Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14641

anti-abuse rule of paragraph (c)(1)(vi) of

this section.

Example 4. Hedges counted only

once. January 1, 1996, Corporation X

owns a $100 million portfolio of stocks

all of which would substantially overlap

with a $100 million regulated futures

contract (RFC) on a commonly used

index (the Index). On January 15,

Corporation X enters into a $100 million

short position in an RFC on the Index

with a March delivery date and enters

into a $75 million long position in an

RFC on the Index for June delivery. Also

on January 15, 1996, Corporation X

indicates in its books and records that

the long and short RFC positions are

intended to offset one another. Under

paragraph (c)(5) of this section, $75

million of the short position in the RFC

is not treated as diminishing the risk of

loss on the stock portfolio and instead

is treated as a straddle or a hedging

transaction, as appropriate, with respect

to the $75 million long position in the

RFC, under section 1092. The remaining

$25 million short position is treated as

diminishing the risk of loss on the

portfolio by holding a position in

substantially similar or related property.

The rules of paragraph (c)(1) determine

how much of the portfolio is subject to

this rule and the rules of paragraph

(c)(3) determine which shares have their

holding periods tolled.

(e) Effective date—(1) In general. The

provisions of this section apply to

dividends received on or after March 17,

1995, on stock acquired after July 18,

1984.

(2) Special rule for dividends received

on certain stock. Notwithstanding

paragraph (e)(1) of this section, this

section applies to any dividends

received by a taxpayer on stock acquired

after July 18, 1984, if the taxpayer has

diminished its risk of loss by holding

substantially similar or related property

involving the following types of

transactions—

(i) The short sale of common stock

when holding convertible preferred

stock of the same issuer and the price

changes of the two stocks are related, or

the short sale of a convertible debenture

while holding convertible preferred

stock into which the debenture is

convertible (or common stock), or a

short sale of convertible preferred stock

while holding common stock; or

(ii) The acquisition of a short position

in a regulated futures contract on a stock

index, or the acquisition of an option to

sell the regulated futures contract or the

stock index itself, or the grant of a deepin-the-money option to buy the

regulated futures contract or the stock

index while holding the stock of an

investment company whose principal

holdings mimic the performance of the

stocks included in the stock index; or

alternatively, while holding a portfolio

composed of stocks that mimic the

performance of the stocks included in

the stock index.

Par. 3. Section 1.1092(d)–2 is added

to read as follows:

§ 1.1092(d)–2 Personal property.

(a) Special rules for stock. Under

section 1092(d)(3)(B), personal property

includes any stock that is part of a

straddle, at least one of the offsetting

positions of which is a position with

respect to substantially similar or

related property (other than stock). For

purposes of this rule, the term

substantially similar or related property

is defined in § 1.246–5 (other than

§ 1.246–5(b)(3)). The rule in § 1.246–

5(c)(6) does not narrow the related party

rule in section 1092(d)(4).

(b) Effective date—(1) In general. This

section applies to positions established

on or after March 17, 1995.

(2) Special rule for certain straddles.

This section applies to positions

established after March 1, 1984, if the

taxpayer substantially diminished its

risk of loss by holding substantially

similar or related property involving the

following types of transactions—

(i) Holding offsetting positions

consisting of stock and a convertible

debenture of the same corporation

where the price movements of the two

positions are related; or

(ii) Holding a short position in a stock

index regulated futures contract (or

alternatively an option on such a

regulated futures contract or an option

on the stock index) and stock in an

investment company whose principal

holdings mimic the performance of the

stocks included in the stock index (or

alternatively a portfolio of stocks whose

performance mimics the performance of

the stocks included in the stock index).

Margaret Milner Richardson,

Commissioner of Internal Revenue.

Dated: March 3, 1995.

Approved: Leslie Samuels, Assistant

Secretary of the Treasury (Tax Policy).

[FR Doc. 95–6693 Filed 3–17–95; 8:45 am]

BILLING CODE 4830–01–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 300

[FRL–5173–4]

The National Priorities List for

Uncontrolled Hazardous Waste Sites;

Deletion Policy for Resource

Conservation and Recovery Act

Facilities

AGENCY: Environmental Protection

Agency.

