[Federal Register Volume 60, Number 29 (Monday, February 13, 1995)]
[Proposed Rules]
[Pages 8211-8217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3601]
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[[Page 8212]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5154-6]
National Priorities List for Uncontrolled Hazardous Waste Sites,
Proposed Rule No. 18
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (``CERCLA'' or ``the Act''), as amended, requires
that the National Oil and Hazardous Substances Pollution Contingency
Plan (``NCP'') include a list of national priorities among the known
releases or threatened releases of hazardous substances, pollutants, or
contaminants throughout the United States. The National Priorities List
(``NPL'') constitutes this list.
The Environmental Protection Agency (``EPA'') proposes to add new
sites to the NPL. This 18th proposed revision to the NPL includes 7
sites in the General Superfund Section and 2 in the Federal Facilities
Section. The NPL is intended primarily to guide EPA in determining
which sites warrant further investigation to assess the nature and
extent of public health and environmental risks associated with the
site and to determine what CERCLA-financed remedial action(s), if any,
may be appropriate. The NPL is not intended to define the boundaries of
a site or to determine the extent of contamination (see Section II,
subsection, ``Facility Boundaries''). This action does not affect the
1,241 sites currently listed on the NPL (1,087 in the General Superfund
Section and 154 in the Federal Facilities Section). However, it does
increase the number of proposed sites to 55 (47 in the General
Superfund Section and 8 in the Federal Facilities Section). Final and
proposed sites now total 1,296.
DATES: Comments must be submitted on or before April 14, 1995.
ADDRESSES: Mail original and three copies of comments (no facsimiles or
tapes) to Docket Coordinator, Headquarters; U.S. EPA; CERCLA Docket
Office; (Mail Code 5201G); 401 M Street, SW; Washington, DC 20460; 703/
603-8917. Please note this is the mailing address only. If you wish to
visit the HQ Docket to view documents, and for additional Docket
addresses and further details on their contents, see Section I of the
``Supplementary Information'' portion of this preamble.
FOR FURTHER INFORMATION CONTACT: Terry Keidan, Hazardous Site
Evaluation Division, Office of Emergency and Remedial Response (Mail
Code 5204G), U.S. Environmental Protection Agency, 401 M Street, SW
Washington, DC, 20460, or the Superfund Hotline, Phone (800) 424-9346
or (703) 412-9810 in the Washington, DC, metropolitan area.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Purpose and Implementation of the NPL
III. Contents of This Proposed Rule
IV. Executive Order 12866
V. Regulatory Flexibility Act Analysis
I. Introduction
Background
In 1980, Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601-9675 (``CERCLA'' or
``the Act'') in response to the dangers of uncontrolled hazardous waste
sites. CERCLA was amended on October 17, 1986, by the Superfund
Amendments and Reauthorization Act (``SARA''), Public Law No. 99-499,
100 stat. 1613 et seq. To implement CERCLA, the Environmental
Protection Agency (``EPA'' or ``the Agency'') promulgated the revised
National Oil and Hazardous Substances Pollution Contingency Plan
(``NCP''), 40 CFR Part 300, on July 16, 1982 (47 FR 31180), pursuant to
CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20,
1981). The NCP sets forth the guidelines and procedures needed to
respond under CERCLA to releases and threatened releases of hazardous
substances, pollutants, or contaminants. EPA has revised the NCP on
several occasions. The most recent comprehensive revision was on March
8, 1990 (55 FR 8666).
Section 105(a)(8)(A) of CERCLA requires that the NCP include
``criteria for determining priorities among releases or threatened
releases throughout the United States for the purpose of taking
remedial action. . . and, to the extent practicable taking into account
the potential urgency of such action, for the purpose of taking removal
action.'' ``Removal'' actions are defined broadly and include a wide
range of actions taken to study, clean up, prevent or otherwise address
releases and threatened releases. 42 USC 9601(23). ``Remedial''
actions'' are those ``consistent with permanent remedy, taken instead
of or in addition to removal actions * * *.'' 42 USC 9601(24).
Pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA
has promulgated a list of national priorities among the known or
threatened releases of hazardous substances, pollutants, or
contaminants throughout the United States. That list, which is Appendix
B of 40 CFR Part 300, is the National Priorities List (``NPL'').
CERCLA section 105(a)(8)(B) defines the NPL as a list of
``releases'' and as a list of the highest priority ``facilities.'' The
discussion below may refer to the ``releases or threatened releases''
that are included on the NPL interchangeably as ``releases,''
``facilities,'' or ``sites.''
