[Federal Register Volume 62, Number 62 (Tuesday, April 1, 1997)]
[Proposed Rules]
[Pages 15594-15598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8087]


Federal Register / Vol. 62, No. 62 / Tuesday, April 1, 1997 / 
Proposed Rules

[[Page 15594]]


40 CFR Part 300


National Priorities List for Uncontrolled Hazardous Waste Sites, 
Proposed Rule No. 22

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.


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.
    This rule proposes to add 6 new sites to the NPL, 5 to the General 
Superfund Section and 1 to the Federal Facilities section. This rule 
also withdraws one site from proposal to the NPL. The NPL is intended 
primarily to guide the Environmental Protection Agency (``EPA'' or 
``the Agency'') in determining which sites warrant further 
investigation to assess the nature and extent of public health and 
environmental risks associated with the site and to determine what 
CERCLA-financed remedial action(s), if any, may be appropriate.

DATES: Comments must be submitted (postmarked) on or before June 2, 

ADDRESSES: By Mail: Mail original and three copies of comments (no 
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. EPA; 
CERCLA Docket Office; (Mail Code 5201G); 401 M Street, SW., Washington, 
DC 20460; 703/603-8917.

    By Federal Express: Send original and three copies of comments (no 
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. EPA; 
CERCLA Docket Office; 1235 Jefferson Davis Highway; Crystal Gateway #1, 
First Floor; Arlington, VA 22202.
    By E-Mail: Comments in ASCII format only may be mailed directly to 
[email protected] EPA.GOV. E-mailed comments must be followed 
up by an original and three copies sent by mail or Federal Express.
    For additional Docket addresses and further details on their 
contents, see Section I of the SUPPLEMENTARY INFORMATION portion of 
this preamble.

Identification Center, Office of Emergency and Remedial Response (Mail 
Code 5204G), U.S. Environmental Protection Agency, 401 M Street, SW., 
Washington, DC, 20460, or the Superfund Hotline, Phone (800) 424-9346 
or (703) 412-9810 in the Washington, DC, metropolitan area.


I. Introduction
II. Contents of This Proposed Rule
III. Executive Order 12866
IV. Unfunded Mandates
V. Effect on Small Businesses

I. Introduction


    In 1980, Congress enacted the Comprehensive Environmental Response, 
Compensation, and Liability Act, 42 U.S.C. 9601-9675 (``CERCLA'' or 
``the Act''), in response to the dangers of uncontrolled hazardous 
waste sites. CERCLA was amended on October 17, 1986, by the Superfund 
Amendments and Reauthorization Act (``SARA''), Public Law No. 99-499, 
100, Stat. 1613 et seq. To implement CERCLA, 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 forth the guidelines and procedures 
needed to respond under CERCLA to releases and threatened releases of 
hazardous substances, pollutants, or contaminants. EPA has revised the 
NCP on several occasions. The most recent comprehensive revision was on 
March 8, 1990 (55 FR 8666).
    Section 105(a)(8)(A) of CERCLA requires that the NCP include 
``criteria for determining priorities among releases or threatened 
releases throughout the United States for the purpose of taking 
remedial action and, to the extent practicable taking into account the 
potential urgency of such action, for the purpose of taking removal 
action.'' ``Removal'' actions are defined broadly and include a wide 
range of actions taken to study, clean up, prevent or otherwise address 
releases and threatened releases. 42 U.S.C. 9601(23). ``Remedial 
actions'' are those ``consistent with permanent remedy, taken instead 
of or in addition to removal actions * * *.'' 42 U.S.C. 9601(24).
    Pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA 
has promulgated a list of national priorities among the known or 
threatened releases of hazardous substances, pollutants, or 
contaminants throughout the United States. That list, which is Appendix 
B of 40 CFR Part 300, is the National Priorities List (``NPL'').
    CERCLA section 105(a)(8)(B) defines the NPL as a list of 
``releases'' and as a list of the highest priority ``facilities.'' 
CERCLA section 105(a)(8)(B) also requires that the NPL be revised at 
least annually. A site may undergo remedial action financed by the 
Trust Fund established under CERCLA (commonly referred to as the 
``Superfund'') only after it is placed on the NPL, as provided in the 
NCP at 40 CFR 300.425(b)(1). However, under 40 CFR 300.425(b)(2) 
placing a site on the NPL ``does not imply that monies will be 
expended.'' EPA may pursue other appropriate authorities to remedy the 
releases, including enforcement action under CERCLA and other laws. 
Further, the NPL is only of limited significance, as it does not assign 
liability to any party or to the owner of any specific property. See 
Report of the Senate Committee on Environment and Public Works, Senate 
Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), 48 FR 40659 (September 
8, 1983).
    Three mechanisms for placing sites on the NPL for possible remedial 
action are included in the NCP at 40 CFR 300.425(c). Under 40 CFR 
300.425(c)(1), a site may be included on the NPL if it scores 
sufficiently high on the Hazard Ranking System (``HRS''), which EPA 
promulgated as Appendix A of 40 CFR Part 300. On December 14, 1990 (55 
FR 51532), EPA promulgated revisions to the HRS partly in response to 
CERCLA section 105(c), added by SARA. The revised HRS evaluates four 
pathways: Ground water, surface water, soil exposure, and air. The HRS 
serves as a screening device to evaluate the relative potential of 
uncontrolled hazardous substances to pose a threat to human health or 
the environment. As a matter of Agency policy, those sites that score 
28.50 or greater on the HRS are eligible for the NPL.
    Under a second mechanism for adding sites to the NPL, each State 
may designate a single site as its top priority, regardless of the HRS 
score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2) 
requires that, to the extent practicable, the NPL include within the 
100 highest priorities, one facility designated by each State 
representing the greatest danger to public health, welfare, or the 
environment among known facilities in the State (see 42 U.S.C. 
    The third mechanism for listing, included in the NCP at 40 CFR

