National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-6338-4]

National Priorities List for Uncontrolled Hazardous Waste Sites,

Proposed Rule

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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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

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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 one new site to the Federal Facilities section of

the NPL. The site is the Alameda Naval Air Station site located in

Alameda, California.

DATES: Comments regarding any of these proposed listings must be

submitted (postmarked) on or before July 9, 1999.

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

[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: Yolanda Singer, phone (703) 603-8835,

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

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

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

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

metropolitan area.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. What are CERCLA and SARA?

B. What is the NCP?

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

D. How are Sites Listed on the NPL?

E. What Happens to Sites on the NPL?

F. How Are Site Boundaries Defined?

G. How Are Sites Removed From the NPL?

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

Cleaned Up?

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

II. 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 Region

9 Docket?

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. Has EPA Conducted a Regulatory Flexibility Analysis for This

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 12898

A. What is Executive Order 12898?

B. Does Executive Order 12898 Apply to this Proposed Rule?

IX. Executive Order 13045

A. What is Executive Order 13045?

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

X. Paperwork Reduction Act

A. What is the Paperwork Reduction Act?

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

XI. Executive Order 12875

What is Executive Order 12875 and Is It Applicable to this

Proposed Rule?

XII. 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.

The NPL is only of limited significance, however, as it does not assign

liability to any party or to the owner of any specific property.

Neither does placing a site on the NPL mean that any remedial or

removal action necessarily need be taken. 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).

For purposes of listing, the NPL includes two sections, one of

sites that are generally evaluated and cleaned up by EPA (the ``General

Superfund

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section''), and one of sites that are owned or operated by other

Federal agencies (the ``Federal Facilities section''). With respect to

sites in the Federal Facilities section, these sites are generally

being addressed by other Federal agencies. Under Executive Order 12580

(52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal

agency is responsible for carrying out most response actions at

facilities under its own jurisdiction, custody, or control, although

EPA is responsible for preparing an HRS score and determining whether

the facility is placed on the NPL. EPA generally is not the lead agency

at Federal Facilities Section sites, and its role at such sites 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 (see 42 U.S.C.

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

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

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

met:

The Agency for Toxic Substances and Disease Registry

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

advisory that recommends dissociation of individuals from the

release.

EPA determines that the release poses a significant

threat to public health.

EPA anticipates that it will be more cost-effective to

use its remedial authority than to use its removal authority to

respond to the release.

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

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

January 19, 1999 (64 FR 2942).

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, the approach generally used to describe the

relevant release(s) is to delineate a geographical area (usually the

area within an installation or plant boundaries) and identify the site

by reference to that area. As a legal matter, the site is not

coextensive with that area, and the boundaries of the installation or

plant are not the ``boundaries'' of the site. Rather, the site consists

of all contaminated areas within the area used to identify the site, as

well as any other location to which 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 300.5). During the RI/FS

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

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

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

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

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

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

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

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

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

boundaries of a release with absolute certainty.

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

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

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

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

time after a party receives notice it is a potentially responsible

party.

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

reveals 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

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explained in the NCP at 40 CFR 300.425(e). This section also provides

that EPA shall consult with states on proposed deletions and shall

consider whether any of the following criteria have been met: (i)

Responsible parties or other persons have implemented all appropriate

response actions required; (ii) All appropriate Superfund-financed

response has been implemented and no further response action is

required; or (iii) The remedial investigation has shown the release

poses no significant threat to public health or the environment, and

taking of remedial measures is not appropriate. As of April 26, 1999,

the Agency has deleted 184 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 April 26,

1999, EPA has deleted portions of 16 sites.

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

EPA also has developed an NPL construction completion list

(``CCL'') to simplify its system of categorizing sites and to better

communicate the successful completion of cleanup activities (58 FR

12142, March 2, 1993). Inclusion of a site on the CCL has no legal

significance.

Sites qualify for the CCL when: (1) Any necessary physical

construction is complete, whether or not final cleanup levels or other

requirements have been achieved; (2) EPA has determined that the

response action should be limited to measures that do not involve

construction (e.g., institutional controls); or (3) The site qualifies

for deletion from the NPL.

Of the 184 sites that have been deleted from the NPL, 175 sites

were deleted because they have been cleaned up (the other 9 sites were

deleted based on deferral to other authorities and are not considered

cleaned up). In addition, there are 424 sites also on the NPL CCL.

Thus, as of February 3, 1999, the CCL consists of 599 sites. For the

most up-to-date information on the CCL, see EPA's Internet site at

http://www.epa.gov/superfund.

II. Public Review/Public Comment

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

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

of the Alameda Naval Air Station site in this rule are contained in

dockets located both at EPA Headquarters in Washington, DC and in the

Region 9 office in San Francisco, CA.

B. How Do I Access the Documents?

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

Headquarters or the Region 9 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 the Region 9 docket for hours.

Following is the contact information for the EPA Headquarters

docket: 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.)

The contact information for the Region 9 docket is as follows:

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

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

You may also request copies from EPA Headquarters or the Region 9

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.

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

Docket?

The Headquarters docket for this rule contains: HRS score sheets

for the proposed site; a Documentation Record for the 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.

D. What Documents Are Available for Public Review at the Regional 9

Docket?

The Region 9 docket for this rule contains all of the information

in the Headquarters docket, plus, the actual reference documents

containing the data principally relied upon and cited by EPA in

calculating or evaluating the HRS score for the Alameda Naval Air

Station site. These reference documents are available only in the

Region 9 docket.

