SUPERFUND
DIRECTORY OF REGULATIONS
(1985-1986)
U. S. ENVIRONMENTAL PROTECTION AGENCY
Office of Solid Waste and Emergency Response
401 M Street, S.W.
Washington, D.C. 20460
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SIIPERFUND REGULATIONS
1985
02/12/85
02/14/85
03/11/85
04/04/85
04/04/87
04/10/85
05/29/85
09/16/85
09/16/85
11/20/85
12/13/85
12/31/85
1986
06/10/86
Proposed
Final
03/08/85 Proposed
Proposed
Final
Proposed
Proposed
Proposed
Final
Final
09/18/85 Proposed
Final
Final
Proposed
Final
National Oil and Hazardous Substances
Pollution Contingency Plan
Amendment to National Oil and Hazardous
Substances Contingency Plan: National
Priorities List
Superfund: CERCLA Arbitration Procedures
and Natural Resource Claims Procedures
Water Programs; Discharge of Oil
Notification Requirements; Reportable
Quantity Adjustment
Reportable Quantity Adjustments
Amendement to National Oil and Hazardous
Substances Contingency Plan; the National
Priorities List
Pesticide Tolerance for Chlorpyrifos
National Oil and Hazardous Substances
Contingency Plan
Amendment to National Oil and Hazardous
Substances Contingency Plan: National
Priorities List
Amendment to National Oil Hazardous
Substances Contingency Plan; the National
Priorities List
National Oil and Hazardous Substances
Contingency Plan
CERCLA Arbitration Procedures and Natural
Resource Claims Procedures
National Oil and Hazardous Substances
Contingency Plan; National Priorities List
Update
Amendment to National Oil and Hazardous
Substances Contingency Plan; National
Priorities List
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SUPERFUND REGULATIONS
(Continued)
1986 (Continued)
06/10/86 Proposed
08/1/86
09/29/86
11/17/86.
" ;
11/17/86
11/21/86
Final
Final
Interim Final
Proposed
Final
12/22/86 Final/Correction
Amendment to the National Oil and
Hazardous Substances Contingency Plan;
National Priorities List
Natural Resource Damage Assessments
(Department of the Interior)
Superfund Programs; Reportable Quantity
Adjustments
Emergency Planning and Community Right
to Know Programs
Emergency Planning and Community Right
to Know Programs
Hazardous Substances (Department of
Transportation, Research and Special
Programs Administration)
; Reportable Quantity
Adjustments;
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SIIPERFUND REGULATIONS
Tndex Bv Title
1985
Amendment to National Oil and Hazardous Substances Contingency Plan: National
Priorities List 02/14/85
Amendement to National Oil and Hazardous Substances Contingency Plan; the National
Priorities List 04/10/85
Amendment to National Oil and Hazardous Substances Contingency Plan: National
Priorities List 09/16/85,
Amendment to National Oil Hazardous Substances Contingency Plan; the National
Priorities List 09/18/855-
CERCLA Arbitration Procedures and Natural Resource Claims Procedures
12/13/85,
National Oil and Hazardous Substances Pollution Contingency Plan 02/12/85
National Oil and Hazardous Substances Contingency Plan 09/16/85
National Oil and Hazardous Substances Contingency Plan 11/20/85
National Oil and Hazanious Substances Contingency Plan; National Priorities List Update
12/31/85
Notification Requirements; Reportable Quantity Adjustment 04/04/85
Pesticide Tolerance for Chlorpyrifos 05/29/85
Reportable Quantity Adjustments 04/04/87
Superfund: CERCLA Arbitration Procedures and Natural Resource Claims Procedures
V 03/08/85
Water Programs; Discharge of Oil 03/11/85
1986
Amendment to National Oil and Hazardous Substances Contingency Plan; National
Priorities List 06/10/86
Amendment to the National Oil and Hazardous Substances Contingency Plan; National
Priorities List 06/10/86
Emergency Planning and Community Right to Know Programs 11/17/86
Emergency Planning and Community Right to Know Programs 11/17/86
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SIJPERFUND REGULATIONS
Index Bv Title
(Continued)
Hazardous Substances (Department of Transportation, Research and Special Programs
Administration) 11/21/86
Natural Resource Damage Assessments (Department of the Interior) 08/1/86
Superfund Programs; Reportable Quantity Adjustments 09/29/86
Superfund Programs; Reportable Quantity Adjustments; Correction 12/22/86
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Thursday
February 14, 1985
Part IV
Environmental
Protection Agency
40 CFR Part 300
Amendment to National Oil and
Hazardous Substances Contingency Pla
National Priorities List, Final Rule
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6320
Federal Register / Vol. 50. No 31 / Thursday. February 14. 1985 / Rules and Regulations'
'ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[WH-FRL-2749-4]
Amendment to National Oil and
Hazardous Substances Contingency
Plan; National Priorities Ust
AGENCY: Environmental Protection
Agency.
