Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48511 

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 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. As this rule does not 

impose any enforceable duty upon 

State, tribal or local governments, this 

rule will neither increase nor decrease 

environmental protection. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Oil pollution, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p. 193. 

Dated: September 17, 2009. 

Mathy Stanislaus, 

Assistant Administrator, Office of Solid Waste 

and Emergency Response. 

[FR Doc. E9–22936 Filed 9–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–2009–0588; FRL–8961–4] 

RIN 2050–AD75 

National Priorities List, Proposed Rule 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(‘‘CERCLA’’ or ‘‘the Act’’), as amended, 

requires that the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (‘‘NCP’’) include a list 

of national priorities among the known 

releases or threatened releases of 

hazardous substances, pollutants, or 

contaminants throughout the United 

States. The National Priorities List 

(‘‘NPL’’) constitutes this list. The NPL is 

intended primarily to guide the 

Environmental Protection Agency 

(‘‘EPA’’ or ‘‘the Agency’’) in determining 

which sites warrant further 

investigation. These further 

investigations will allow EPA to assess 

the nature and extent of public health 

and environmental risks associated with 

the site and to determine what CERCLAfinanced remedial action(s), if any, may 

be appropriate. This rule proposes to 

add the Newtown Creek site in 

Brooklyn/Queens, New York, to the 

General Superfund Section of the NPL. 

DATES: Comments regarding this 

proposed listing must be submitted 

(postmarked) on or before November 23, 

2009. 

ADDRESSES: Submit your comments, 

identified by docket number EPA–HQ– 

SFUND–2009–0588, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• E-mail: superfund.docket@epa.gov. 

• Mail: Mail comments (no facsimiles 

or tapes) to Docket Coordinator, 

Headquarters; U.S. Environmental 

Protection Agency, CERCLA Docket 

Office (Mail Code 5305T); 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460. 

• Hand Delivery or Express Mail: 

Send comments (no facsimiles or tapes) 

to Docket Coordinator, Headquarters, 

U.S. Environmental Protection Agency; 

CERCLA Docket Office; 1301 

Constitution Avenue, NW., EPA West, 

Room 3334, Washington, DC 20004. 

Such deliveries are only accepted 

during the docket’s normal hours of 

operation (8:30 a.m. to 4:30 p.m., 

Monday through Friday excluding 

Federal holidays). 

Instructions: Direct your comments to 

docket number EPA–HQ–SFUND–2009– 

0588. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system; that 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional docket addresses 

and further details on their contents, see 

section II, ‘‘Public Review/Public 

Comment,’’ of the Supplementary 

Information portion of this preamble. 

FOR FURTHER INFORMATION CONTACT: 

Terry Jeng, phone: (703) 603–8852, email: 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 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. Public Review/Public Comment 

A. May I Review the Documents Relevant 

to This Proposed Rule? 

B. How Do I Access the Documents? 

C. What Documents Are Available for 

Public Review at the Headquarters 

Docket? 

D. What Documents Are Available for 

Public Review at the Region 2 Docket? 

E. How Do I Submit My Comments? 

F. What Happens to My Comments? 

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48512 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

G. What Should I Consider When 

Preparing My Comments? 

H. May I Submit Comments After the 

Public Comment Period is Over? 

I. May I View Public Comments Submitted 

by Others? 

J. May I Submit Comments Regarding Sites 

Not Currently Proposed to the NPL? 

III. Contents of This Proposed Rule 

A. Proposed Addition to the NPL 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

1. What Is Executive Order 12866? 

2. Is This Proposed Rule Subject to 

Executive Order 12866 Review? 

B. Paperwork Reduction Act 

1. What Is the Paperwork Reduction Act? 

2. Does the Paperwork Reduction Act 

Apply to This Proposed Rule? 

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 Proposed 

Rule? 

E. Executive Order 13132: Federalism 

1. What Is Executive Order 13132 

2. Is Executive Order 13132 Applicable to 

This Proposed Rule? 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

1. What Is Executive Order 13175? 

2. Does Executive Order 13175 Apply to 

This Proposed Rule? 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

1. What Is Executive Order 13045? 

2. Does Executive Order 13045 Apply to 

This Proposed Rule? 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Usage 

Is This Rule Subject to Executive Order 

13211? 

I. National Technology Transfer and 

Advancement Act 

1. What Is the National Technology 

Transfer and Advancement Act? 