E. How Do I Submit My Comments?

Comments must be submitted to EPA Headquarters as detailed at the

beginning of this preamble in the Addresses section.

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.

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

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comment period. Site-specific correspondence received prior to the

period of formal proposal and comment will not generally be included in

the docket.

III. Contents of This Proposed Rule

A. Proposed Addition to the NPL

With today's proposed rule, EPA is proposing to add one site to the

Federal Facilities section; the Alameda Naval Air Station site in

Alameda, California. The site is being proposed based on an HRS score

of 28.50 or above.

B. Status of NPL

A final rule published elsewhere in today's Federal Register

finalizes 10 sites to the NPL; resulting in an NPL of 1,212 sites

(1,056 in the General Superfund section and 156 in the Federal

Facilities section). With this proposal of one new site, there are now

63 sites proposed and awaiting final agency action, 56 in the General

Superfund section and 7 in the Federal Facilities section. (Please note

there was a separate proposed rule published recently on April 23, 1999

(64 FR 19968) that proposes to add 12 new sites to the NPL along with a

reproposal of one site.) Final and proposed sites now total 1,275.

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 contain a Federal

mandate that may result in expenditures of $100 million or more for

State, local, and tribal governments in the aggregate, or by the

private sector in any one year. This rule will not impose any federal

intergovernmental mandate because it imposes no enforceable duty upon

State, tribal or local governments. Listing a site on the NPL does not

itself impose any costs. Listing does not mean that EPA necessarily

will undertake remedial action. Nor does listing require any action by

a private party or determine liability for response costs. Costs that

arise out of site responses result from site-specific decisions

regarding what actions to take, not directly from the act of listing a

site on the NPL.

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

contains no regulatory requirements that might significantly or

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

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

EPA has fulfilled the requirement for analysis under the Unfunded

Mandates Reform Act.

VI. Effect on Small Businesses

A. What Is the Regulatory Flexibility Act?

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,

as amended by the Small Business Regulatory Enforcement Fairness Act

(SBREFA) of 1996) whenever an agency is required to publish a notice of

rulemaking for any proposed or final rule, it must prepare and make

available for public comment a regulatory flexibility analysis that

describes the effect of the rule on small entities (i.e., small

businesses, small organizations, and small governmental jurisdictions).

However, no regulatory flexibility analysis is required if the head of

an agency certifies the rule will not have a significant economic

impact on a substantial number of small entities. SBREFA amended the

Regulatory Flexibility Act to require Federal agencies to provide a

statement of the factual basis for certifying that a rule will not have

a significant economic impact on a substantial number of small

entities.

B. Has EPA Conducted a Regulatory Flexibility Analysis for This Rule?

No. 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

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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 directs EPA

to provide Congress, through OMB, explanations when the Agency decides

not to use available and applicable voluntary consensus standards.

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

This Proposed Rule?

No. This proposed rulemaking does not involve technical standards.

Therefore, EPA did not consider the use of any voluntary consensus

standards.

VIII. Executive Order 12898

A. What Is Executive Order 12898?

Under Executive Order 12898, ``Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income

Populations,'' as well as through EPA's April 1995, ``Environmental

Justice Strategy, OSWER Environmental Justice Task Force Action Agenda

Report,'' and National Environmental Justice Advisory Council, EPA has

undertaken to incorporate environmental justice into its policies and

programs. EPA is committed to addressing environmental justice

concerns, and is assuming a leadership role in environmental justice

initiatives to enhance environmental quality for all residents of the

United States. The Agency's goals are to ensure that no segment of the

population, regardless of race, color, national origin, or income,

bears disproportionately high and adverse human health and

environmental effects as a result of EPA's policies, programs, and

activities, and all people live in clean and sustainable communities.

B. Does Executive Order 12898 Apply To This Proposed Rule?

No. While this rule proposes to revise the NPL, no action will

result from this proposal that will have disproportionately high and

adverse human health and environmental effects on any segment of the

population.

IX. Executive Order 13045

A. What Is Executive Order 13045?

Executive Order 13045: ``Protection of Children from Environmental

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

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

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

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

disproportionate effect on children. If the regulatory action meets

both criteria, the Agency must evaluate the environmental health or

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

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

B. Does Executive Order 13045 Apply To 3501 This Proposed Rule?

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

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

the Agency does not have reason to believe the environmental health or

safety risks addressed by this section present a disproportionate risk

to children.

X. Paperwork Reduction Act

A. What Is the Paperwork Reduction Act?

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

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

required to respond to a collection of information that requires OMB

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

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

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

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

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

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

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

No. EPA has determined that the PRA does not apply because this

rule does not contain any information collection requirements that

require approval of the OMB.

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, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

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

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, any written communications

from the governments, and a statement supporting the need to issue the

regulation. In addition, Executive Order 12875 requires EPA to develop

an effective process permitting elected officials and other

representatives of State, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

This proposed 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

[[Page 24996]]

section 1(a) of Executive Order 12875 do not apply to this rule.

XII. Executive Order 13084

What Is Executive Order 13084 and Is It Applicable to This 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, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

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

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

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

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

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

This proposed 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.

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: April 30, 1999.

Timothy Fields, Jr.,

Acting Assistant Administrator, Office of Solid Waste and Emergency

Response.

[FR Doc. 99-11706 Filed 5-7-99; 8:45 am]

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