[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Rules and Regulations]
[Pages 62523-62526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30518]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-5925-3]


The National Priorities List for Uncontrolled Hazardous Waste 
Sites; Listing and Deletion Policy for Federal Facilities

AGENCY: Environmental Protection Agency.


[[Page 62524]]


ACTION: Notice of interim final policy statement.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing two 
interim final policy revisions relating to the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, 
which was promulgated pursuant to section 105 of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(CERCLA) (amended by the Superfund Amendments and Reauthorization Act 
of 1986 (SARA)). CERCLA requires that the NCP include a list of 
national priorities among the known or threatened releases of hazardous 
substances, pollutants, or contaminants throughout the United States, 
and that the list be revised at least annually. The National Priorities 
List (NPL), which is Appendix B of 40 CFR part 300, constitutes this 
list.
    This document announces an interim final revision to the Agency's 
policy on placing Federal facility sites on the NPL. For those Federal 
facility sites already on the NPL, this document describes an interim 
final policy revision for deleting such sites from the NPL. The interim 
final policy revisions apply to Federal facility sites that are RCRA-
regulated facilities engaged in treatment, storage, or disposal of 
hazardous waste (``TSDs'' under the RCRA program). EPA requests public 
comments on these interim final policy revisions.

DATES: Effective date: These interim final policy revisions are 
effective November 24, 1997.
    Comment date: The EPA will accept comments concerning these interim 
final policy revisions on or before January 23, 1998.

ADDRESSES: By Mail: Mail original and three copies of comments (no 
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. EPA; 
CERCLA Docket Office; (Mail Code 5201G); 401 M Street, SW; Washington, 
DC 20460; 703/603-9232.
    By Federal Express: Send original and three copies of comments (no 
facsimiles or tapes) to Docket Coordinator, Headquarters: U.S. EPA; 
CERCLA Docket Office; 1235 Jefferson Davis Highway; Crystal Gateway #1, 
First Floor; Arlington, VA 22202.
    By E-Mail: Comments in ASCII format only may be mailed directly to 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="46151316031400130802680209050d0312060316070b070f0a68">[email protected]</a>
EPA.GOV. E-mailed comments must be followed up by an original and three 
copies sent by mail or Federal Express.

FOR FURTHER INFORMATION CONTACT: Seth Thomas Low, Federal Facilities 
Restoration and Reuse Office, Office of Solid Waste and Emergency 
Response (Mail Code 5101), U.S. Environmental Protection Agency, 401 M 
Street, SW, Washington, DC 20460, (202) 260-8692, or the Superfund 
Hotline, Phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, 
metropolitan area.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Existing Policy for Listing Federal Facility Sites on the NPL
III. Interim Final Revisions to Policy for Listing Federal Facility 
Sites on the NPL
IV. Policy for Deleting Sites From the NPL Based Upon RCRA Deferral

