National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 18

[[Page 8212]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-5154-6]

National Priorities List for Uncontrolled Hazardous Waste Sites,

Proposed Rule No. 18

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 Environmental Protection Agency (``EPA'') proposes to add new

sites to the NPL. This 18th proposed revision to the NPL includes 7

sites in the General Superfund Section and 2 in the Federal Facilities

Section. 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 the

site and to determine what CERCLA-financed remedial action(s), if any,

may be appropriate. The NPL is not intended to define the boundaries of

a site or to determine the extent of contamination (see Section II,

subsection, ``Facility Boundaries''). This action does not affect the

1,241 sites currently listed on the NPL (1,087 in the General Superfund

Section and 154 in the Federal Facilities Section). However, it does

increase the number of proposed sites to 55 (47 in the General

Superfund Section and 8 in the Federal Facilities Section). Final and

proposed sites now total 1,296.

DATES: Comments must be submitted on or before April 14, 1995.

ADDRESSES: Mail original and three copies of comments (no facsimiles or

tapes) to Docket Coordinator, Headquarters; U.S. EPA; CERCLA Docket

Office; (Mail Code 5201G); 401 M Street, SW; Washington, DC 20460; 703/

603-8917. Please note this is the mailing address only. If you wish to

visit the HQ Docket to view documents, and for additional Docket

addresses and further details on their contents, see Section I of the

``Supplementary Information'' portion of this preamble.

FOR FURTHER INFORMATION CONTACT: Terry Keidan, Hazardous Site

Evaluation Division, 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:

I. Introduction

II. Purpose and Implementation of the NPL

III. Contents of This Proposed Rule

IV. Executive Order 12866

V. Regulatory Flexibility Act Analysis

I. Introduction

Background

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 hazardous waste

sites. CERCLA was amended on October 17, 1986, by the Superfund

Amendments and Reauthorization Act (``SARA''), Public Law No. 99-499,

100 stat. 1613 et seq. To implement CERCLA, the Environmental

Protection Agency (``EPA'' or ``the Agency'') promulgated the revised

National Oil and Hazardous Substances Pollution Contingency Plan

(``NCP''), 40 CFR Part 300, on July 16, 1982 (47 FR 31180), pursuant to

CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20,

1981). The NCP sets forth the guidelines and procedures needed to

respond under CERCLA to releases and threatened releases of hazardous

substances, pollutants, or contaminants. EPA has revised the NCP on

several occasions. The most recent comprehensive revision was on March

8, 1990 (55 FR 8666).

Section 105(a)(8)(A) of CERCLA requires that the NCP include

``criteria for determining priorities among releases or threatened

releases throughout the United States for the purpose of taking

remedial action. . . and, to the extent practicable taking into account

the potential urgency of such action, for the purpose of taking removal

action.'' ``Removal'' actions are defined broadly and include a wide

range of actions taken to study, clean up, prevent or otherwise address

releases and threatened releases. 42 USC 9601(23). ``Remedial''

actions'' are those ``consistent with permanent remedy, taken instead

of or in addition to removal actions * * *.'' 42 USC 9601(24).

Pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA

has promulgated a list of national priorities among the known or

threatened releases of hazardous substances, pollutants, or

contaminants throughout the United States. That list, which is Appendix

B of 40 CFR Part 300, is the National Priorities List (``NPL'').

CERCLA section 105(a)(8)(B) defines the NPL as a list of

``releases'' and as a list of the highest priority ``facilities.'' The

discussion below may refer to the ``releases or threatened releases''

that are included on the NPL interchangeably as ``releases,''

``facilities,'' or ``sites.''

CERCLA section 105(a)(8)(B) also requires that the NPL be revised

at least annually. A site may undergo remedial action financed by the

Trust Fund established under CERCLA (commonly referred to as the

``Superfund'') only after it is placed on the NPL, as provided in the

NCP at 40 CFR 300.425(b)(1). However, under 40 CFR 300.425(b)(2)

placing a site on the NPL ``does not imply that monies will be

expended.'' EPA may pursue other appropriate authorities to remedy the

releases, including enforcement action under CERCLA and other laws.

