National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 26

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-6169-2]

National Priorities List for Uncontrolled Hazardous Waste Sites,

Proposed Rule No. 26

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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[[Page 51883]]

SUMMARY: The Comprehensive Environmental Response, Compensation, and

Liability Act (``CERCLA'' or ``the Act''), requires that the National

Oil and Hazardous Substances Pollution Contingency Plan (``NCP'')

include a list of national priorities among the known releases or

threatened releases of hazardous substances, pollutants, or

contaminants throughout the United States. The National Priorities List

(``NPL'') constitutes this list. The NPL is intended primarily to guide

the Environmental Protection Agency (``EPA'' or ``the Agency'') in

determining which sites warrant further investigation to assess the

nature and extent of public health and environmental risks associated

with the site and to determine what CERCLA-financed remedial action(s),

if any, may be appropriate. This rule proposes to add 12 new sites to

the NPL, all to the General Superfund section.

DATES: Comments regarding any of these proposed listings must be

submitted (postmarked) on or before November 30, 1998.

ADDRESSES: By Postal 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; 703/603-9232.

By Express Mail: 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

SUPERFUND. [email protected]. E-mailed comments must be followed up by an

original and three copies sent by mail or express mail.

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 Keidan, phone (703) 603-8852,

State, Tribal and Site Identification Center, Office of Emergency and

Remedial Response (Mail Code 5204G), U.S. Environmental Protection

Agency, 401 M Street, SW, Washington, DC, 20460, or the Superfund

Hotline, Phone (800) 424-9346 or (703) 412-9810 in the Washington, DC,

metropolitan area.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. What are CERCLA and SARA?

B. What is the NCP?

C. What is the National Priorities List (NPL)?

D. How are Sites Listed on the NPL?

E. What Happens to Sites on the NPL?

F. How Are Site Boundaries Defined?

G. How Are Sites Removed From the NPL?

H. Can Portions of Sites Be Deleted from the NPL as They Are

Cleaned Up?

I. What is the Construction Completion List (CCL)?

II. Public Review/Public Comment

A. Can 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 Docket?

D. What Documents Are Available for Public Review at the

Regional Dockets?

E. How Do I Submit My Comments?

F. What Happens to My Comments?

G. What Should I Consider When Preparing My Comments?

H. Can I Submit Comments After the Public Comment Period Is

Over?

I. Can I View Public Comments Submitted by Others?

J. Can I Submit Comments Regarding Sites Not Currently Proposed

to the NPL?

III. Contents of This Proposed Rule

A. Proposed Additions to the NPL

B. Status of NPL

IV. Executive Order 12866

A. What is Executive Order 12866?

B. Is This Proposed Rule Subject to Executive Order 12866

Review?

V. Unfunded Mandates

A. What is the Unfunded Mandates Reform Act (UMRA)?

B. Does UMRA Apply to This Proposed Rule?

VI. Effect on Small Businesses

A. What is the Regulatory Flexibility Act?

B. Does the Regulatory Flexibility Act Apply to This Proposed

Rule?

VII. National Technology Transfer and Advancement Act

A. What is the National Technology Transfer and Advancement Act?

B. Does the National Technology Transfer and Advancement Act

Apply to This Proposed Rule?

VIII. Executive Order 13045

A. What is Executive Order 13045?

B. Does Executive Order 13045 Apply to this Proposed Rule?

IX. Paperwork Reduction Act

A. What is the Paperwork Reduction Act?

B. Does the Paperwork Reduction Act Apply to this Proposed Rule?

X. Executive Order 12875

What is Executive Order 12875 and is it Applicable to this

Proposed Rule?

XI. Executive Order 13084

What is Executive Order 13084 and is it Applicable 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 of

hazardous substances. CERCLA was amended on October 17, 1986, by the

Superfund Amendments and Reauthorization Act (``SARA''), Pub. L. 99-

499, 100 Stat. 1613 et seq.

B. What Is the NCP?

To implement CERCLA, EPA promulgated the revised National Oil and

Hazardous Substances Pollution Contingency Plan (``NCP''), 40 CFR part

300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and

Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets

guidelines and procedures for responding to releases and threatened

releases of hazardous substances, pollutants, or contaminants under

CERCLA. EPA has revised the NCP on several occasions. The most recent

comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also

includes ``criteria for determining priorities among releases or

threatened releases throughout the United States for the purpose of

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

account the potential urgency of such action for the purpose of taking

removal action.'' (``Removal'' actions are defined broadly and include

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

address releases and threatened releases 42 U.S.C. 9601(23).)