I. Introduction

    In 1980, Congress enacted the Comprehensive Environmental Response, 
Compensation, and Liability Act, 42 U.S.C. 9601, et seq. (CERCLA or 
``the Act''), in response to the dangers of uncontrolled or abandoned 
hazardous waste sites. CERCLA was amended on October 17, 1986, by the 
Superfund Amendments and Reauthorization Act (SARA), Pub. L. No. 99-
499, 100 Stat. 1613 et seq. To implement CERCLA, the Environmental 
Protection Agency (EPA or ``the Agency'') promulgated the revised 
National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 
40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA 
section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). 
The NCP sets forth guidelines and procedures for responding under 
CERCLA to releases and threatened releases of hazardous substances, 
pollutants, or contaminants. EPA has revised the NCP on several 
occasions. The most recent comprehensive revision was on March 8, 1990 
(55 FR 8666).
    Section 105(a)(8)(A) of CERCLA requires that the NCP include 
``criteria for determining priorities among releases or threatened 
releases throughout the United States for the purpose of taking 
remedial action and, to the extent practicable taking into account the 
potential urgency of such action, for the purpose of taking removal 
action.'' ``Removal'' actions are defined broadly and include a wide 
range of actions taken to study, clean up, prevent or otherwise address 
releases and threatened releases. 42 U.S.C. 9601(23). ``Remedial 
action[s]'' are those ``consistent with permanent remedy taken instead 
of or in addition to removal actions * * *.'' 42 U.S.C. 9601(24).
    Pursuant to section 105(a)(8)(B) of CERCLA, EPA has promulgated a 
list of national priorities among the known or threatened releases of 
hazardous substances, pollutants, or contaminants throughout the United 
States. That list, which is Appendix B of 40 CFR part 300, is the 
National Priorities List (NPL).
    CERCLA section 105(a)(8)(B) defines the NPL as a list of 
``releases'' and as a list of the highest priority ``facilities.'' 
CERCLA section 105(a)(8)(B) also requires that the NPL be revised at 
least annually. A site may undergo remedial action financed by the 
Trust Fund established under CERCLA (commonly referred to as the 
``Superfund'') only after it is placed on the NPL, as provided in the 
NCP at 40 CFR 300.425(b)(1). Although Federal facility sites are 
eligible for the NPL pursuant to 40 CFR 300.425(b)(3), section 
111(e)(3) of CERCLA limits the expenditure of Superfund monies at 
Federally-owned facilities. Federal facility sites also are subject to 
the requirements of CERCLA section 120, added by SARA.
    Three mechanisms for placing sites on the NPL for possible remedial 
action are included in the NCP at 40 CFR 300.425(c). Under 40 CFR 
300.425(c)(1), a site may be included on the NPL if it scores 
sufficiently high on the Hazard Ranking System (HRS), which EPA 
promulgated as Appendix A of 40 CFR part 300. On December 14, 1990 (55 
FR 51532), EPA promulgated revisions to the HRS partly in response to 
CERCLA section 105(c), added by SARA. As a matter of Agency policy, 
those sites that score 28.50 or greater on the HRS are eligible for the 
NPL.
    Under a second mechanism for adding sites to the NPL, each State 
may designate a single site as its top priority, regardless of the HRS 
score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2) 
requires that, to the extent practicable, the NPL include within the 
100 highest priorities, one facility designated by each State 
representing the greatest danger to public health, welfare, or the 
environment among known facilities in the State (see 42 U.S.C. 
9605(a)(8)(B)).
    The third mechanism for listing, included in the NCP at 40 CFR 
300.425(c)(3), allows certain sites to be listed regardless of their 
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.

[[Page 62525]]

II. Existing Policy for Listing Federal Facility Sites on the NPL

    On March 13, 1989 (54 FR 10520), the Agency adopted a policy for 
listing Federal facility sites that are eligible for the NPL, even if 
they are also subject to the corrective action authorities of Subtitle 
C of RCRA.

III. Interim Final Revisions to Policy for Listing Federal Facility 
Sites on the NPL

A. Purpose of Today's Document

    This document announces an interim final revision to the Agency's 
policy on placing Federal facility sites on the NPL. This document also 
announces an interim final policy revision for deleting Federal 
facility sites from the NPL. See discussion under section IV, below. 
Under current EPA policy, the Agency does not consider whether a 
Federal facility site is also subject to RCRA cleanup authorities in 
determining whether to place the site on the NPL. Likewise, EPA does 
not currently consider RCRA cleanup authorities when deciding whether 
to delete a Federal facility site from the NPL. With today's document, 
EPA is revising these polices to allow consideration of RCRA cleanup 
authorities in making listing and deletion decisions for Federal 
facility sites. EPA requests public comments on these interim final 
policy revisions.

B. RCRA/NPL Deferral Policy

    In the preamble to the final rule promulgating the initial NPL (48 
FR 40662, September 8, 1983), EPA announced the RCRA/NPL deferral 
policy,<SUP>1</SUP> which provided that ``where a site consists of 
regulated units of a RCRA facility operating pursuant to a permit or 
interim status, it will not be included on the NPL but will instead be 
addressed under the authorities of RCRA.'' Since that time, EPA has 
amended the RCRA/NPL deferral policy on a number of occasions.
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    \1\ The terms deferral and deletion as used in the context of 
the NPL refer to the following: Deferral refers to the decision not 
to list a site on the NPL, or not retain a site on the NPL, to allow 
another authority (RCRA corrective action in this case) to handle 
the remediation of the site in lieu of CERCLA. Deletion is the act 
of taking a site off the NPL, which may occur because cleanup at a 
site is complete or because another authority (such as RCRA 
corrective action) can be used to bring about remediation at the 
site and further CERCLA action is not needed.
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    On June 10, 1986 (51 FR 21057), EPA announced several components of 
a policy for placing RCRA-regulated sites on the NPL, but made clear 
that the policy applied only to non-Federal sites. The policy stated 
that the listing of non-Federal sites with releases that can be 
addressed under RCRA Subtitle C corrective action authorities generally 
would be deferred. However, EPA would continue to list certain RCRA 
facilities at which Subtitle C corrective action authorities are 
available if they had an HRS score of 28.50 or greater and fell within 
at least one of the following categories: (1) facilities owned by 
persons who have demonstrated an inability to finance a cleanup as 
evidenced by their invocation of the bankruptcy laws; (2) facilities 
that have lost authorization to operate, or for which there are 
additional indications that the owner or operator will be unwilling to 
undertake corrective action; or (3) facilities, analyzed on a case-by-
case basis, whose owners or operators have a clear history of 
unwillingness to undertake corrective action. EPA noted that it would 
consider at a later date whether this policy for deferring non-Federal 
RCRA regulated sites from the NPL should apply to Federal facilities.
    As noted in section II above, on March 13, 1989 the Agency adopted 
a policy for listing Federal facility sites that are eligible for the 
NPL, even if they are also subject to the corrective action authorities 
of RCRA Subtitle C.