Three mechanisms for determining priorities for possible remedial

actions are included in the NCP at 40 CFR 300.425(c) (55 FR 8845, March

8, 1990). Under 40 CFR 300.425(c)(1), a site may be included on the NPL

if it scores sufficiently high on the Hazard Ranking System (``HRS''),

which is Appendix A of 40 CFR Part 300. On December 14, 1990 (55 FR

51532), EPA promulgated revisions to the HRS partly in response to

CERCLA section 105(c), added by SARA. The revised HRS evaluates four

pathways: ground water, surface water, soil exposure, and air. The HRS

serves as a screening device to evaluate the relative potential of

uncontrolled hazardous substances, pollutants, and contaminants to pose

a threat to human health or the environment. Those sites that score

28.50 or greater on the HRS are eligible for the NPL.

Under a second mechanism for adding sites to the NPL, each State

may designate a single site as its top priority, regardless of the HRS

score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2),

requires that, to the extent practicable, the NPL include within the

100 highest priorities, one facility designated by each State

representing the greatest danger to public health, welfare, or the

environment among known facilities in the State.

The third mechanism for listing, included in the NCP at 40 CFR

300.425(c)(3), allows certain sites to be [[Page 8213]] listed whether

or not they score above 28.50, 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

December 16, 1994 (59 FR 65206).

The NPL includes two sections, one of sites being evaluated and

cleaned up by EPA (the ``General Superfund Section''), and one of sites

being addressed by other Federal agencies (the ``Federal Facilities

Section''). Under Executive Order 12580 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 if the

facility is placed on the NPL. EPA is not the lead agency at these

sites, and its role at such sites is accordingly less extensive than at

other sites. The Federal Facilities Section includes those facilities

at which EPA is not the lead agency.

Deletions/Cleanups

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) (55 FR 8845, March 8, 1990). To date, the Agency has deleted

68 sites from the General Superfund Section of the NPL, most recently

Suffolk City Landfill, Suffolk, Virginia (60 FR 4568, January 24,

1995).

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). 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. Inclusion of a site on the

CCL has no legal significance.

In addition to the 67 sites that have been deleted from the NPL

because they have been cleaned up (the Waste Research and Reclamation

site was deleted based on deferral to another program and is not

considered cleaned up), an additional 215 sites are also in the NPL

CCL, all but two from the General Superfund Section. Thus, as of

January 25, 1995, the CCL consists of 282 sites.

Cleanups at sites on the NPL do not reflect the total picture of

Superfund accomplishments. As of December 1994, EPA had conducted 649

removal actions at NPL sites, and 2,357 removal actions at non-NPL

sites. Information on removals is available from the Superfund hotline.

Pursuant to the NCP at 40 CFR 300.425(c), this document proposes to

add 9 sites to the NPL. The General Superfund Section currently

includes 1,087 sites, and the Federal Facilities Section includes 154

sites, for a total of 1,241 sites on the NPL. An additional 55 sites

are proposed, 47 in the General Superfund Section and 8 in the Federal

Facilities Section. Final and proposed sites now total 1,296.

Public Comment Period

The documents that form the basis for EPA's evaluation and scoring

of sites in this rule are contained in dockets located both at EPA

Headquarters and in the appropriate Regional offices. The dockets are

available for viewing, by appointment only, after the appearance of

this rule. The hours of operation for the Headquarters docket are from

9:00 a.m. to 4:00 p.m., Monday through Friday excluding Federal

holidays. Please contact individual Regional dockets for hours.

Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, (Mail

Code 5201G), Crystal Gateway #1, 12th Floor, 1235 Jefferson Davis

Highway, Arlington, VA 22202, 703/603-8917. (Please note this is

visiting address only. Mail comments to address listed in Addresses

section above.)