CERCLA section 105(a)(8)(B) also requires that the NPL be revised
at least annually. A site may undergo remedial action financed by the
Trust Fund established under CERCLA (commonly referred to as the
``Superfund'') only after it is placed on the NPL, as provided in the
NCP at 40 CFR 300.425(b)(1). However, under 40 CFR 300.425(b)(2)
placing a site on the NPL ``does not imply that monies will be
expended.'' EPA may pursue other appropriate authorities to remedy the
releases, including enforcement action under CERCLA and other laws.
Three mechanisms for determining priorities for possible remedial
actions are included in the NCP at 40 CFR 300.425(c) (55 FR 8845, March
8, 1990). Under 40 CFR 300.425(c)(1), a site may be included on the NPL
if it scores sufficiently high on the Hazard Ranking System (``HRS''),
which is Appendix A of 40 CFR Part 300. On December 14, 1990 (55 FR
51532), EPA promulgated revisions to the HRS partly in response to
CERCLA section 105(c), added by SARA. The revised HRS evaluates four
pathways: ground water, surface water, soil exposure, and air. The HRS
serves as a screening device to evaluate the relative potential of
uncontrolled hazardous substances, pollutants, and contaminants to pose
a threat to human health or the environment. Those sites that score
28.50 or greater on the HRS are eligible for the NPL.
Under a second mechanism for adding sites to the NPL, each State
may designate a single site as its top priority, regardless of the HRS
score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2),
requires that, to the extent practicable, the NPL include within the
100 highest priorities, one facility designated by each State
representing the greatest danger to public health, welfare, or the
environment among known facilities in the State.
The third mechanism for listing, included in the NCP at 40 CFR
300.425(c)(3), allows certain sites to be [[Page 8213]] listed whether
or not they score above 28.50, if all of the following conditions are
met:
The Agency for Toxic Substances and Disease Registry
(ATSDR) of the U.S. Public Health Service has issued a health advisory
that recommends dissociation of individuals from the release.
EPA determines that the release poses a significant threat
to public health.
EPA anticipates that it will be more cost-effective to use
its remedial authority than to use its removal authority to respond to
the release.
EPA promulgated an original NPL of 406 sites on September 8, 1983
(48 FR 40658). The NPL has been expanded since then, most recently on
December 16, 1994 (59 FR 65206).
The NPL includes two sections, one of sites being evaluated and
cleaned up by EPA (the ``General Superfund Section''), and one of sites
being addressed by other Federal agencies (the ``Federal Facilities
Section''). Under Executive Order 12580 and CERCLA section 120, each
Federal agency is responsible for carrying out most response actions at
facilities under its own jurisdiction, custody, or control, although
EPA is responsible for preparing an HRS score and determining if the
facility is placed on the NPL. EPA is not the lead agency at these
sites, and its role at such sites is accordingly less extensive than at
other sites. The Federal Facilities Section includes those facilities
at which EPA is not the lead agency.
Deletions/Cleanups
EPA may delete sites from the NPL where no further response is
appropriate under Superfund, as explained in the NCP at 40 CFR
300.425(e) (55 FR 8845, March 8, 1990). To date, the Agency has deleted
68 sites from the General Superfund Section of the NPL, most recently
Suffolk City Landfill, Suffolk, Virginia (60 FR 4568, January 24,
1995).
EPA also has developed an NPL construction completion list
(``CCL'') to simplify its system of categorizing sites and to better
communicate the successful completion of cleanup activities (58 FR
12142, March 2, 1993). Sites qualify for the CCL when: (1) any
necessary physical construction is complete, whether or not final
cleanup levels or other requirements have been achieved; (2) EPA has
determined that the response action should be limited to measures that
do not involve construction (e.g., institutional controls); or (3) the
site qualifies for deletion from the NPL. Inclusion of a site on the
CCL has no legal significance.
In addition to the 67 sites that have been deleted from the NPL
because they have been cleaned up (the Waste Research and Reclamation
site was deleted based on deferral to another program and is not
considered cleaned up), an additional 215 sites are also in the NPL
CCL, all but two from the General Superfund Section. Thus, as of
January 25, 1995, the CCL consists of 282 sites.
Cleanups at sites on the NPL do not reflect the total picture of
Superfund accomplishments. As of December 1994, EPA had conducted 649
removal actions at NPL sites, and 2,357 removal actions at non-NPL
sites. Information on removals is available from the Superfund hotline.