C. Rationale For Revising the Policy For Placing Federal Facilities 
Sites on the NPL

    Recently Congress amended CERCLA section 120(d) to expressly grant 
EPA the discretion to consider non-CERCLA cleanup authorities when 
making a listing determination for Federal facility sites. Section 
120(d), as amended by section 330 of the Defense Authorization Act of 
FY 97, now provides that:

    It shall be an appropriate factor to be taken into consideration 
for the purposes of section 105(a)(8)(A) that the head of the 
department, agency, or instrumentality that owns or operates a 
facility has arranged with the Administrator or appropriate State 
authorities to respond appropriately, under authority of a law other 
than this Act [CERCLA], to a release or threatened release of a 
hazardous substance. [CERCLA section 120(d)(2)(B)]

    EPA believes that amended section 120(d) provides EPA with clear 
legal authority to consider cleanup under RCRA Subtitle C corrective 
action when making a listing decision for Federal facility sites. The 
legislative history of this provision supports EPA's view. The 
conference committee report states that the revised section 120(d) 
gives EPA ``the discretion to withhold National Priorities List 
designation of a Federal facility cleanup action if the site is already 
subject to an approved Federal or State cleanup plan.'' H.R. Conf. Rep. 
No. 724, 104th Cong., 2d Sess. 724 (1996). In light of this amendment 
to CERCLA and the ongoing Agency efforts for administrative reforms to 
CERCLA that allow greater flexibility to address Superfund sites, EPA 
is revising its listing policy for Federal facility sites. The Agency 
believes that this revision may free CERCLA oversight resources for use 
in situations where another authority is not available.

D. Criteria for RCRA/NPL Deferral of Federal Facility Sites

    In today's document, EPA sets forth the criteria the Agency will 
consider in determining when a Federal facility site may not be placed 
on the NPL because the cleanup is being conducted pursuant to RCRA 
Subtitle C corrective action authorities (``RCRA/NPL deferral for 
Federal facility sites''). A site should satisfy all of these criteria 
to be eligible for deferral. Where there is uncertainty as to whether 
the criteria have been met, deferral generally will be inappropriate. 
The criteria are the following:
    1. The CERCLA site is currently being addressed by RCRA Subtitle C 
corrective action authorities under an existing enforceable order or 
permit containing corrective action provisions.
    2. The response under RCRA is progressing adequately.
    3. The state and community support deferral of NPL listing.

E. Discussion of Each Criterion

    The first criterion states that the site is being addressed by RCRA 
corrective action authorities under an existing order or permit. The 
criterion specifies that the requirement applies to sites as defined by 
CERCLA, and that the authority addressing the site is RCRA Subtitle C 
corrective action.
    Under the first criterion, corrective action orders or permits 
issued by EPA or an authorized state program that address corrective 
action at the facility must generally be in place as a condition for 
deferral. <SUP>2</SUP> This criterion serves as an objective indicator 
that contamination at a site is addressable under RCRA corrective 
action authorities. The term ``addressable'' in this context means that 
a CERCLA site is fully remediable by a permit or order with a schedule 
of compliance, whether or not actual cleanup has begun. Corrective 
action permits or orders should require the cleanup of all releases at 
the CERCLA site (e.g., if

