[Federal Register Volume 79, Number 183 (Monday, September 22, 2014)]
[Proposed Rules]
[Pages 56538-56545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22423]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[EPA-HQ-SFUND-2014-0623, 0624, and 0625; FRL-9916-73-OSWER]
National Priorities List, Proposed Rule No. 61
AGENCY: Environmental Protection Agency (EPA).
[[Page 56539]]
ACTION: Proposed rule.
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SUMMARY: The Comprehensive Environmental Response, Compensation, and
Liability Act (``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 the 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 proposes to add three sites to the General
Superfund section of the NPL.
DATES: Comments regarding any of these proposed listings must be
submitted (postmarked) on or before November 21, 2014.
ADDRESSES: Identify the appropriate docket number from the table below.
Docket Identification Numbers by Site
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Site name City/County, state Docket ID No.
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35th Avenue............................ Birmingham, AL............ EPA-HQ-SFUND-2014-0623
Kokomo Contaminated Ground Water Plume. Kokomo, IN................ EPA-HQ-SFUND-2014-0624
DSC McLouth Steel Gibraltar Plant...... Gibraltar, MI............. EPA-HQ-SFUND-2014-0625
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Submit your comments, identified by the appropriate docket number,
by one of the following methods:
http://www.regulations.gov Follow the online instructions
for submitting comments.
Email: http://[email protected].
Mail: Mail comments (no facsimiles or tapes) to Docket
Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA
Docket Office; (Mailcode 5305T); 1200 Pennsylvania Avenue NW.;
Washington, DC 20460.
Hand Delivery or Express Mail: Send comments (no
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S.
Environmental Protection Agency; CERCLA Docket Office; 1301
Constitution Avenue NW.; William Jefferson Clinton Building West, Room
3334, Washington, DC 20004. Such deliveries are accepted only during
the docket's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding federal holidays).
Instructions: Direct your comments to the appropriate docket number
(see table above). The EPA's policy is that all comments received will
be included in the public docket without change and may be made
available online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be confidential business information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system; that means the EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an email comment directly to the EPA
without going through http://www.regulations.gov, your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the Internet. If
you submit an electronic comment, the EPA recommends that you include
your name and other contact information in the body of your comment and
with any disk or CD-ROM you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should avoid the use of special characters, any form of encryption, and
be free of any defects or viruses. For additional docket addresses and
further details on their contents, see section II, ``Public Review/
Public Comment,'' of the Supplementary Information portion of this
preamble.
FOR FURTHER INFORMATION CONTACT: Terry Jeng, phone: (703) 603-8852,
email: [email protected], Site Assessment and Remedy Decisions Branch,
Assessment and Remediation Division, Office of Superfund Remediation
and Technology Innovation (Mailcode 5204P), 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 the EPA delete portions of sites from the NPL as they are
cleaned up?
I. What is the Construction Completion List (CCL)?
J. What is the Sitewide Ready for Anticipated Use measure?
K. What is state/tribal correspondence concerning NPL listing?
II. Public Review/Public Comment
A. May 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. May I submit comments after the public comment period is
over?
I. May I view public comments submitted by others?
J. May I submit comments regarding sites not currently proposed
to the NPL?
III. Contents of This Proposed Rule
A. Proposed Additions to the NPL
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
1. What is Executive Order 12866?
2. Is this proposed 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 proposed rule?
[[Page 56540]]
C. Regulatory Flexibility Act
1. What is the Regulatory Flexibility Act?
2. How has the 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 proposed rule?
E. Executive Order 13132: Federalism
1. What is Executive Order 13132?
2. Does Executive Order 13132 apply to this proposed rule?
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
1. What is Executive Order 13175?
2. Does Executive Order 13175 apply to this proposed 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 proposed rule?
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
1. What is Executive Order 13211?
2. Does Executive Order 13211 apply to this proposed rule?
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 proposed rule?