Pursuant to the NCP at 40 CFR 300.425(c), this document proposes to
add 9 sites to the NPL. The General Superfund Section currently
includes 1,087 sites, and the Federal Facilities Section includes 154
sites, for a total of 1,241 sites on the NPL. An additional 55 sites
are proposed, 47 in the General Superfund Section and 8 in the Federal
Facilities Section. Final and proposed sites now total 1,296.
Public Comment Period
The documents that form the basis for EPA's evaluation and scoring
of sites in this rule are contained in dockets located both at EPA
Headquarters and in the appropriate Regional offices. The dockets are
available for viewing, by appointment only, after the appearance of
this rule. The hours of operation for the Headquarters docket are from
9:00 a.m. to 4:00 p.m., Monday through Friday excluding Federal
holidays. Please contact individual Regional dockets for hours.
Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, (Mail
Code 5201G), Crystal Gateway #1, 12th Floor, 1235 Jefferson Davis
Highway, Arlington, VA 22202, 703/603-8917. (Please note this is
visiting address only. Mail comments to address listed in Addresses
section above.)
Ellen Culhane, Region 1, U.S. EPA Waste Management Records Center, HES-
CAN 6, J.F. Kennedy Federal Building, Boston, MA 02203-2211, 617/573-
5729
Walter Schoepf, Region 2, U.S. EPA, 26 Federal Plaza, New York, NY
10278 212/264-0221
Diane McCreary, Region 3, U.S. EPA Library, 3rd Floor, 841 Chestnut
Building, 9th & Chestnut Streets, Philadelphia, PA 19107, 215/597-7904
Kathy Piselli, Region 4 U.S. EPA, 345 Courtland Street, NE., Atlanta,
GA 30365, 404/347-4216
Cathy Freeman, Region 5, U.S. EPA, Records Center, Waste Management
Division 7-J, Metcalfe Federal Building, 77 West Jackson Boulevard,
Chicago, IL 60604, 312/886-6214
Bart Canellas, Region 6, U.S. EPA, 1445 Ross Avenue, Mail Code 6H-MA,
Dallas, TX 75202-2733, 214/655-6740
Steven Wyman, Region 7, U.S. EPA Library, 726 Minnesota Avenue, Kansas
City, KS 66101, 913/551-7241
Greg Oberley, Region 8, U.S. EPA, 999 18th Street, Suite 500, Denver,
CO 80202-2466, 303/294-7598
Rachel Loftin, Region 9, U.S. EPA, 75 Hawthorne Street, San Francisco,
CA 94105, 415/744-2347
David Bennett, Region 10, U.S. EPA, 11th Floor, 1200 6th Avenue, Mail
Stop HW-114, Seattle, WA 98101, 206/553-2103
The Headquarters docket for this rule contains HRS score sheets for
each proposed site; a Documentation Record for each site describing the
information used to compute the score; information for any site
affected by particular statutory requirements or EPA listing policies;
and a list of documents referenced in the Documentation Record. Each
Regional docket for this rule contains all of the information in the
Headquarters docket for sites in that Region, plus the actual reference
documents containing the data principally relied upon and cited by EPA
in calculating or evaluating the HRS scores for sites in that Region.
These reference documents are available only in the Regional dockets.
Interested parties may view documents, by appointment only, in the
Headquarters or the appropriate Regional docket or copies may be
requested from the Headquarters or appropriate Regional docket. An
informal written request, rather than a formal request under the
Freedom of Information Act, should be the ordinary procedure for
obtaining copies of any of these documents.
EPA considers all comments received during the comment period.
During the comment period, comments are placed in the Headquarters
docket and are available to the public on an ``as received'' basis. A
complete set of comments will be available for viewing in the Regional
docket approximately one week after the formal comment period closes.
Comments received after the comment period closes will be available in
the Headquarters docket and in the Regional docket on an ``as
received'' basis. Comments that include complex or voluminous reports,
or [[Page 8214]] materials prepared for purposes other than HRS
scoring, should point out the specific information that EPA should
consider and how it affects individual HRS factor values. See Northside
Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988). EPA will
make final listing decisions after considering the relevant comments
received during the comment period.
In past rules, EPA has attempted to respond to late comments, or
when that was not practicable, to read all late comments and address
those that brought to the Agency's attention a fundamental error in the
scoring of a site. (See, most recently, 57 FR 4824 (February 7, 1992)).
Although EPA intends to pursue the same policy with sites in this rule,
EPA can guarantee that it will consider only those comments postmarked
by the close of the formal comment period. EPA has a policy of not
delaying a final listing decision solely to accommodate consideration
of late comments.
