[Federal Register Volume 66, Number 115 (Thursday, June 14, 2001)]
[Rules and Regulations]
[Pages 32235-32242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14616]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-6994-4]


National Priorities List for Uncontrolled Hazardous Waste Sites

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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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, and is intended primarily to guide the 
Environmental Protection Agency (``EPA'' or ``the Agency'') in 
determining which sites warrant further investigation. This rule adds 
10 new sites to the General Superfund Section of the NPL. These sites 
will be assessed to determine the nature and extent of public health 
and environmental risks associated with them, and to determine what 
CERCLA-financed remedial action(s), if any, may be appropriate.

EFFECTIVE DATE: The effective date for this final rule shall be July 
16, 2001.

ADDRESSES: For addresses for the Headquarters and Regional 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: Yolanda Singer, phone (703) 603-8835, 
State, Tribal and Site Identification Center; Office of Emergency and 
Remedial Response (mail code 5204G); 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. How Are Site Boundaries Defined?
    G. How Are Sites Removed from the NPL?
    H. Can Portions of Sites Be Deleted From the NPL as They Are 
Cleaned Up?
    I. What Is the Construction Completion List (CCL)?
II. Availability of Information to the Public
    A. Can 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 Regional 
Docket?
    D. How Do I Access the Documents?
    E. How Can I Obtain a Current List of NPL Sites?
III. Contents of This Final Rule
    A. Additions to the NPL
    B. Status of NPL
    C. What Did EPA Do With the Public Comments It Received?
IV. Executive Order 12866
    A. What Is Executive Order 12866?
    B. Is This Final Rule Subject to Executive Order 12866 Review?
V. Unfunded Mandates
    A. What Is the Unfunded Mandates Reform Act (UMRA)?
    B. Does UMRA Apply to This Final Rule?
VI. Effects on Small Businesses
    A. What Is the Regulatory Flexibility Act?
    B. Does the Regulatory Flexibility Act Apply to This Final Rule?
VII. Possible Changes to the Effective Date of the Rule
    A. Has This Rule Been Submitted to Congress and the General 
Accounting Office?
    B. Could the Effective Date of This Final Rule Change?
    C. What Could Cause the Effective Date of This Rule To Change?
VIII. National Technology Transfer and Advancement Act
    A. What Is the National Technology Transfer and Advancement Act?
    B. Does the National Technology Transfer and Advancement Act 
Apply to this Final Rule?
IX. Executive Order 12898
    A. What Is Executive Order 12898?
    B. Does Executive Order 12898 Apply to This Final Rule?
X. Executive Order 13045
    A. What Is Executive Order 13045?
    B. Does Executive Order 13045 Apply to This Final Rule?
XI. Paperwork Reduction Act
    A. What Is the Paperwork Reduction Act?
    B. Does the Paperwork Reduction Act Apply to This Final Rule?
XII. Executive Orders on Federalism
    What Are the Executive Orders on Federalism and Are They 
Applicable to This Final Rule?
XIII. Executive Order 13175
    What Is Executive Order 13175 and Is It Applicable to This Final 
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 of 
hazardous substances. CERCLA was amended on

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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, pollutants, or contaminants under 
CERCLA. EPA has revised the NCP on several occasions. The most recent 
comprehensive revision was on March 8, 1990 (55 FR 8666).
    As required under section 105(a)(8)(A) of CERCLA, the NCP also 
includes ``criteria for determining priorities among releases or 
threatened releases throughout the United States for the purpose of 
taking remedial action and, to the extent practicable, taking into 
account the potential urgency of such action for the purpose of taking 
removal action.'' (``Removal'' actions are defined broadly and include 
a wide range of actions taken to study, clean up, prevent or otherwise 
address releases and threatened releases 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 by SARA. 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. 
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. 
Neither does placing a site on the NPL 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 an HRS score and determining whether 
the facility is placed on the NPL. EPA generally is not the lead agency 
at Federal Facilities Section sites, and its role at such sites is 
accordingly less extensive than at other sites.

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 Hazard 
Ranking System (``HRS''), which EPA promulgated as appendix A of the 
NCP (40 CFR part 300). The HRS serves as a screening device to evaluate 
the relative potential of uncontrolled hazardous substances 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) Each State may designate a single 
site as its top priority to be listed on the NPL, 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)); (3) The third mechanism for listing, included in the 
NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed 
regardless of their HRS score, if all of the following conditions are 
met:
    <bullet> The Agency for Toxic Substances and Disease Registry 
(ATSDR) of the U.S. Public Health Service has issued a health advisory 
that recommends dissociation of individuals from the release.
    <bullet> EPA determines that the release poses a significant threat 
to public health.
    <bullet> EPA anticipates that it will be more cost-effective to use 
its remedial authority than to use its removal authority to respond to 
the release.
    EPA promulgated an original NPL of 406 sites on September 8, 1983 
(48 FR 40658). The NPL has been expanded since then, most recently on 
December 1, 2000 (65 FR 75179).

