Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 59983 

[FR Doc. 2010–24311 Filed 9–28–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–2009–0588; FRL–9207–2] 

RIN 2050–AD75 

National Priorities List, Final Rule— 

Newtown Creek 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Comprehensive 

Environmental Response, 

Compensation, and Liability Act of 1980 

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

requires that the National Oil and 

Hazardous Substances Pollution 

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

of national priorities among the known 

releases or threatened releases of 

hazardous substances, pollutants, or 

contaminants throughout the United 

States. The National Priorities List 

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

intended primarily to guide the 

Environmental Protection Agency 

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

which sites warrant further 

investigation. These further 

investigations will allow EPA to assess 

the nature and extent of public health 

and environmental risks associated with 

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

be appropriate. This rule adds the 

Newtown Creek site, located in 

Brooklyn/Queens, New York, to the 

General Superfund section of the NPL. 

DATES: Effective Date: The effective date 

for this amendment to the NCP is 

October 29, 2010. 

ADDRESSES: For addresses for the 

Headquarters and Region 2 dockets, as 

well as further details on what these 

dockets contain, see section II, 

‘‘Availability of Information to the 

Public’’ in the SUPPLEMENTARY

INFORMATION portion of this preamble. 

FOR FURTHER INFORMATION CONTACT: 

Terry Jeng, phone: (703) 603–8852, 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. Availability of Information to the Public 

A. May I review the documents relevant to 

this final rule? 

B. What documents are available for review 

at the Headquarters Docket? 

C. What documents are available for review 

at the Region 2 Docket? 

D. How do I access the documents? 

E. How may I obtain a current list of NPL 

sites? 

III. Contents of This Final Rule 

A. Addition to the NPL 

B. What did EPA do with the public 

comments it received? 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

1. What is Executive Order 12866? 

2. Is this final rule subject to Executive 

Order 12866 review? 

B. Paperwork Reduction Act 

1. What is the Paperwork Reduction Act? 

2. Does the Paperwork Reduction Act 

apply to this final rule? 

C. Regulatory Flexibility Act 

1. What is the Regulatory Flexibility Act? 

2. How has EPA complied with the 

Regulatory Flexibility Act? 

D. Unfunded Mandates Reform Act 

1. What is the Unfunded Mandates Reform 

Act (UMRA)? 

2. Does UMRA apply to this final rule? 

E. Executive Order 13132: Federalism 

1. What is Executive Order 13132? 

2. Does Executive Order 13132 apply to 

this final rule? 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

1. What is Executive Order 13175? 

2. Does Executive Order 13175 apply to 

this final rule? 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

1. What is Executive Order 13045? 

2. Does Executive Order 13045 apply to 

this final rule? 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Usage 

1. What is Executive Order 13211? 

2. Does Executive Order 13211 apply to 

this final rule? 

I. National Technology Transfer and 

Advancement Act 

1. What is the National Technology 

Transfer and Advancement Act? 

2. Does the National Technology Transfer 

and Advancement Act apply to this final 

rule? 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in Minority 

Populations and Low-Income Populations 

1. What is Executive Order 12898? 

2. Does Executive Order 12898 apply to 

this final rule? 

K. Congressional Review Act 

1. Has EPA submitted this rule to Congress 

and the Government Accountability Office? 

2. Could the effective date of this final rule 

change? 

3. What could cause a change in the 

effective date of this rule? 

I. Background 

A. What are CERCLA and SARA? 

In 1980, Congress enacted the 

Comprehensive Environmental 

Response, Compensation, and Liability 

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

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

uncontrolled releases or threatened 

releases of hazardous substances, and 

releases or substantial threats of releases 

into the environment of any pollutant or 

contaminant that may present an 

imminent or substantial danger to the 

public health or welfare. CERCLA was 

amended on October 17, 1986, by the 

Superfund Amendments and 

Reauthorization Act (‘‘SARA’’), Public 

Law 99–499, 100 Stat. 1613 et seq. 