ACTION: Final rule
SUMMARY: The Environmental Protection
Agency ("EPA') 13 amending the
National Oil and Hazardous Substances
Contingency Plan ("NCP"). which wai
promulgated on July 16.1382. pursuant
to section 105 of the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
("CERCLA '] and Executive Order 12316.
This amendment revises the National
Priorities List ("NPL"). which initially
was promulgated as Appendix B of the
NCP on September 8.1983. by adding
the Glen Ridge Radium Site located in
Glen Ridge. New Jersey, and the
Montdatr/West Orange Radium Site
located ID Montclair and West Orange.
New jersey, to the final NPL
EFFECTIVI DATE: The promulgation date
for this amendment to the NCP shall be
March 18.1985.'
FOR FURTHER INFORMATION CONTACT:
Joseph R. Gearo. Jr.. Hazardous Site
Control Division. Office of Emergency
and Remedial Response (WH-548EL
U S. Environmental Protection Agency,
401 M Street. SW. Washington. D.C.
20460. Phone (800) 424-9346 (or 382-3000
m the Washington. 0 C. metropolitan
area).
SUPPLEMENTARY INFORMATION: Table of
Contents:
I Background of th* NPL
11 Background of the Glen Ridge and
Vtontclair/Wetl Orange. NJ. Radium
Sitef
III Addition of the Clen Ridge and
Montclair/Wetl Orange VJ. Radium
Sites to the NPL
IV Regulatory Impact
V Regulatory Flexibility Aci Analyst*
I. Background of the VPL
.„ Pursuant to section 105 of the
.Comprehensive Environmental
- •-' CulCLA HCIIOO XS grovidn for a icpilarivi
.. v»io of regulaooni promulgated und*r CEXCLA,
Xihou+h /.VS i Chadha. U.S 103 & Ct
:-W (19031. eaat the validity of lha le«ilaQr« vtio
mio guecron. EPA hn (rinioinied a copy of inn
•tTuU..on to the Secretary 01 ts» Sciuie and lha
Cirri of -Jte Houaa of Rcprcacntatlvea If any tenon
K Congnii calli lha cfFtcnva daia of thia
refjiafon mo qufiuon. 'he Aftncy will pubiufc a
nonce of clinflcalion in lha f*
Response, Compensation, and Liability
Act of 1980. 42 U.S.C. 9601-9667
("CERCLA" or "the Act"), and Exacative
Order 12316 (46 FR 42237. August 20.
1981). the Environmental Protection
Agency ("EPA" or "the Agency")
promulgated the revised National
Contingency Plan ("NCP"]. 40 CFR Part '
300. on July 16.1982 (47 FR 311801 Those
amendments to the NCP implemented
responsibilities and authorities created
by CERCLA to respond to releases and
threatened releases of hazardous
substances, pollutants, and
contaminants.
Section 105(8)(A) of CERCLA requires
that the NCP include criteria for
determining priorities among releases or
threatened releases throughout the
United States for the purpose of taking
remedial action and. to the extent
practicable, take into account the-
potential urgency of such action, for th«
purpose of taking removal acton.
Removal action involves cleanup or
other actions that are taken in response
to releases or threats of releases on a
short-term or temporary basis (CQICLX
section 101(23)). Remedial action tend*
to be long-term in nature and involve*.
response actions which are consittent
with a permanent remedy for a release
(CERCLA section 101(24)). Criteria for
determining pnonbes for possible Fund-
financed remedial actions are included
in the Hazard Ranking System ("MRS").
which EPA promulgated as Appendix A
of the NCP (47 FR 31219. July 16. TBBZL
Section 105(B)(B) of CERCLA leq uues
that tkee* criteria be used to prepare •
Hat o/ national priorities among the
known release* or threatened releases
thraughovt the United States, and that to
the extent practicable, at least 400 tinea
be designated individually on this
National Priorities List (NPL). Section
105(8 (fB) also requires that the Us* at
priorltiu be iwiied at least an&uafly.
EPA has included on the NPL rekascs
and threatened releases of designated
hazardous substances as well at
"pollutants or contaminants" wfckh mag
present an Imminent and substantial1
danger to the public health or welfare.
CERCLA requires that the NPL bo
included as part of the NCP. An oatta} •'
NPL of 408 sites was promulgated on
September 8. 1983 (48 FR 40658),Cm
May 8.1984. EPA amended the NCP by
adding four sites in Saa GabneL
California, to the NPL On September 2V
1984. EPA further amended th« NCP by •
adding 128 sites to the NPL (40 H
37070). The second proposed update was)
published in the Federal Register oa. .
October IS. 1984 (49 FR 40320). Tar
second update proposed the addftteaao*?