In certain instances, interested parties have written to EPA
concerning sites which were not at that time proposed to the NPL. If
those sites are later proposed to the NPL, parties should review their
earlier concerns and, if still appropriate, resubmit those concerns for
consideration during the formal comment period. Site-specific
correspondence received prior to the period of formal proposal and
comment will not generally be included in the docket.
II. Purpose and Implementation of the NPL
Purpose
The legislative history of CERCLA (Report of the Committee on
Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d
Sess. 60 (1980)) states the primary purpose of the NPL:
The priority lists serve primarily informational purposes,
identifying for the States and the public those facilities and sites
or other releases which appear to warrant remedial actions.
Inclusion of a facility or site on the list does not in itself
reflect a judgment of the activities of its owner or operator, it
does not require those persons to undertake any action, nor does it
assign liability to any person. Subsequent government action in the
form of remedial actions or enforcement actions will be necessary in
order to do so, and these actions will be attended by all
appropriate procedural safeguards.
The purpose of the NPL, therefore, is primarily to serve as an
informational and management tool. The identification of a site for the
NPL is intended to guide EPA in determining which sites warrant further
investigation to assess the nature and extent of the public health and
environmental risks associated with the site and to determine what
CERCLA remedial action(s), if any, may be appropriate. The NPL also
serves to notify the public of sites that EPA believes warrant further
investigation. Finally, listing a site serves as notice to potentially
responsible parties that the Agency may initiate CERCLA-financed
remedial action.
Implementation
After initial discovery of a site at which a release or threatened
release may exist, EPA begins a series of increasingly complex
evaluations. The first step, the Preliminary Assessment (``PA''), is a
low-cost review of existing information to determine if the site poses
a threat to public health or the environment. If the site presents a
serious imminent threat, EPA may take immediate removal action. If the
PA shows that the site presents a threat but not an imminent threat,
EPA will generally perform a more extensive study called the Site
Inspection (``SI''). The SI involves collecting additional information
to better understand the extent of the problem at the site, screen out
sites that will not qualify for the NPL, and obtain data necessary to
calculate an HRS score for sites which warrant placement on the NPL and
further study. EPA may perform removal actions at any time during the
process. As of December 1994, EPA had completed 36,831 PAs and 17,790
SIs.
The NCP at 40 CFR 300.425(b)(1) (55 FR 8845, March 8, 1990) limits
expenditure of the Trust Fund for remedial actions to sites on the NPL.
However, EPA may take enforcement actions under CERCLA or other
applicable statutes against responsible parties regardless of whether
the site is on the NPL, although, as a practical matter, the focus of
EPA's CERCLA enforcement actions has been and will continue to be on
NPL sites. Similarly, in the case of CERCLA removal actions, EPA has
the authority to act at any site, whether listed or not, that meets the
criteria of the NCP at 40 CFR 300.415(b)(2) (55 FR 8842, March 8,
1990). EPA's policy is to pursue cleanup of NPL sites using all the
appropriate response and/or enforcement actions available to the
Agency, including authorities other than CERCLA. The Agency will decide
on a site-by-site basis whether to take enforcement or other action
under CERCLA or other authorities prior to undertaking response action,
proceed directly with Trust Fund-financed response actions and seek to
recover response costs after cleanup, or do both. To the extent
feasible, once sites are on the NPL, EPA will determine high-priority
candidates for CERCLA-financed response action and/or enforcement
action through both State and Federal initiatives. EPA will take into
account which approach is more likely to accomplish cleanup of the site
most expeditiously while using CERCLA's limited resources as
efficiently as possible.
Although the ranking of sites by HRS scores is considered, it does
not, by itself, determine the sequence in which EPA funds remedial
response actions, since the information collected to develop HRS scores
is not sufficient to determine either the extent of contamination or
the appropriate response for a particular site (40 CFR 300.425(b)(2),
55 FR 8845, March 8, 1990). Additionally, resource constraints may
preclude EPA from evaluating all HRS pathways; only those that present
significant risk or are sufficient to make a site eligible for the NPL
may be evaluated. Moreover, the sites with the highest scores do not
necessarily come to the Agency's attention first, so that addressing
sites strictly on the basis of ranking would in some cases require
stopping work at sites where it was already underway.