Ellen Culhane, Region 1, U.S. EPA Waste Management Records Center, HES-

CAN 6, J.F. Kennedy Federal Building, Boston, MA 02203-2211, 617/573-

5729

Walter Schoepf, Region 2, U.S. EPA, 26 Federal Plaza, New York, NY

10278 212/264-0221

Diane McCreary, Region 3, U.S. EPA Library, 3rd Floor, 841 Chestnut

Building, 9th & Chestnut Streets, Philadelphia, PA 19107, 215/597-7904

Kathy Piselli, Region 4 U.S. EPA, 345 Courtland Street, NE., Atlanta,

GA 30365, 404/347-4216

Cathy Freeman, Region 5, U.S. EPA, Records Center, Waste Management

Division 7-J, Metcalfe Federal Building, 77 West Jackson Boulevard,

Chicago, IL 60604, 312/886-6214

Bart Canellas, Region 6, U.S. EPA, 1445 Ross Avenue, Mail Code 6H-MA,

Dallas, TX 75202-2733, 214/655-6740

Steven Wyman, Region 7, U.S. EPA Library, 726 Minnesota Avenue, Kansas

City, KS 66101, 913/551-7241

Greg Oberley, Region 8, U.S. EPA, 999 18th Street, Suite 500, Denver,

CO 80202-2466, 303/294-7598

Rachel Loftin, Region 9, U.S. EPA, 75 Hawthorne Street, San Francisco,

CA 94105, 415/744-2347

David Bennett, Region 10, U.S. EPA, 11th Floor, 1200 6th Avenue, Mail

Stop HW-114, Seattle, WA 98101, 206/553-2103

The Headquarters docket for this rule contains HRS score sheets for

each proposed site; a Documentation Record for each site describing the

information used to compute the score; information for any site

affected by particular statutory requirements or EPA listing policies;

and a list of documents referenced in the Documentation Record. Each

Regional docket for this rule contains all of the information in the

Headquarters docket for sites in that Region, plus the actual reference

documents containing the data principally relied upon and cited by EPA

in calculating or evaluating the HRS scores for sites in that Region.

These reference documents are available only in the Regional dockets.

Interested parties may view documents, by appointment only, in the

Headquarters or the appropriate Regional docket or copies may be

requested from the Headquarters or appropriate Regional docket. An

informal written request, rather than a formal request under the

Freedom of Information Act, should be the ordinary procedure for

obtaining copies of any of these documents.

EPA considers all comments received during the comment period.

During the comment period, comments are placed in the Headquarters

docket and are available to the public on an ``as received'' basis. A

complete set of comments will be available for viewing in the Regional

docket approximately one week after the formal comment period closes.

Comments received after the comment period closes will be available in

the Headquarters docket and in the Regional docket on an ``as

received'' basis. Comments that include complex or voluminous reports,

or [[Page 8214]] materials prepared for purposes other than HRS

scoring, should point out the specific information that EPA should

consider and how it affects individual HRS factor values. See Northside

Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988). EPA will

make final listing decisions after considering the relevant comments

received during the comment period.

In past rules, EPA has attempted to respond to late comments, or

when that was not practicable, to read all late comments and address

those that brought to the Agency's attention a fundamental error in the

scoring of a site. (See, most recently, 57 FR 4824 (February 7, 1992)).

Although EPA intends to pursue the same policy with sites in this rule,

EPA can guarantee that it will consider only 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.

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.

II. Purpose and Implementation of the NPL

Purpose

The legislative history of CERCLA (Report of the Committee on

Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d

Sess. 60 (1980)) states the primary purpose of the NPL:

The priority lists serve primarily informational purposes,

identifying for the States and the public those facilities and sites

or other releases which appear to warrant remedial actions.

Inclusion of a facility or site on the list does not in itself

reflect a judgment of the activities of its owner or operator, it

does not require those persons to undertake any action, nor does it

assign liability to any person. Subsequent government action in the

form of remedial actions or enforcement actions will be necessary in

order to do so, and these actions will be attended by all

appropriate procedural safeguards.

The purpose of the NPL, therefore, is primarily to serve as an

informational and management tool. The identification of a site for the

NPL is intended to guide EPA in determining which sites warrant further

investigation to assess the nature and extent of the public health and

environmental risks associated with the site and to determine what

CERCLA remedial action(s), if any, may be appropriate. The NPL also

serves to notify the public of sites that EPA believes warrant further

investigation. Finally, listing a site serves as notice to potentially

responsible parties that the Agency may initiate CERCLA-financed

remedial action.