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. How Are Site Boundaries Defined?

    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.
    Although a CERCLA ``facility'' is broadly defined to include any 
area where a hazardous substance release 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. As a legal matter, the site is not 
coextensive with that area, and the boundaries of the installation or 
plant are not 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 to which that contamination has come to be 
located, or from which 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

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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. The precise nature and 
extent of the site are typically not known at the time of listing. 
Also, the site name is merely used to help identify the geographic 
location of the contamination. 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 ``nature and extent of the problem 
presented by the release'' will be determined by a remedial 
investigation/feasibility study (RI/FS) as more information is 
developed on site contamination (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, this inquiry focuses on an 
evaluation of the threat posed; 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, supporting information can be submitted to the Agency at any 
time after a party 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 Superfund-financed 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.
    As of May 21, 2001, the Agency has deleted 232 sites from the NPL.

H. Can Portions of Sites Be Deleted From the NPL as They Are Cleaned 
Up?

    In November 1995, EPA initiated a new policy to delete portions of 
NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). 
Total site cleanup may take many years, while portions of the site may 
have been cleaned up and available for productive use. As of May 21, 
2001, EPA has deleted portions of 23 sites.

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.
    As of May 21, 2001, there are a total of 766 sites on the CCL. For 
the most up-to-date information on the CCL, see EPA's Internet site at 
http://www.epa.gov/superfund.

II. Availability of Information to the Public

A. Can I Review the Documents Relevant to This Final Rule?

    Yes, documents relating to the evaluation and scoring of the sites 
in this final rule are contained in dockets located both at EPA 
Headquarters and in the Regional offices.

B. What Documents Are Available for Review at the Headquarters Docket?

    The Headquarters docket for this rule contains, for each site, 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. The Headquarters 
docket also contains comments received, and the Agency's responses to 
those comments. The Agency's responses are contained in the ``Support 
Document for the Revised National Priorities List Final Rule--June 
2001.''

C. What Documents Are Available for Review at the Regional Dockets?

    The Regional dockets contain 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 for the sites located in their Region. These reference 
documents are available only in the Regional dockets.

D. How Do I Access the Documents?

    You may view the documents, by appointment only, after the 
publication of this document. The hours of operation for the 
Headquarters docket are from 9 a.m. to 4 p.m., Monday through Friday, 
excluding Federal holidays. Please contact the Regional dockets for 
hours.
    Following is the contact information for the EPA Headquarters: 
Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, 
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, 
VA, 703/603-8917.
    The contact information for the Regional dockets is as follows:

Ellen Culhane, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund 
Records Center, Mailcode HSC, One Congress Street, Suite 1100, Boston, 
MA 02114-2023; 617/918-1225.
Ben Conetta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New 
York, NY 10007-1866; 212/637-4435
Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA,

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Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103; 215/
814-5364.
Joellen O'Neill, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 
61 Forsyth Street, SW, 9th floor, Atlanta, GA 30303; 404/562-8127.
Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Waste 
Management Division 7-J, Metcalfe Federal Building, 77 West Jackson 
Boulevard, Chicago, IL 60604; 312/886-7570.
Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, 
Mailcode 6SF-RA, Dallas, TX 75202-2733; 214/665-7436.
Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th 
Street, Kansas City, KS 66101; 913/551-7335.
David Williams, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th 
Street, Suite 500, Mailcode 8EPR-SA, Denver, CO 80202-2466; 303/312-
6757.
Carolyn Douglas, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 
Hawthorne Street, San Francisco, CA 94105; 415/744-2343.
Robert Phillips, Region 10 (AK, ID, OR, WA), U.S. EPA, 11th Floor, 1200 
6th Avenue, Mail Stop ECL-115, Seattle, WA 98101; 206/553-6699.

E. How Can 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/ (look under the Superfund sites category) 
or by contacting the Superfund Docket (see contact information above).

III. Contents of This Final Rule

A. Addition to the NPL

    This final rule adds 10 sites to the NPL; all to the General 
Superfund Section of the NPL. Table 1 presents the 10 sites in the 
General Superfund Section. Sites in the tables are arranged 
alphabetically by State.