244 sites, including the two sites, waiea.
are the subject of tins regulation,
Additions,! discussion di the purpose
and development of the NPL and on
generic issues relating to the MRS are
included in the preambles to the NPL
promulgated on September & 1983 (48
FR 40658). and amended on September
0.1984 [49 FR 37070).
Section 300.6fl(a) of the NCP reserves
Pud-financed remedial actions for sites
on the NPL Inclusion of a site on the
NPL is not necessary for other types of
response actions such as removal
actions or enforcement actions.
Moreover, a site need not be on the N'PL
to be the subject of a private action
pursuant to section l07(a](4)(B] of
CERCLA.
B_ Background of the Clen Ridge and
Montclair/West Orange. N], Radium
Sites
The Glen Ridge and Montdair/West
Orange. NJ, Radium Sites were included
m the proposed rulemakmg for the
second update of the NPL (49 FR 40320.
October 15.1984). These two sites are
located in residential areas of Essex
County. The Glen Ridge Radium Site.
located in a suburban residential
neighborhood area of about 0.25 square
miles, contains approximately 9.000
cubic yards of soil contaminated with
radioactive material, which is believed
to be radium-processing waste. The
Mooclair/West Orange Radium Site.
located In two suburban residential
neighborhood areas of about 0.5 square
artJes, costains approximately 9.000
cubic yard* of sod contaminated with
radioactive material also believed to be
radium-processing waste.
Several years ago. the State of New
r*aey investigated a radium-processing
facility in Orange. NJ. that had ceased
operation in the 1920's. The possibility
of off-site dispoaal of radium-processing
waate prompted an aerial survey of
••Bounding areas for gamma radiation.
Based on the results of the aenal survey.
Bald surveys conducted in July 1963
Identified a number of suburban homes
at Ciea Ridge. Montclair. and West
Orange, with high levels of radon gas. In
Dacembg 1983. EPA started a maior
Said uTvesogabon to define the extent of
contamination and identify additional
problem homes.
The special conditions at these two
sites that warrant their expedited
addition to the NPL an elevated
mirations of radon gas measured
residential homes within the sites
me gamma radiation that has been
both inside and outside a
oanbcroi homes and at a nearby park
Tha Cassn for Disease Control (CDC)
lam •sfcrised EPA to take remedial
action to adequately addma the
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Federal Eeaater / Vol. 50. No. 31 / Thunday. re ruary M.
en an
enuuion of radon gu into residential
basements and the gamma radiation in
and around the homes. The Agency has
taken emergency action under its
CERCLA removal authority to
temporarily address the release of radon
gas by "^tailing ventilation systems in
and around many of the homes, but it is
expected that additional expedited
actions will be necessary to further
reduce radon to acceptable levels and to
mitigate areas of high gamma radiation.
EPA is conducting remedial planning
activities consistent with section 300.68
of the NCP to determine what remedial
actions are justified by the actual or
potential threat posed by the
contaminated sod.
m. Addition of the Clan Ridge and
Mofltclair/West Orange. N] Radium
Site* to NFL
The action being taken today will add
the Glen Ridge Radium Site in Glen
Ridge. NJ and the Montclair/West
Orange Radium Site in Montclair and
. West Orange. N]. to the NPL No public
comments were received by EPA on .
these two sites dunng the 60-day
comment period, which concluded on
December 14.1964. following, the
proposed addition of these two sites to
the NPL EPA has reviewed the HRS
score for each of these two sites and has
determined that no information has
come to the Agency's attention dunng
the comment penod that would justify a
change in the HRS scores. The final
scores for both sites are 49.14.
substantially above the rr""""™ score
of 26.50 required for a site to be included
• on the NPL
The decision to add these two sites to
the NPL immediately rather than waiting
until completion of rulemaking on the
other 242 sites included in the October
15.1984 (49 FR 40320). proposed rule, is
based on the senous and immediate
nature of the problem. In all probability.
this release can be addressed most
efficiently through a remedial rather
than a removal action. Remedial actions
are restricted to sites on the final NPL
The recommendation of the CDC was
that remedial actions should be
completed by December 1985.
Immediate regulatory action must be
taken in order to be able to complete
remedial actions by that date.
IV. Regulatory Impact
The addition of these two sites to the
final rulemaking on the NPL does not
meet the Executive Order iZ»l
definition of the term "ma|or rule.
The purpose of the NPL ii primarily to
•erve as aa informational tool for use by
EPA in identifying sites that appear to
present a significant nsk to public health
or the environment The initial
identification of a site on the NPL is
intended primarily to guide EPA in
determining which sites warrant further
investigation designed to assess the
nature and extent of the public health
and environmental risks associated with
me site and to determine what response
action, if any. may be appropriate.
inclusion of a site on the NPL does not
establish that EPA necessarily will
undertake response actions. Moreover.
listing does not require any action of
any person, nor does it determine the
liability of any person for the cost of
cleanup at the site.