ACTION: Notice of policy statement.

SUMMARY: The Environmental Protection

Agency (‘‘EPA’’) is announcing a policy

relating to the National Oil and

Hazardous Substances 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’’))

and Executive Order 12580 (52 FR 2023,

January 29, 1987). CERCLA requires that

the NCP include a list of national

priorities among the known releases 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’’),

initially promulgated as Appendix B of

the NCP on September 8, 1983 (48 FR

40658), constitutes this list.

This document describes a policy for

deleting sites from the NPL and

deferring them to the Resource

Conservation and Recovery Act

(‘‘RCRA’’), as amended by the

Hazardous and Solid Waste

Amendments of 1984 (‘‘HSWA’’)

corrective action program, if they meet

the eligibility criteria for deletion set out

in the NCP. EPA requested public

comment on this policy on December

21, 1988 (53 FR 51421). The policy

applies to sites on the NPL that are

RCRA-regulated facilities engaged in

treatment, storage or disposal of

hazardous waste (‘‘TSDs’’ under the

RCRA program).

EFFECTIVE DATE: This policy is effective

on April 19, 1995.

ADDRESSES: Comments received and the

Agency’s responses to them are

contained in the Headquarters

Superfund Docket. The Headquarters

Superfund Docket is located at the U.S.

Environmental Protection Agency,

Crystal Gateway #1, 12th Floor, 1235

Jefferson Davis Highway, Arlington, VA.

It is available for viewing by

appointment only from 9:00 a.m. to 4:00
14642 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

p.m., Monday through Friday, excluding

Federal holidays, Telephone 703/603–

8917.

FOR FURTHER INFORMATION CONTACT: 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. Policy for Deleting RCRA Sites from the

NPL Based Upon RCRA Deferral

III. Appendix A: Summary of NPL Deletion/

Deferral Policies

I. Introduction

A. Purpose of CERCLA

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 in

1986 by the Superfund Amendments

and Reauthorization Act (‘‘SARA’’),

Pub. L., No. 99–499, 100 Stat. 1613. To

implement CERCLA, the Environmental

Protection Agency (‘‘EPA’’ or ‘‘the

Agency’’) promulgated the 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, further

revised most recently by EPA on March

8, 1990 (55 FR 8664), sets forth

guidelines and procedures for

responding under CERCLA to releases

and threatened releases of hazardous

substances, pollutants, or contaminants.

The National Priorities List (‘‘NPL’’),

initially promulgated as Appendix B of

the NCP on September 8, 1983 (48 FR

40658), constitutes this list.

EPA requested public comment on

this policy on December 21, 1988 (53 FR

51421).

B. Purpose of the NPL

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.’’ Section 105(a)(8)(B) of CERCLA

requires that those criteria be used to

prepare a list of national priorities

among the known releases or threatened

releases of hazardous substances,

pollutants, or contaminants throughout

the United States. The list, which is

Appendix B of the NCP, is the National

Priorities List (‘‘NPL’’). A site may

undergo Fund-financed remedial action

only after it is placed on the NPL. See

40 CFR 300.425(b)(1).

The Hazard Ranking System (‘‘HRS’’),

which EPA promulgated as Appendix A

of the NCP (47 FR 31219, July 16, 1982),

and amended (55 FR 51532, December

14, 1990), is the principal tool upon

which the Agency relies to determine

the priority sites for possible remedial

actions under CERCLA. 40 CFR

300.425(c)(1). In addition to the HRS

scoring method, a site also may be listed

if designated as a state’s highest priority,

or if the Agency for Toxic Substances

and Disease Registry (‘‘ATSDR’’) has

issued a health advisory for the site, and

EPA determines that the site poses a

significant threat to public health and

that it will be more cost effective to use

the Agency’s remedial authority than to

use removal authority to respond to a

release. Id. at 40 CFR 300.425(c) (2) and

(3).

