[Federal Register Volume 69, Number 184 (Thursday, September 23, 2004)]
[Rules and Regulations]
[Pages 56949-56956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21388]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-7817-6]
National Priorities List for Uncontrolled Hazardous Waste Sites
AGENCY: Environmental Protection Agency.
ACTION: Final 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 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 rule adds two new sites to the NPL; both to the
General Superfund Section of the NPL.
DATES: Effective Date: The effective date for this amendment to the NCP
shall be October 25, 2004.
ADDRESSES: For addresses for the Headquarters and Regional dockets, as
well as further details on what these dockets contain, see section II,
``Availability of Information to the Public'' in the SUPPLEMENTARY
INFORMATION portion of this preamble.
FOR FURTHER INFORMATION CONTACT: Yolanda Singer, phone (703) 603-8835,
State, Tribal and Site Identification Branch; Assessment and
Remediation Division; Office of Superfund Remediation and Technology
Innovation (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. Does the NPL Define the Boundaries of Sites?
G. How Are Sites Removed From the NPL?
H. May EPA Delete Portions of Sites From the NPL as They Are
Cleaned Up?
I. What Is the Construction Completion List (CCL)?
II. Availability of Information to the Public
A. May I Review the Documents Relevant to This Final Rule?
B. What Documents Are Available for Review at the Headquarters
Docket?
C. What Documents Are Available for Review at the Regional
Dockets?
D. How Do I Access the Documents?
E. How May I Obtain a Current List of NPL Sites?
III. Contents of This Final Rule
A. Additions to the NPL
B. Status of NPL
C. What Did EPA Do With the Public Comments It Received?
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
1. What Is Executive Order 12866?
2. Is This Final Rule Subject to Executive Order 12866 Review?
B. Paperwork Reduction Act
1. What Is the Paperwork Reduction Act?
2. Does the Paperwork Reduction Act Apply to This Final Rule?
C. Regulatory Flexibility Act
1. What Is the Regulatory Flexibility Act?
2. How Has EPA Complied With the Regulatory Flexibility Act?
D. Unfunded Mandates Reform Act
1. What Is the Unfunded Mandates Reform Act (UMRA)?
2. Does UMRA Apply to This Final Rule?
E. Executive Order 13132: Federalism
1. What Is Executive Order 13132 and Is It Applicable to This
Final Rule?
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
1. What Is Executive Order 13175?
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2. Does Executive Order 13175 Apply to This Final Rule?
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
1. What Is Executive Order 13045?
2. Does Executive Order 13045 Apply to This Final Rule?
H. Executive Order 13211
1. What Is Executive Order 13211?
2. Is This Rule Subject to Executive Order 13211?
I. National Technology Transfer and Advancement Act
1. What Is the National Technology Transfer and Advancement Act?
2. Does the National Technology Transfer and Advancement Act
Apply to This Final Rule?
J. Possible Changes to the Effective Date of the Rule
1. Has EPA Submitted This Rule to Congress and the General
Accounting Office?
2. Could the Effective Date of This Final Rule Change?
3. What Could Cause a Change in the Effective Date of This 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 or
threatened releases of hazardous substances, and releases or
substantial threats of releases into the environment of any pollutant
or contaminant which may present an imminent or substantial danger to
the public health or welfare. CERCLA was amended on October 17, 1986,
by the Superfund Amendments and Reauthorization Act (``SARA''), Public
Law 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, or releases or substantial threats of
releases into the environment of any pollutant or contaminant which may
present an imminent or substantial danger to the public health or
welfare. 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 of hazardous substances,
pollutants or contaminants (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,
pollutants or contaminants. 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.
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's role is 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, pollutant
or contaminants 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) Pursuant to
42 U.S.C 9605(a)(8)(B), each State may designate a single site as its
top priority to be listed on the NPL, without any HRS score. This
provision of CERCLA requires that, to the extent practicable, the NPL
include one facility designated by each State as the greatest danger to
public health, welfare, or the environment among known facilities in
the State. This mechanism for listing is set out in the NCP at 40 CFR
300.425(c)(2); (3) The third mechanism for listing, included in the NCP
at 40 CFR 300.425(c)(3), allows certain sites to be listed without any
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
July 22, 2004 (69 FR 43755).
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 respond to the
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releases, including enforcement action under CERCLA and other laws.
F. Does the NPL Define the Boundaries of Sites?
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 that contamination 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 name ``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 known 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 September 13, 2004, the Agency has deleted 285 sites from the
NPL.
H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned
Up?
In November 1995, EPA initiated a new policy to delete portions of
NPL sites where cleanup is complete (60 FR 55465, November 1, 1995).
Total site cleanup may take many years, while portions of the site may
have been cleaned up and available for productive use. As of September
13, 2004, EPA has deleted 46 portions of 38 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 September 13, 2004, there are a total of 904 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. Availability of Information to the Public
A. May I Review the Documents Relevant to This Final Rule?
Yes, documents relating to the evaluation and scoring of the sites
in this final rule are contained in dockets located both at EPA
Headquarters and in the Regional offices.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Once in the system, select ``Quick Search,'' then key
in the appropriate docket identification number; SFUND-2004-0013.
(Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facilities identified below in section II D.)
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B. What Documents Are Available for Review at the Headquarters Docket?
The Headquarters docket for this rule contains, for each site, the
HRS score sheets, the Documentation Record describing the information
used to compute the score, pertinent information regarding statutory
requirements or EPA listing policies that affect the site, and a list
of documents referenced in the Documentation Record. The Headquarters
docket also contains comments received, and the Agency's responses to
those comments. The Agency's responses are contained in the ``Support
Document for the Revised National Priorities List Final Rule--September
2004''. An electronic version is available at http://www.epa.gov/edocket/ using the docket identification number SFUND-2004-0013.
C. What Documents Are Available for Review at the Regional Dockets?
The Regional dockets contain all the information in the
Headquarters docket, plus the actual reference documents containing the
data principally relied upon by EPA in calculating or evaluating the
HRS score for the sites located in their Region. These reference
documents are available only in the Regional dockets.
D. How Do I Access the Documents?
You may view the documents, by appointment only, after the
publication of this document. The hours of operation for the
Headquarters docket are from 8:30 a.m. to 4:30 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 Coordinator, Headquarters; U.S. Environmental Protection Agency;
CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room B102,
Washington, DC 20004, 202/566-0276.
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 and Information 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.
John Wright, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61
Forsyth Street, SW., 9th floor, Atlanta, GA 30303; 404/562-8123.
Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records
Center, Superfund Division SRC-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.
Gwen Christiansen, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999
18th Street, Suite 500, Mailcode 8EPR-B, Denver, CO 80202-2466; 303/
312-6463.
Jerelean Johnson, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75
Hawthorne Street, San Francisco, CA 94105; 415/972-3094.
Tara Martich, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue,
Mail Stop ECL-115, Seattle, WA 98101; 206/553-0039.
E. How May I Obtain a Current List of NPL Sites?
You may obtain a current list of NPL sites via the Internet at
http://www.epa.gov/superfund/ (look under the Superfund sites category)
or by contacting the Superfund Docket (see contact information above).
III. Contents of This Final Rule
A. Additions to the NPL
This final rule adds two sites to the NPL; both to the General
Superfund Section of the NPL. The two sites are the White Swan
Cleaners/Sun Cleaners Area Ground Water Contamination site in Wall
Township, New Jersey and the Ravenswood PCE Ground Water Plume site in
Ravenswood, West Virginia.
B. Status of NPL
With the two new sites added to the NPL in today's final rule; the
NPL now contains 1,244 final sites; 1,086 in the General Superfund
Section and 158 in the Federal Facilities Section. In addition, with a
proposed rule published elsewhere in today's Federal Register proposing
14 new sites and withdrawing one proposed site, there are now 68 sites
proposed and awaiting final agency action, 61 in the General Superfund
Section and seven in the Federal Facilities Section. Final and proposed
sites now total 1,312. (These numbers reflect the status of sites as of
September 13, 2004. Site deletions occurring after this date may affect
these numbers at time of publication in the Federal Register.)
C. What Did EPA Do With the Public Comments It Received?
The White Swan Cleaners/Sun Cleaners Area Ground Water
Contamination site was proposed to the NPL on April 30, 2003 (68 FR
23094). EPA responded to all relevant comments received on this site
and EPA's responses to the site-specific comments are addressed in the
``Support Document for the Revised National Priorities List Final Rule-
-September 2004''. The comments and the support document are contained
in the Headquarters Docket and are also listed in EPA's electronic
public docket and comment system at http://www.epa.gov/edocket/ using
the SFUND-2004-0013 identification number.
The Ravenswood PCE Ground Water Plume site was proposed to the NPL
on March 8, 2004 (69 FR 10646). EPA received only one comment on the
site, a May 4, 2004 resolution passed by the town council and signed by
Mayor Clare Roseberry. The resolution requested a 90 day extension of
the comment period to allow the town time to develop an alternative
cleanup plan rather than proceeding through listing on the NPL. EPA
responded to the request on July 21, 2004, denying an extension of the
comment period because EPA's general policy is to deny requests for
extension unless the requester identifies issues that effect the
requesters ability to develop relevant comments in a timely manner. EPA
noted in its response the possibility that late comments could be
considered.
Neither the requester or any other party submitted additional
comments or contacted the Agency either during or after the close of
the public comment period concerning alternatives to NPL listing or the
underlying basis for the NPL listing. EPA is adding the Ravenswood PCE
Ground Water Plume site to the NPL at this time.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
1. 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
[[Page 56953]]
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.
2. Is This Final 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.
B. Paperwork Reduction Act
1. 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.
2. Does the Paperwork Reduction Act Apply to This Final Rule?
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
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.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
1. 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.