C. What Is the National Priorities List (NPL)?

The NPL is a list of national priorities among the known or

threatened releases of hazardous substances, pollutants, or

contaminants throughout the United States. The list, which is appendix

B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B)

of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as

a list of ``releases'' and the highest priority ``facilities'' and

requires that the NPL be revised at least annually. The NPL is intended

primarily to guide EPA in determining which sites warrant further

investigation to assess the nature and extent of public health and

environmental risks associated with a release of hazardous substances.

However, the NPL is only of limited significance, 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. See Report of the Senate

Committee on Environment and Public

[[Page 51884]]

Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), 48 FR

40659 (September 8, 1983).

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.

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 a appendix A of the

NCP (40 CFR part 300). The HRS serves as a screening device to evaluate

the relative potential of uncontrolled hazardous substances to pose a

threat to human health or the environment. On December 14, 1990 (55 FR

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

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

pathways: Ground water, surface water, soil exposure, and air. As a

matter of Agency policy, those sites that score 28.50 or greater on the

HRS are eligible for the NPL; (2) Each State may designate a single

site as its top priority to be listed on the NPL, regardless of the HRS

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

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

100 highest priorities, one facility designated by each State

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

environment among known facilities in the State (42 U.S.C.

9605(a)(8)(B)); (3) The third mechanism for listing, included in the

NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed

regardless of their HRS score, if all of the following conditions are

met:

The Agency for Toxic Substances and Disease Registry

(ATSDR) of the U.S. Public Health Service has issued a health advisory

that recommends dissociation of individuals from the release.

EPA determines that the release poses a significant threat

to public health.

EPA anticipates that it will be more cost-effective to use

its remedial authority than to use its removal authority to respond to

the release.

EPA promulgated an original NPL of 406 sites on September 8, 1983 (48

FR 40658). The NPL has been expanded since then, most recently on

September 18, 1998 (63 FR 49855).

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 remedy the releases,

including enforcement action under CERCLA and other laws.

F. How Are Site Boundaries Defined?

The NPL does not describe releases in precise geographical terms;

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

the NPL (to identify releases that are priorities for further

evaluation), for it to do so.

Although a CERCLA ``facility'' is broadly defined to include any

area where a hazardous substance release has ``come to be located''

(CERCLA section 101(9)), the listing process itself is not intended to

define or reflect the boundaries of such facilities or releases. Of

course, HRS data (if the HRS is used to list a site) upon which the NPL

placement was based will, to some extent, describe the release(s) at

issue. That is, the NPL site would include all releases evaluated as

part of that HRS analysis.

When a site is listed, to describe the relevant release(s) 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

[[Page 51885]]

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: (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 176 sites from the

NPL.

H. Can Portions of Sites Be Deleted From the NPL as They Are Cleaned

Up?

In November 1995, EPA initiated a new policy to delete portions of

NPL sites where cleanup is complete (60 FR 55465, November 1, 1995).

Total site cleanup may take many years, while portions of the site may

have been cleaned up and available for productive use. As of September

1998, EPA has deleted portions of 11 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.

In addition to the 167 sites that have been deleted from the NPL

because they have been cleaned up (9 additional sites have been deleted

based on deferral to other authorities and are not considered cleaned

up), an additional 368 sites are also on the NPL CCL. Thus, as of

September 1998, the CCL consists of 535 sites.

II. Public Review/Public Comment

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

Yes, 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 in Washington, D.C. and in the appropriate Regional

offices.

B. How Do I Access the Documents?

You may view the documents, by appointment only, in the

Headquarters or the appropriate Regional docket after the appearance of

this proposed rule. The hours of operation for the Headquarters docket

are from 9 a.m. to 4 p.m., Monday through Friday excluding Federal

holidays. Please contact individual Regional dockets for hours.

You may also request copies from EPA Headquarters or the

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.

Following is the contact information for the EPA Headquarters

docket (see ``How do I submit my comments?'' section below for Regional

contacts): Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket

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

Arlington, VA 22202, 703/603-9232. (Please note this is a visiting

address only. Mail comments to EPA Headquarters as detailed at the

beginning of this preamble, or contact Regional offices as detailed in

the ``How do I submit my comments?'' section below.)