Implementation

After initial discovery of a site at which a release or threatened

release may exist, EPA begins a series of increasingly complex

evaluations. The first step, the Preliminary Assessment (``PA''), is a

low-cost review of existing information to determine if the site poses

a threat to public health or the environment. If the site presents a

serious imminent threat, EPA may take immediate removal action. If the

PA shows that the site presents a threat but not an imminent threat,

EPA will generally perform a more extensive study called the Site

Inspection (``SI''). The SI involves collecting additional information

to better understand the extent of the problem at the site, screen out

sites that will not qualify for the NPL, and obtain data necessary to

calculate an HRS score for sites which warrant placement on the NPL and

further study. EPA may perform removal actions at any time during the

process. As of December 1994, EPA had completed 36,831 PAs and 17,790

SIs.

The NCP at 40 CFR 300.425(b)(1) (55 FR 8845, March 8, 1990) limits

expenditure of the Trust Fund for remedial actions to sites on the NPL.

However, EPA may take enforcement actions under CERCLA or other

applicable statutes against responsible parties regardless of whether

the site is on the NPL, although, as a practical matter, the focus of

EPA's CERCLA enforcement actions has been and will continue to be on

NPL sites. Similarly, in the case of CERCLA removal actions, EPA has

the authority to act at any site, whether listed or not, that meets the

criteria of the NCP at 40 CFR 300.415(b)(2) (55 FR 8842, March 8,

1990). EPA's policy is to pursue cleanup of NPL sites using all the

appropriate response and/or enforcement actions available to the

Agency, including authorities other than CERCLA. The Agency will decide

on a site-by-site basis whether to take enforcement or other action

under CERCLA or other authorities prior to undertaking response action,

proceed directly with Trust Fund-financed response actions and seek to

recover response costs after cleanup, or do both. To the extent

feasible, once sites are on the NPL, EPA will determine high-priority

candidates for CERCLA-financed response action and/or enforcement

action through both State and Federal initiatives. EPA will take into

account which approach is more likely to accomplish cleanup of the site

most expeditiously while using CERCLA's limited resources as

efficiently as possible.

Although the ranking of sites by HRS scores is considered, it does

not, by itself, determine the sequence in which EPA funds remedial

response actions, since the information collected to develop HRS scores

is not sufficient to determine either the extent of contamination or

the appropriate response for a particular site (40 CFR 300.425(b)(2),

55 FR 8845, March 8, 1990). Additionally, resource constraints may

preclude EPA from evaluating all HRS pathways; only those that present

significant risk or are sufficient to make a site eligible for the NPL

may be evaluated. Moreover, the sites with the highest scores do not

necessarily come to the Agency's attention first, so that addressing

sites strictly on the basis of ranking would in some cases require

stopping work at sites where it was already underway.

More detailed studies of a site are undertaken in the Remedial

Investigation/Feasibility Study (``RI/FS'') that typically follows

listing. The purpose of the RI/FS is to assess site conditions and

evaluate alternatives to the extent necessary to select a remedy (40

CFR 300.430(a)(2) (55 FR 8846, March 8, 1990)). It takes into account

the amount of hazardous substances, pollutants or contaminants released

into the environment, the risk to affected populations and environment,

the cost to remediate contamination at the site, and the response

actions that have been taken by potentially responsible parties or

others. Decisions on the type and extent of response action to be taken

at these sites are made in accordance with 40 CFR 300.415 (55 FR 8842,

March 8, 1990) and 40 CFR 300.430 (55 FR 8846, March 8, 1990). After

conducting these additional studies, EPA may conclude that initiating a

CERCLA remedial action using the Trust Fund at some sites on the NPL is

not appropriate because of more pressing needs at other sites, or

because a private party cleanup is already underway pursuant to an

enforcement action. Given the limited resources available in the Trust

Fund, the Agency must carefully balance the relative needs for response

at the numerous sites it has studied. It is also possible that EPA will

conclude after [[Page 8215]] further analysis that the site does not

warrant remedial action.

