designated the AFWTA, comprising certain 
areas of concern in and around Vieques and Culebra as the 
Commonwealth's single highest priority facility (``State pick'') and 
requested that EPA list the AFWTA on the NPL. Puerto Rico clarified its 
designation in letters dated October 21, 2003 , and July 28, 2004 with 
respect to both Vieques and Culebra, and May 26, 2004 with respect to 
Vieques. Support for Puerto Rico's designation of the AFWTA as their 
highest priority facility and a detailed description of areas 
preliminarily identified as part of the facility or as requiring 
investigation can be found in the docket for this rulemaking. EPA seeks 
comment on treating the noncontiguous islands of Vieques and Culebra as 
one facility considering court decisions such as Mead Corp. v. Browner, 
100 F.3d. 152 (D.C. Cir. 1996). The Mead court rejected EPA's attempt 
to treat non-contiguous sites as one NPL site in a case in which one of 
the sites qualified for listing on the basis of an ATSDR advisory. The 
only rationale presented for combining the two sites for the purposes 
of the listing was that there were joint operations carried out at the 
two sites. In the Mead case, EPA had relied on a 1984 aggregation 
policy (49 FR 37,070 (Sept. 21, 1984)) that was premised on language in 
section 104(d)(4) of CERCLA which authorizes EPA to treat non-
contiguous facilities as one for purposes of section 104. EPA no longer 
relies on the 1984 aggregation policy in the listing context.
    EPA would also like to solicit comment on an approach that would 
separate the final listing decision for Culebra from the final listing 
decision for Vieques. Under such an approach, EPA would go forward with 
a final rule listing Vieques and postpone the final listing decision of 
Culebra to allow the completion of a Memorandum of Agreement between 
Puerto Rico and Army. The Memorandum of Agreement would govern the 
response actions necessary to protect Culebra's human health and 
environment. The EPA, Puerto Rico and the Army have agreed to pursue 
this alternate arrangement. The terms or progress under such agreement 
may determine the point at which it may be appropriate to withdraw the 
proposal to list the Culebra areas. EPA's intent would be to allow the 
Culebra areas to be addressed by the two parties under their agreement.
    The Culebra portions of the proposal consist of land and water 
areas identified by Puerto Rico that were owned by, leased to, or 
otherwise utilized by the United States and under the jurisdiction of 
the Secretary of Defense that potentially contain CERCLA hazardous 
substances, pollutants or contaminants left from past military 
activities. These land areas and associated water areas include, but 
are not limited to, the following: the Flamenco Peninsula (Northwest 
Peninsula), Alcarraza Cay (Fungy Bowl), Los Gemelos (Twin Rocks), Cayo 
del Agua, Culebrita, Cayos Geniqui (Palada Cays), Cayo Tiburon (Shark 
Cay), Cayo Botella (Ladrone Cay), and a former mortar range Area in 
Culebra's Cerro Balcon region. Vieques includes all areas agreed to by 
Puerto Rico and the Navy in May 26, 2004 letter to EPA. For more 
detailed information on the Vieques portions, please refer to the May 
26, 2004 letter with attached maps in the Docket (Docket ID No. SFUND-
2004-0011). The description of the site may change as more information 
is gathered on the nature and extent of contamination.

B. Status of NPL

    With this proposal, there are now 57 sites proposed and awaiting 
final agency action, 50 in the General Superfund Section and 7 in the 
Federal Facilities Section. There are currently 1,242 final sites, 
1,084 in the General Superfund Section and 158 in the Federal 
Facilities Section. Final and proposed sites now total 1,299. (These 
numbers reflect the status of sites as of August 9, 2004. Site 
deletions occurring after this date may affect these numbers at time of 
publication in the Federal Register.)

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

1. 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

[[Page 50120]]

mandates, the President's priorities, or the principles set forth in 
the Executive Order.
2. Is This Proposed Rule Subject to Executive Order 12866 Review?
    No. The listing of sites on the NPL does not impose any obligations 
on any entities. The listing does not set standards or a regulatory 
regime and imposes no liability or costs. Any liability under CERCLA 
exists irrespective of whether a site is listed. It has been determined 
that this action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is therefore not subject to OMB 
review.

B. Paperwork Reduction Act

1. 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).
2. Does the Paperwork Reduction Act Apply to This Proposed Rule?
    No. EPA has determined that the PRA does not apply because this 
rule does not contain any information collection requirements that 
require approval of the OMB.

C. Regulatory Flexibility Act

1. What Is the Regulatory Flexibility Act?
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities.
2. How Has EPA Complied With the Regulatory Flexibility Act?
    This proposed rule listing sites on the NPL, if promulgated, would 
not impose any obligations on any group, including small entities. This 
proposed rule, if promulgated, also would establish no standards or 
requirements that any small entity must meet, and would impose no 
direct costs on any small entity. Whether an entity, small or 
otherwise, is liable for response costs for a release or threatened 
release of hazardous substances and releases or substantial threats of 
releases into the environment of any pollutant or contaminant which may 
present an imminent or substantial danger to the public health or 
welfare depends on whether that entity is liable under CERCLA 107(a). 
Any such liability exists regardless of whether the site is listed on 
the NPL through this rulemaking. Thus, this proposed rule, if 
promulgated, would not impose any requirements on any small entities. 
For the foregoing reasons, I certify that this proposed rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities.

D. Unfunded Mandates Reform Act

1. What Is the Unfunded Mandates Reform Act (UMRA)?
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before EPA promulgates a rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
2. Does UMRA Apply to This Proposed Rule?
    No, EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments in the aggregate, or by 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 or other 
Federal agencies or private parties 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.

E. Executive Order 13132: Federalism

1. What Is Executive Order 13132 and Is It Applicable to This Proposed 
Rule?
    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism

[[Page 50121]]

implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States (including the 
Commonwealth of Puerto Rico), on the relationship between the Federal 
government and the States and the Commonwealth, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

1. What Is Executive Order 13175?
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
2. Does Executive Order 13175 Apply to This Proposed Rule?
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this proposed rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

1. 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 Executive Order 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.
2. Does Executive Order 13045 Apply to This Proposed Rule?
    This proposed rule is not subject to Executive Order 13045 because 
it is not an economically significant rule as defined by Executive 
Order 12866, and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this proposed rule 
present a disproportionate risk to children.

H. Executive Order 13211

1. What Is Executive Order 13211?
    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001), requires EPA to prepare and submit a Statement of 
Energy Effects to the Administrator of the Office of Information and 
Regulatory Affairs, Office of Management and Budget, for certain 
actions identified as ``significant energy actions.'' Section 4(b) of 
Executive Order 13211 defines ``significant energy actions'' as ``any 
action by an agency (normally published in the Federal Register) that 
promulgates or is expected to lead to the promulgation of a final rule 
or regulation, including notices of inquiry, advance notices of 
proposed rulemaking, and notices of proposed rulemaking: (1)(i) that is 
a significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action.''
2. Is This Rule Subject to Executive Order 13211?
    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866 (See 
discussion of Executive Order 12866 above.)

I. National Technology Transfer and Advancement Act

1. What Is the National Technology Transfer and Advancement Act?
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub. L. 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.
2. Does the National Technology Transfer and Advancement Act Apply to 
This Proposed Rule?
    No. This proposed rulemaking does not involve technical standards. 
Therefore, EPA did not consider the use of any voluntary consensus 
standards.

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.


[[Page 50122]]


    Dated: August 10, 2004.
Thomas P. Dunne,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.

    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.

[FR Doc. 04-18655 Filed 8-12-04; 8:45 am]
BILLING CODE 6560-50-P