B. What is the NCP? 

To implement CERCLA, EPA 

promulgated the revised National Oil 

and Hazardous Substances Pollution 

Contingency Plan (‘‘NCP’’), 40 CFR part 

300, on July 16, 1982 (47 FR 31180), 

pursuant to CERCLA section 105 and 

Executive Order 12316 (46 FR 42237, 

August 20, 1981). The NCP sets 

guidelines and procedures for 

responding to releases and threatened 

releases of hazardous substances, or 

releases or substantial threats of releases 

into the environment of any pollutant or 

contaminant that may present an 

imminent or substantial danger to the 

public health or welfare. EPA has 

revised the NCP on several occasions. 

The most recent comprehensive revision 

was on March 8, 1990 (55 FR 8666). 

As required under section 

105(a)(8)(A) of CERCLA, the NCP also 

includes ‘‘criteria for determining 

priorities among releases or threatened 

releases throughout the United States 

for the purpose of taking remedial 

action and, to the extent practicable, 

taking into account the potential 

urgency of such action, for the purpose 

of taking removal action.’’ ‘‘Removal’’ 


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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 

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 


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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 

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. 

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. 

For further information, please go to 

http://www.epa.gov/superfund/ 

programs/recycle/tools/index.html. 

II. Availability of Information to the 

Public 

A. May I review the documents relevant 

to this final rule? 

Yes, documents relating to the 

evaluation and scoring of the site in this 

final rule are contained in dockets 

located both at EPA Headquarters and in 

the EPA Region 2 office. 

An electronic version of the public 

docket is available through http:// 

www.regulations.gov. Use docket 

identification number EPA–HQ– 

SFUND–2009–0588. Although not all 

Docket materials may be available 

electronically, you may still access any 

of the publicly available Docket 

materials through the Docket facilities 

identified below in section II D. 

B. What documents are available for 

review at the Headquarters Docket? 

The Headquarters Docket for this rule 

contains the HRS score sheets, the 

Documentation Record describing the 

information used to compute the score, 

pertinent information regarding 

statutory requirements or EPA listing 

policies that affect the site, and a list of 

documents referenced in the 

Documentation Record. Since this site 

received comments during the comment 

period, the Headquarters Docket also 

contains a Support Document that 

includes EPA’s responses to comments. 

C. What documents are available for 

review at the Region 2 Docket? 

The Region 2 Docket contains all the 

information in the Headquarters Docket, 

plus the actual reference documents 

containing the data principally relied 

upon by EPA in calculating or 

evaluating the HRS score. These 

reference documents are available only 

in the Regional Dockets. Since this site 

received comments during the comment 

period, the Region 2 Docket also 

contains a Support Document that 

includes EPA’s responses to comments. 

D. How do I access the documents? 

You may view the documents, by 

appointment only, after the publication 

of this rule. The hours of operation for 

the Headquarters Docket are from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. 

Please contact the Region 2 Docket for 

hours. 

Following is the contact information 

for the EPA Headquarters: Docket 

Coordinator, Headquarters; U.S. 

Environmental Protection Agency; 

CERCLA Docket Office; 1301 

Constitution Avenue, NW.; EPA West, 

Room 3334, Washington, DC 20004, 

202/566–0276. 

The contact information for the 

Region 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. 

E. How may I obtain a current list of 

NPL sites? 

You may obtain a current list of NPL 

sites via the Internet at http:// 

www.epa.gov/superfund/sites/npl/ 

status.htm or by contacting the 


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Superfund Docket (see contact 

information above). 

III. Contents of This Final Rule 

A. Addition to the NPL 

This final rule adds the Newtown 

Creek site, located in Brooklyn/Queens, 

NY, to the General Superfund Section of 

the NPL. 

B. What did EPA do with the public 

comments it received? 

EPA received comments on the 

proposal to list the Newtown Creek site. 

EPA’s responses to the comments, and 

the impacts, if any, on the HRS score, 

are presented in a support document 

that has been placed in the 

Headquarters and Region 2 dockets 

concurrently with the publication of 

this rule. 

All comments that were received by 

EPA are contained in the Headquarters 

Docket and are also listed in EPA’s 

electronic public Docket and comment 

system at http://www.regulations.gov. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

1. What is Executive Order 12866? 

Under Executive Order 12866 (58 FR 

51735 (October 4, 1993)), the Agency 

must determine whether a regulatory 

action is ‘‘significant’’ and therefore 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely to 

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

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

2. Is this final rule subject to Executive 

Order 12866 Review? 