[[Page 15595]]

300.425(c)(3), allows certain sites to be listed regardless of their 
HRS score, if all of the following conditions are met:

     The Agency for Toxic Substances and Disease Registry 
(ATSDR) of the U.S. Public Health Service has issued a health 
advisory that recommends dissociation of individuals from the 
     EPA determines that the release poses a significant 
threat to public health.
     EPA anticipates that it will be more cost-effective to 
use its remedial authority than to use its removal authority to 
respond to the release.

    EPA promulgated an original NPL of 406 sites on September 8, 1983 
(48 FR 40658). The NPL has been expanded since then, most recently on 
December 23, 1996 (61 FR 67656).
    The NPL includes two sections, one of sites that are evaluated and 
cleaned up by EPA (the ``General Superfund Section''), and one of sites 
being addressed generally by other Federal agencies (the ``Federal 
Facilities Section''). Under Executive Order 12580 (52 FR 2923, January 
29, 1987) and CERCLA section 120, each Federal agency is responsible 
for carrying out most response actions at facilities under its own 
jurisdiction, custody, or control, although EPA is responsible for 
preparing an HRS score and determining whether the facility is placed 
on the NPL. EPA generally is not the lead agency at Federal Facilities 
Section sites, and its role at such sites is accordingly less extensive 
than at other sites.

