[Federal Register Volume 76, Number 47 (Thursday, March 10, 2011)]
[Rules and Regulations]
[Pages 13089-13097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5337]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-2010-0072, 0073, 0075, 0634, 0636, 0638, 0639, 0643, 
0645, 0646; RL-9277-8]
RIN 2050-AD75


National Priorities List, Final Rule No. 51

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (``CERCLA'' or ``the Act''), as amended, requires 
that the National Oil and Hazardous Substances Pollution Contingency 
Plan (``NCP'') include a list of national priorities among the known 
releases or threatened releases of hazardous substances, pollutants, or 
contaminants throughout the United States. The National Priorities List 
(``NPL'') constitutes this list. The NPL is intended primarily to guide 
the Environmental Protection Agency (``EPA'' or ``the Agency'') in 
determining which sites warrant further investigation. These further 
investigations will allow EPA to assess the nature and extent of public 
health and environmental risks associated with the site and to 
determine what CERCLA-financed remedial action(s), if any, may be 
appropriate. This rule adds ten sites to the NPL, all to the General 
Superfund Section.

DATES:  Effective Date: The effective date for this amendment to the 
NCP is April 11, 2011.

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, e-
mail: <a href="/cdn-cgi/l/email-protection#7a101f141d540e1f0808033a1f0a1b541d150c"><span class="__cf_email__" data-cfemail="84eee1eae3aaf0e1f6f6fdc4e1f4e5aae3ebf2">[email protected]</span></a>, 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: 

[[Page 13090]]

Table of Contents

I. Background
    A. What are CERCLA and SARA?
    B. What is the NCP?
    C. What is the National Priorities List (NPL)?
    D. How are sites listed on the NPL?
    E. What happens to sites on the NPL?
    F. Does the NPL define the boundaries of sites?
    G. How are sites removed from the NPL?
    H. May EPA delete portions of sites from the NPL as they are 
cleaned up?
    I. What is the Construction Completion List (CCL)?
    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 EPA do with the public comments it received?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    1. What is Executive Order 12866?
    2. Is this final rule subject to Executive Order 12866 review?
    B. Paperwork Reduction Act
    1. What is the Paperwork Reduction Act?
    2. Does the Paperwork Reduction Act apply to this final rule?
    C. Regulatory Flexibility Act
    1. What is the Regulatory Flexibility Act?
    2. How has EPA complied with the Regulatory Flexibility Act?
    D. Unfunded Mandates Reform Act
    1. What is the Unfunded Mandates Reform Act (UMRA)?
    2. Does UMRA apply to this final rule?
    E. Executive Order 13132: Federalism
    1. What is Executive Order 13132?
    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 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, 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. 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 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 EPA (the ``General 
Superfund Section''), and one of sites that are owned or operated by 
other Federal agencies (the ``Federal Facilities Section''). With 
respect to sites in the Federal Facilities Section, these sites are 
generally being addressed by other Federal agencies. Under Executive 
Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each 
Federal agency is responsible for carrying out most response actions at 
facilities under its own jurisdiction, custody, or control, although 
EPA is responsible for preparing 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 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), EPA promulgated revisions

[[Page 13091]]

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:
    <bullet> 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.
    <bullet> EPA determines that the release poses a significant threat 
to public health.
    <bullet> 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) 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 
permanent remedy, taken instead of or in addition to removal actions * 
* *.'' 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing 
a site on the NPL ``does not imply that monies will be expended.'' EPA 
may pursue other appropriate authorities to respond to the 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 
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?

    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.

H. May EPA delete portions of sites from the NPL as they are cleaned 
up?

    In November 1995, EPA initiated a new policy to delete portions of 
NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). 
Total site cleanup may take many years, while portions of the site may 
have been cleaned up and made available for productive use.