No. The listing of sites on the NPL 

does not impose any obligations on any 

entities. The listing does not set 

standards or a regulatory regime and 

imposes no liability or costs. Any 

liability under CERCLA exists 

irrespective of whether a site is listed. 

It has been determined that this action 

is not a ‘‘significant regulatory action’’ 

under the terms of Executive Order 

12866 and is therefore not subject to 

OMB review. 

B. Paperwork Reduction Act 

1. What is the Paperwork Reduction 

Act? 

According to the Paperwork 

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

seq., an agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

that requires OMB approval under the 

PRA, unless it has been approved by 

OMB and displays a currently valid 

OMB control number. The OMB control 

numbers for EPA’s regulations, after 

initial display in the preamble of the 

final rules, are listed in 40 CFR part 9. 

2. Does the Paperwork Reduction Act 

apply to this final rule? 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

determined that the PRA does not apply 

because this rule does not contain any 

information collection requirements that 

require approval of the OMB. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

1. What is the Regulatory Flexibility 

Act? 

Pursuant to the Regulatory Flexibility 

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

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare and make available for public 

comment a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small governmental jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide a statement of the 

factual basis for certifying that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

2. How has EPA complied with the 

Regulatory Flexibility Act? 

This rule listing sites on the NPL does 

not impose any obligations on any 

group, including small entities. This 

rule also does not establish standards or 

requirements that any small entity must 

meet, and imposes no direct costs on 

any small entity. Whether an entity, 

small or otherwise, is liable for response 

costs for a release of hazardous 

substances depends on whether that 

entity is liable under CERCLA 107(a). 

Any such liability exists regardless of 

whether the site is listed on the NPL 

through this rulemaking. Thus, this rule 

does not impose any requirements on 

any small entities. For the foregoing 

reasons, I certify that this rule will not 

have a significant economic impact on 

a substantial number of small entities. 

D. Unfunded Mandates Reform Act 

1. What is the Unfunded Mandates 

Reform Act (UMRA)? 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may result 

in expenditures by State, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any one year. Before EPA 

promulgates a rule where a written 

statement is needed, section 205 of the 

UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 


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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 59987 

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 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

2. Does UMRA apply to this final rule? 

This final rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. Listing a site on the NPL 

does not itself impose any costs. Listing 

does not mean that EPA necessarily will 

undertake remedial action. Nor does 

listing require any action by a private 

party or determine liability for response 

costs. Costs that arise out of site 

responses result from site-specific 

decisions regarding what actions to take, 

not directly from the act of placing a site 

on the NPL. Thus, this rule is not 

subject to the requirements of section 

202 and 205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. As is 

mentioned above, site listing does not 

impose any costs and would not require 

any action of a small government. 

E. Executive Order 13132: Federalism 

1. What is Executive Order 13132? 

Executive Order 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ 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. Does Executive Order 13132 apply to 

this final rule? 

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it does 

not contain any requirements applicable 

to States or other levels of government. 

Thus, the requirements of the Executive 

Order do not apply to this final rule. 

EPA believes, however, that this final 

rule may be of significant interest to the 

State government. 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 early in 

the process of developing the rule to 

permit them to have meaningful and 

timely input into its development. The 

site in this final rule was referred to 

EPA by the State for listing. EPA 

received a letter of support from the 

Commissioner of the New York 

Department of Environmental 

Conservation who was delegated 

authority regarding NPL listing 

decisions by the Governor. 

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 final rule? 

This final rule does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). Listing a site on the NPL does not 

impose any costs on a tribe or require 

a tribe to take remedial action. Thus, 

Executive Order 13175 does not apply 

to this final rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

1. What is Executive Order 13045? 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

2. Does Executive Order 13045 apply to 

this final rule? 

This rule is not subject to Executive 

Order 13045 because it is not an 

economically significant rule as defined 

by Executive Order 12866, and because 

the Agency does not have reason to 

believe the environmental health or 

safety risks addressed by this section 

present a disproportionate risk to 

children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Usage 

1. What is Executive Order 13211? 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ (66 FR 28355 (May 

22, 2001)) requires federal agencies to 

prepare a ‘‘Statement of Energy Effects’’ 

when undertaking certain regulatory 

actions. A Statement of Energy Effects 

describes the adverse effects of a 

‘‘significant energy action’’ on energy 

supply, distribution and use, reasonable 

alternatives to the action, and the 

expected effects of the alternatives on 

energy supply, distribution and use. 


