15 March 2012
9 Toxic Air Sites Added to EPA Superfund
[Federal Register Volume 77, Number 51 (Thursday, March 15, 2012)]
[Rules and Regulations]
[Pages 15276-15284]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6329]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[EPA-HQ-SFUND-1993-0001, EPA-HQ-SFUND-2011-0064, 0068, 0646, 0648,
0649, 0650, 0651, and 0652; FRL-9647-3]
RIN 2050-AD75
National Priorities List, Final Rule No. 53
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
[[Page 15277]]
contaminants throughout the United States. The National Priorities List
(``NPL'') constitutes this list. The NPL is intended primarily to guide
the Environmental Protection Agency (``the 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 adds nine sites to the General Superfund Section
of the NPL.
DATES: Effective date: The effective date for this amendment to the NCP
is April 16, 2012.
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: Terry Jeng, phone: (703) 603-8852,
email: jeng.terry@epa.gov, Site Assessment and Remedy Decisions Branch,
Assessment and Remediation Division, Office of Superfund Remediation
and Technology Innovation (Mail Code 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?
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. What did the 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 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 Final Rule?
E. Executive Order 13132: Federalism
1. What is Executive Order 13132?
2. Does Executive Order 13132 apply to this Final 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 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: Actions That Significantly Affect
Energy Supply, Distribution, or Usage
1. What is Executive Order 13211?
2. Does Executive Order 13211 apply to this Final 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 Final 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 Final Rule?
K. Congressional Review Act
1. Has the EPA submitted this Rule to Congress and the
Government Accountability 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 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
[[Page 15278]]
of only 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 placed on the NPL, as provided in the NCP at 40 CFR
300.425(b)(1). (``Remedial actions'' are those ``consistent with a
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.
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
[[Page 15279]]
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 represents important
Superfund accomplishments and the measure reflects the high priority
the EPA places on considering anticipated future land use as part of
our 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 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/tools/index.html.
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 the EPA
Headquarters and in the Regional offices.
An electronic version of the public docket is available through
www.regulations.gov (see table below for Docket Identification
numbers). 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.
Docket Identification Numbers by Site
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Site name City/County, State Docket ID No.
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Continental Cleaners................ Miami, FL............. EPA-HQ-SFUND-2011-0646.
Sauer Dump.......................... Dundalk, MD........... EPA-HQ-SFUND-2011-0064.
Compass Plaza Well TCE.............. Rogersville, MO....... EPA-HQ-SFUND-2011-0648.
Chemfax, Inc........................ Gulfport, MS.......... EPA-HQ-SFUND-1993-0001.
Southeastern Wood Preserving........ Canton, MS............ EPA-HQ-SFUND-2011-0649.
CTS of Asheville, Inc............... Asheville, NC......... EPA-HQ-SFUND-2011-0068.
Eighteenmile Creek.................. Niagara County, NY.... EPA-HQ-SFUND-2011-0650.
Metro Container Corporation......... Trainer, PA........... EPA-HQ-SFUND-2011-0651.
Corozal Well........................ Corozal, PR........... EPA-HQ-SFUND-2011-0652.
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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 the EPA listing policies that affect the site and a
list of documents referenced in the Documentation Record. For sites
that received comments during the comment period, the Headquarters
Docket also contains a Support Document that includes the EPA's
responses to comments.
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 the 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. For sites that
received comments during the comment period, the Regional Docket also
contains a Support Document that includes the EPA's responses to
comments.
D. How do I access the documents?
You may view the documents, by appointment only, after the
publication of this 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.
Following is the contact information for the EPA Headquarters:
Docket
[[Page 15280]]
Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA
Docket Office; 1301 Constitution Avenue NW.; EPA West, Room 3334,
Washington, DC 20004, 202/566-0276.
The contact information for the Regional Dockets is as follows:
Joan Berggren, 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; 617/918-1417.
Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway,
New York, NY 10007-1866; 212/637-4344.
Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA,
Library, 1650 Arch Street, Mail Code 3PM52, Philadelphia, PA 19103;
215/814-5364.
Debbie Jourdan, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61
Forsyth Street, SW., Mail Code 9T25, Atlanta, GA 30303; 404/562-8862.
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, Mail Code 6SFTS, Dallas, TX 75202-2733; 214/665-7436.
Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th
Street, Mail Code SUPRERNB, Kansas City, KS 66101; 913/551-7335.
Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595
Wynkoop Street, Mail Code 8EPR-B, Denver, CO 80202-1129; 303/312-6484.
Karen Jurist, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75
Hawthorne Street, Mail Code SFD-9-1, San Francisco, CA 94105; 415/972-
3219.
Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mail
Code ECL-112, Seattle, WA 98101; 206/463-1349.
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/sites/npl/index.htm 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 the following nine sites to the NPL, all to
the General Superfund Section. All of the sites included in this final
rulemaking are being added to the NPL based on HRS scores of 28.50 or
above. The sites are presented in the table below:
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State Site name City/County
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FL................ Continental Miami.
Cleaners.
MD................ Sauer Dump...... Dundalk.
MO................ Compass Plaza Rogersville.
Well TCE.
MS................ Chemfax, Inc.... Gulfport.
MS................ Southeastern Canton.
Wood Preserving.
NC................ CTS of Asheville.
Asheville, Inc.
NY................ Eighteenmile Niagara County.
Creek.
PR................ Corozal Well.... Corozal.
PA................ Metro Container Trainer.
Corporation.
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B. What did the EPA do with the public comments it received?
The EPA reviewed all comments received on the sites in this rule
and responded to all relevant comments. This rule adds nine sites to
the NPL.
Five sites received no comments: Corozal Well (PR); Metro Container
Corporation (PA); Continental Cleaners (FL); Southeastern Wood
Preserving (MS); and Compass Plaza Well TCE (MO).
Four sites being placed on the NPL received comments specifically
related to the HRS score and these are being addressed in response to
comment support documents available concurrent with this final rule:
Eighteenmile Creek (NY); Sauer Dump (MD); Chemfax, Inc. (MS); and CTS
of Asheville, Inc. (NC).
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 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 the
EPA's regulations, after initial display in the preamble of the final
rules, are listed in 40 CFR part 9.
[[Page 15281]]
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.
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.
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 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
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, 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 the 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?
This final 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.
Listing a site on the NPL does not itself impose any costs. Listing
does not mean that the 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 placing a site 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 listing 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 Final Rule?
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, because it does not contain any
requirements applicable to states or other levels of government.
[[Page 15282]]
Thus, the requirements of the Executive Order do not apply to this
final rule.
The EPA believes, however, that this final 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 final 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.
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 Final Rule?
This final rule does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). Listing a site
on 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 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 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 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: Actions That Significantly Affect Energy
Supply, Distribution, or Usage
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 Final 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 final rule is not likely to have any
adverse energy impacts because adding 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 13175 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 Final Rule?
No. This 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 (EO) 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 Rule?
The EPA has determined that this final 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.
K. Congressional Review Act
1. Has the EPA submitted this Rule to Congress and the Government
Accountability Office?
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement
[[Page 15283]]
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. The 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.
The 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 the EPA
necessarily will undertake remedial action, nor does it require any
action by any party or determine 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 (DC Cir. 1996), cast the validity of the
legislative veto into question, the 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, the 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: March 8, 2012.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
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\
-----------------------------------------------------------------------------------
* * * * * * *
FL Continental Cleaners........ Miami.............................
* * * * * * *
MD Sauer Dump.................. Dundalk...........................
* * * * * * *
MO Compass Plaza Well TCE...... Rogersville.......................
* * * * * * *
MS Chemfax, Inc................ Gulfport..........................
* * * * * * *
MS Southeastern Wood Preserving Canton............................
* * * * * * *
NC CTS of Asheville, Inc....... Asheville.........................
[[Page 15284]]
* * * * * * *
NY Eighteenmile Creek......... Niagara County....................
* * * * * * *
PA Metro Container Corporation Trainer...........................
* * * * * * *
PR Corozal Well............... Corozal...........................
* * * * * * *
-----------------------------------------------------------------------------------
\a\ A = Based on issuance of health advisory by Agency for Toxic Substance and
Disease Registry (HRS score need not be greater than or equal to 28.50).
S = State top priority (HRS score need not be greater than or equal to 28.50).
P = Sites with partial deletion(s).
* * * * *
[FR Doc. 2012-6329 Filed 3-14-12; 8:45 am]
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