[[Page 13092]]

I. What is the construction completion list (CCL)?

    EPA also has developed an NPL construction completion list 
(``CCL'') to simplify its system of categorizing sites and to better 
communicate the successful completion of cleanup activities (58 FR 
12142, March 2, 1993). Inclusion of a site on the CCL has no legal 
significance.
    Sites qualify for the CCL when: (1) Any necessary physical 
construction is complete, whether or not final cleanup levels or other 
requirements have been achieved; (2) EPA has determined that the 
response action should be limited to measures that do not involve 
construction (e.g., institutional controls); or (3) the site qualifies 
for deletion from the NPL. For the most up-to-date information on the 
CCL, see 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 
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. 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 users, 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 EPA 
Headquarters and in the Regional offices.
    An electronic version of the public docket is available through 
http://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
----------------------------------------------------------------------------------------------------------------
              Site name                 City/county, state                       Docket ID No.
----------------------------------------------------------------------------------------------------------------
Dwyer Property Ground Water Plume...  Elkton, MD............  EPA-HQ-SFUND-2010-0639.
Washington County Lead District--     Caledonia, MO.........  EPA-HQ-SFUND-2010-0646.
 Furnace Creek.
ACM Smelter and Refinery............  Cascade County, MT....  EPA-HQ-SFUND-2010-0072.
Wright Chemical Corporation.........  Riegelwood, NC........  EPA-HQ-SFUND-2010-0073.
Mansfield Trail Dump................  Byram Township, NJ....  EPA-HQ-SFUND-2010-0634.
Dewey Loeffel Landfill..............  Nassau, NY............  EPA-HQ-SFUND-2010-0075.
Milford Contaminated Aquifer........  Milford, OH...........  EPA-HQ-SFUND-2010-0643.
Cabo Rojo Ground Water Contamination  Cabo Rojo, PR.........  EPA-HQ-SFUND-2010-0638.
Hormigas Ground Water Plume.........  Caguas, PR............  EPA-HQ-SFUND-2010-0636.
West County Road 112 Ground Water...  Midland, TX...........  EPA-HQ-SFUND-2010-0645.
----------------------------------------------------------------------------------------------------------------

B. What documents are available for review at the Headquarters Docket?

    The Headquarters Docket for this rule contains, for each site, the 
HRS score sheets, the Documentation Record describing the information 
used to compute the score, pertinent information regarding statutory 
requirements or EPA listing policies that affect the site, and a list 
of documents referenced in the Documentation Record. For sites that 
received comments during the comment period, the Headquarters Docket 
also contains a Support Document that includes 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 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 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 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, Mailcode HSC, One Congress 
Street, Suite 1100, Boston, MA 02114-2023; 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, Mailcode 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, Mailcode 9T25, Atlanta, GA 30303; 404/562-
8862.
Evette Jones, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records 
Center, Superfund Division SRC-7J, Metcalfe Federal Building, 77 
West Jackson Boulevard, Chicago, IL 60604; 312/886-7572.
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, 901 North 5th 
Street, Mailcode SUPRERNB, Kansas City, KS 66101; 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.
Karen Jurist, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 
Hawthorne Street, Mailcode SFD-9-1, San Francisco, CA 94105; 415/
972-3219.

[[Page 13093]]

Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, 
Mailcode 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/ (look under the Superfund sites category) 
or by contacting the Superfund Docket (see contact information above).

III. Contents of This Final Rule

A. Additions to the NPL

    This final rule adds the following ten sites to the NPL, all to the 
General Superfund Section. The sites are presented in the table below:

------------------------------------------------------------------------
     State                Site name                   City/county
------------------------------------------------------------------------
MD               Dwyer Property Ground Water  Elkton.
                  Plume.
MO               Washington County Lead       Caledonia.
                  District--Furnace Creek.
MT               ACM Smelter and Refinery...  Cascade County.
NC               Wright Chemical Corporation  Riegelwood.
NJ               Mansfield Trail Dump.......  Byram Township.
NY               Dewey Loeffel Landfill.....  Nassau.
OH               Milford Contaminated         Milford.
                  Aquifer.
PR               Cabo Rojo Ground Water       Cabo Rojo.
                  Contamination.
PR               Hormigas Ground Water Plume  Caguas.
TX               West County Road 112 Ground  Midland.
                  Water.
------------------------------------------------------------------------