II. Policy for Deleting Sites from the

NPL Based Upon RCRA Deferral

A. Purpose of Today’s Notice

This notice announces the Agency’s

policy of 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 under an existing permit

or order. EPA must also be satisfied,

based either on an evaluation of a

petition from a person outside the

Agency or via a unilateral Agency

determination, that the site, as defined

by the CERCLA program, falls within

the criteria for deferral.

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.

Please see Appendix A for a summary

of the development of deferral policies.

B. Rationale for Deleting Sites Based

Upon RCRA Deferral Under NCP

Deletion Criteria

EPA believes it is appropriate to

delete sites from the NPL based upon

deferral to RCRA under certain

circumstances. Deletion of sites from the

NPL to defer them to RCRA Subtitle C

corrective action authorities would free

CERCLA’s oversight resources for use in

situations where another authority is

not available, as well as avoid possible

duplication of effort and the need for an

owner/operator to follow more than one

set of regulatory procedures.

Eliminating regulation under two

separate authorities also will eliminate

public and owner/operator confusion

over which authority has primacy.

Moreover, since the CERCLA and RCRA

programs have comparable cleanup

goals, RCRA Subtitle C facilities

requiring remediation appropriately

may be deferred to RCRA corrective

action authorities unless deletion would

interfere with the remediation of the

site.

However, today’s RCRA deletion

policy does not pertain to Federal

facility sites. Federal facility sites will

not be deleted from the NPL based upon

deferral to RCRA, even if such facilities

are also subject to the corrective action

authorities of Subtitle C of RCRA. One

of the primary goals of deferral—

maximizing the use of limited Fund

monies—does not apply to Federal

facility sites since Federal facilities

typically are not eligible for Fundfinanced remedial action. Furthermore,

the goal of avoiding duplication of

efforts can be resolved through the use

of comprehensive Inter-Agency

Agreements (54 FR 10522, March 13,

1989).

C. Proposed Criteria for Deleting Sites

from the NPL Based on Deferral to

RCRA

The following are the criteria

proposed in the December 21, 1988

Federal Register notice for determining

whether a site may be deleted from the

NPL based upon deferral to another

authority such as RCRA:

i. A site on the NPL is currently being

addressed by another regulatory

authority under an enforceable order or

permit requiring corrective action or the

PRPs have entered into a CERCLA

consent order to perform the RD/RA;

ii. Response is progressing

adequately;

iii. Deletion would not otherwise

disrupt an ongoing CERCLA response

action; and

iv. All criteria for deferral to that

authority have been met (i.e., the

requesting party must meet all

conditions for deferral to that authority

in addition to the three specific criteria

set out above for deletion based upon

deferral).

D. Final Criteria for Deleting Sites

EPA believes that it is appropriate to

apply different and more stringent
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14643

1 The term ‘‘current RCRA/NPL deferral policy’’

refers to the policy in effect at the time the deletion

decision is made. As past Federal Register notices

demonstrate, the RCRA/NPL deferral policy has

changed, and may continue to change based upon

the Agency’s continued evaluation of how best to

implement the statutory authorities of RCRA and

CERCLA.

2 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.

criteria to actions to delete based on

deferral to RCRA for sites that are on the

NPL than to sites that are candidates for

deferral prior to NPL listing. For NPL

sites, EPA has completed its listing

process, identified the site as a potential

problem requiring further attention, and

often has commenced CERCLA response

actions. In addition, the listing itself has

created public anticipation of a response

under CERCLA. Thus, EPA and the

public will generally have an interest in

seeing that these sites are addressed by

the Superfund program, particularly in

cases where significant Superfund

resources already have been expended

at a site. Thus, it is in the best interest

of the public to apply different and

more stringent criteria.

In today’s notice, EPA is finalizing the

criteria enumerated below for use in

identifying sites eligible for deletion

based upon deferral to RCRA corrective

action authorities. A site should satisfy

all of these criteria to be eligible for

deletion. Where there is uncertainty as

to whether the criteria have been met,

deletion generally will be inappropriate.

The criteria are the following:

1. If evaluated under EPA’s current

RCRA/NPL deferral policy,1 the site

would be eligible for deferral from

listing on the NPL.