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59988 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

2. Does Executive Order 13211 apply to 

this final rule? 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Further, we have concluded that this 

final rule is not likely to have any 

adverse energy impacts because adding 

a site to the NPL does not require an 

entity to conduct any action that would 

require energy use, let alone that which 

would significantly affect energy 

supply, distribution, or usage. Thus, 

Executive Order 13175 does not apply 

to this action. 

I. National Technology Transfer and 

Advancement Act 

1. What is the National Technology 

Transfer and Advancement Act? 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, section 12(d) (15 U.S.C. 272 note), 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

2. Does the National Technology 

Transfer and Advancement Act apply to 

this final rule? 

No. This rulemaking does not involve 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

1. What is Executive Order 12898? 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

2. Does Executive Order 12898 apply to 

this rule? 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. As this rule does not 

impose any enforceable duty upon 

State, tribal or local governments, this 

rule will neither increase nor decrease 

environmental protection. 

K. Congressional Review Act 

1. Has EPA submitted this rule to 

Congress and the Government 

Accountability Office? 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, that includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA has submitted 

a report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A ‘‘major rule’’ 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This rule is not a ‘‘major rule’’ as defined 

by 5 U.S.C. 804(2). 

2. Could the effective date of this final 

rule change? 

Provisions of the Congressional 

Review Act (CRA) or section 305 of 

CERCLA may alter the effective date of 

this regulation. 

Under the CRA, 5 U.S.C. 801(a), 

before a rule can take effect, the Federal 

agency promulgating the rule must 

submit a report to each House of the 

Congress and to the Comptroller 

General. This report must contain a 

copy of the rule, a concise general 

statement relating to the rule (including 

whether it is a major rule), a copy of the 

cost-benefit analysis of the rule (if any), 

the agency’s actions relevant to 

provisions of the Regulatory Flexibility 

Act (affecting small businesses) and the 

Unfunded Mandates Reform Act of 1995 

(describing unfunded federal 

requirements imposed on State and 

local governments and the private 

sector), and any other relevant 

information or requirements and any 

relevant Executive Orders. 

EPA has submitted a report under the 

CRA for this rule. The rule will take 

effect, as provided by law, within 30 

days of publication of this document, 

since it is not a major rule. Section 

804(2) defines a major rule as any rule 

that the Administrator of the Office of 

Information and Regulatory Affairs 

(OIRA) of the Office of Management and 

Budget (OMB) finds has resulted in or 

is likely to result in: an annual effect on 

the economy of $100,000,000 or more; a 

major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. NPL listing is not a 

major rule because, as explained above, 

the listing, itself, imposes no monetary 

costs on any person. It establishes no 

enforceable duties, does not establish 

that EPA necessarily will undertake 

remedial action, nor does it require any 

action by any party or determine its 

liability for site response costs. Costs 

that arise out of site responses result 

from site-by-site decisions about what 

actions to take, not directly from the act 

of listing itself. Section 801(a)(3) 

provides for a delay in the effective date 

of major rules after this report is 

submitted. 

3. What could cause a change in the 

effective date of this rule? 

Under 5 U.S.C. 801(b)(1) a rule shall 

not take effect, or continue in effect, if 

Congress enacts (and the President 

signs) a joint resolution of disapproval, 

described under section 802. 

Another statutory provision that may 

affect this rule is CERCLA section 305, 

which provides for a legislative veto of 

regulations promulgated under 

CERCLA. Although INS v. Chadha, 462 

U.S. 919,103 S. Ct. 2764 (1983), and Bd. 

of Regents of the University of 

Washington v. EPA, 86 F.3d 1214, 1222 

(DC Cir. 1996), cast the validity of the 

legislative veto into question, EPA has 

transmitted a copy of this regulation to 

the Secretary of the Senate and the Clerk 

of the House of Representatives. 

If action by Congress under either the 

CRA or CERCLA section 305 calls the 

effective date of this regulation into 

question, EPA will publish a document 

of clarification in the Federal Register. 