[[Page 62526]]

contamination stemming from the CERCLA ``release'' extends beyond the 
boundaries of a particular RCRA facility, such releases must be 
addressable under RCRA sections 3004(v) and 3008(h) or other 
enforcement authority under RCRA). <SUP>3</SUP> Corrective action 
orders or permits which do not require cleanup of all releases at the 
CERCLA site should be modified to address such releases; otherwise the 
CERCLA site would not be a candidate for deferral.
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    \2\ It should be noted that the RCRA/NPL deferral does not 
relieve a Federal facility from the CERCLA section 120(d) 
requirement to conduct preliminary assessments.
    \3\ Under CERCLA, the term facility is meant to be synonymous 
with ``site'' or ``release'' and is not meant to suggest that the 
listing is geographically defined (56 FR 5600, February 11, 1991). 
The size or extent of a facility listed on the NPL may extend to 
those areas where the contamination has ``come to be located.'' (See 
CERCLA section 101(9)). On the other hand, a ``facility'' as defined 
under RCRA is ``all contiguous property under the control of the 
owner or operator seeking a Subtitle C permit'' (58 FR 8664, 
February 16, 1993). Thus, a RCRA site relates more to property 
boundaries, and a CERCLA site/facility/release includes 
contamination irrespective of RCRA facility boundaries.
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    Under the second criterion, EPA evaluates whether response under 
RCRA is progressing adequately. Under this criterion, noncompliance 
with corrective action orders or permits generally would be regarded as 
an indicator that response under RCRA is not progressing adequately. 
However, even if a Federal facility site (i.e., the owner/operator) is 
in compliance with a corrective action order or permit, EPA may 
determine that response is not progressing adequately based upon other 
factors. For example, the Agency may consider whether there has been a 
history of protracted negotiations due primarily to an uncooperative 
owner or operator.
    Under the third criterion, EPA evaluates whether the affected state 
and community where the Federal facility site is located support 
deferral of the NPL listing of such site. Under this criterion, EPA 
expects the state and Federal facility which are interested in NPL 
deferral to take appropriate steps to inform the affected community and 
other affected parties (e.g., communities downstream from the site, 
Natural Resource Trustees, etc.), as appropriate, of such interest and 
seek community participation on such issue. EPA believes that community 
participation will be facilitated by the establishment of Restoration 
Advisory Boards or Site Specific Advisory Boards by the affected 
Federal agencies in conjunction with the state. The state and Federal 
facility which are interested in NPL deferral should also document all 
of their interactions with the community and inform EPA of any possible 
opposition to NPL deferral of the site.

IV. Policy for Deleting Sites From the NPL Based Upon RCRA Deferral

A. RCRA Deletion Policy

    On March 20, 1995 (60 FR 14641), the Agency announced the adoption 
of a policy for deleting RCRA facilities from the NPL before a cleanup 
is complete, if the site is being, or will be, adequately addressed by 
the RCRA corrective action program, provided certain criteria were met. 
The Agency based its action on the goals of freeing CERCLA oversight 
resources for sites where another authority is not available and 
avoiding possible duplication of effort. The Agency made clear that 
such policy does not pertain to Federal facility sites, even if such 
facilities are also subject to the corrective action authorities of 
Subtitle C of RCRA.

B. Revision to RCRA Deletion Policy

    This document announces that EPA is revising the RCRA deletion 
policy to also be applicable to Federal facility sites. As noted in 
section III. C, above CERCLA section 120(d) was amended to expressly 
authorize EPA to consider other cleanup authorities in making Federal 
facility site listing decisions. In light of EPA's express discretion 
under section 120(d), EPA believes that it is also now appropriate to 
apply the Agency's RCRA deletion policy to Federal facility sites on 
the NPL. The first criterion under the RCRA deletion policy is that a 
site be eligible for RCRA deferral under EPA's current RCRA/NPL 
deferral policy. Until EPA revised the 1989 Federal facility site 
listing policy no Federal facility could satisfy the RCRA deletion 
policy criteria.
    The Agency believes that revising the RCRA deletion policy to be 
applicable to Federal facility sites is consistent with CERCLA section 
120(d), as amended, and the ongoing Agency efforts for administrative 
reforms to CERCLA that allow greater flexibility to address Superfund 
sites. The Agency believes that this revision may free CERCLA oversight 
resources for use in situations where another authority is not 
available. By this interim final revision, the criteria and process 
stated in the March 20, 1995 RCRA deletion policy are now applicable 
for deleting Federal facility sites from the NPL.

    [Notice: This document does not represent final agency action, 
but is intended solely as guidance. It does not create any legal 
obligations. EPA officials may decide to follow the policies 
discussed in this document, or to act at variance with such 
policies, based on an analysis of specific site circumstances.]

    Dated: November 13, 1997.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.
[FR Doc. 97-30518 Filed 11-21-97; 8:45 am]
BILLING CODE 6560-50-P


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