2. The CERCLA site is currently being

addressed by RCRA corrective action

authorities under an existing

enforceable order or permit containing

corrective action provisions.

3. Response under RCRA is

progressing adequately.

4. Deletion would not disrupt an

ongoing CERCLA response action.

E. Discussion of Each Criterion

The first criterion states that sites

generally will not be eligible for

deletion from the NPL based upon

deferral to RCRA corrective action if

similarly situated sites would not be

deferred from listing on the NPL.

Two types of sites may be eligible for

deletion: 1) sites that would be eligible

for deferral under current deferral

criteria, but were not deferred because

the deferral policy at the time of listing

was different; and 2) sites that were not

eligible for deferral when listed, but

now may be eligible because of changed

conditions at the site (e.g., they no

longer are in bankruptcy, or they now

are in compliance with a corrective

action order). For RCRA facilities within

the second category, the Agency will

review the original listing rationale (e.g.,

unwillingness, bankruptcy) together

with current information to ascertain

whether conditions at the site have

changed sufficiently to warrant deletion

from the NPL. Where there is

uncertainty about whether the criteria

have been met, deletion generally will

be inappropriate. Persons who submit

petitions for deletion will have to bear

the burden of demonstrating that they

meet the current criteria for deletion

based upon deferral, and that the

conditions that justified the listing no

longer exist and are not likely to recur.

The second 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 second 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 of deletion. 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

contamination stemming from the

CERCLA ‘‘release’’ extends beyond the

boundaries of a particular RCRA facility,

such releases must be addressed under

RCRA sections 3004(v) and 3008(h) or

other enforcement authority under

RCRA); 2 otherwise, the CERCLA site

would not be a candidate for deletion.

There may be circumstances where

modification of corrective action orders

or permits may be necessary before a

facility can be considered for deletion

from the NPL. For example, a facility

owner/operator who has been doing

remedial work under CERCLA and

intends to pursue deletion from the

NPL, generally must obtain modification

of RCRA permits or orders if existing

permits and orders do not contain

corrective action requirements for all

operable units. Likewise, the

implementing agency intending to

unilaterally pursue deletion would need

to modify orders or permits if necessary.

This should enable the facility to meet

the second criterion by ensuring that the

entire CERCLA-defined facility is

subject to RCRA corrective action.

Under the third criterion, EPA

evaluates whether response under

RCRA is progressing adequately. The

RCRA/NPL deferral policy currently

looks to compliance with corrective

action orders or permits as the primary

indicator of whether an owner/operator

is willing to undertake corrective action.

Under this criterion, noncompliance

with corrective action orders and

permits generally would be regarded as

an indicator that response under RCRA

is not progressing adequately. The

Agency’s evaluation may not end there,

however. Even if an 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 fourth criterion, EPA

evaluates on a site-by-site basis whether

deletion would disrupt an ongoing

CERCLA response action. Consistent

with the deletion criterion set forth in

the NCP, the fourth criterion in today’s

notice is satisfied only where one of the

following two circumstances exist: 1) no

CERCLA response has been undertaken;

or 2) CERCLA response has been

discontinued (e.g., where CERCLA

response action has reached a logical

point of transfer to the RCRA program

and has been discontinued). Response

actions being undertaken under

CERCLA generally will not be

discontinued solely to allow for

deletion.

In cases where EPA determines that a

CERCLA response, or a CERCLA

response combined with a RCRA

response, is the most effective approach

for addressing contamination at a site,

the site will be retained on the NPL. In

addition, a site generally will not be

eligible for deletion based upon deferral

to RCRA if such deletion would cause

a significant delay in the response

resulting in a threat to human health or

the environment.
14644 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

3 In 1988, the Agency proposed to defer to a

number of other authorities, namely Subtitles D and

I of RCRA, the Surface Mine Control and

Reclamation Act (‘‘SMCRA’’), the Federal

Insecticide, Fungicide, and Rodenticide Act

(‘‘FIFRA’’), and States, and to allow responsible

parties voluntarily to clean up sites under CERCLA

without listing (53 FR 51415, December 21, 1988).