Table 1.--National Priorities List Final Rule, General Superfund Section
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         State and site name                      City/county
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CA--Cooper Drum Company..............  South Gate.
MA--Nuclear Metals, Inc..............  Concord.
MA--Sutton Brook Disposal Area.......  Tewksbury.
NM--Griggs & Walnut Ground Water       Las Cruces.
 Plume.
NY--Consolidated Iron and Metal......  Newburgh.
NY--Shenandoah Road Ground Water       East Fishkill.
 Contamination.
OR--Taylor Lumber and Treating.......  Sheridan.
PA--Lower Darby Creek Area...........  Delaware/Philadelphia Counties.
TX--Malone Service Company, Inc......  Texas City.
VT--Elizabeth Mine...................  Strafford.
------------------------------------------------------------------------
 Number of Sites Added to the General Superfund Section: 10.

B. Status of NPL

    With the 10 new sites added to the NPL in today's final rule; the 
NPL now contains 1,236 final sites; 1,076 in the General Superfund 
Section and 160 in the Federal Facilities Section. With a separate rule 
(published elsewhere in today's Federal Register) proposing to add 10 
new sites to the NPL, there are now 67 sites proposed and awaiting 
final agency action, 61 in the General Superfund Section and 6 in the 
Federal Facilities Section. Final and proposed sites now total 1,303. 
(These numbers reflect the status of sites as of May 21, 2001. Site 
deletions occurring after this date may affect these numbers at time of 
publication in the Federal Register.)

C. What Did EPA Do With the Public Comments It Received?

    EPA reviewed all comments received on the sites in this rule. The 
Lower Darby Creek site was proposed May 11, 2000 (63 FR 30489). The 
Nuclear Metals, Inc. and Sutton Brook Disposal Area sites were proposed 
on July 27, 2000 (65 FR 46131). The Malone Service Company, Inc. site 
was proposed on Aug 24, 2000 (65 FR 51567). The Consolidated Iron and 
Metals, Taylor Lumber and Treating, and Elizabeth Mine sites were 
proposed on December 1, 2000 (65 FR 75215). The Copper Drum Company, 
Griggs & Walnut Ground Water Plume, and Shenandoah Road Ground Water 
Contamination sites were proposed on January 11, 2001 (65 FR 2380).
    For the Copper Drum Company and the Griggs & Walnut Ground Water 
Plume sites, EPA received no comments and therefore, EPA is placing 
them on the final NPL at this time.
    For Shenandoah Road Ground Water Contamination site, EPA received 
only comments supporting the listing of the sites to the NPL and 
therefore, EPA is placing them on the final NPL at this time.
    EPA responded to all relevant comments received on the other sites. 
EPA's responses to site-specific public comments are addressed in the 
``Support Document for the Revised National Priorities List Final 
Rule--June 2001.''

IV. Executive Order 12866

A. 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 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.

B. Is This Final Rule Subject to Executive Order 12866 Review?

    No, the Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866 review.

V. Unfunded Mandates

A. 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 for which 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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adopt the least costly, most cost-effective, 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.

B. Does UMRA Apply to This Final Rule?

    No, EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments in the aggregate, or by the 
private sector in any one year. This rule will not impose any federal 
intergovernmental mandate because it imposes no enforceable duty upon 
State, tribal or local governments. 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 listing a 
site on the NPL.
    For the same reasons, EPA also has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. In addition, as discussed above, the 
private sector is not expected to incur costs exceeding $100 million. 
EPA has fulfilled the requirement for analysis under the Unfunded 
Mandates Reform Act.

VI. Effect on Small Businesses

A. 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.

B. Does the Regulatory Flexibility Act Apply to This Final Rule?

    No. The RFA does not apply to NPL listings (See 65 FR 46135 (July 
27, 2000)). The RFA generally requires an agency to prepare a 
regulatory flexibility analysis of any rule for which an agency must 
publish a notice of general rulemaking under the Administrative 
Procedure Act or any other statute. Under RFA section 601(2), however, 
the term ``rule'' means any rule for which the agency publishes a 
general notice of rulemaking but does not include a rule of 
``particular applicability relating * * * to facilities* * *.'' 5 
U.S.C. 601(2). Here, while EPA published a notice of rulemaking for 
these listings, each listing is based on determinations unique to 
individual sites and the listing applies only to one facility or site. 
Consequently, each listing is a rule of particular applicability and 
thus, the RFA does not apply to the listing of these individual sites 
on the NPL.
    Moreover, the listing of these individual sites on the NPL does not 
impose any obligations on small entities or any other identifiable 
group. The rule sets no standards or a regulatory regime that any small 
entity must meet. The listing imposes no liability or costs on any 
small entity (65 FR 46135 (July 27, 2000)). 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 irrespective of whether the site is 
listed on the NPL.
    A commenter questioned whether we had adequately assessed the 
impact on small businesses located near one of the sites included in 
today's final rule (the Nuclear Metals, Inc. site). However, even if 
the RFA did apply to the listing of the Nuclear Metals Inc. site (or 
any of the other sites added to the NPL in today's rule), the statute 
does not require EPA to assess the impact on small entities which are 
not subject to a rule. Motor & Equipment Mfrs. Ass'n v. N Nichols, 142 
F.3rd 449, 467 (D.C. Cir. 1998). As discussed above, the listing of a 
site on the NPL does not apply to any small entity because it imposes 
no obligations. Certainly, no regulatory obligations are imposed on 
small businesses which may be located near a site listed in today's 
final.