RI/FS at Proposed Sites

An RI/FS may be performed at sites proposed in the Federal Register

for placement on the NPL (or even sites that have not been proposed for

placement on the NPL) pursuant to the Agency's removal authority under

CERCLA, as outlined in the NCP at 40 CFR 300.415. Although an RI/FS

generally is conducted at a site after it has been placed on the NPL,

in a number of circumstances the Agency elects to conduct an RI/FS at a

site proposed for placement on the NPL in preparation for a possible

Trust Fund financed remedial action, such as when the Agency believes

that a delay may create unnecessary risks to public health or the

environment. In addition, the Agency may conduct an RI/FS to assist in

determining whether to conduct a removal or enforcement action at a

site.

Facility (Site) Boundaries

The NPL does not describe releases in precise geographical terms;

it would be neither feasible nor consistent with the limited purpose of

the NPL (as the mere identification of releases), for it to do so.

CERCLA section 105(a)(8)(B) directs EPA to list national priorities

among the known ``releases or threatened releases.'' Thus, the purpose

of the NPL is merely to identify releases that are priorities for

further evaluation. 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 upon which the NPL placement was based

will, to some extent, describe which release is at issue. That is, the

NPL site would include all releases evaluated as part of that HRS

analysis (including noncontiguous releases evaluated under the NPL

aggregation policy, described at 48 FR 40663 (September 8, 1983)).

EPA regulations provide that the ``nature and extent of the threat

presented by a release'' will be determined by an RI/FS as more

information is developed on site contamination (40 CFR 300.68(d)).

During the RI/FS process, the release may be found to be larger or

smaller than was originally thought, as more is learned about the

source 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 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 will be impossible to

describe the boundaries of a release with certainty.

For these reasons, the NPL need not be amended if further research

into the extent of the contamination expands the apparent boundaries of

the release. Further, the NPL is only of limited significance, as it

does not assign liability to any party or to the owner of any specific

property. See Report of the Senate Committee on Environment and Public

Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), quoted

above and at 48 FR 40659 (September 8, 1983). If a party contests

liability for releases on discrete parcels of property, it may do so if

and when the Agency brings an action against that party to recover

costs or to compel a response action at that property.

At the same time, however, the RI/FS or the Record of Decision

(which defines the remedy selected, 40 CFR 300.430(f)) may offer a

useful indication to the public of the areas of contamination at which

the Agency is considering taking a response action, based on

information known at that time. For example, EPA may evaluate (and

list) a release over a 400-acre area, but the Record of Decision may

select a remedy over 100 acres only. This information may be useful to

a landowner seeking to sell the other 300 acres, but it would result in

no formal change in the fact that a release is included on the NPL. The

landowner (and the public) also should note in such a case that if

further study (or the remedial construction itself) reveals that the

contamination is located on or has spread to other areas, the Agency

may address those areas as well.

This view of the NPL as an initial identification of a release that

is not subject to constant re-evaluation is consistent with the

Agency's policy of not rescoring NPL sites:

EPA recognizes that the NPL process cannot be perfect, and it is

possible that errors exist or that new data will alter previous

assumptions. Once the initial scoring effort is complete, however,

the focus of EPA activity must be on investigating sites in detail

and determining the appropriate response. New data or errors can be

considered in that process * * * [T]he NPL serves as a guide to EPA

and does not determine liability or the need for response. (49 FR

37081 (September 21, 1984).