Final decisions have not been made on those

proposals, and they are not addressed in this notice.

4On March 13, 1989 (54 FR 10520), EPA

announced the policy of including on the NPL

Federal facility sites that may be eligible for listing

(e.g., they have an HRS score of 28.5 or higher) even

if such facilities are also subject to the corrective

action authorities of Subtitle C of RCRA. The

elements of the RCRA/NPL deferral policy are not

revised in today’s notice.

F. Process for Deleting Sites From the

NPL

In order for a site to be deleted from

the NPL based upon deferral to RCRA,

that site will be evaluated by EPA, as

well as the relevant state authority.

Deferral will be accomplished only after

a coordinated review has occurred and

concurrence has been achieved. As with

any deletion, a decision to delete a site

based upon deferral to RCRA would be

made only after EPA publishes a Notice

of Intent to Delete in the Federal

Register and comment is taken. In

addition, EPA’s regulations allow a site

to be deleted only if ‘‘the state in which

the release was located has concurred

on the proposed deletion’’ (40 CFR

300.425(e)(2)).

The process of deletion may begin

either by a petition by a party outside

the Agency, such as a facility owner/

operator, or via a unilateral action from

EPA. Petitions and inquiries about them

should be directed to the appropriate

Regional Administrator. The petitioner

must demonstrate that the site has met

the four criteria to the satisfaction of

EPA, as well as the state in which the

release has occurred. If necessary, the

Agency may request additional

information from the petitioner before

making a decision.

Finally, if, after deletion, EPA later

determines that a site is not being

addressed adequately under RCRA, and

that CERCLA remedial action is

necessary at the site, the site would

remain eligible for CERCLA Fundfinanced remedial action. (40 CFR

300.425(e)(3)). Under such

circumstances, and in accordance with

the NCP, the site also may be eligible for

relisting on the NPL.

III. Appendix A: Summary of NPL

Deletion/Deferral Policies

1. NCP Criteria for Deleting Sites From

the NPL

Section 300.425(e)(1) (i)–(iii) of the

NCP addresses deletion of sites from the

NPL. Pursuant to that section, releases

may be deleted from the NPL where

EPA determines that no further response

is appropriate. In making that

determination, EPA must consider, in

consultation with the state, 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 Fund-financed

response under CERCLA has been

implemented, and no further response

action by responsible parties is

appropriate; or

(iii) The remedial investigation has

shown that the release poses no

significant threat to public health or the

environment and therefore, taking

remedial measures is not appropriate.

2. Current Deferral Policies

When the initial NPL was

promulgated (48 FR 40658, September

8, 1983), the Agency announced certain

listing policies relating to sites that

might qualify for the NPL, but instead

could be ‘‘deferred’’ to another authority

for cleanup. These deferral policies

included sites that can be addressed by

the corrective action authorities of

RCRA Subtitle C, or that are subject to

regulation by the Nuclear Regulatory

Commission.3 (Id. at 40661–62).

3. RCRA 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, 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. (For a more

detailed discussion of the components

of the RCRA/NPL deferral policy, see

the Federal Register notice referenced

below.4)

Prior to enactment of the Hazardous

and Solid Waste Amendments of 1984

(HSWA) only releases to ground water

from regulated units, i.e. surface

impoundments, waste piles, land

treatment areas, and landfills were

subject to corrective action requirements

under RCRA. The enactment of HSWA

greatly expanded RCRA Subtitle C

corrective action authorities. For

example, under RCRA section 3004(u),

hazardous waste treatment, storage, and

disposal facilities seeking RCRA permits

must address all releases of hazardous

constituents to any medium from solid

waste management units, whether active

or inactive. HSWA also provided new

authority in RCRA section 3004(v) to

address releases that have migrated

beyond the facility boundary. In

addition, section 3008(h) authorizes

EPA to compel corrective action or any

response necessary to protect human

health or the environment when there is

or has been a release of hazardous waste

at a RCRA interim status facility.

