National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 22

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.

This rule proposes to add 6 new sites to the NPL, 5 to the General

Superfund Section and 1 to the Federal Facilities section. This rule

also withdraws one site from proposal to the NPL. 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.

DATES: Comments must be submitted (postmarked) on or before June 2,

1997.

ADDRESSES: By Mail: Mail original and three copies of comments (no

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

CERCLA Docket Office; (Mail Code 5201G); 401 M Street, SW., Washington,

DC 20460; 703/603-8917.

By Federal Express: Send original and three copies of comments (no

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

CERCLA Docket Office; 1235 Jefferson Davis Highway; Crystal Gateway #1,

First Floor; Arlington, VA 22202.

By E-Mail: Comments in ASCII format only may be mailed directly to

[email protected] EPA.GOV. E-mailed comments must be followed

up by an original and three copies sent by mail or Federal Express.

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, State 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:

I. Introduction

II. Contents of This Proposed Rule

III. Executive Order 12866

IV. Unfunded Mandates

V. Effect on Small Businesses

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, 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 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 U.S.C. 9601(23). ``Remedial

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

of or in addition to removal actions * * *.'' 42 U.S.C. 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.''

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.

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), 48 FR 40659 (September

8, 1983).

Three mechanisms for placing sites on the NPL for possible remedial

action are included in the NCP at 40 CFR 300.425(c). 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 EPA

promulgated as 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 to pose a threat to human health or

the environment. As a matter of Agency policy, 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 (see 42 U.S.C.

9605(a)(8)(B)).

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

[[Page 15595]]

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

December 23, 1996 (61 FR 67656).

The NPL includes two sections, one of sites that are evaluated and

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

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

Facilities Section''). Under Executive Order 12580 (52 FR 2923, January

29, 1987) and CERCLA section 120, each Federal agency is responsible

for carrying out most response actions at facilities under its own

jurisdiction, custody, or control, although EPA is responsible for

preparing an HRS score and determining whether the facility is placed

on the NPL. EPA generally is not the lead agency at Federal Facilities

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

than at other sites.

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) mandates listing of national priorities

among the known ``releases or threatened releases.'' 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.

When a site is listed, it is necessary to define the release (or

releases) encompassed by the listing. The approach generally used is to

delineate a geographical area (usually the area within an installation

or plant boundaries) and identify the site by reference to that area.

As a legal matter, the site is not coextensive with that area, and the

boundaries of the installation or plant are not the ``boundaries'' of

the site. Rather, the site consists of all contaminated areas within

the area used to identify the site, as well as any other location to

which contamination from that area has come to be located, or from

which that contamination came.

In other words, while geographic terms are often used to designate

the site (e.g., the ``Jones Co. plant site'') in terms of the property

owned by a particular party, the site properly understood is not

limited to that property (e.g., it may extend beyond the property due

to contaminant migration), and conversely may not occupy the full

extent of the property (e.g., where there are uncontaminated parts of

the identified property, they may not be, strictly speaking, part of

the ``site''). The ``site'' is thus neither equal to nor confined by

the boundaries of any specific property that may give the site its

name, and the name itself should not be read to imply that this site is

coextensive with the entire area within the property boundary of the

installation or plant. The precise nature and extent of the site are

typically not known at the time of listing. Also, the site name is

merely used to help identify the geographic location of the

contamination. For example, the ``Jones Co. plant site,'' does not

imply that the Jones company is responsible for the contamination

located on the plant site.

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

presented by a release'' will be determined by a Remedial

Investigation/Feasibility Study (RI/FS) as more information is

developed on site contamination (40 CFR 300.430(d)). During the RI/FS

process, the release may be found to be larger or smaller than was

originally thought, as more is learned about the source(s) and the

migration of the contamination. However, this inquiry focuses on an

evaluation of the threat posed; the boundaries of the release need not

be exactly defined. Moreover, it generally is impossible to discover

the full extent of where the contamination ``has come to be located''

before all necessary studies and remedial work are completed at a site.

Indeed, the boundaries of the contamination can be expected to change

over time. Thus, in most cases, it may be impossible to describe the

boundaries of a release with absolute certainty.

Further, as noted above, NPL listing does not assign liability to

any party or to the owner of any specific property. Thus, if a party

does not believe it is liable for releases on discrete parcels of

property, supporting information can be submitted to the Agency at any

time after a party receives notice it is a potentially responsible

party.

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

reveals more information about the location of the contamination or

release.

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). This section also provides that EPA shall consult with

states on proposed deletions and shall consider whether any of the

following criteria have been met:

(i) Responsible parties or other persons have implemented all

appropriate response actions required;

(ii) All appropriate Superfund-financed response has been

implemented and no further response action is required; or

(iii) The remedial investigation has shown the release poses no

significant threat to public health or the environment, and taking of

remedial measures is not appropriate.