See also City of Stoughton, Wisc. v. U.S. EPA, 858 F. 2d 747, 751

(D.C. Cir. 1988):

Certainly EPA could have permitted further comment or conducted

further testing [on proposed NPL sites]. Either course would have

consumed further assets of the Agency and would have delayed a

determination of the risk priority associated with the site. Yet * *

* ``the NPL is simply a rough list of priorities, assembled quickly

and inexpensively to comply with Congress' mandate for the Agency to

take action straightaway.'' Eagle-Picher [Industries v. EPA] II, 759

F. 2d [921] at 932 [(D.C. Cir. 1985)].

It is the Agency's policy that, in the exercise of its enforcement

discretion, EPA will not take enforcement actions against an owner of

residential property to require such owner to undertake response

actions or pay response costs, unless the residential homeowner's

activities lead to a release or threat of release of hazardous

substances, resulting in the taking of a response action at the site

(OSWER Directive #9834.6, July 3, 1991). This policy includes

residential property owners whose property is located above a ground

water plume that is proposed to or on the NPL, where the residential

property owner did not contribute to the contamination of the site. EPA

may, however, require access to that property during the course of

implementing a clean up.

III. Contents of This Proposed Rule

Table 1 identifies the 7 sites in the General Superfund Section and

Table 2 identifies the 2 sites in the Federal Facilities Section being

proposed to the NPL in this rule. Both tables follow this preamble. All

sites are proposed based on HRS scores of 28.50 or above. The sites in

Table 1 and Table 2 are listed alphabetically by State, for ease of

identification, with group number identified to provide an indication

of relative ranking. To determine group number, sites on the NPL are

placed in groups of 50; for example, a site in Group 4 of this proposal

has a score that falls within the range of scores covered by the fourth

group of 50 sites on the NPL.

Statutory Requirements

CERCLA section 105(a)(8)(B) directs EPA to list priority sites

``among'' the known releases or threatened releases of hazardous

substances, pollutants, or contaminants, and section 105(a)(8)(A)

directs EPA to consider certain enumerated and ``other appropriate''

factors in doing so. Thus, as a matter of policy, EPA has the

discretion not to use CERCLA to respond to certain types of

[[Page 8216]] releases. Where other authorities exist, placing sites on

the NPL for possible remedial action under CERCLA may not be

appropriate. Therefore, EPA has chosen not to place certain types of

sites on the NPL even though CERCLA does not exclude such action. If,

however, the Agency later determines that sites not listed as a matter

of policy are not being properly responded to, the Agency may place

them on the NPL.

The listing policies and statutory requirements of relevance to

this proposed rule cover Federal facility sites. This policy and

requirements are explained below and have been explained in greater

detail previously (56 FR 5598, February 11, 1991).

Releases From Federal Facility Sites

On March 13, 1989 (54 FR 10520), the Agency announced a policy for

placing Federal facility sites on the NPL if they meet the eligibility

criteria (e.g., an HRS score of 28.50 or greater), even if the Federal

facility also is subject to the corrective action authorities of RCRA

Subtitle C. In that way, those sites could be cleaned up under CERCLA,

if appropriate.

This rule proposes to add three sites to the Federal Facilities

Section of the NPL.

Economic Impacts

The costs of cleanup actions that may be taken at any site are not

directly attributable to placement on the NPL. EPA has conducted a

preliminary analysis of economic implications of today's proposal to

the NPL. EPA believes that the kinds of economic effects associated

with this proposal generally are similar to those effects identified in

the regulatory impact analysis (RIA) prepared in 1982 for the revisions

to the NCP pursuant to section 105 of CERCLA and the economic analysis

prepared when amendments to the NCP were proposed (50 FR 5882, February

12, 1985). The Agency believes the anticipated economic effects related

to proposing and adding sites to the NPL can be characterized in terms

of the conclusions of the earlier RIA and the most recent economic

analysis.

Inclusion of a site on the NPL does not itself impose any costs. It

does not establish that EPA necessarily will undertake remedial action,

nor does it require any action by a private 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. Nonetheless, it is

useful to consider the costs associated with responding to the sites

included in this rulemaking.

The major events that typically follow the proposed listing of a

site on the NPL are a search for potentially responsible parties and a

remedial investigation/feasibility study (RI/FS) to determine if

remedial actions will be undertaken at a site. Design and construction

of the selected remedial alternative follow completion of the RI/FS,

and operation and maintenance (O&M) activities may continue after

construction has been completed.