B. What did EPA do with the public comments it received?

    EPA reviewed all comments received on the sites in this rule and 
responded to all relevant comments. This rule adds ten sites to the 
NPL.
    Two sites received no comments: Dwyer Property Ground Water Plume 
(MD), and Cabo Rojo Ground Water Contamination (PR). Four sites 
received only comments in favor of listing: Mansfield Trail Dump (NJ), 
Milford Contaminated Aquifer (OH), Hormigas Ground Water Plume (PR), 
and West County Road 112 Ground Water (TX). For these sites, EPA agrees 
with the commenters that the sites warrant being placed on the NPL and 
require further study to determine what, if any, remediation is 
necessary. In addition, there were some erroneous comments submitted. 
One comment regarding a mine in Alaska was incorrectly submitted to the 
Hormigas Ground Water Plume docket, and one anonymous comment submitted 
to the West County Road 112 docket contained only the letter ``t''.
    The Washington County Lead District--Furnace Creek site (MO) 
received a comment unrelated to listing. The commenter asked that EPA 
provide the results of soil and water testing conducted at the 
commenter's residence and further requested to know what proposed 
cleanup would be employed and how long would it take. In response, EPA 
will provide the testing results, but cannot provide a cleanup plan, if 
cleanup is found to be necessary, until further studies are conducted. 
The commenter and others will have an opportunity to comment on any 
proposed plan before EPA makes a final cleanup decision.
    Three sites being added to the NPL received comments related to the 
HRS score: Wright Chemical Corporation (NC), Dewey Loeffel Landfill 
(NY), and ACM Smelter and Refinery (MT). EPA's responses to these 
comments are provided in support documents prepared for each site which 
are available in the regional and Headquarters public dockets 
concurrent with the publication of this final rule.

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 EPA's 
regulations, after initial display in the preamble of the final rules, 
are listed in 40 CFR part 9.
2. Does the Paperwork Reduction Act apply to this final rule?
    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
EPA has determined that the PRA does not apply because this rule does 
not contain any information collection requirements that require 
approval of the OMB.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time

[[Page 13094]]

needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

1. What is the Regulatory Flexibility Act?
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities.
2. How has EPA complied with the Regulatory Flexibility Act?
    This rule listing sites on the NPL does not impose any obligations 
on any group, including small entities. This rule also does not 
establish standards or requirements that any small entity must meet, 
and imposes no direct costs on any small entity. Whether an entity, 
small or otherwise, is liable for response costs for a release of 
hazardous substances depends on whether that entity is liable under 
CERCLA 107(a). Any such liability exists regardless of whether the site 
is listed on the NPL through this rulemaking. Thus, this rule does not 
impose any requirements on any small entities. For the foregoing 
reasons, I certify that this rule will not have a significant economic 
impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

1. What is the Unfunded Mandates Reform Act (UMRA)?
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before EPA promulgates a rule where a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
2. Does UMRA apply to this final rule?
    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 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 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. Thus, 
the requirements of the Executive Order do not apply to this final 
rule.
    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 EPA policy to promote communications between EPA 
and State and local governments, 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 EPA by States for listing. For all sites in this 
rule, EPA received letters of support either from the Governor or

[[Page 13095]]

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 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 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, 
we have 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 EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
2. Does the National Technology Transfer and Advancement Act apply to 
this final rule?
    No. This rulemaking does not involve technical standards. 
Therefore, EPA did not consider the use of any voluntary consensus 
standards.