More detailed studies of a site are undertaken in the Remedial
Investigation/Feasibility Study (``RI/FS'') that typically follows
listing. The purpose of the RI/FS is to assess site conditions and
evaluate alternatives to the extent necessary to select a remedy (40
CFR 300.430(a)(2) (55 FR 8846, March 8, 1990)). It takes into account
the amount of hazardous substances, pollutants or contaminants released
into the environment, the risk to affected populations and environment,
the cost to remediate contamination at the site, and the response
actions that have been taken by potentially responsible parties or
others. Decisions on the type and extent of response action to be taken
at these sites are made in accordance with 40 CFR 300.415 (55 FR 8842,
March 8, 1990) and 40 CFR 300.430 (55 FR 8846, March 8, 1990). After
conducting these additional studies, EPA may conclude that initiating a
CERCLA remedial action using the Trust Fund at some sites on the NPL is
not appropriate because of more pressing needs at other sites, or
because a private party cleanup is already underway pursuant to an
enforcement action. Given the limited resources available in the Trust
Fund, the Agency must carefully balance the relative needs for response
at the numerous sites it has studied. It is also possible that EPA will
conclude after [[Page 8215]] further analysis that the site does not
warrant remedial action.
RI/FS at Proposed Sites
An RI/FS may be performed at sites proposed in the Federal Register
for placement on the NPL (or even sites that have not been proposed for
placement on the NPL) pursuant to the Agency's removal authority under
CERCLA, as outlined in the NCP at 40 CFR 300.415. Although an RI/FS
generally is conducted at a site after it has been placed on the NPL,
in a number of circumstances the Agency elects to conduct an RI/FS at a
site proposed for placement on the NPL in preparation for a possible
Trust Fund financed remedial action, such as when the Agency believes
that a delay may create unnecessary risks to public health or the
environment. In addition, the Agency may conduct an RI/FS to assist in
determining whether to conduct a removal or enforcement action at a
site.
Facility (Site) Boundaries
The NPL does not describe releases in precise geographical terms;
it would be neither feasible nor consistent with the limited purpose of
the NPL (as the mere identification of releases), for it to do so.
CERCLA section 105(a)(8)(B) directs EPA to list national priorities
among the known ``releases or threatened releases.'' Thus, the purpose
of the NPL is merely to identify releases that are priorities for
further evaluation. Although a CERCLA ``facility'' is broadly defined
to include any area where a hazardous substance release has ``come to
be located'' (CERCLA section 101(9)), the listing process itself is not
intended to define or reflect the boundaries of such facilities or
releases. Of course, HRS data upon which the NPL placement was based
will, to some extent, describe which release is at issue. That is, the
NPL site would include all releases evaluated as part of that HRS
analysis (including noncontiguous releases evaluated under the NPL
aggregation policy, described at 48 FR 40663 (September 8, 1983)).
EPA regulations provide that the ``nature and extent of the threat
presented by a release'' will be determined by an RI/FS as more
information is developed on site contamination (40 CFR 300.68(d)).
During the RI/FS process, the release may be found to be larger or
smaller than was originally thought, as more is learned about the
source and the migration of the contamination. However, this inquiry
focuses on an evaluation of the threat posed; the boundaries of the
release need not be defined. Moreover, it generally is impossible to
discover the full extent of where the contamination ``has come to be
located'' before all necessary studies and remedial work are completed
at a site. Indeed, the boundaries of the contamination can be expected
to change over time. Thus, in most cases, it will be impossible to
describe the boundaries of a release with certainty.
For these reasons, the NPL need not be amended if further research
into the extent of the contamination expands the apparent boundaries of
the release. Further, the NPL is only of limited significance, as it
does not assign liability to any party or to the owner of any specific
property. See Report of the Senate Committee on Environment and Public
Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), quoted
above and at 48 FR 40659 (September 8, 1983). If a party contests
liability for releases on discrete parcels of property, it may do so if
and when the Agency brings an action against that party to recover
costs or to compel a response action at that property.
At the same time, however, the RI/FS or the Record of Decision
(which defines the remedy selected, 40 CFR 300.430(f)) may offer a
useful indication to the public of the areas of contamination at which
the Agency is considering taking a response action, based on
information known at that time. For example, EPA may evaluate (and
list) a release over a 400-acre area, but the Record of Decision may
select a remedy over 100 acres only. This information may be useful to
a landowner seeking to sell the other 300 acres, but it would result in
no formal change in the fact that a release is included on the NPL. The
landowner (and the public) also should note in such a case that if
further study (or the remedial construction itself) reveals that the
contamination is located on or has spread to other areas, the Agency
may address those areas as well.