The HRS scores used to place sites on
the NPL are helpful to the Agency in
determining priorities for cleanup and
other response activities among sites on
the NPL However. EPA does not rely on
the scores as the sole means of
determining such priorities, as discussed
below. Neither can the HRS itself
determine the approprite remedy for a
site. The information collected to
develop HRS scores to choose sites for
the NPL is not sufficient in itself to
determine the appropriate remedy for a
particular site. EPA generally relies on
further, more detailed studies conducted
at the site to determine what response, if
any. is appropriate. Decisions on the
type and extent of action to be taken at
these two sites will be made on the
basis of such studies and in accordance
with the criteria contained in Subpart F
of the NCP.
A full assessment of the cost of
remedial action at these two sites has
not yet been developed by EPA. Cost
estimates for remedial alternatives will
be developed dunng the remedial
planning activities. However, very
preliminary analyses indicate that
although the cost will almost certainly
exceed Si million, it is extremely
unlikely that remedial action will cause
an annual effect on the economy of $100
million or more. It is not expected that
remedial action will cause a major
increase in costs or pnces. nor will it
have significant adverse effects on
competition, employment investment or
any other criteria of Executive Order
12281. Bather, beneficial effects are
anticipated from any actions taken to
reduce exposure to radon gas. radon
progeny and garuna radiation.
V. Regulatory Flexibility Act Analysis
After reviewing the criteria for
significant economic impact on
substantial numbers of small entities a>
defined by the Regulatory Flexibility
Act EPA has concluded that
promulgation of this rule will not have
significant effect on a substantial
number of small entities.
In defining the purpose of the NPL (4
FR 40320. October 15.1984). EPA has
determined that listing does not require
any action of any private party for the
cost of cleanup at the site. Currently.
EPA and the State of New Jersey expec
to fund remedial activities at the two
sites: however, a search for potentially
responsible parties is underway. Shoul
any potentially responsible parties be
identified. EPA may seek to recover ar.
costs of remedial activities conducted <
these two sites. However, the cost of
cleaning up these sites and the portion
of costs that might be borne by any
identifiable potentially responsible
parties cannot be estimated at this tim-
Moreover, any costs borne by
responsible parties would result from
subsequent discretionary enforcement
actions by EPA. not from listing the sit.
on the NPL In addition, it is unlikely
that any EPA remedial activities at
these two sites would significantly
affect a substantial number of small
business entities.
List of Subjects in 40 CFR Part 300
Air pollution control. Chemicals.
Hazardous materials. Intergovemmen:
relations. Natural resources. Oil
pollution. Reporting and recordkeepir.
requirements. Superfund. Waste
treatment and disposal Water poHutu-
control, Water supply.
Dated. February 1.1985.
Acting Administrator.
PART 300MAIIENDED1
t
Appendix B—{Amended]
The National Priorities bst. which i
Appendix B of the National Oil and •
Hazardous Substances Pollution
Contingency Plan, is hereby amended
add the following sites to Group 4:
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6322 Federal Register / Vol 50. No. 31 , Thursday, February 14. 1985 / Rules and Regulations
EPA
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(« U S.C 7805{a«b) CIRCLE 105)
[FR Doc &5-3Z29 Filed >t3-8i aAS ua)
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Friday
March 8. 1985
Part V
Environmental
Protection Agency
40 CFR Parts 305 and 308
Suparfund; CERCLA Arbitration
Procaduraa and Natural Rasourca Clalma
Procedure* Propoaad Rutoa
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9586
Federal Register / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rule*
ENVIRONMENTAL PROTECTION
AGENCY
40 CPU Part 305
[FRL 2766-5)
Superfund; CERCLA Arbitration
Procedural
•GIMCY: Environmental Protection
Ager.cy
ACTION: Proposed rule.
SUMMARY: Section 112 of the
Comprehensive Environmental
Response. Compensation and Liability
Act of I960 (CERCLA) outlines
procedures for asserting a claim against
the Hazardous Substance Response
Trust Fund (the "Fund") established
under CERCLA. A portion of these
section 112 procedures concerns the
ainitration of claims, the subject of this
regulation. Claims are authorized by
section 111 of CERCLA for two general
purposes: To reimburse persons for the
costs of responding to actual or
threatened releases of hazardous
substances, pollutants or contaminants
(i.e.. response claims): and to pay
trustees for the costs of the assessment
of damages to natural resources, and/or
for the costs of restoration,
rehabilitation, replacement or acquiring
the equivalent of natural resources
injured as a result of the release of a
hazardous substance (i.e. natural
resource claims). Section 112(b)(4) of
CERCLA direct* the President to
establish a Board of Arbitrators (Board)
to decide some factual disputes with
regard to claims. The President has
delegated this authority to the
Environmental Protection Agency (EPA)
under Executive Order 12318 EPA is
today proposing regulations which
establish and govern the procedures of
the Board. The general procedures for
filing natural resource and response
claims will be issued separately under
40 CFR Parts 308 and 307. respectively.
DATES: Comments must be submitted on
or before May 7.1985.