2. Does the National Technology Transfer 

and Advancement Act Apply to This 

Proposed Rule? 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

1. What Is Executive Order 12898? 

2. Does Executive Order 12898 Apply to 

This Proposed Rule? 

I. Background 

A. What Are CERCLA and SARA? 

In 1980, Congress enacted the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act, 42 U.S.C. 9601–9675 (‘‘CERCLA’’ or 

‘‘the Act’’), in response to the dangers of 

uncontrolled releases or threatened 

releases of hazardous substances, and 

releases or substantial threats of releases 

into the environment of any pollutant or 

contaminant that may present an 

imminent or substantial danger to the 

public health or welfare. CERCLA was 

amended on October 17, 1986, by the 

Superfund Amendments and 

Reauthorization Act (‘‘SARA’’), Public 

Law 99–499, 100 Stat. 1613 et seq. 

B. What Is the NCP? 

To implement CERCLA, 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 

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 

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dissociation of individuals from the 

release. 

• EPA determines that the release 

poses a significant threat to public 

health. 

• EPA anticipates that it will be more 

cost-effective to use its remedial 

authority than to use its removal 

authority to respond to the release. 

EPA promulgated an original NPL of 

406 sites on September 8, 1983 (48 FR 

40658) 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 Superfundfinanced 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. 

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 upto-date information on the CCL, see 

EPA’s Internet site at http:// 

www.epa.gov/superfund/cleanup/ 

ccl.htm. 

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J. What Is the Sitewide Ready for 

Anticipated Use Measure? 

The Sitewide Ready for Anticipated 

Use measure (formerly called Sitewide 

Ready-for-Reuse) represents important 

Superfund accomplishments and the 

measure reflects the high priority 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, 

including current and future land users, 

in a manner that allows contaminated 

properties to be restored to 

environmental and economic vitality 

while ensuring protectiveness for 

current and future land users. For 

further information, please go to http:// 

www.epa.gov/superfund/programs/ 

recycle/tools/index.html. 

II. Public Review/Public Comment 

A. May I Review the Documents 

Relevant to This Proposed Rule? 

Yes, documents that form the basis for 

EPA’s evaluation and scoring of the site 

in this rule are contained in public 

dockets located both at EPA 

Headquarters in Washington, DC, in the 

Region 2 office and by electronic access 

at http://www.regulations.gov (see 

instructions in the ADDRESSES section 

above). 

B. How Do I Access the Documents? 

You may view the documents, by 

appointment only, in the Headquarters 

or the Region 2 dockets after the 

publication of this proposed rule. The 

hours of operation for the Headquarters 

docket are from 8:30 a.m. to 4:30 p.m., 

Monday through Friday excluding 

Federal holidays. Please contact the 

Region 2 docket for hours. 

The following is the contact 

information for the EPA Headquarters 

docket: Docket Coordinator, 

Headquarters; U.S. Environmental 

Protection Agency; CERCLA Docket 

Office; 1301 Constitution Avenue NW.; 

EPA West, Room 3334, Washington, DC 

20004; 202/566–0276. (Please note this 

is a visiting address only. Mail 

comments to EPA Headquarters as 

detailed at the beginning of this 

preamble.) 

The contact information for the 

Regional 2 docket is as follows: Dennis 

Munhall, Region 2 (NJ, NY, PR, VI), U.S. 

EPA, 290 Broadway, New York, NY 

10007–1866; 212/637–4343. 

You may also request copies from 

EPA Headquarters or the Region 2 

dockets. An informal request, rather 

than a formal written request under the 

Freedom of Information Act, should be 

the ordinary procedure for obtaining 

copies of any of these documents. Please 

note that due to the difficulty of 

reproducing oversized maps, oversized 

maps may only be viewed in-person; 

however, EPA dockets are not equipped 

to either copy and mail out such maps 

or scan them and send them out 

electronically. 

You may use the docket at http:// 

www.regulations.gov to access 

documents in the Headquarters docket 

(see instructions included in the 

ADDRESSES section above). Please note 

that there are differences between the 

Headquarters docket and the Regional 

dockets and those differences are 

outlined below. 

C. What Documents Are Available for 

Public Review at the Headquarters 

Docket? 

The Headquarters docket for this rule 

contains the following for the site 

proposed in this rule: HRS score sheets; 

Documentation Record describing the 

information used to compute the score; 

and a list of documents referenced in 

the Documentation Record. 