This view of the NPL as an initial identification of a release that
is not subject to constant re-evaluation is consistent with the
Agency's policy of not rescoring NPL sites:
EPA recognizes that the NPL process cannot be perfect, and it is
possible that errors exist or that new data will alter previous
assumptions. Once the initial scoring effort is complete, however,
the focus of EPA activity must be on investigating sites in detail
and determining the appropriate response. New data or errors can be
considered in that process * * * [T]he NPL serves as a guide to EPA
and does not determine liability or the need for response. (49 FR
37081 (September 21, 1984).
See also City of Stoughton, Wisc. v. U.S. EPA, 858 F. 2d 747, 751
(D.C. Cir. 1988):
Certainly EPA could have permitted further comment or conducted
further testing [on proposed NPL sites]. Either course would have
consumed further assets of the Agency and would have delayed a
determination of the risk priority associated with the site. Yet * *
* ``the NPL is simply a rough list of priorities, assembled quickly
and inexpensively to comply with Congress' mandate for the Agency to
take action straightaway.'' Eagle-Picher [Industries v. EPA] II, 759
F. 2d [921] at 932 [(D.C. Cir. 1985)].
It is the Agency's policy that, in the exercise of its enforcement
discretion, EPA will not take enforcement actions against an owner of
residential property to require such owner to undertake response
actions or pay response costs, unless the residential homeowner's
activities lead to a release or threat of release of hazardous
substances, resulting in the taking of a response action at the site
(OSWER Directive #9834.6, July 3, 1991). This policy includes
residential property owners whose property is located above a ground
water plume that is proposed to or on the NPL, where the residential
property owner did not contribute to the contamination of the site. EPA
may, however, require access to that property during the course of
implementing a clean up.
III. Contents of This Proposed Rule
Table 1 identifies the 7 sites in the General Superfund Section and
Table 2 identifies the 2 sites in the Federal Facilities Section being
proposed to the NPL in this rule. Both tables follow this preamble. All
sites are proposed based on HRS scores of 28.50 or above. The sites in
Table 1 and Table 2 are listed alphabetically by State, for ease of
identification, with group number identified to provide an indication
of relative ranking. To determine group number, sites on the NPL are
placed in groups of 50; for example, a site in Group 4 of this proposal
has a score that falls within the range of scores covered by the fourth
group of 50 sites on the NPL.
Statutory Requirements
CERCLA section 105(a)(8)(B) directs EPA to list priority sites
``among'' the known releases or threatened releases of hazardous
substances, pollutants, or contaminants, and section 105(a)(8)(A)
directs EPA to consider certain enumerated and ``other appropriate''
factors in doing so. Thus, as a matter of policy, EPA has the
discretion not to use CERCLA to respond to certain types of
[[Page 8216]] releases. Where other authorities exist, placing sites on
the NPL for possible remedial action under CERCLA may not be
appropriate. Therefore, EPA has chosen not to place certain types of
sites on the NPL even though CERCLA does not exclude such action. If,
however, the Agency later determines that sites not listed as a matter
of policy are not being properly responded to, the Agency may place
them on the NPL.
The listing policies and statutory requirements of relevance to
this proposed rule cover Federal facility sites. This policy and
requirements are explained below and have been explained in greater
detail previously (56 FR 5598, February 11, 1991).
Releases From Federal Facility Sites
On March 13, 1989 (54 FR 10520), the Agency announced a policy for
placing Federal facility sites on the NPL if they meet the eligibility
criteria (e.g., an HRS score of 28.50 or greater), even if the Federal
facility also is subject to the corrective action authorities of RCRA
Subtitle C. In that way, those sites could be cleaned up under CERCLA,
if appropriate.
This rule proposes to add three sites to the Federal Facilities
Section of the NPL.
Economic Impacts
The costs of cleanup actions that may be taken at any site are not
directly attributable to placement on the NPL. EPA has conducted a
preliminary analysis of economic implications of today's proposal to
the NPL. EPA believes that the kinds of economic effects associated
with this proposal generally are similar to those effects identified in
the regulatory impact analysis (RIA) prepared in 1982 for the revisions
to the NCP pursuant to section 105 of CERCLA and the economic analysis
prepared when amendments to the NCP were proposed (50 FR 5882, February
12, 1985). The Agency believes the anticipated economic effects related
to proposing and adding sites to the NPL can be characterized in terms
of the conclusions of the earlier RIA and the most recent economic
analysis.