Site Boundaries

    The NPL does not describe releases in precise geographical terms; 
it would be neither feasible nor consistent with the limited purpose of 
the NPL (as the mere identification of releases), for it to do so.
    CERCLA section 105(a)(8)(B) mandates listing of national priorities 
among the known ``releases or threatened releases.'' The purpose of the 
NPL is merely to identify releases that are priorities for further 
evaluation. Although a CERCLA ``facility'' is broadly defined to 
include any area where a hazardous substance release has ``come to be 
located'' (CERCLA section 101(9)), the listing process itself is not 
intended to define or reflect the boundaries of such facilities or 
releases. Of course, HRS data upon which the NPL placement was based 
will, to some extent, describe which release is at issue. That is, the 
NPL site would include all releases evaluated as part of that HRS 
    When a site is listed, it is necessary to define the release (or 
releases) encompassed by the listing. The approach generally used is to 
delineate a geographical area (usually the area within an installation 
or plant boundaries) and identify the site by reference to that area. 
As a legal matter, the site is not coextensive with that area, and the 
boundaries of the installation or plant are not the ``boundaries'' of 
the site. Rather, the site consists of all contaminated areas within 
the area used to identify the site, as well as any other location to 
which contamination from that area has come to be located, or from 
which that contamination came.
    In other words, while geographic terms are often used to designate 
the site (e.g., the ``Jones Co. plant site'') in terms of the property 
owned by a particular party, the site properly understood is not 
limited to that property (e.g., it may extend beyond the property due 
to contaminant migration), and conversely may not occupy the full 
extent of the property (e.g., where there are uncontaminated parts of 
the identified property, they may not be, strictly speaking, part of 
the ``site''). The ``site'' is thus neither equal to nor confined by 
the boundaries of any specific property that may give the site its 
name, and the name itself should not be read to imply that this site is 
coextensive with the entire area within the property boundary of the 
installation or plant. The precise nature and extent of the site are 
typically not known at the time of listing. Also, the site name is 
merely used to help identify the geographic location of the 
contamination. For example, the ``Jones Co. plant site,'' does not 
imply that the Jones company is responsible for the contamination 
located on the plant site.
    EPA regulations provide that the ``nature and extent of the threat 
presented by a release'' will be determined by a Remedial 
Investigation/Feasibility Study (RI/FS) as more information is 
developed on site contamination (40 CFR 300.430(d)). During the RI/FS 
process, the release may be found to be larger or smaller than was 
originally thought, as more is learned about the source(s) and the 
migration of the contamination. However, this inquiry focuses on an 
evaluation of the threat posed; the boundaries of the release need not 
be exactly defined. Moreover, it generally is impossible to discover 
the full extent of where the contamination ``has come to be located'' 
before all necessary studies and remedial work are completed at a site. 
Indeed, the boundaries of the contamination can be expected to change 
over time. Thus, in most cases, it may be impossible to describe the 
boundaries of a release with absolute certainty.
    Further, as noted above, NPL listing does not assign liability to 
any party or to the owner of any specific property. Thus, if a party 
does not believe it is liable for releases on discrete parcels of 
property, supporting information can be submitted to the Agency at any 
time after a party receives notice it is a potentially responsible 
    For these reasons, the NPL need not be amended as further research 
reveals more information about the location of the contamination or 


    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.
    To date, the Agency has deleted 139 sites from the NPL.
    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 March 
1997, EPA has partially deleted 4 sites.
    EPA also has developed an NPL construction completion list 
(``CCL'') to simplify its system of categorizing sites and to better 
communicate the successful completion of cleanup activities (58 FR 
12142, March 2, 1993). Sites qualify for the CCL when:
    (1) any necessary physical construction is complete, whether or not 
final cleanup levels or other requirements have been achieved;
    (2) EPA has determined that the response action should be limited 
to measures that do not involve construction (e.g., institutional 
controls); or
    (3) the site qualifies for deletion from the NPL.

[[Page 15596]]

Inclusion of a site on the CCL Has No Legal Significance

    In addition to the 132 sites that have been deleted from the NPL 
because they have been cleaned up (7 sites have been deleted based on 
deferral to other authorities and are not considered cleaned up), an 
additional 291 sites are also on the NPL CCL. Thus, as of March 1997, 
the CCL consists of 423 sites.

Public Comment Period

    The documents that form the basis for EPA's evaluation and scoring 
of sites in this rule are contained in dockets located both at EPA 
Headquarters and in the appropriate Regional offices. The dockets are 
available for viewing, by appointment only, after the appearance of 
this rule. The hours of operation for the Headquarters docket are from 
9:00 a.m. to 4:00 p.m., Monday through Friday excluding Federal 
holidays. Please contact individual Regional dockets for hours.

Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, 
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, 
VA 22202, 703/603-8917
    (Please note this is a visiting address only. Mail comments to 
address listed in ADDRESSES section above.)
Jim Kyed, Region 1, U.S. EPA Waste Management Records Center, HRC-CAN-
7, J.F. Kennedy Federal Building, Boston, MA 02203-2211, 617/573-9656
Ben Conetta, Region 2, U.S. EPA, 290 Broadway, New York, NY 10007-1866, 
Diane McCreary, Region 3, U.S. EPA Library, 3rd Floor, 841 Chestnut 
Building, 9th & Chestnut Streets, Philadelphia, PA 19107, 215/566-5250
Kathy Piselli, Region 4, U.S. EPA, 100 Alabama Street, SW, Atlanta, GA 
30303, 404/562-8190
Cathy Freeman, Region 5, U.S. EPA, Records Center, Waste Management 
Division 7-J, Metcalfe Federal Building, 77 West Jackson Boulevard, 
Chicago, IL 60604, 312/886-6214
Bart Canellas, Region 6, U.S. EPA, 1445 Ross Avenue, Mail Code 6H1MA, 
Dallas, TX 75202-2733, 214/655-6740
Carole Long, Region 7, U.S. EPA, 726 Minnesota Avenue, Kansas City, KS 
66101, 913/551-7224
Pat Smith, Region 18, U.S. EPA, 999 l8th Street, Suite 500, Denver, CO 
80202-2466, 303/312-6082
Carolyn Douglas, Region 9, U.S. EPA, 75 Hawthorne Street, San 
Francisco, CA 94105, 415/744-2343
    David Bennett, Region 10, U.S. EPA, 11th Floor 1200 6th Avenue, 
Mail Stop HW-114, Seattle, WA 98101, 206/553-2103

    The Headquarters docket for this rule contains: HRS score sheets 
for each proposed site; a Documentation Record for each site describing 
the information used to compute the score; information for any site 
affected by particular statutory requirements or EPA listing policies; 
and a list of documents referenced in the Documentation Record.
    The Headquarters docket also contains an ``Additional Information'' 
document which provides a general discussion of the statutory 
requirements affecting NPL listing, the purpose and implementation of 
the NPL, and the economic impacts of NPL listing.
    Each Regional docket for this rule contains all of the information 
in the Headquarters docket for sites in that Region, plus, the actual 
reference documents containing the data principally relied upon and 
cited by EPA in calculating or evaluating the HRS scores for sites in 
that Region. These reference documents are available only in the 
Regional dockets. Interested parties may view documents, by appointment 
only, in the Headquarters or the appropriate Regional docket or copies 
may be requested from the Headquarters or appropriate Regional docket. 
An informal 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.
    EPA considers all comments received during the comment period. 
During the comment period, comments are placed in the Headquarters 
docket and are available to the public on an ``as received'' basis. A 
complete set of comments will be available for viewing in the Regional 
docket approximately one week after the formal comment period closes. 
Comments received after the comment period closes will be available in 
the Headquarters docket and in the Regional docket on an ``as 
received'' basis. Comments that include complex or voluminous reports, 
or materials prepared for purposes other than HRS scoring, should point 
out the specific information that EPA should consider and how it 
affects individual HRS factor values. See Northside Sanitary Landfill 
v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988). EPA will make final listing 
decisions after considering the relevant comments received during the 
comment period.
    In past rules, EPA has attempted to respond to late comments, or 
when that was not practicable, to read all late comments and address 
those that brought to the Agency's attention a fundamental error in the 
scoring of a site. Although EPA intends to pursue the same policy with 
sites in this rule, EPA can guarantee that it will consider only those 
comments postmarked by the close of the formal comment period. EPA has 
a policy of not delaying a final listing decision solely to accommodate 
consideration of late comments.
    In certain instances, interested parties have written to EPA 
concerning sites which were not at that time proposed to the NPL. If 
those sites are later proposed to the NPL, parties should review their 
earlier concerns and, if still appropriate, resubmit those concerns for 
consideration during the formal comment period. Site-specific 
correspondence received prior to the period of formal proposal and 
comment will not generally be included in the docket.

II. Contents of This Proposed Rule

    Table 1 identifies the 5 sites in the General Superfund section 
being proposed to the NPL in this rule. Table 2 identifies the 1 site 
in the Federal Facility section being proposed to the NPL in this rule. 
These tables follow this preamble. All sites are proposed based on HRS 
scores of 28.50 or above. The sites in Table 1 and Table 2 are listed 
alphabetically by State, for ease of identification, with group number 
identified to provide an indication of relative ranking. To determine 
group number, sites on the NPL are placed in groups of 50; for example, 
a site in Group 4 of this proposal has a score that falls within the 
range of scores covered by the fourth group of 50 sites on the NPL.