D. What Documents Are Available for 

Public Review at the Region 2 Docket? 

The Region 2 docket for this rule 

contains all of the information in the 

Headquarters docket, plus the actual 

reference documents containing the data 

principally relied upon and cited by 

EPA in calculating or evaluating the 

HRS score for the site. These reference 

documents are available only in the 

Region 2 docket. 

E. How Do I Submit My Comments? 

Comments must be submitted to EPA 

Headquarters as detailed at the 

beginning of this preamble in the 

ADDRESSES section. Please note that the 

mailing addresses differ according to 

method of delivery. There are two 

different addresses that depend on 

whether comments are sent by express 

mail or by postal mail. 

F. What Happens to My Comments? 

EPA considers all comments received 

during the comment period. Significant 

comments are typically addressed in a 

support document that EPA will publish 

concurrently with the Federal Register 

document if, and when, the site is listed 

on the NPL. 

G. What Should I Consider When 

Preparing My Comments? 

Comments that include complex or 

voluminous reports, or materials 

prepared for purposes other than HRS 

scoring, should point out the specific 

information that EPA should consider 

and how it affects individual HRS factor 

values or other listing criteria 

(Northside Sanitary Landfill v. Thomas, 

849 F.2d 1516 (DC Cir. 1988)). EPA will 

not address voluminous comments that 

are not referenced to the HRS or other 

listing criteria. EPA will not address 

comments unless they indicate which 

component of the HRS documentation 

record or what particular point in EPA’s 

stated eligibility criteria is at issue. 

H. May I Submit Comments After the 

Public Comment Period Is Over? 

Generally, EPA will not respond to 

late comments. EPA can only guarantee 

that it will consider those comments 

postmarked by the close of the formal 

comment period. EPA has a policy of 

generally not delaying a final listing 

decision solely to accommodate 

consideration of late comments. 

I. May I View Public Comments 

Submitted by Others? 

During the comment period, 

comments are placed in the 

Headquarters docket and are available to 

the public on an ‘‘as received’’ basis. A 

complete set of comments will be 

available for viewing in the Region 2 

docket approximately one week after the 

formal comment period closes. 

All public comments, whether 

submitted electronically or in paper, 

will be made available for public 

viewing in the electronic public docket 

at http://www.regulations.gov as EPA 

receives them and without change, 

unless the comment contains 

copyrighted material, Confidential 

Business Information (CBI), or other 

information whose disclosure is 

restricted by statute. Once in the public 

dockets system, select ‘‘search,’’ then 

key in the appropriate docket ID 

number. 

J. May I Submit Comments Regarding 

Sites Not Currently Proposed to the 

NPL? 

In certain instances, interested parties 

have written to EPA concerning sites 

that were not at that time proposed to 

the NPL. If those sites are later proposed 

to the NPL, parties should review their 

earlier concerns and, if still appropriate, 

resubmit those concerns for 

consideration during the formal 

comment period. Site-specific 

correspondence received prior to the 

period of formal proposal and comment 

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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48515 

will not generally be included in the 

docket. 

III. Contents of This Proposed Rule 

A. Proposed Addition to the NPL 

In today’s proposed rule, EPA is 

proposing to add the Newtown Creek 

site in Brooklyn/Queens, New York, to 

the General Superfund section of the 

NPL. This site is being proposed based 

on an HRS score of 28.50 or above. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

1. What Is Executive Order 12866? 

Under Executive Order 12866 (58 FR 

51735 (October 4, 1993)), the Agency 

must determine whether a regulatory 

action is ‘‘significant’’ and therefore 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or Tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

2. Is This Proposed Rule Subject to 

Executive Order 12866 Review? 

No. The listing of sites on the NPL 

does not impose any obligations on any 

entities. The listing does not set 

standards or a regulatory regime and 

imposes no liability or costs. Any 

liability under CERCLA exists 

irrespective of whether a site is listed. 

It has been determined that this action 

is not a ‘‘significant regulatory action’’ 

under the terms of Executive Order 

12866 and is therefore not subject to 

OMB review. 

B. Paperwork Reduction Act 

1. What Is the Paperwork Reduction 

Act? 