C. What Documents Are Available for Public Review at the Headquarters

Docket?

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.

D. What Documents Are Available for Public Review at the Regional

Dockets?

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.

E. How Do I Submit My Comments?

Comments must be submitted to EPA Headquarters as detailed at the

beginning of this preamble. Regional offices may be reached at the

following:

Jim Kyed, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA Waste Management

Records Center, HRC-CAN-7, J.F. Kennedy Federal Building, Boston, MA

02203-2211, 617/573-9656

Ben Conetta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New

York, NY 10007-1866, 212/637-4435

Kevin Wood, U.S. EPA Region 3, 1650 Arch Street, Philadelphia, PA

19103, Mail Code: 3HS33, 215/814-3303

Sherryl Decker, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA,

100 Alabama Street, SW, Atlanta, GA 30303, 404/562-8127 Region 5 (IL,

IN, MI, MN, OH, WI), U.S. EPA, Records Center, Waste Management

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

Chicago, IL 60604, 312/886-7570

Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue,

Mail Code 6SF-RA, Dallas, TX 75202-2733, 214/655-7436

Carole Long, Region 7 (IA, KS, MO, NE), U.S. EPA, 726 Minnesota Avenue,

Kansas City, KS 66101, 913/551-7224

David Williams, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th

Street, Suite 500, Denver, CO 80202-2466, 303/312-6757

Carolyn Douglas, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75

Hawthorne Street, San Francisco, CA 94105, 415/744-2343

David Bennett, Region 10 (AK, ID, OR, WA), U.S. EPA, 11th Floor, 1200

6th Avenue, Mail Stop ECL-115, Seattle, WA 98101, 206/553-2103

F. 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.

[[Page 51886]]

G. What Should I Consider When Preparing My Comments?

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 or other listing criteria (Northside

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

not address voluminous comments that are not specifically cited by page

number and referenced to the HRS or other listing criteria. EPA will

not address comments unless they indicate which component of the HRS

documentation record or what particular point in EPA's stated

eligibility criteria is at issue.

H. Can 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.

I. Can I View Public Comments Submitted by Others?

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.

J. Can 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 Additions to the NPL

Table 1 identifies the 12 sites in the General Superfund section

being proposed to the NPL in this rule. This table follows this

preamble. All sites are proposed based on HRS scores of 28.50 or above.

The sites in Table 1 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 an HRS score that falls within the range of scores covered by the

fourth group of 50 sites on the NPL.

B. Status of NPL

A final rule published elsewhere in today's Federal Register,

results in an NPL of 1,194 sites, 1,041 in the General Superfund

section and 153 in the Federal Facilities section. With this proposal

of 12 new sites, there are now 66 sites proposed and awaiting final

agency action, 57 in the General Superfund section and 9 in the Federal

Facilities section. Final and proposed sites now total 1,260.

IV. Executive Order 12866

A. What Is Executive Order 12866?

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the

Agency must determine whether a regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may: (1) have an annual

effect on the economy of $100 million or more or adversely affect in a

material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities; (2) create a serious

inconsistency or otherwise interfere with an action taken or planned by

another agency; (3) materially alter the budgetary impact of

entitlements, grants, user fees, or loan programs or the rights and

obligations of recipients thereof; or (4) raise novel legal or policy

issues arising out of legal mandates, the President's priorities, or

the principles set forth in the Executive Order.

B. Is This Proposed Rule Subject to Executive Order 12866 Review?

No, the Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 review.

V. Unfunded Mandates

A. What Is the Unfunded Mandates Reform Act (UMRA)?

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal Agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures by State, local, and tribal governments, in

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

one year. Before EPA promulgates a rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective, or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective, or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted. Before EPA establishes any regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

section 203 of the UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

B. Does UMRA Apply to This Proposed Rule?

No, EPA has determined that this rule does not include a Federal

mandate that may result in estimated costs of $100 million or more to

either State, local, or tribal governments in the aggregate. This rule

will not impose any federal intergovernmental mandate because it

imposes no enforceable duty upon State, tribal or local governments.