EPA initially bears costs associated with responsible party

searches. Responsible parties may bear some or all the costs of the RI/

FS, remedial design and construction, and O&M, or EPA and the States

may share costs.

The State cost share for site cleanup activities is controlled by

Section 104(c) of CERCLA and the NCP. For privately-operated sites, as

well as at publicly-owned but not publicly-operated sites, EPA will pay

for 100% of the costs of the RI/FS and remedial planning, and 90% of

the costs associated with remedial action. The State will be

responsible for 10% of the remedial action. For publicly-operated

sites, the State cost share is at least 50% of all response costs at

the site, including the RI/FS and remedial design and construction of

the remedial action selected. After the remedy is built, costs fall

into two categories:

--For restoration of ground water and surface water, EPA will share in

startup costs according to the criteria in the previous paragraph for

10 years or until a sufficient level of protectiveness is achieved

before the end of 10 years.

--For other cleanups, EPA will share for up to 1 year the cost of that

portion of response needed to assure that a remedy is operational and

functional. After that, the State assumes full responsibilities for

O&M.

In previous NPL rulemakings, the Agency estimated the costs

associated with these activities (RI/FS, remedial design, remedial

action, and O&M) on an average per site and total cost basis. EPA will

continue with this approach, using the most recent cost estimates

available; the estimates are presented below. However, there is wide

variation in costs for individual sites, depending on the amount, type,

and extent of contamination. Additionally, EPA is unable to predict

what portions of the total costs responsible parties will bear, since

the distribution of costs depends on the extent of voluntary and

negotiated response and the success of any cost-recovery actions.

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

Average total

Cost category cost per site\1\

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

RI/FS................................................. 1,350,000

Remedial Design....................................... 1,260,000

Remedial Action....................................... \3\22,500,000

Present Discounted Value O&M\2\....................... 5,630,000

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

\1\1994 U.S. Dollars.

\2\Assumes cost of O&M over 30 years, $400,000 for the first year and

5.8% discount rate.

\3\Includes State cost-share.

Source: Office of Program Management, Office of Emergency and Remedial

Response, U.S. EPA, Washington, DC.

Costs to the States associated with today's proposed rule are

incurred when the sites are finalized and arise from the required State

cost-share of: (1) 10% of remedial actions and 10% of first-year O&M

costs at privately-owned sites and sites that are publicly-owned but

not publicly-operated; (2) at least 50% of the remedial planning (RI/FS

and remedial design), remedial action, and first-year O&M costs at

publicly-operated sites; and (3) States will assume the cost for O&M

after EPA's period of participation. Using the budget projections

presented above, the cost to the States of undertaking Federal remedial

planning and actions, but excluding O&M costs, would be approximately

$26 million. State O&M costs cannot be accurately determined because

EPA, as noted above, will pay O&M costs for up to 10 years for

restoration of ground water and surface water, and it is not known if

the site will require this treatment and for how long. Assuming EPA

involvement for 10 years is needed, State O&M costs would be

approximately $35 million.

Placing a site on the proposed or final NPL does not itself cause

firms responsible for the site to bear costs. Nonetheless, a listing

may induce firms to clean up the sites voluntarily, or it may act as a

potential trigger for subsequent enforcement or cost-recovery actions.

Such actions may impose costs on firms, but the decisions to take such

actions are discretionary and made on a case-by-case basis.

Consequently, precise estimates of these effects cannot be made. EPA

does not believe that every site will be cleaned up by a responsible

party. EPA cannot project at this time which firms or industry sectors

will bear specific portions of the response costs, but the Agency

considers: the volume and nature of the waste at the sites; the

strength of the evidence linking the wastes at the site to the parties;

the parties' ability to pay; and other factors when deciding whether

and how to proceed against the parties. [[Page 8217]]

Economy-wide effects of an amendment to the NPL are aggregations of

efforts on firms and State and local governments. Although effects

could be felt by some individual firms and States, the total impact of

this amendment on output, prices, and employment is expected to be

negligible at the national level, as was the case in the 1982 RIA.