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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 59989 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Oil pollution, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Dated: September 22, 2010. 

Lisa Feldt, 

Deputy Assistant Administrator, Office of 

Solid Waste and Emergency Response. 

■ 40 CFR part 300 is amended as 

follows: 

PART 300—[AMENDED] 

■ 1. The authority citation for part 300 

continues to read as follows: 

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

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

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

3 CFR, 1987 Comp., p. 193. 

■ 2. Table 1 of Appendix B to part 300 

is amended by adding the following site 

in alphabetical order to read as follows: 

Appendix B to Part 300—National 

Priorities List 

TABLE 1.—GENERAL SUPERFUND SECTION

State Site name City/county Notes a

*******

NY ...................................... Newtown Creek ........................................ Brooklyn/Queens.

*******

aA = Based on issuance of health advisory by Agency for Toxic Substance and Disease Registry (HRS score need not be ≤ 28.50). 

C = Sites on Construction Completion list. 

S = State top priority (HRS score need not be ≤ 28.50) 

P = Sites with partial deletion(s). 

[FR Doc. 2010–24313 Filed 9–28–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket ID FEMA–2010–0003] 

Final Flood Elevation Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: Base (1% annual-chance) 

Flood Elevations (BFEs) and modified 

BFEs are made final for the 

communities listed below. The BFEs 

and modified BFEs are the basis for the 

floodplain management measures that 

each community is required either to 

adopt or to show evidence of being 

already in effect in order to qualify or 

remain qualified for participation in the 

National Flood Insurance Program 

(NFIP). 

DATES: The date of issuance of the Flood 

Insurance Rate Map (FIRM) showing 

BFEs and modified BFEs for each 

community. This date may be obtained 

by contacting the office where the maps 

are available for inspection as indicated 

in the table below. 

ADDRESSES: The final BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below. 

FOR FURTHER INFORMATION CONTACT: Roy 

E. Wright, Deputy Director, Risk 

Analysis Division, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–3461, or (e-mail) 

roy.e.wright@dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) makes the final determinations 

listed below for the modified BFEs for 

each community listed. These modified 

elevations have been published in 

newspapers of local circulation and 

ninety (90) days have elapsed since that 

publication. The Deputy Federal 

Insurance and Mitigation Administrator 

has resolved any appeals resulting from 

this notification. 

This final rule is issued in accordance 

with section 110 of the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4104, 

and 44 CFR part 67. FEMA has 

developed criteria for floodplain 

management in floodprone areas in 

accordance with 44 CFR part 60. 

Interested lessees and owners of real 

property are encouraged to review the 

proof Flood Insurance Study and FIRM 

available at the address cited below for 

each community. The BFEs and 

modified BFEs are made final in the 

communities listed below. Elevations at 

selected locations in each community 

are shown. 

National Environmental Policy Act. 

This final rule is categorically excluded 

from the requirements of 44 CFR part 

10, Environmental Consideration. An 

environmental impact assessment has 

not been prepared. 

Regulatory Flexibility Act. As flood 

elevation determinations are not within 

the scope of the Regulatory Flexibility 

Act, 5 U.S.C. 601–612, a regulatory 

flexibility analysis is not required. 

Regulatory Classification. This final 

rule is not a significant regulatory action 

under the criteria of section 3(f) of 

Executive Order 12866 of September 30, 

1993, Regulatory Planning and Review, 

58 FR 51735. 

Executive Order 13132, Federalism. 

This final rule involves no policies that 

have federalism implications under 

Executive Order 13132. 

Executive Order 12988, Civil Justice 

Reform. This final rule meets the 

applicable standards of Executive Order 

12988. 

List of Subjects in 44 CFR Part 67 

Administrative practice and 

procedure, Flood insurance, Reporting 

and recordkeeping requirements. 

■ Accordingly, 44 CFR part 67 is 

amended as follows: 

PART 67—[AMENDED] 

■ 1. The authority citation for part 67 

continues to read as follows: 

Authority: 42 U.S.C. 4001 et seq.; 

Reorganization Plan No. 3 of 1978, 3 CFR, 

1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 

3 CFR, 1979 Comp., p. 376. 

§ 67.11 [Amended] 

■ 2. The tables published under the 

authority of § 67.11 are amended as 

follows: 


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