ADDRESSES: Comments may be
submitted in triplicate to William N.
Hedeman. Jr.. Director. Office of
Emergency and Remedial Response
(WH-S48). Environmental Protection
Agency. 401 M Street. SW.. Washington.
O.C. 20460.
Docket: The public docket for claims
procedures is located in Room S-323 at
the Walemde Mall. 401 M Street. SW..
Washington. D.C. 20460. and is available
for viewing from 9:00 a.m. to 4:30 p.m.
Monday through Friday, excluding
holidays.
PON WRTNW INFORMATION CONTACT.
William 0. Ross. Office of Emergency
and Remedial Response (WH-548).
Environmental Protection Agency. 401 M
Street. SW.. Washington. D.C. 20480.
telephone (202] 382-4842.
•UmJMINTARY INFORMATION:
I. Introduction
Section 112 of the Comprehensive
Environmental Response, Compensation
dnd Lability Act of 1980. 42 U S.C. 9601
et seq (CERCLA or the Act), requires
EPA (by delegation from the President)
to prescribe the forms and procedures
for asserting a claim against the Fund.
This proposed regulation concerns only
one portion of the section 112
procedures: Those pertaining to the
Board of Arbitrators. (Section 112 (b)(3).
(b)(4)). EPA proposes elsewhere in
today's Federal Register the forms and
procedures for asserting a claim for
injury to. destruction, or loss of a natural
resource (proposed 40 CFR Part 308).
The Agency expects to propose in 40
CFR Part 307 forms and procedures for
the assertion of response claims shortly.
The purpose of the Board is to dedds
factual disputes with regard to claims in
one of two circumstances: When the
Administrator declines to award •
claim, or when a claimant is dissatisfied
with the size of an award and petitions
the Board.
This preamble explains: the statutory
background for asserting claims against
the Fund, the selection and dismissal of
Board members, referral of claims to the
Board, the procedures for filing
pleadings, the procedures for the arbitral
hearing itself, the process by which a
Board member will make a decision, the
procedures for expedited decisions by
members of the Board, and the
regulatory status of this regulation under
Executive Order 12291. the Rgulatory
Flexibility Act and the Paperwork
Reduction Act of 1980.
IL Background
A. Statutory Framework
CERCLA. enacted on December 11.
1980. establishes broad authority for
responding to actual or threatened
releases of hazardous substances.
pollutants, or contaminants. CERCLA
establishes the Hazardous Substance
Response Trust Fund (the "Fund").
which may be used by the Government
to respond to releases and to pay certain
claims to other parties for responding to
releases. CERCLA also imposes liability
on classes of parties associated with
sites and the disposal or treatment of
hazardous substances and provides
authority to undertake enforcement and
abatement action against responsible
parties.
Section lll(a) authorizes the use of
the Fund for three general purposes: (1)
Payment of governmental response costs
incurred pursuant to section 104 of
CERCLA. (2) payment of response
claims, and (3) payment of natural
resource claims. Only the latter two
uses of the Fund are subject to
arbitration under section 112.
Response claims, as authorized by
section lll(a)(2] of CERCLA. reimburse
persons other than the Federal
government for the necessary costs of
responding to an actual or threatened
release of a hazardous substance.
pollutant or contaminant. For a
claimant's response costs to be
reimbursed, those costs must be
incurred as a result of carrying out the
National Oil and Hazardous Substance
Contingency Plan (NCP) (40 CFR Part
300.47 FR 31180 et sec. July 16.1982)'.
The procedures for filing a response
claim will be proposed in the near
future.
Natural resource claims are
authorized at section lll(a)(3) and (b) of
CERCLA. and can be asserted only by
trustees of the particular resource. Such
trustees an defined in section lll(b) as
Federal or State governmental agencir-
who have authority over the natural
resource. Trustees can file claims for
two general types of costs: (1) The costs
of assessing damage to a natural
resource as the result of a release of a
hazardous substance, and (2) the
reasonable costs for the restoration.
rehabilitation, or acquiring the
equivalent of an Injured natural
resource. The forms and procedures for
filing a natural resource claim are
proposed elsewhere in today's Federal
Register.
As mentioned previously, this
regulation is concerned with the portion
of the procedures for asserting either a
response or natural resource claim
against the Fund: i.e.. arbitration of
factual disputes. Section 112 of CERCLA
outlines the procedures for filing such a
claim. In general, upon receipt of any
claim, the Administrator of EPA
(Administrator) must Inform any known
affected parties of the claim as soon as
practicable: and then attempt to
promote and arrange a settlement
between the claimant and the
potentially responsible parties (PRPs). If
there are no known PRPs. the
Administrator must attempt to arrange a
settlement with the claimant If a
settlement can be agreed to. the
Administrator is authorized to make b..
award from the Fund; and the parties
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Federal Register / Vol. SO. No. 46 / Friday. March 8. 1985 / Proposed Rules
954
are deemed to have waived any further
recourse.
