[Federal Register Volume 66, Number 178 (Thursday, September 13, 2001)]
[Proposed Rules]
[Pages 47612-47618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22742]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-7054-4]
National Priorities List for Uncontrolled Hazardous Waste Sites,
Proposed Rule No. 37
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 intended primarily to guide
the Environmental Protection Agency (``EPA'' or ``the Agency'') in
determining which sites warrant further investigation. These further
investigations will allow EPA 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 proposed rule proposes to add 17 new sites to the
NPL; 16 sites to the General Superfund Section of the NPL and one site
to the Federal Facilities Section. (Please note that one of the sites
is being reproposed to the NPL.)
DATES: Comments regarding any of these proposed listings must be
submitted (postmarked) on or before November 13, 2001.
ADDRESSES: By Postal Mail: Mail original and three copies of comments
(no facsimiles or tapes) to Docket Coordinator, Headquarters; U.S.
Environmental Protection Agency; CERCLA Docket Office; (Mail Code
5201G); 1200 Pennsylvania Avenue NW., Washington, DC 20460.
By Express Mail or Courier: Send original and three copies of
comments (no facsimiles or tapes) to Docket Coordinator, Headquarters;
U.S. Environmental Protection Agency; 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; 1200 Pennsylvania Avenue NW., 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. How Has EPA Complied with the Regulatory Flexibility Act
(RFA)?
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 Orders on Federalism
What Are The Executive Orders on Federalism and Are They
Applicable to This Proposed Rule?
XII. Executive Order 13084
What is Executive Order 13084 and Is It Applicable to this
Proposed Rule?
XIII. Executive Order 13175
A. What is Executive Order 13175?
B. Does Executive Order 13175 Apply to This Proposed Rule?
XIV. Executive Order 13211
A. What is Executive Order 13211?
B. Is this Rule Subject to Executive Order 13211?
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''), Public Law 99-
499, 100 Stat. 1613 et seq.
[[Page 47613]]
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 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 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
June 14, 2001 (66 FR 32235).
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
[[Page 47614]]
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 problem
presented by the 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 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 August 23, 2001, the Agency has deleted 239
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 August 23,
2001, EPA has deleted 24 portions of 23 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.
As of August 23, 2001, there are a total of 773 sites on the CCL.
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 sites in this rule are contained in dockets located both at EPA
Headquarters in Washington, DC and in the Regional offices.
B. How Do I Access the Documents?
You may view the documents, by appointment only, in the
Headquarters or the Regional dockets 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 Regional dockets 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 Regional dockets is as follows:
Ellen Culhane, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA,
Superfund Records Center, Mailcode HSC, One Congress Street, Suite
1100, Boston, MA 02114-2023; 617/918-1225.
Dennis Munhall, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway,
New York, NY 10007-1866; 212/637-4343.
Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S.
EPA, Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103;
215/814-5364.
Lauren Brantley, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S.
EPA, 61 Forsyth Street, SW, 9th floor, Atlanta, GA 30303; 404/562-8127.
Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA,
Records Center, Superfund Division SMR-7J, Metcalfe Federal Building,
77 West Jackson Boulevard, Chicago, IL 60604; 312/353-5821.
Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross
Avenue, Mailcode 6SF-RA, Dallas, TX 75202-2733; 214/665-7436.
Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th
Street, Kansas City, KS 66101; 913/551-7335.
David Williams, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999
18th Street, Suite 500, Mailcode 8EPR-SA, 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.
Robert Phillips, Region 10 (AK, ID, OR, WA), U.S. EPA, 11th Floor,
1200 6th Avenue, Mail Stop ECL-110, Seattle, WA 98101; 206/553-6699.
[[Page 47615]]
You may also request copies from EPA Headquarters or the Regional
dockets. 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 sites; a Documentation Record for the sites describing
the information used to compute the score; information for any sites
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
Dockets?
The Regional dockets for this rule contain 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 sites. 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 in the ADDRESSES section. Please note that
the addresses differ according to method of delivery. There are two
different addresses that depend on whether comments are sent by express
mail or by postal mail.
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 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
With today's proposed rule, EPA is proposing to add 17 new sites to
the NPL; 16 sites to the General Superfund Section of the NPL and one
site to the Federal Facilities Section. (Please note that the Sauget 1
site in Illinois is being reproposed to the NPL.) The sites in this
proposed rulemaking are being proposed based on HRS scores of 28.50 or
above. The sites are presented in Table 1 and Table 2 which follow this
preamble.
B. Status of NPL
A final rule published elsewhere in today's Federal Register
finalizes 11 sites to the NPL; resulting in an NPL of 1,240 final
sites; 1,080 in the General Superfund Section and 160 in the Federal
Facilities Section. With this proposal of 17 new sites, there are now
72 sites proposed and awaiting final agency action, 65 in the General
Superfund Section and 7 in the Federal Facilities Section. (Please note
that one of the 17 sites is being reproposed to the NPL.) Final and
proposed sites now total 1,312. (These numbers reflect the status of
sites as of August 23, 2001. Site deletions occurring after this date
may affect these numbers at time of publication in the Federal
Register.)