J. 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?
    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 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 Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, that includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA has submitted a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A ``major rule'' 
cannot take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

[[Page 13096]]

2. Could the effective date of this final rule change?
    Provisions of the Congressional Review Act (CRA) or section 305 of 
CERCLA may alter the effective date of this regulation.
    Under the CRA, 5 U.S.C. 801(a), before a rule can take effect the 
federal agency promulgating the rule must submit a report to each House 
of the Congress and to the Comptroller General. This report must 
contain a copy of the rule, a concise general statement relating to the 
rule (including whether it is a major rule), a copy of the cost-benefit 
analysis of the rule (if any), the agency's actions relevant to 
provisions of the Regulatory Flexibility Act (affecting small 
businesses) and the Unfunded Mandates Reform Act of 1995 (describing 
unfunded federal requirements imposed on state and local governments 
and the private sector), and any other relevant information or 
requirements and any relevant Executive Orders.
    EPA has submitted a report under the CRA for this rule. The rule 
will take effect, as provided by law, within 30 days of publication of 
this document, since it is not a major rule. Section 804(2) defines a 
major rule as any rule that the Administrator of the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB) finds has resulted in or is likely to result in: an 
annual effect on the economy of $100,000,000 or more; a major increase 
in costs or prices for consumers, individual industries, Federal, 
State, or local government agencies, or geographic regions; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets. NPL listing is not a major rule because, as explained 
above, the listing, itself, imposes no monetary costs on any person. It 
establishes no enforceable duties, does not establish that EPA 
necessarily will undertake remedial action, nor does it require any 
action by any party or determine liability for site response costs. 
Costs that arise out of site responses result from site-by-site 
decisions about what actions to take, not directly from the act of 
listing itself. Section 801(a)(3) provides for a delay in the effective 
date of major rules after this report is submitted.
3. What could cause a change in the effective date of this rule?
    Under 5 U.S.C. 801(b)(1) a rule shall not take effect, or continue 
in effect, if Congress enacts (and the President signs) a joint 
resolution of disapproval, described under section 802.
    Another statutory provision that may affect this rule is CERCLA 
section 305, which provides for a legislative veto of regulations 
promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. 
Ct. 2764 (1983) and Bd. of Regents of the University of Washington v. 
EPA, 86 F.3d 1214,1222 (D.C. Cir. 1996) cast the validity of the 
legislative veto into question, EPA has transmitted a copy of this 
regulation to the Secretary of the Senate and the Clerk of the House of 
Representatives.
    If action by Congress under either the CRA or CERCLA section 305 
calls the effective date of this regulation into question, EPA will 
publish a document of clarification in the Federal Register.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Intergovernmental relations, 
Natural resources, Oil pollution, Penalties, Reporting and 
recordkeeping requirements, Superfund, Water pollution control, Water 
supply.

    Dated: March 3, 2011.
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\
------------------------------------------------------------------------
 
                              * * * * * * *
MD           Dwyer Property Ground   Elkton..........
             Water Plume.
 
                              * * * * * * *
MO           Washington County       Caledonia.......
             Lead District--
             Furnace Creek.
 
                              * * * * * * *
 MT          ACM Smelter and         Cascade County..
             Refinery.
 
                              * * * * * * *
NC           Wright Chemical         Riegelwood......
             Corporation.
 
                              * * * * * * *
NJ           Mansfield Trail Dump.   Byram Township..
 
                              * * * * * * *
NY           Dewey Loeffel           Nassau..........
             Landfill.
 
                              * * * * * * *
 OH          Milford Contaminated    Milford.........
             Aquifer.
 
                              * * * * * * *
PR           Cabo Rojo Ground        Cabo Rojo.......
             Water Contamination.
 

[[Page 13097]]

 
                              * * * * * * *
PR           Hormigas Ground Water   Caguas..........
             Plume.
 
                              * * * * * * *
TX           West County Road 112    Midland.........
             Ground Water.
 
                              * * * * * * *
------------------------------------------------------------------------
\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).
C = Sites on Construction Completion list.
S = State top priority (HRS score need not be greater than or equal to
  28.50).
P = Sites with partial deletion(s).

[FR Doc. 2011-5337 Filed 3-9-11; 8:45 am]
BILLING CODE 6560-50-P


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