Inclusion of a site on the NPL does not itself impose any costs. It
does not establish that EPA necessarily will undertake remedial action,
nor does it require any action by a private party or determine its
liability for site response costs. Costs that arise out of site
responses result from site-by-site decisions about what actions to
take, not directly from the act of listing itself. Nonetheless, it is
useful to consider the costs associated with responding to the sites
included in this rulemaking.
The major events that typically follow the proposed listing of a
site on the NPL are a search for potentially responsible parties and a
remedial investigation/feasibility study (RI/FS) to determine if
remedial actions will be undertaken at a site. Design and construction
of the selected remedial alternative follow completion of the RI/FS,
and operation and maintenance (O&M) activities may continue after
construction has been completed.
EPA initially bears costs associated with responsible party
searches. Responsible parties may bear some or all the costs of the RI/
FS, remedial design and construction, and O&M, or EPA and the States
may share costs.
The State cost share for site cleanup activities is controlled by
Section 104(c) of CERCLA and the NCP. For privately-operated sites, as
well as at publicly-owned but not publicly-operated sites, EPA will pay
for 100% of the costs of the RI/FS and remedial planning, and 90% of
the costs associated with remedial action. The State will be
responsible for 10% of the remedial action. For publicly-operated
sites, the State cost share is at least 50% of all response costs at
the site, including the RI/FS and remedial design and construction of
the remedial action selected. After the remedy is built, costs fall
into two categories:
--For restoration of ground water and surface water, EPA will share in
startup costs according to the criteria in the previous paragraph for
10 years or until a sufficient level of protectiveness is achieved
before the end of 10 years.
--For other cleanups, EPA will share for up to 1 year the cost of that
portion of response needed to assure that a remedy is operational and
functional. After that, the State assumes full responsibilities for
O&M.
In previous NPL rulemakings, the Agency estimated the costs
associated with these activities (RI/FS, remedial design, remedial
action, and O&M) on an average per site and total cost basis. EPA will
continue with this approach, using the most recent cost estimates
available; the estimates are presented below. However, there is wide
variation in costs for individual sites, depending on the amount, type,
and extent of contamination. Additionally, EPA is unable to predict
what portions of the total costs responsible parties will bear, since
the distribution of costs depends on the extent of voluntary and
negotiated response and the success of any cost-recovery actions.
------------------------------------------------------------------------
Average total
Cost category cost per site\1\
------------------------------------------------------------------------
RI/FS................................................. 1,350,000
Remedial Design....................................... 1,260,000
Remedial Action....................................... \3\22,500,000
Present Discounted Value O&M\2\....................... 5,630,000
------------------------------------------------------------------------
\1\1994 U.S. Dollars.
\2\Assumes cost of O&M over 30 years, $400,000 for the first year and
5.8% discount rate.
\3\Includes State cost-share.
Source: Office of Program Management, Office of Emergency and Remedial
Response, U.S. EPA, Washington, DC.
Costs to the States associated with today's proposed rule are
incurred when the sites are finalized and arise from the required State
cost-share of: (1) 10% of remedial actions and 10% of first-year O&M
costs at privately-owned sites and sites that are publicly-owned but
not publicly-operated; (2) at least 50% of the remedial planning (RI/FS
and remedial design), remedial action, and first-year O&M costs at
publicly-operated sites; and (3) States will assume the cost for O&M
after EPA's period of participation. Using the budget projections
presented above, the cost to the States of undertaking Federal remedial
planning and actions, but excluding O&M costs, would be approximately
$26 million. State O&M costs cannot be accurately determined because
EPA, as noted above, will pay O&M costs for up to 10 years for
restoration of ground water and surface water, and it is not known if
the site will require this treatment and for how long. Assuming EPA
involvement for 10 years is needed, State O&M costs would be
approximately $35 million.
Placing a site on the proposed or final NPL does not itself cause
firms responsible for the site to bear costs. Nonetheless, a listing
may induce firms to clean up the sites voluntarily, or it may act as a
potential trigger for subsequent enforcement or cost-recovery actions.
Such actions may impose costs on firms, but the decisions to take such
actions are discretionary and made on a case-by-case basis.
Consequently, precise estimates of these effects cannot be made. EPA
does not believe that every site will be cleaned up by a responsible
party. EPA cannot project at this time which firms or industry sectors
will bear specific portions of the response costs, but the Agency
considers: the volume and nature of the waste at the sites; the
strength of the evidence linking the wastes at the site to the parties;
the parties' ability to pay; and other factors when deciding whether
and how to proceed against the parties. [[Page 8217]]
Economy-wide effects of an amendment to the NPL are aggregations of
efforts on firms and State and local governments. Although effects
could be felt by some individual firms and States, the total impact of
this amendment on output, prices, and employment is expected to be
negligible at the national level, as was the case in the 1982 RIA.
