Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations 62523

B. Decision

I conclude that Georgia’s application

for these program revisions meets all of

the statutory and regulatory

requirements established by RCRA.

Accordingly, Georgia is granted final

authorization to operate its hazardous

waste program as revised.

Georgia now has responsibility for

permitting treatment, storage, and

disposal facilities within its borders and

carrying out other aspects of the RCRA

program, subject to the limitations of its

program revision application and

previously approved authorities.

Georgia also has primary enforcement

responsibilities, although EPA retains

the right to conduct inspections under

section 3007 of RCRA and to take

enforcement actions under sections

3008, 3013, and 7003 of RCRA.

II. Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this rule from the

requirements of section 6 of Executive

Order 12866.

III. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of certain

regulatory actions on State, local, and

tribal governments and the private

sector. Under sections 202 and 205 of

the UMRA, EPA generally must prepare

a written statement of economic and

regulatory alternatives analyses for

proposed and final rules with Federal

mandates, as defined by the UMRA, that

may result in expenditures to State,

local, and tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

The section 202 and 205 requirements

do not apply to today’s action because

it is not a ‘‘Federal mandate’’ and

because it does not impose annual costs

of $100 million or more.

Today’s rule contains no Federal

mandates for State, local or tribal

governments or the private sector for

two reasons. First, today’s action does

not impose new or additional

enforceable duties on any State, local or

tribal governments or the private sector

because it merely makes federally

enforceable existing requirements with

which regulated entities must already

comply under State law. Second, the

Act also generally excludes from the

definition of a ‘‘Federal mandate’’ duties

that arise from participation in a

voluntary Federal program. The

requirements being codified today are

the result of Florida’s voluntary

participation in accordance with RCRA

Subtitle C.

Even if today’s rule did contain a

Federal mandate, this rule will not

result in annual expenditures of $100

million or more for State, local, and/or

tribal governments in the aggregate, or

the private sector because today’s action

merely codifies an existing State

program that EPA previously

authorized. Thus, today’s rule is not

subject to the requirements of sections

202 and 205 of the UMRA.

The requirements of section 203 of

UMRA also do not apply to today’s

action. Before EPA establishes any

regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, section 203 of UMRA

requires EPA to develop a small

government agency plan. This rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. The Agency

recognizes that although small

governments may be hazardous waste

generators, transporters, or own and/or

operate TSDFs, this codification

incorporates into the Code of Federal

Regulations Florida’s requirements

which have already been authorized by

EPA under 40 CFR part 271 and, thus,

small governments are not subject to

any additional significant or unique

requirements by virtue of this

codification.

IV. Certification Under the Regulatory

Flexibility Act

EPA has determined that this

codification will not have a significant

economic impact on a substantial

number of small entities. Such small

entities which are hazardous waste

generators, transporters, or which own

and/or operate TSDFs are already

subject to the State requirements

authorized by EPA under 40 CFR part

271. EPA’s codification does not impose

any additional burdens on these small

entities. This is because EPA’s

codification would simply result in an

administrative change, rather than a

change in the substantive requirements

imposed on small entities.

Therefore, EPA provides the following

certification under the Regulatory

Flexibility Act, as amended by the

Small Business Regulatory Enforcement

Fairness Act. Pursuant to the provision

at 5 U.S.C. 605(b), I hereby certify that

this codification will not have a

significant economic impact on a

substantial number of small entities.

This codification incorporates ‘‘State’s’’

requirements which have been

authorized by EPA under 40 CFR part

271 into the Code of Federal

Regulations. It does not impose any new

burdens on small entities. This rule,

therefore, does not require a regulatory

flexibility analysis.

V. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

VI. Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this rule from the

requirements of section 6 of Executive

Order 12866.

VII. Paperwork Reduction Act

Under the Paperwork Reduction Act,

44 U.S.C. 3501 et seq., Federal agencies

must consider the paperwork burden

imposed by any information request

contained in a proposed rule or a final

rule. This rule will not impose any

information requirements upon the

regulated community.

List of Subjects in 40 CFR Part 271

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous waste transportation,

Hazardous waste, Incorporation by

reference, Indian lands,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Dated: November 4, 1997.

John H. Hankinson, Jr.,

Regional Administrator.

[FR Doc. 97–30818 Filed 11–21–97; 8:45 am]

BILLING CODE 6560–50–P

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.
62524 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations

ACTION: Notice of interim final policy

statement.

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

SUPERFUND.DOCKET@EPAMAIL.

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:

• 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.

• 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.
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations 62525

1The 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.

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.

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,1 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.

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 nonFederal 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. 2 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
62526 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations

3Under 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.

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). 3 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.

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