Benefits

The real benefits associated with today's amendment are increased

health and environmental protection as a result of increased public

awareness of potential hazards. In addition to the potential for more

Federally-financed remedial actions, expansion of the NPL could

accelerate privately-financed, voluntary cleanup efforts. Listing sites

as national priority targets also may give States increased support for

funding responses at particular sites.

As a result of the additional CERCLA remedies, there will be lower

human exposure to high-risk chemicals, and higher-quality surface

water, ground water, soil, and air. These benefits are expected to be

significant, although difficult to estimate in advance of completing

the RI/FS at these sites.

IV. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 review.

V. Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act of 1980 requires EPA to review the

impacts of this action on small entities, or certify that the action

will not have a significant impact on a substantial number of small

entities. By small entities, the Act refers to small businesses, small

government jurisdictions, and nonprofit organizations.

While this rule proposes to revise the NPL, an NPL revision is not

a typical regulatory change since it does not automatically impose

costs. As stated above, adding sites to the NPL does not in itself

require any action by any party, nor does it determine the liability of

any party for the cost of cleanup at the site. Further, no identifiable

groups are affected as a whole. As a consequence, impacts on any group

are hard to predict. A site's inclusion on the NPL could increase the

likelihood of adverse impacts on responsible parties (in the form of

cleanup costs), but at this time EPA cannot identify the potentially

affected businesses or estimate the number of small businesses that

might also be affected.

The Agency does expect that placing the sites in this proposed rule

on the NPL could significantly affect certain industries, or firms

within industries, that have caused a proportionately high percentage

of waste site problems. However, EPA does not expect the listing of

these sites to have a significant economic impact on a substantial

number of small businesses.

In any case, economic impacts would occur only through enforcement

and cost-recovery actions, which EPA takes at its discretion on a site-

by-site basis. EPA considers many factors when determining enforcement

actions, including not only a firm's contribution to the problem, but

also its ability to pay. The impacts (from cost recovery) on small

governments and nonprofit organizations would be determined on a

similar case-by-case basis.

For the foregoing reasons, I hereby certify that this proposed rule

would not have a significant economic impact on a substantial number of

small entities. Therefore, this proposed regulation does not require a

regulatory flexibility analysis.

National Priorities List Proposed Rule #18 General Superfund Section

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

State Site name City/county NPL Gr\1\

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

FL Normandy Park Temple Terrace.......... 6

Apartments.

KS Ace Services......... Colby................... 5/6

LA Gulf State Utilities- Lake Charles............ 5

North Ryan Street.

LA Old Citgo Refinery... Bossier City............ 5/6

LA Southern Shipbuilding Slidell................. 5/6

ME West Site/Hows Plymouth................ 5/6

Corners.

MI Bay City Bay City................ 5/6

Middlegrounds.

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

\1\Sites are placed in groups (Gr) corresponding to groups of 50 on the

final NPL.

Note: Number of Sites Proposed to General Superfund Section: 7.

National Priorities List Proposed Rule #18 Federal Facilities Section

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

State Site name City/county NPL Gr\1\

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

KS Sunflower Army DeSoto.................. 5/6

Ammunition Plant.

MD Indian Head Naval Indian Head............. 5/6

Surface Warfare

Center.

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

\1\Sites are placed in groups (Gr) corresponding to groups of 50 on the

final NPL.

Note: Number of Sites Proposed to Federal Facilities Section: 2.

List of Subjects in 40 CFR Part 300

Air pollution control, Chemicals, Hazardous materials,

Intergovernmental relations, Natural resources, Oil pollution,

Reporting and recordkeeping requirements, Superfund, Waste treatment

and disposal, Water pollution control, Water supply.

Authority: 42 U.S.C. 9605; 42 U.S.C. 9620; 33 U.S.C. 1321(c)(2);

E.O. 11735, 3 CFR, 1971-1975 Comp., p. 793; E.O. 12580, 3 CFR, 1987

Comp., p. 193.

Dated: February 8, 1995.

Elliott P. Laws,

Assistant Administrator, Office of Solid Waste and Emergency Response.

[FR Doc. 95-3601 Filed 2-10-95; 8:45 am]

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