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 listing of sites on the NPL does not impose any obligations
on any entities. The listing does not set standards or a regulatory
regime and imposes no liability or costs. Any liability under CERCLA
exists irrespective of whether a site is listed. It has been determined
that this action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 and is therefore not subject to OMB
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
[[Page 47616]]
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. How Has EPA Complied With the Regulatory Flexibility Act (RFA)?
This proposed rule listing sites on the NPL, if promulgated, would
not impose any obligations on any group, including small entities. This
proposed rule, if promulgated, also would establish no standards or
requirements that any small entity must meet, and would impose no
direct costs on any small entity. Whether an entity, small or
otherwise, is liable for response costs for a release of hazardous
substances depends on whether that entity is liable under CERCLA
107(a). Any such liability exists regardless of whether the site is
listed on the NPL through this rulemaking. Thus, this proposed rule, if
promulgated, would not impose any requirements on any small entities.
For the foregoing reasons, I certify that this proposed rule, if
promulgated, will not have a significant economic impact on a
substantial number of small entities.
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
[[Page 47617]]
significant'' as defined under Executive Order 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 proposed rule is not subject to Executive Order 13045 because
it is not an economically significant rule as defined by Executive
Order 12866, and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this proposed rule
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 Orders on Federalism
What Are The Executive Orders on Federalism and Are They Applicable to
This Proposed Rule?
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Thus, the requirements of
section 6 of the Executive Order 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. The addition of
sites to the NPL will not impose any substantial direct compliance
costs on Tribes. While Tribes may incur costs from participating in the
investigations and cleanup decisions, those costs are not compliance
costs. Accordingly, the requirements of section 3(b) of Executive Order
13084 do not apply to this proposed rule.
XIII. Executive Order 13175
A. What Is Executive Order 13175?
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
B. Does Executive Order 13175 Apply to This Proposed Rule?
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this proposed rule.
XIV. Executive Order 13211
A. What Is Executive Order 13211?
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001), requires EPA to prepare and submit a Statement of
Energy Effects to the Administrator of the Office of Information and
Regulatory Affairs, Office of Management and Budget, for certain
actions identified as ``significant energy actions.'' Section 4(b) of
[[Page 47618]]
Executive Order 13211 defines ``significant energy actions'' as ``any
action by an agency (normally published in the Federal Register) that
promulgates or is expected to lead to the promulgation of a final rule
or regulation, including notices of inquiry, advance notices of
proposed rulemaking, and notices of proposed rulemaking: (1)(i) that is
a significant regulatory action under Executive Order 12866 or any
successor order, and (ii) is likely to have a significant adverse
effect on the supply, distribution, or use of energy; or (2) that is
designated by the Administrator of the Office of Information and
Regulatory Affairs as a significant energy action.''
B. Is This Rule Subject to Executive Order 13211?
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866 (See
discussion of Executive Order 12866 above.)
Table 1.--National Priorities List Proposed Rule No. 37, General
Superfund Section
------------------------------------------------------------------------
State Site name City/County
------------------------------------------------------------------------
IA.......................... Railroad Avenue Des Moines.
Groundwater
Contamination.
ID.......................... Stibnite/Yellow Pine Yellow Mine.
Mining Area.
IL.......................... Sauget Area 1....... Sauget and Cahokia.
IL.......................... Sauget Area 2....... Sauget.
MA.......................... Hatheway and Mansfield.
Patterson Company.
ME.......................... Callahan Mine....... Brooksville.
MO.......................... Oak Grove Village Oak Grove Village.
Well.
NC.......................... Reasor Chemical Castle Hayne.
Company.
NJ.......................... Atlantic Resources Sayreville.
Corporation.
NJ.......................... Woodbrook Road Dump. South Plainfield.
NM.......................... McGaffey and Main Roswell.
Groundwater Plume.
NY.......................... Cayuga County Ground Cayuga County.
Water Contamination.
NY.......................... Crown Cleaners of Carthage.
Watertown, Inc.
NY.......................... Ellenville Scrap Ellenville.
Iron and Metal.
PA.......................... Franklin Slag Pile Philadelphia.
(MDC).
TX.......................... Brine Service Corpus Christi.
Company.
------------------------------------------------------------------------
Number of Sites Proposed to General Superfund Section: 16.
Table 2.--National Priorities List Proposed Rule No. 37, Federal
Facilities Section
------------------------------------------------------------------------
State Site name City/County
------------------------------------------------------------------------
MD.......................... Curtis Bay Coast Anne Arundel County.
Guard Yard.
------------------------------------------------------------------------
Number of Sites Proposed to Federal Facilities Section: 1.
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 5, 2001.
Michael H. Shapiro,
Acting Assistant Administrator, Office of Solid Waste and Emergency
Response.
[FR Doc. 01-22742 Filed 9-12-01; 8:45 am]
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