In light of the new authorities, the

Agency proposed in the preamble to the

April 10, 1985 proposed rule (50 FR

14118), a revised policy for listing of

RCRA-related sites on the NPL. Under

the proposed policy, listing on the NPL

of RCRA-related sites would be deferred

until the Agency determined that RCRA

corrective action measures were not

likely to succeed due to factors outlined

in the following paragraph.

On June 10, 1986 (51 FR 21057), EPA

announced several new components of

the RCRA/NPL deferral policy for

placing RCRA-regulated facilities on the

NPL. Certain RCRA facilities at which

Subtitle C corrective action authorities

are available would generally be listed

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.

The Agency also recognized that

facilities clearly not subject to RCRA

Subtitle C corrective action authorities

would be eligible for listing on the NPL,

including those that ceased treating,

storing or disposing of hazardous wastes

prior to November 19, 1980 (the

effective date of the RCRA hazardous

waste regulations), and sites at which

only material exempted from the

statutory or regulatory definition of

solid waste or hazardous waste are

managed. Id. In addition, RCRA

hazardous waste handlers to which

Subtitle C corrective action authorities

do not apply, such as hazardous waste

generators or transporters not required

to have interim status or a final RCRA

permit, also are eligible for listing. Id.

On June 24, 1988 (53 FR 23980) and

October 4, 1989 (54 FR 41004), EPA

revised the NPL/RCRA deferral policy

by identifying four new categories of

RCRA sites eligible for listing on the

NPL: (1) Non- or late filers; (2) preHSWA permittees; (3) protective filers;
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14645

5Non- or late filers are facilities that were

treating, storing or disposing of hazardous waste

after November 19, 1980, but did not file a Part A

permit by that date and have little or no history of

compliance with RCRA. Pre-HSWA permittees are

facilities that have permits in place that pre-date the

1984 corrective action requirements of HSWA. The

protective filer category includes facilities which

have filed Part A permit applications for treatment,

storage and disposal of hazardous wastes as a

precautionary measure only, and were never

actually engaged in hazardous waste management

activities subject to RCRA Subtitle C corrective

action. Converters are facilities that at one time

were treating or storing RCRA Subtitle C hazardous

waste but have since converted to generator-only

status, or are engaged in no other hazardous waste

activity for which interim status is required (53 FR

22992, June 24, 1988).

and (4) converters.5 In the June 24, 1988,

revision, EPA also recognized that sites

where RCRA corrective action may not

apply to all contamination are eligible

for listing (53 FR 23982).

On August 9, 1988 (53 FR 30002),

EPA proposed additional revisions to

the policy concerning criteria to

determine if an owner or operator is

unable to pay for corrective action. No

final Agency action has been taken on

those proposed revisions.

On August 9, 1988 (53 FR 30005), in

a separate Federal Register notice, EPA

also further revised a portion of the

NPL/RCRA deferral policy relating to

the determination of unwillingness. The

Agency specified that circumstances

under which RCRA sites may be listed

on the NPL if an owner/operator’s

unwillingness to undertake corrective

action is established through

noncompliance with one or more of the

following: (1) A Federal or substantially

equivalent state unilateral

administrative order requiring

corrective action, after the facility

owner/operator has exhausted

administrative due process rights; (2) a

Federal or substantially equivalent State

unilateral administrative order requiring

corrective action, if the facility owner/

operator did not pursue administrative

due process rights within the specified

time; (3) an initial Federal or State

preliminary injunction or other judicial

order requiring corrective action; (4) a

Federal or State RCRA permit condition

requiring corrective action after the

facility owner/operator has exhausted

administrative due process rights; or (5)

a final Federal or State consent decree

or administrative order on consent

requiring corrective action after the

exhaustion of dispute resolution

procedures.

EPA also may depart from the above

criteria on a case-by-case basis where

CERCLA authorities are determined to

be more appropriate than RCRA

authorities for cleaning up a site. (See,

e.g., 56 FR 5602, February 11, 1991).

List of Subjects in 40 CFR Part 300

Environmental protection, Air

pollution control, Chemicals, Hazardous

materials, Intergovernmental relations,

Natural resources, Oil pollution,

Reporting and recordkeeping

requirements, Superfund, Waste

treatment and disposal, Water pollution

control, Water supply.