2. How Has EPA Complied With the Regulatory Flexibility Act?
This rule listing sites on the NPL does not impose any obligations
on any group, including small entities. This rule also does not
establish standards or requirements that any small entity must meet,
and imposes no direct costs on any small entity. Whether an entity,
small or otherwise, is liable for response costs for a release of a
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 rule does not
impose any requirements on any small entities. For the foregoing
reasons, I certify that this rule will not have a significant economic
impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
1. 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.
2. Does UMRA Apply to This Final 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
[[Page 56954]]
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.
E. Executive Order 13132: Federalism
1. What Is Executive Order 13132 and Is It Applicable to This Final
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 final 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
1. 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.''
2. Does Executive Order 13175 Apply to This Final Rule?
This final 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 final rule.
G. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks
1. 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 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.
2. Does Executive Order 13045 Apply to This Final Rule?
This 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 section present
a disproportionate risk to children.
H. Executive Order 13211
1. 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
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.''
2. Is This Rule Subject to Executive Order 13211?
This 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.)
I. National Technology Transfer and Advancement Act
1. 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
[[Page 56955]]
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.
2. Does the National Technology Transfer and Advancement Act Apply to
This Final Rule?
No. This rulemaking does not involve technical standards.
Therefore, EPA did not consider the use of any voluntary consensus
standards.
J. Possible Changes to the Effective Date of the Rule
1. Has EPA Submitted This Rule to Congress and the General Accounting
Office?
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA has submitted a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A ``major rule''
cannot take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
2. Could the Effective Date of This Final Rule Change?
Provisions of the Congressional Review Act (CRA) or section 305 of
CERCLA may alter the effective date of this regulation.
Under the CRA, 5 U.S.C. 801(a), before a rule can take effect the
federal agency promulgating the rule must submit a report to each House
of the Congress and to the Comptroller General. This report must
contain a copy of the rule, a concise general statement relating to the
rule (including whether it is a major rule), a copy of the cost-benefit
analysis of the rule (if any), the agency's actions relevant to
provisions of the Regulatory Flexibility Act (affecting small
businesses) and the Unfunded Mandates Reform Act of 1995 (describing
unfunded federal requirements imposed on state and local governments
and the private sector), and any other relevant information or
requirements and any relevant Executive Orders.
EPA has submitted a report under the CRA for this rule. The rule
will take effect, as provided by law, within 30 days of publication of
this document, since it is not a major rule. Section 804(2) defines a
major rule as any rule that the Administrator of the Office of
Information and Regulatory Affairs (OIRA) of the Office of Management
and Budget (OMB) finds has resulted in or is likely to result in: an
annual effect on the economy of $100,000,000 or more; a major increase
in costs or prices for consumers, individual industries, Federal,
State, or local government agencies, or geographic regions; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets. NPL listing is not a major rule because, as explained
above, the listing, itself, imposes no monetary costs on any person. It
establishes no enforceable duties, does not establish that EPA
necessarily will undertake remedial action, nor does it require any
action by any 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. Section 801(a)(3) provides for a delay in the effective
date of major rules after this report is submitted.
3. What Could Cause a Change in the Effective Date of This Rule?
Under 5 U.S.C. 801(b)(1) a rule shall not take effect, or continue
in effect, if Congress enacts (and the President signs) a joint
resolution of disapproval, described under section 802.
Another statutory provision that may affect this rule is CERCLA
section 305, which provides for a legislative veto of regulations
promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S.
Ct. 2764 (1983) and Bd. of Regents of the University of Washington v.
EPA, 86 F.3d 1214,1222 (D.C. Cir. 1996) cast the validity of the
legislative veto into question, EPA has transmitted a copy of this
regulation to the Secretary of the Senate and the Clerk of the House of
Representatives.
If action by Congress under either the CRA or CERCLA section 305
calls the effective date of this regulation into question, EPA will
publish a document of clarification in the Federal Register.
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.
Dated: September 15, 2004.
Thomas P. Dunne,
Acting Assistant Administrator, Office of Solid Waste and Emergency
Response.
0
40 CFR part 300 is amended as follows:
PART 300--[AMENDED]
0
1. The authority citation for part 300 continues to read as follows:
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.
0
2. Table 1 of Appendix B to part 300 is amended by adding the following
sites in alphabetical order to read as follows:
Appendix B to Part 300--National Priorities List
Table 1.--General Superfund Section
----------------------------------------------------------------------------------------------------------------
State Site name City/County Notes \a\
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
NJ............................. White Swan Cleaners/Sun Cleaners Area Wall Township
Ground Water Contamination.
* * * * * *
*
WV............................. Ravenswood PCE Ground Water Plume......... Ravenswood
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\a\ A = Based on issuance of health advisory by Agency for Toxic Substance and Disease Registry (if scored, HRS
score need not be [le] 28.50).
[[Page 56956]]
C = Sites on Construction Completion list.
S = State top priority (included among the 100 top priority sites regardless of score).
P = Sites with partial deletion(s).
[FR Doc. 04-21388 Filed 9-22-04; 8:45 am]
BILLING CODE 6560-50-P