Withdrawal of Annie Creek Mine Tailings

    EPA is hereby withdrawing the proposal of Annie Creek Mine 
Tailings, located in Lead, South Dakota. This withdrawal was proposed 
on December 23, 1996 (61 FR 67656). EPA received no comments regarding 
the proposal to withdraw this site.
    These actions along with a final rule published elsewhere in 
today's Federal Register, results in an NPL of 1,206 sites, 1,055 in 
the General Superfund Section and 151 in the Federal Facilities 
Section. With this proposal of 6 new sites, there are now 49 sites 
proposed and awaiting final agency action, 43 in the General Superfund 
Section and 6 in the Federal Facilities Section. Final and proposed 
sites now total 1,255.

III. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 

[[Page 15597]]

action from Executive Order 12866 review.

IV. Unfunded Mandates

    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 to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. When a written statement is needed for an EPA rule, 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 of 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, giving 
them 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.
    Today's rule contains no Federal mandates (within the meaning of 
Title II of the UMRA) for State, local, or tribal governments or the 
private sector. Nor does it contain any regulatory requirements that 
might significantly or uniquely affect small governments. This is 
because today's listing decision does not impose any enforceable duties 
upon any of these governmental entities or the private sector. 
Inclusion of a site on the NPL does not itself impose any costs. It 
does not establish that EPA necessarily will undertake remedial action, 
nor does it require any action by a private party or determine its 
liability for site response costs. Costs that arise out of site 
responses result from site-by-site decisions about what actions to 
take, not directly from the act of listing itself. Therefore, today's 
rulemaking is not subject to the requirements of section 202, 203 or 
205 of the Unfunded Mandates Reform Act.

V. Effect on Small Businesses

    The Regulatory Flexibility Act of 1980 requires EPA to review the 
impacts of this action on small entities, or certify that the action 
will not have a significant impact on a substantial number of small 
entities. By small entities, the Act refers to small businesses, small 
government jurisdictions, and nonprofit organizations.
    While this rule proposes to revise the NPL, an NPL revision is not 
a typical regulatory change since it does not automatically impose 
costs. As stated above, adding sites to the NPL does not in itself 
require any action by any party, nor does it determine the liability of 
any party for the cost of cleanup at the site. Further, no identifiable 
groups are affected as a whole. As a consequence, impacts on any group 
are hard to predict. A site's inclusion on the NPL could increase the 
likelihood of adverse impacts on responsible parties (in the form of 
cleanup costs), but at this time EPA cannot identify the potentially 
affected businesses or estimate the number of small businesses that 
might also be affected.
    The Agency does expect that placing the sites in this proposed rule 
on the NPL could significantly affect certain industries, or firms 
within industries, that have caused a proportionately high percentage 
of waste site problems. However, EPA does not expect the listing of 
these sites to have a significant economic impact on a substantial 
number of small businesses.
    In any case, economic impacts would occur only through enforcement 
and cost-recovery actions, which EPA takes at its discretion on a site-
by-site basis. EPA considers many factors when determining enforcement 
actions, including not only a firm's contribution to the problem, but 
also its ability to pay. The impacts (from cost recovery) on small 
governments and nonprofit organizations would be determined on a 
similar case-by-case basis.
    For the foregoing reasons, I hereby certify that this proposed 
rule, if promulgated, will not have a significant economic impact on a 
substantial number of small entities. Therefore, this proposed 
regulation does not require a regulatory flexibility analysis.

  National Priorities List Proposed Rule #22, General Superfund Section 
      State               Site name           City/county       Group   
FL..............  Florida Petroleum         Fort Lauderdale          5/6
GA..............  Terry Creek Dredge Spoil  Brunswick......            5
                   Areas/Hercules Outfall.                              
IL..............  DePue/New Jersey Zinc/    Village of                 1
                   Mobil Chemical Corp.      DePue.                     
PA..............  Salford Quarry..........  Lower Salford            5/6
TX..............  Sprague Road Ground       Odessa.........          10 
                   Water Plume.                                         
 Number of Sites Proposed to General Superfund Section: 5.              

 National Priorities List Proposed Rule #22, Federal Facilities Section 
      State               Site name           City/county       Group   
MD..............  Fort George G. Meade....  Odenton........           4 
 Number of Sites Proposed to Federal Facilities Section: 1.             

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous materials, Intergovernmental relations, Natural resources, 
Oil pollution, Reporting and recordkeeping requirements, Superfund, 
Waste treatment and disposal, Water pollution control, Water supply.

[[Page 15598]]

    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: March 25, 1997.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
[FR Doc. 97-8087 Filed 3-31-97; 8:45 am]