Authority: 42 U.S.C. 9605; 42 U.S.C. 9620;

33 U.S.C. 1321(C)(2); E.O. 11735, 3 CFR,

1971–1975 Comp., p. 793; E.O. 12580, 3 CFR,

1987 Comp., p. 193.

Dated: March 8, 1995.

Elliott P. Laws,

Assistant Administrator, Office of Solid Waste

and Emergency Response.

[FR Doc. 95–6673 Filed 3–17–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 300

[FRL–5174–2]

National Oil and Hazardous

Substances Contingency Plan;

National Priorities List Update

AGENCY: Environmental Protection

Agency.

ACTION: Notice of deletion of a site from

the national priorities list.

SUMMARY: The Environmental Protection

Agency (EPA) announces the deletion of

the Kent City Mobile Home Park Site in

Kent City, Michigan from the National

Priorities List (NPL). The NPL is

Appendix B of 40 CFR part 300 which

is the National Oil and Hazardous

Substances Contingency Plan (NCP)

which EPA promulgated pursuant to

section 105 of the Comprehensive

Environmental Response,

Compensation, and Liability Act of 1990

(CERCLA), as amended.

EFFECTIVE DATE: March 20, 1995.

FOR FURTHER INFORMATION CONTACT:

Betty G. Lavis, Remedial Project

Manager (HSE–5J); Waste Management

Division; Emergency Response Branch;

U.S. Environmental Protection Agency,

Region 5; 77 West Jackson Boulevard;

Chicago, IL 60604–3590. Phone (312)

886–7183.

SUPPLEMENTARY INFORMATION: The EPA

identifies sites which appear to present

a significant risk to public health,

welfare, or the environment and it

maintains the NPL as the list of those

sites. Sites on the NPL may be the

subject of Hazardous Substance

Response Trust Fund (Fund) financed

remedial actions. Any site deleted from

the NPL remains eligible for Fundfinanced remedial actions in the

unlikely event that conditions at the site

warrant such action.

Section 300. 66(c)(8) of the NCP states

that Fund-financed actions may be

taken at sites deleted from the NPL.

The site EPA deletes from the NPL is

the Kent City Mobile Home Park Site in

Kent City, Michigan.

An explanation of the criteria for

deleting sites from the NPL was

presented in section II of the November

8, 1994, Notice of Intent to Delete FR

Doc. No. 94–27647. A description of the

site and how it meets the criteria for

deletion was presented in Section IV of

that notice.

The closing date for comments on the

Notice of Intent to Delete was December

7, 1994.

EPA received one comment on the

deletion of the Kent City Mobile Home

Park Site from the NPL.

Comment: Commenter states they are

‘‘concerned by the proposal to abandon

a carbon tetrachloride contaminated

well’’ at the site because ‘‘groundwater

is a valuable resource for present and

future generations and that groundwater

contamination should therefore be

remediated whenever possible.’’

Response: EPA appreciates the

concern and strongly agrees that

groundwater is a valuable resource; it is

EPA’s policy to promote protection of

our groundwater resource and to restore

usable goundwater to beneficial use

whenever possible. However, at the

Kent City site, the level of

contamination is so low and the area of

contamination so localized, that

remediation is not practical.

List of Subjects in 40 CFR Part 300

Environmental protection, Hazardous

waste.

PART 300—[AMENDED]

40 CFR part 300 is amended as

follows:

1. The authority citation for part 300

continues to read as follows.

Authority: 42 U.S.C. 9601–9657; 33 U.S.C.

1321(d); E.O. 11735, 38 FR 21243; E.O.

12580, 52 FR 2923; E.O. 12777, 56 FR 54757.

Appendix B—[AMENDED]

2. Table 1 of Appendix B to part 300

is amended by removing the entry for

Kent City Mobile Home Park Site, Kent

City, Michigan.

Dated: March 8, 1995.

David A. Ullrich,

Acting Regional Administrator, U.S. EPA,

Region V.

[FR Doc. 95–6770 Filed 3–17–95; 8:45 am]

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