Benefits
The real benefits associated with today's amendment are increased
health and environmental protection as a result of increased public
awareness of potential hazards. In addition to the potential for more
Federally-financed remedial actions, expansion of the NPL could
accelerate privately-financed, voluntary cleanup efforts. Listing sites
as national priority targets also may give States increased support for
funding responses at particular sites.
As a result of the additional CERCLA remedies, there will be lower
human exposure to high-risk chemicals, and higher-quality surface
water, ground water, soil, and air. These benefits are expected to be
significant, although difficult to estimate in advance of completing
the RI/FS at these sites.
IV. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
V. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act of 1980 requires EPA to review the
impacts of this action on small entities, or certify that the action
will not have a significant impact on a substantial number of small
entities. By small entities, the Act refers to small businesses, small
government jurisdictions, and nonprofit organizations.
While this rule proposes to revise the NPL, an NPL revision is not
a typical regulatory change since it does not automatically impose
costs. As stated above, adding sites to the NPL does not in itself
require any action by any party, nor does it determine the liability of
any party for the cost of cleanup at the site. Further, no identifiable
groups are affected as a whole. As a consequence, impacts on any group
are hard to predict. A site's inclusion on the NPL could increase the
likelihood of adverse impacts on responsible parties (in the form of
cleanup costs), but at this time EPA cannot identify the potentially
affected businesses or estimate the number of small businesses that
might also be affected.
The Agency does expect that placing the sites in this proposed rule
on the NPL could significantly affect certain industries, or firms
within industries, that have caused a proportionately high percentage
of waste site problems. However, EPA does not expect the listing of
these sites to have a significant economic impact on a substantial
number of small businesses.
In any case, economic impacts would occur only through enforcement
and cost-recovery actions, which EPA takes at its discretion on a site-
by-site basis. EPA considers many factors when determining enforcement
actions, including not only a firm's contribution to the problem, but
also its ability to pay. The impacts (from cost recovery) on small
governments and nonprofit organizations would be determined on a
similar case-by-case basis.
For the foregoing reasons, I hereby certify that this proposed rule
would not have a significant economic impact on a substantial number of
small entities. Therefore, this proposed regulation does not require a
regulatory flexibility analysis.
National Priorities List Proposed Rule #18 General Superfund Section
------------------------------------------------------------------------
State Site name City/county NPL Gr\1\
------------------------------------------------------------------------
FL Normandy Park Temple Terrace.......... 6
Apartments.
KS Ace Services......... Colby................... 5/6
LA Gulf State Utilities- Lake Charles............ 5
North Ryan Street.
LA Old Citgo Refinery... Bossier City............ 5/6
LA Southern Shipbuilding Slidell................. 5/6
ME West Site/Hows Plymouth................ 5/6
Corners.
MI Bay City Bay City................ 5/6
Middlegrounds.
------------------------------------------------------------------------
\1\Sites are placed in groups (Gr) corresponding to groups of 50 on the
final NPL.
Note: Number of Sites Proposed to General Superfund Section: 7.
National Priorities List Proposed Rule #18 Federal Facilities Section
------------------------------------------------------------------------
State Site name City/county NPL Gr\1\
------------------------------------------------------------------------
KS Sunflower Army DeSoto.................. 5/6
Ammunition Plant.
MD Indian Head Naval Indian Head............. 5/6
Surface Warfare
Center.
------------------------------------------------------------------------
\1\Sites are placed in groups (Gr) corresponding to groups of 50 on the
final NPL.
Note: Number of Sites Proposed to Federal Facilities Section: 2.
List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals, Hazardous materials,
Intergovernmental relations, Natural resources, Oil pollution,
Reporting and recordkeeping requirements, Superfund, Waste treatment
and disposal, Water pollution control, Water supply.
Authority: 42 U.S.C. 9605; 42 U.S.C. 9620; 33 U.S.C. 1321(c)(2);
E.O. 11735, 3 CFR, 1971-1975 Comp., p. 793; E.O. 12580, 3 CFR, 1987
Comp., p. 193.
Dated: February 8, 1995.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 95-3601 Filed 2-10-95; 8:45 am]
BILLING CODE 6560-50-P