If the Administrator cannot arrange a
settlement within 45 days, he will then
proceed to make a decision on whether
to award or deny the claim. After the
Administrator makes this decision, the
claim may be forwarded to the Board or
Arbitrators. A claim ts generally
submitted to the Board if the
Administrator declines to make an
award. If the claimant is dissatisfied
with the amount of any award, he can
decide to petition the Board for further
redress.
The sections which follow describe
the establishment of a Board of
Arbitrators for claims under CERCLA.
and the procedures which the Board,
and any parties participating in
arbitration, must follow.
B. Dispute Resolution for Claims by
Federal Agencies
The dispute resolution process for
Federal agencies which may have
claims before the Fund will be the
procedures outlined in Executive Order
12088. That is. the Executive Branch of
the Federal Government and not the
Board of Arbitrators, will make
decisions where: (1) The Administrator
denies the claim as outlined in section
112(b) (3). or (2) a Federal claimant
wishes to challenge the amount of an
award.
HI. Arbitration Rule*
A. Establishment of an Arbitration
Board
Section 112(b)(4) (A) of CERCLA
authorizes the Administrator to
establish an arbitration board to dedde
factual disputes in CERCLA claims. The
Agency must select each Board member
through utilization of the procedures of
the American Arbitration Association
(AAA): and no employee of either the
President or a Federal agency which is
delegated responsibility under CERCLA
can serve as a number of the Board.
Apart from these two requirements, the
statute grants the Agency discretion in
setting up a Board.
Membership to the Board will be
determined by means of the following
procedure. First, the Administrator will
screen all applicants for membership.
The AAA will then evaluate whether
candidates selected by the
Administrator meet the AAA's
requirements for membership. The
Administrator will then appoint Board
members from the list found acceptable
by the AAA.
Board members are appointed for
three year terms, unless dismissed by
the Administrator.
B. Submission and Consideration of
Claims to Board
There are two ways in which a claim
can be heard by a member of the Board.
First. EPA will forward the claim to the
general office of the AAA if the
Administrator denies the claim. Second.
if a claimant wishes to challenge the
amount of an award, he can Tile such a
challenge at the general office of the
AAA.
An Arbitrator is limited to resolving
factual disputes with regard to a claim.
For example, an Arbitrator is not
empowered to overturn an Agency
decision not to preauthonze a claim
under 40 CFR 300.25(d) and 306.22. Nor
can an arbitrator review a decision by
EPA to deny a claim based on
competing priorities for the expenditure
of Fund monies. (Most claims of low
priority would be rejected by EPA at the
preauthorization stage, but some claims,
such as those for emergency restorations
and natural resource damage
assessment, can be filed without
preauthorization.) Similarly, the
Arbitrator is not empowered to decide
legal issues which may anse in the
course of resolving a claim. The
Administrator shall as provided by 40
CFR 305.30(b)(2). include a statement
summarizing the applicable legal
standards and any other legal issues
pertinent to the claim. In reviewing
claims, a member of the Board shall
accord substantial deference to EPA
decisions as reflected in the
administrative record.
C. Appointment of Arbitrator for
Particular Claim Dispute
Disputes will be heard by a single
Arbitrator, unless the Administrator
decides otherwise. The selection of that
Arbitrator shall be pursuant to AAA
procedures. The AAA shall first submit
to EPA and each claimant an identical
list of names from the standing Board.
The parties will then cross off any
names they object to. and indicate an
order of preference for those remaining.
From the returned lists, the AAA shall
select an Arbitrator to resolve the
particular claim dispute. If. for any
reason, this process fails to select a
single Arbitrator, the AAA shall have
the power to appoint one from among
the members of the standing Board.
An Arbitrator must be neutral and.
upon selection for a particular case.
shall disclose any circumstances likely
to affect impartiality. Upon receipt of
information from the Arbitrator or any
other source concerning possible
impartiality, the AAA shall
communicate such information to the
parties. The parties shall have seven
calendar days upon receipt of such
information to request disqualification
of the Arbitrator, however, any
determination of disqualification shall
b» within the sole discretion of the
AAA.
Once the final selection of the
Arbitrator is completed, all
communications from the parties shoul
be directed to the Arbitrator. Prior to
selection of the Arbitrator.
communications should be directed to
the AAA.
D. Pleading!
If the arbitration is initiated due to
EPA denial of a claim, the Administrat
shall submit to the general offices of th
AAA two copies of a written itatemen
which includes: The reasons for the
denial of the claim, any supporting
documentation, and the identity of any
PRPs, if known, and any written
communications (or summary of oral
communications) with PRPs. If the
claimant Initiates arbitration, he shall
submit to the general office of the AA.
two copies of a written statement whi
includes: an assertion of the matter ar
amount of money in dispute, the remei
sought supporting documentation, ar
the identity of any PRPs. if known. In
either situation, the initiating party is
encouraged to request expedited
proems, ifapplicabla.