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
1. What is Executive Order 12898?
2. Does Executive Order 12898 apply to this proposed rule?
I. Background
A. What are CERCLA and SARA?
In 1980, Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601-9675 (``CERCLA'' or
``the Act''), in response to the dangers of uncontrolled releases or
threatened releases of hazardous substances, and releases or
substantial threats of releases into the environment of any pollutant
or contaminant that 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, the 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 that may present an imminent or substantial danger to the
public health or welfare. The 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. 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 the 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. Also, placing a site on the NPL does not 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 the 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 the EPA is responsible for preparing a Hazard Ranking
System (``HRS'') score and determining whether the facility is placed
on the NPL.
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 HRS,
which the EPA promulgated as appendix A of the NCP (40 CFR Part 300).
The HRS serves as a screening tool to evaluate the relative potential
of uncontrolled hazardous substances, pollutants or contaminants to
pose a threat to human health or the environment. On December 14, 1990
(55 FR 51532), the 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.
The EPA determines that the release poses a significant
threat to public health.
The 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.
The EPA promulgated an original NPL of 406 sites on September 8,
1983 (48 FR 40658) and generally has updated it at least annually.
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
[[Page 56541]]
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.'' The EPA may pursue
other appropriate authorities to respond to the 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. Indeed, the precise nature and extent of
the site are typically not known at the time of listing.
Although a CERCLA ``facility'' is broadly defined to include any
area where a hazardous substance 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. However, the NPL site is not necessarily
coextensive with the boundaries of the installation or plant, and the
boundaries of the installation or plant are not necessarily 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 where that contamination has come to be located,
or from where 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. In addition, the site name is merely used to
help identify the geographic location of the contamination, and is not
meant to constitute any determination of liability at a site. 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.
The EPA regulations provide that the remedial investigation
(``RI'') ``is a process undertaken * * * to determine the nature and
extent of the problem presented by the release'' as more information is
developed on site contamination, and which is generally performed in an
interactive fashion with the feasibility Study (``FS'') (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, the HRS
inquiry focuses on an evaluation of the threat posed and therefore 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, it can submit supporting information to the agency at any
time after it 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?
The 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 the 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.
H. May the EPA delete portions of sites from the NPL as they are
cleaned up?
In November 1995, the EPA initiated a 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 made available for productive use.
I. What is the Construction Completion List (CCL)?
The 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) the 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. For the most up-to-date information on the
CCL, see the EPA's Internet site at http://www.epa.gov/superfund/cleanup/ccl.htm.
J. What is the Sitewide Ready for Anticipated Use measure?
The Sitewide Ready for Anticipated Use measure (formerly called
Sitewide Ready-for-Reuse) represents important Superfund
accomplishments and the measure reflects the high priority the EPA
places on considering anticipated future land use as part of the remedy
selection process. See Guidance for Implementing the Sitewide Ready-
for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies
to final and deleted sites where construction is complete, all cleanup
goals have been achieved, and all institutional or other controls are
in place. The EPA has been successful on many occasions in carrying out
remedial actions that ensure protectiveness of human health
[[Page 56542]]
and the environment for current and future land uses, in a manner that
allows contaminated properties to be restored to environmental and
economic vitality. For further information, please go to http://www.epa.gov/superfund/programs/recycle/pdf/sitewide_a.pdf.
K. What is state/tribal correspondence concerning NPL listing?
In order to maintain close coordination with states and tribes in
the NPL listing decision process, the EPA's policy is to determine the
position of the states and tribes regarding sites that the EPA is
considering for listing. This consultation process is outlined in two
memoranda that can be found at the following Web site: http://www.epa.gov/superfund/sites/npl/hrsres/policy/govlet.pdf. The EPA is
improving the transparency of the process by which state and tribal
input is solicited. The EPA is using the Web and where appropriate more
structured state and tribal correspondence that (1) explains the
concerns at the site and the EPA's rationale for proceeding; (2)
requests an explanation of how the state intends to address the site if
placement on the NPL is not favored; and (3) emphasizes the transparent
nature of the process by informing states that information on their
responses will be publicly available.