To date, the Agency has deleted 139 sites from the NPL.

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 March

1997, EPA has partially deleted 4 sites.

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.

[[Page 15596]]

Inclusion of a site on the CCL Has No Legal Significance

In addition to the 132 sites that have been deleted from the NPL

because they have been cleaned up (7 sites have been deleted based on

deferral to other authorities and are not considered cleaned up), an

additional 291 sites are also on the NPL CCL. Thus, as of March 1997,

the CCL consists of 423 sites.

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,

Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington,

VA 22202, 703/603-8917

(Please note this is a visiting address only. Mail comments to

address listed in ADDRESSES section above.)

Jim Kyed, Region 1, 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, U.S. EPA, 290 Broadway, New York, NY 10007-1866,

212/637-4435

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

Building, 9th & Chestnut Streets, Philadelphia, PA 19107, 215/566-5250

Kathy Piselli, Region 4, U.S. EPA, 100 Alabama Street, SW, Atlanta, GA

30303, 404/562-8190

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 6H1MA,

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

Carole Long, Region 7, U.S. EPA, 726 Minnesota Avenue, Kansas City, KS

66101, 913/551-7224

Pat Smith, Region 18, U.S. EPA, 999 l8th Street, Suite 500, Denver, CO

80202-2466, 303/312-6082

Carolyn Douglas, Region 9, U.S. EPA, 75 Hawthorne Street, San

Francisco, CA 94105, 415/744-2343

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.

The Headquarters docket also contains an ``Additional Information''

document which provides a general discussion of the statutory

requirements affecting NPL listing, the purpose and implementation of

the NPL, and the economic impacts of NPL listing.

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 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.

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 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. 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. Contents of This Proposed Rule

Table 1 identifies the 5 sites in the General Superfund section

being proposed to the NPL in this rule. Table 2 identifies the 1 site

in the Federal Facility section being proposed to the NPL in this rule.

These 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.

Withdrawal of Annie Creek Mine Tailings

EPA is hereby withdrawing the proposal of Annie Creek Mine

Tailings, located in Lead, South Dakota. This withdrawal was proposed

on December 23, 1996 (61 FR 67656). EPA received no comments regarding

the proposal to withdraw this site.

These actions along with a final rule published elsewhere in

today's Federal Register, results in an NPL of 1,206 sites, 1,055 in

the General Superfund Section and 151 in the Federal Facilities

Section. With this proposal of 6 new sites, there are now 49 sites

proposed and awaiting final agency action, 43 in the General Superfund

Section and 6 in the Federal Facilities Section. Final and proposed

sites now total 1,255.

III. Executive Order 12866

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

regulatory

[[Page 15597]]

action from Executive Order 12866 review.

IV. Unfunded Mandates

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 to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. When a written statement is needed for an EPA rule, 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 of 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, giving

them 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.

Today's rule contains no Federal mandates (within the meaning of

Title II of the UMRA) for State, local, or tribal governments or the

private sector. Nor does it contain any regulatory requirements that

might significantly or uniquely affect small governments. This is

because today's listing decision does not impose any enforceable duties

upon any of these governmental entities or the private sector.

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. Therefore, today's

rulemaking is not subject to the requirements of section 202, 203 or

205 of the Unfunded Mandates Reform Act.

V. Effect on Small Businesses

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, if promulgated, will not have a significant economic impact on a

substantial number of small entities. Therefore, this proposed

regulation does not require a regulatory flexibility analysis.

National Priorities List Proposed Rule #22, General Superfund Section

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

State Site name City/county Group

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

FL.............. Florida Petroleum Fort Lauderdale 5/6

Reprocessors.

GA.............. Terry Creek Dredge Spoil Brunswick...... 5

Areas/Hercules Outfall.

IL.............. DePue/New Jersey Zinc/ Village of 1

Mobil Chemical Corp. DePue.

PA.............. Salford Quarry.......... Lower Salford 5/6

Township.

TX.............. Sprague Road Ground Odessa......... 10

Water Plume.

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

Number of Sites Proposed to General Superfund Section: 5.

National Priorities List Proposed Rule #22, Federal Facilities Section

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

State Site name City/county Group

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

MD.............. Fort George G. Meade.... Odenton........ 4

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

Number of Sites Proposed to Federal Facilities Section: 1.

List of Subjects in 40 CFR Part 300

Environmental protection, 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.

[[Page 15598]]

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.

12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR

2923, 3 CFR, 1987 Comp., p. 193.

Dated: March 25, 1997.

Timothy Fields, Jr.,

Acting Assistant Administrator, Office of Solid Waste and Emergency

Response.

[FR Doc. 97-8087 Filed 3-31-97; 8:45 am]

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