VII. Possible Changes to the Effective Date of the Rule

A. Has This Rule Been Submitted to Congress and the General Accounting 
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, which 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). This rule will be effective on July 16, 2001.

B. 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

[[Page 32240]]

(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 foreign-based 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.

C. What Could Cause the Effective Date of This Rule to Change?

    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 (D.C. 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.

VIII. National Technology Transfer and Advancement Act

A. 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.

B. 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.

IX. Executive Order 12898

A. What Is Executive Order 12898?

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report,'' and National Environmental Justice Advisory Council, EPA has 
undertaken to incorporate environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice 
concerns, and is assuming a leadership role in environmental justice 
initiatives to enhance environmental quality for all residents of the 
United States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income, 
bears disproportionately high and adverse human health and 
environmental effects as a result of EPA's policies, programs, and 
activities, and all people live in clean and sustainable communities.

B. Does Executive Order 12898 Apply to This Final Rule?

    No. While this rule revises the NPL, no action will result from 
this rule that will have disproportionately high and adverse human 
health and environmental effects on any segment of the population.

X. Executive Order 13045

A. 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.

B. 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.

XI. Paperwork Reduction Act

A. 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. The information collection requirements 
related to this action have already been approved by OMB pursuant to 
the PRA under OMB control number 2070-0012 (EPA ICR No. 574).

B. Does the Paperwork Reduction Act Apply to This Final Rule?

    No. 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.

[[Page 32241]]

XII. Executive Orders on Federalism

What Are the Executive Orders on Federalism and Are They Applicable to 
This Final Rule?

    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.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    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. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

XIII. Executive Order 13175

What Is Executive Order 13175 and Is It Applicable to This Final Rule?

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revokes Executive Order 13084 (Tribal Consultation) as of that 
date. EPA developed this final rule, however, during the period when 
Executive Order 13084 was in effect; thus, EPA addressed tribal 
considerations under Executive Order 13084.
    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Under section 3(b) of Executive Order 13084, EPA may not issue a 
regulation that is not required by statute, that significantly or 
uniquely affects the communities of Indian Tribal governments, and that 
imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the Tribal governments, or EPA 
consults with those governments. The addition of sites to the NPL will 
not impose any substantial direct compliance costs on Tribes. While 
Tribes may incur costs from participating in the investigations and 
cleanup decisions, those costs are not compliance costs. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this final rule.

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: June 1, 2001.
Michael H. Shapiro,
Acting 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 sites 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)\
--------------------------------------------------------------------------------------------------------------------------------------------------------
          *                  *                  *                  *                  *                  *                  *
CA...........................  Cooper Drum Company.............................  South Gate.
          *                  *                  *                  *                  *                  *                  *
MA...........................  Nuclear Metals, Inc.............................  Concord.
          *                  *                  *                  *                  *                  *                  *
MA...........................  Sutton Brook Disposal Area......................  Tewksbury.
          *                  *                  *                  *                  *                  *                  *
NM...........................  Griggs & Walnut Ground Water Plume..............  Las Cruces.

[[Page 32242]]

 
          *                  *                  *                  *                  *                  *                  *
NY...........................  Consolidated Iron and Metal.....................  Newburgh.
          *                  *                  *                  *                  *                  *                  *
NY...........................  Shenandoah Road Ground Water Contamination......  East Fishkill.
          *                  *                  *                  *                  *                  *                  *
OR...........................  Taylor Lumber and Treating......................  Sheridan.
          *                  *                  *                  *                  *                  *                  *
PA...........................  Lower Darby Creek Area..........................  Delaware/Philadelphia Counties.
          *                  *                  *                  *                  *                  *                  *
TX...........................  Malone Service Company, Inc.....................  Texas City.
          *                  *                  *                  *                  *                  *                  *
VT...........................  Elizabeth Mine..................................  Strafford.
          *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 01-14616 Filed 6-13-01; 8:45 am]
BILLING CODE 6560-50-P