A model letter and correspondence from this point forward between
the EPA and states and tribes where applicable, is available on the
EPA's Web site at http://www.epa.gov/superfund/sites/query/queryhtm/nplstcor.htm
II. Public Review/Public Comment
A. May I review the documents relevant to this proposed rule?
Yes, documents that form the basis for the EPA's evaluation and
scoring of the sites in this proposed rule are contained in public
dockets located both at the EPA Headquarters in Washington, DC, and in
the regional offices. These documents are also available by electronic
access at http://www.regulations.gov (see instructions in the
``Addresses'' section above).
B. How do I access the documents?
You may view the documents, by appointment only, in the
Headquarters or the regional dockets after the publication of this
proposed rule. 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.
The following is the contact information for the EPA Headquarters
Docket: Docket Coordinator, Headquarters, U.S. Environmental Protection
Agency, CERCLA Docket Office, 1301 Constitution Avenue NW., William
Jefferson Clinton Building West, Room 3334, Washington, DC 20004; 202/
566-0276. (Please note this is a visiting address only. Mail comments
to the EPA Headquarters as detailed at the beginning of this preamble.)
The contact information for the regional dockets is as follows:
Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA,
Superfund Records and Information Center, 5 Post Office Square, Suite
100, Boston, MA 02109-3912; 617/918-1413.
Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290
Broadway, New York, NY 10007-1866; 212/637-4344.
Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV),
U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA
19103; 215/814-3355.
Jennifer Wendel, Region 4 (AL, FL, GA, KY, MS, NC, SC,
TN), U.S. EPA, 61 Forsyth Street SW., Mailcode 9T25, Atlanta, GA 30303;
404/562-8799.
Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA
Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe
Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/
886-4465.
Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445
Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/
665-7436.
Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201
Renner Blvd., Mailcode SUPRERNB, Lenexa, KS 66219; 913/551-7335.
Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S.
EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/
312-6484.
Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S.
EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105;
415/947-4250.
Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th
Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.
You may also request copies from the 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. Please note
that due to the difficulty of reproducing oversized maps, oversized
maps may be viewed only in-person; since the EPA dockets are not
equipped to either copy and mail out such maps or scan them and send
them out electronically.
You may use the docket at http://www.regulations.gov to access
documents in the Headquarters docket (see instructions included in the
``Addresses'' section above). Please note that there are differences
between the Headquarters docket and the regional dockets and those
differences are outlined below.
C. What documents are available for public review at the Headquarters
docket?
The Headquarters docket for this proposed rule contains the
following for the sites proposed in this rule: HRS score sheets;
documentation records describing the information used to compute the
score; information for any sites affected by particular statutory
requirements or the 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 proposed rule contain all of the
information in the Headquarters docket plus the actual reference
documents containing the data principally relied upon and cited by the
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 the EPA Headquarters as detailed at
the beginning of this preamble in the ``Addresses'' section. Please
note that the mailing 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?
The EPA considers all comments received during the comment period.
Significant comments are typically addressed in a support document that
the 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 the EPA should consider and how it affects
individual HRS factor values or other listing
[[Page 56543]]
criteria (Northside Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C.
Cir. 1988)). The EPA will not address voluminous comments that are not
referenced to the HRS or other listing criteria. The EPA will not
address comments unless they indicate which component of the HRS
documentation record or what particular point in the EPA's stated
eligibility criteria is at issue.
H. May I submit comments after the public comment period is over?
Generally, the EPA will not respond to late comments. The EPA can
guarantee only that it will consider those comments postmarked by the
close of the formal comment period. The EPA has a policy of generally
not delaying a final listing decision solely to accommodate
consideration of late comments.
I. May 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
dockets approximately one week after the formal comment period closes.
All public comments, whether submitted electronically or in paper
form, will be made available for public viewing in the electronic
public docket at http://www.regulations.gov as the EPA receives them
and without change, unless the comment contains copyrighted material,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Once in the public dockets system,
select ``search,'' then key in the appropriate docket ID number.
J. May I submit comments regarding sites not currently proposed to the
NPL?