The opposing party is given the
opportunity to answer however, if no
answer is filed within seven calendar
days of notice of pending arbitration.
claim shall be deemed to be denied.
EPA or the claimant has the
opportunity to amend Its claim or to- f)
an anewer before en Arbitrator is
chosen. However, once a member of >
Board has been appointed, no new or
different claim may be submitted
without the Arbitrator's consent
£ Arbitral Hearing
Hearings before e member of the
Board shall be Informal, but shall al
afford full and equal opportunity to al
parties for the presentation of relevar
material All hearings shall be open.
claimant shall have the burden of prc
and the Arbitrator has the power to
subpoena the attendance and testimc
of witnesses as well as the productio
books, records and other evidence
pertinent to the issues presented for
decision. Each party has the opporru
to be represented by counsel.
The Administrator shall determine
general location In which the arbitral
is to be held, giving due conaidenoo
requests by the «•'-""•"* It shall be (
Arbitrator's responsibility to fix the i
and the place of each hearing once L
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Federal Regular / Vol. SO. No. 46 / Friday. March 8. 1985 / Proposed Rules
general location it decided. The
Arbitrator shall, no later than 14
calendar days before the date of the
heanng. publiih a notice of the hearing
in the newspaper of largest circulation
in the city where the heanng li to take
plait and in the city closest to the site
oi' cleanup or the natural resource at
issue.
There shall be a record made of each
nrbitration heanng. The preparation of
•his record is the responsibility of the
Arbitrator.
The parties ma>. by written
agreement, waive oral hearings. If this
occurs, all parties shall be afforded the
opportunity to examine documents filed
with the Arbitrator. If there is an oral
heanng. all evidence (unless by
agreement of the parties) shall be given
in the presence of the Arbitrator and
other interested parties. This rule does
not apply if a party'ia found in default or
has waived the right to be present
F IrbitraJ Decision
The Arbitrator shall render a decision
within 90 days of submission of the
claim to him. unless the parties agree in
writing to an extension or the
Administrator extends the time limit
pursuant to section 112(b)(4)(I) of
CERCLA.
The decision of the Arbitrator shall be
signed, and in wnting. It shall contain a
concise statement of the basis and
rationale for the Arbitrator's
determination.
C Expedited Procedures
Unless the Administrator determine*
otherwise, the parties and the Arbitrator
shall follow expedited procedures if the
claim does not exceed S20.000. The
parties can also agree to follow the
expedited procedures for claims
exceeding $20,000.
Under the expedited procedures.
notice of the arbitration shall b« by
telephone and mail—as will be notice of
the date. time, and place of the hearing.
Notice of the heanng most be published
by the Arbitrator, no later than five
calendar days before the date of the
heanng. in the newspaper of largest
circulation in the city where the heanng
is to take place and in the city closest to
the site of cleanup or the natural
resource at issue. In most cases, any
oral heanng will be conducted in a
single day Within five days of any
heanng. the Arbitrator shall render a
decision, unless the parties agree
otherwise. In any case, it shall never
lake longer than 90 days for a decision
to be reached after an Arbitrator is
selected.
H. Appeals Procedures
The award or decision by a member
of the Board shall be binding and
conclusive, and shall not be overturned
except for arbitrary or capncious abuse
of the member's discretion. No award or
decision by the Arbitrator is admissable
as e\ idence of any issue of fact or law
in any proceeding brought by any other
provision of CERCLA or under any other
provision of law. Any prearbitral
settlement reached pursuant to this
regulation is adnussable as evidence in
any such proceeding. EPA does not
consider the AAA or any Arbitrator in a
proceeding under this regulation to be a
necessary party in judicial proceedings
relating to the arbitration. Nor do we
believe that the AAA or any Arbitrator
may be liable to any party for any act or
omission in connection with any
arbitration conducted under this
regulation.
/. Ex parte Communication
EPA is considering the adopton of
procedures similar to those describecVin
40 CFR 124.78 to govern ex parte
communication during the arbitration
process. EPA solicits comments on the
advisibiiity and content of such
procedure*.
IV. Regulatory Statute* and Required
Analyse*
Proposed and final rule* issued by
Federal agencies an governed by
several statutes and executive order*.
These include Executive Order 12201.
the Regulatory Flexibility Act. and the
Paperwork Reduction Act.
A. Executive Order 2229;
Rulemaking protocol under Executive
Order 12291 require* that proposed
regulation* be classified a* maior or
non-major for purposes of review by the
Office of Management and Budget.