Listing a site on the NPL does not itself impose any costs. Listing

does not mean that EPA necessarily will undertake remedial action. Nor

does listing require any action by a private party or determine

liability for response costs. Costs that arise out of site responses

result from site-specific decisions regarding what actions to take, not

directly from the act of listing a site on the NPL.

[[Page 51887]]

For the same reasons, EPA also has determined that this rule

contains no regulatory requirements that might significantly or

uniquely affect small governments. In addition, as discussed above, the

private sector is not expected to incur costs exceeding $100 million.

EPA has fulfilled the requirement for analysis under the Unfunded

Mandates Reform Act.

VI. Effect on Small Businesses

A. What Is the Regulatory Flexibility Act?

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.

B. Does the Regulatory Flexibility Act Apply to This Proposed Rule?

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.

VII. National Technology Transfer and Advancement Act

A. What Is the National Technology Transfer and Advancement Act?

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272

note), directs EPA to use voluntary consensus standards in its

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, and business practices) that are developed or

adopted by voluntary consensus standards bodies. The NTTAA requires EPA

to provide Congress, through OMB explanations when the Agency decides

not to use available and applicable voluntary consensus standards.

B. Does the National Technology Transfer and Advancement Act Apply to

This Proposed Rule?

No. This proposed rulemaking does not involve technical standards.

Therefore, the Agency did not consider the use of any voluntary

consensus standards.

VIII. Executive Order 13045

A. What Is Executive Order 13045?

Executive Order 13045: ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies

to any rule that: (1) is determined to be ``economically significant''

as defined under E.O. 12866, and (2) concerns an environmental health

or safety risk that EPA has reason to believe may have a

disproportionate effect on children. If the regulatory action meets

both criteria, the Agency must evaluate the environmental health or

safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

B. Does Executive Order 13045 Apply to This Proposed Rule?

This rule is not subject to E.O. 13045 because it is not an

economically significant rule as defined by E.O. 12866, and because it

does not involve decisions based on environmental health or safety

risks.

IX. Paperwork Reduction Act

A. What Is the Paperwork Reduction Act?

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et

seq., an agency may not conduct or sponsor, and a person is not

required to respond to a collection of information that requires OMB

approval under the PRA, unless it has been approved by OMB and displays

a currently valid OMB control number. The OMB control numbers for EPA's

regulations, after initial display in the preamble of the final rules,

are listed in 40 CFR part 9. The information collection requirements

related to this action have already been approved by OMB pursuant to

the PRA under OMB control number 2070-0012 (EPA ICR No. 574).

B. Does the Paperwork Reduction Act Apply to This Proposed Rule?

This action does not impose any burden requiring OMB approval under

the Paperwork Reduction Act.

XI. Executive Order 12875

What Is Executive Order 12875 and Is It Applicable to This Proposed

Rule?

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

This final rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

[[Page 51888]]

XII. Executive Order 13084

What Is Executive Order 13084 and Is It Applicable to This Proposed

Rule?

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments because it does not

significantly or uniquely affect their communities. Accordingly, the

requirements of section 3(b) of Executive Order 13084 do not apply to

this rule.

Table 1.--National Priorities List Proposed Rule No. 26, General Superfund Section

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

State Site name City/county Group

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

CA................................... Lava Cap Mine................ Nevada City.................. 21

CA................................... Omega Chemical Corporation... Whittier..................... 22

MN................................... Fridley Commons Park Well Fridley...................... 4/5

Field.

NJ................................... Middlesex Sampling Plant..... Middlesex.................... 4/5

NJ................................... United States Avenue Burn.... Gibbsboro.................... 4/5

NY................................... Hiteman Leather.............. West Winfield................ 4/5

NY................................... Mohonk Road Industrial Plant. High Falls................... 4/5

NY................................... Smithtown Ground Water Smithtown.................... 4/5

Contamination.

OK................................... Tulsa Fuel and Manufacturing. Collinsville................. 4/5

TX................................... City of Perryton Well No. 2.. Perryton..................... 4/5

TX................................... Many Diversified Interests, Houston...................... 19

Inc.

VT................................... Pownal Tannery............... Pownal....................... 4/5

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

Number of Sites Proposed to General Superfund Section: 12.

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.

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: September 22, 1998.

Timothy Fields, Jr.,

Acting Assistant Administrator, Office of Solid Waste and Emergency

Response.

[FR Doc. 98-25890 Filed 9-28-98; 8:45 am]

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