In certain instances, interested parties have written to the EPA
concerning sites that 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
In today's proposed rule, the EPA is proposing to add three sites
to the NPL, all to the General Superfund section. All of the sites in
this proposed rulemaking are being proposed based on HRS scores of
28.50 or above.
The sites are presented in the table below.
General Superfund Section
------------------------------------------------------------------------
State Site name City/County
------------------------------------------------------------------------
AL........................... 35th Avenue.......... Birmingham.
IN........................... Kokomo Contaminated Kokomo.
Ground Water Plume.
MI........................... DSC McLouth Steel Gibraltar.
Gibraltar Plant.
------------------------------------------------------------------------
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 Office of Management and Budget (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.
2. 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.
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 the
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 proposed 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.
The 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.
[[Page 56544]]
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 the
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 the EPA complied with the Regulatory Flexibility Act?
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.
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, the
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 the EPA promulgates a rule
where a written statement is needed, section 205 of the UMRA generally
requires the 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 the 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 the 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 proposed rule?
This proposed 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 the private sector in any one
year. Proposing a site on the NPL does not itself impose any costs.
Proposal does not mean that the EPA necessarily will undertake remedial
action. Nor does proposal 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 proposing a site to be placed on the
NPL. Thus, this rule is not subject to the requirements of section 202
and 205 of UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. As is mentioned
above, site proposal does not impose any costs and would not require
any action of a small government.
E. Executive Order 13132: Federalism
1. What is Executive Order 13132?
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the 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'' are 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.''
2. Does Executive Order 13132 apply to this proposed rule?
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, because it does not contain any
requirements applicable to states or other levels of government. Thus,
the requirements of the Executive Order do not apply to this proposed
rule.
The EPA believes, however, that this proposed rule may be of
significant interest to state governments. In the spirit of Executive
Order 13132, and consistent with the EPA policy to promote
communications between the EPA and state and local governments, the EPA
therefore consulted with state officials and/or representatives of
state governments early in the process of developing the rule to permit
them to have meaningful and timely input into its development. All
sites included in this proposed rule were referred to the EPA by states
for listing. For all sites in this rule, the EPA received letters of
support either from the governor or a state official who was delegated
the authority by the governor to speak on their behalf regarding NPL
listing decisions.
[[Page 56545]]
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 the 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'' are 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 proposed rule?
This action does not have tribal implications, as specified in
Executive Order 13175. Proposing a site to the NPL does not impose any
costs on a tribe or require a tribe to take remedial action. Thus,
Executive Order 13175 does not apply to this proposed 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 the 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 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.
H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use
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 federal agencies to prepare a ``Statement
of Energy Effects'' when undertaking certain regulatory actions. A
Statement of Energy Effects describes the adverse effects of a
``significant energy action'' on energy supply, distribution and use,
reasonable alternatives to the action and the expected effects of the
alternatives on energy supply, distribution and use.
2. Does Executive Order 13211 apply to this proposed rule?
This action is not a ``significant energy action'' as defined in
Executive Order 13211, because it is not likely to have a significant
adverse effect on the supply, distribution or use of energy. Further,
the agency has concluded that this rule is not likely to have any
adverse energy impacts because proposing a site to the NPL does not
require an entity to conduct any action that would require energy use,
let alone that which would significantly affect energy supply,
distribution or usage. Thus, Executive Order 13211 does not apply to
this action.
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 the 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 the
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 proposed rule?
No. This proposed rulemaking does not involve technical standards.
Therefore, the EPA did not consider the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
1. What is Executive Order 12898?
Executive Order (E.O.) 12898 (59 FR 7629, Feb. 16, 1994)
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies and activities on minority
populations and low-income populations in the United States.
2. Does Executive Order 12898 apply to this proposed rule?
The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. As this rule does not impose any enforceable duty upon
state, tribal or local governments, this rule will neither increase nor
decrease environmental protection.
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 10, 2014.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2014-22423 Filed 9-19-14; 8:45 am]
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