According to the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., an agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

that requires OMB approval under the 

PRA, unless it has been approved by 

OMB and displays a currently valid 

OMB control number. The OMB control 

numbers for EPA’s regulations, after 

initial display in the preamble of the 

final rules, are listed in 40 CFR part 9. 

2. Does the Paperwork Reduction Act 

Apply to This Proposed Rule? 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. EPA has 

determined that the PRA does not apply 

because this rule does not contain any 

information collection requirements that 

require approval of the OMB. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

1. What Is the Regulatory Flexibility 

Act? 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq., as amended by 

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996) whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small governmental 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. SBREFA amended the 

Regulatory Flexibility Act to require 

Federal agencies to provide a statement 

of the factual basis for certifying that a 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

2. How Has EPA Complied With the 

Regulatory Flexibility Act? 

This proposed rule listing a site on 

the NPL, if promulgated, would not 

impose any obligations on any group, 

including small entities. This proposed 

rule, if promulgated, also would 

establish no standards or requirements 

that any small entity must meet, and 

would impose no direct costs on any 

small entity. Whether an entity, small or 

otherwise, is liable for response costs for 

a release of hazardous substances 

depends on whether that entity is liable 

under CERCLA 107(a). Any such 

liability exists regardless of whether the 

site is listed on the NPL through this 

rulemaking. Thus, this proposed rule, if 

promulgated, would not impose any 

requirements on any small entities. For 

the foregoing reasons, I certify that this 

proposed rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

D. Unfunded Mandates Reform Act 

1. What Is the Unfunded Mandates 

Reform Act (UMRA)? 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal Agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

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 costeffective, 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 

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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 smallgovernment agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

2. Does UMRA Apply to This Proposed 

Rule? 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 

one year. Proposing a site on the NPL 

does not itself impose any costs. 

Proposal does not mean that EPA 

necessarily will undertake remedial 

action. Nor does proposal require any 

action by a private party or determine 

liability for response costs. Costs that 

arise out of site responses result from 

site-specific decisions regarding what 

actions to take, not directly from the act 

of proposing a site to be placed on the 

NPL. Thus, this rule is not subject to the 

requirements of section 202 and 205 of 

UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. As is 

mentioned above, site proposal does not 

impose any costs and would not require 

any action of a small government. 

E. Executive Order 13132: Federalism 

1. What Is Executive Order 13132? 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

2. Is Executive Order 13132 Applicable 

to This Proposed Rule? 

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it does 

not contain any requirements applicable 

to States or other levels of government. 

Thus, the requirements of the Executive 

Order do not apply to this proposed 

rule. 

EPA believes, however, that this 

proposed rule may be of significant 

interest to State governments. In the 

spirit of Executive Order 13132, and 

consistent with 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. 

The site included in this proposed rule 

was referred to EPA by the State for 

listing. EPA received a letter of support 

from the State official who was 

delegated the authority by the Governor 

to speak on his 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’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian Tribes, on the 

relationship between the Federal 

government and the Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian Tribes.’’ 

2. Does Executive Order 13175 Apply to 

This Proposed Rule? 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). Proposing a site to the NPL does 

not impose any costs on a Tribe or 

require a Tribe to take remedial action. 

Thus, Executive Order 13175 does not 

apply to this proposed rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

1. What Is Executive Order 13045? 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

2. Does Executive Order 13045 Apply to 

This Proposed Rule? 

This proposed rule is not subject to 

Executive Order 13045 because it is not 

an economically significant rule as 

defined by Executive Order 12866, and 

because the Agency does not have 

reason to believe the environmental 

health or safety risks addressed by this 

proposed rule present a 

disproportionate risk to children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Usage 

Is This Rule Subject to Executive Order 

13211? 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), 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 

rule is not likely to have any adverse 

energy impacts because proposing a site 

to the NPL does not require an entity to 

conduct any action that would require 

energy use, let alone that which would 

significantly affect energy supply, 

distribution, or usage. Thus, Executive 

Order 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), 

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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 Proposed Rule? 

No. This proposed 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 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. As this rule does not 

impose any enforceable duty upon 

State, Tribal or local governments, this 

rule will neither increase nor decrease 

environmental protection. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Oil pollution, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p. 193. 

Dated: September 17, 2009. 

Barry N. Breen, 

Principal Deputy Assistant Administrator, 

Office of Solid Waste and Emergency 

Response. 

[FR Doc. E9–22935 Filed 9–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

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