According to E.O.12281. major rules an
regulation* that are likely to mult in:
(1) An annual effect on the economy
of $100 million or more: or
(2) A major increase in coats or prices
for consumer*, individual industries.
Federal State, or local government
agencies, or geographic regions: or
(3) Significant adverse effects on
competition, employment, investment
productivity, innovation, or on the
ability of United States-based
enterpnses to compete with foreign-
based enterprises in domestic or export
markets.
EPA has determined that this
regulation is • non-major rule under
Executive Order 12291 because it is
unlikely to result in any of the impact*
identified above. Therefore, the Agency
has not prepared a regulatory impact
analysis for this regulation. This
proposal meets all requirements in the
Executive Order for non-maior rules.
B Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for all rules that
are likely to have "significant impact on
a substantial number of small entities "
EPA certifies that this regulation will not
have a significant impact on a
substantial number of small entities.
became all authorized costs and
expenses attributable to the operation of
the Board are payable from the Fund.
Further, this regulation imposes no
capital expenditure*, nor any
compliance requirement on any
industrial sector.
C. Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1980, 44 U.S.C. Section
3501 el seq.. the reporting or
recordkeeping provisions that an
included in thi* proposed rule have been
submitted tot approval to the Office of
Management and Budget (OMB) under
section 3504(h) of the Paperwork
Reduction Act Any final rule will
include an explanation of how the
reporting or recordkeeping provisions
contained therein respond to any
comment* by OMB and the public.
List of Subject* •*• CFR Part 305
Chemical*, Hazardous material*,
Intergovernmental relations. Natural
resources. Reporting and recordkeeping
requirement*. Superfund. Waste
treatment and disposal
LMM.I
AdminatKter.
Febreary 28. 1MB.
Part 309. Title 40 of the Code of
Federal Regulation* is added as set forth
below.
PART 30S-COt*P«EH£MSIYE
ENVIRONMENTAL RESPONSE,
COHPOOATIOH, AMD UABIUTY ACT
(CERCLA) AromuTto*
PROCEDURES
SK.
305.10 Pwpos*.
30S.11 Scope and applicability.
305.12 Definition*.
305.20 Selection sod dlsnmsl of Board of
A^H*_K*_^ •
muiuHwiw*
309.21 jurisdiction of Board of Arbitrator*
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Feoarsl Register / Vol. 50. No. 46 / Fnday. March 6. 1985 / Proposed Rule«
9569
Suta
; C-IWsrrsI o«
arbitrator i
30530 Referral of dsJBM.
305 31 Appointment of arbitrator*.
105.32 Ditdoiw* and dullenge procedural
Subpwt D-MMrinfl* Mfor* ttw Sew« of
305 40 Filing of pleadings.
305 41 Pw-heanng conference
30542 Arbitral hearing.
305 43 Arbitral decision.
fluftpaft E-€ip*dtt«d Proesdurw and
Other Provision*
305.50 Expedited procedures.
305.51 Appeali procedures.
305.52 Miscellaneous piavtnaaa.
Authority: Sect. Ill and 112. Pub. L 96-910.
94 Stat Z767-2B11 (42 U.S.C 9801 el »aq ) and
E.O. 1231ft. MCI. 7|a) and 7(e). 48 FR 42237
(August 20.19n).
SubpartA—Oan«rat
1303.10
This regulation establishes and
governs procedures for the arbitration of
disputes arising out of claims to the
Hazardous Substance Response Trust
Fund established under section 221 of
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980. 42 U.S.C. 9601 et seq.
} 3OS.11
Claims for necessary response cost*
incurred by any person in carrying out
the National Contingency Plan and for
injury to. or destruction or loss of
natural resources, including costs of
damage assessment as submitted by
Slate trustees, may be decided through
the procedures established by this
regulation. These rules will govern the
procedures Tor any arbitration of claims
under section 112 of CERCLA.
4305.12
Terms not defined in this section have
the meaning given by section 101 of
CERCLA. All time deadlines in this part
are specified In calendar daya. Except
when othtrwtte specified:
(a) "Board of Arbitrators," or "Board"
means a panel of an or more persona
selected in accordance) with* section
1l2(b)(4)(A) of CBtCLA and governed
by the provision* in 4ffCPR Part 309.
(b) "CERCLA." means the
Comprehensive Environmental
Response. Compensation, and Liability
Act of I960.42 U.S.C. 9801 et set).
(c) "Claim." means a demand in
writing for a sum certain.
(d) "Claimant." means an individual.
firm, corporation, association.
partnership, consortium, joint venture,
commercial entity. United Stales
Government. State, municipality.
commission, political subdivision of a -
State, or any interstate body who
presents a claim for compensation under
section 112 of CERCLA.
(e] "Damage assessment claim."
means a claim for assessment costs
submitted to the Fund as descnbed in
section lll(c)(2) of CERCLA.
(f) "Fund", means the Hazardous
Substance Response Trust Fund
established under section 221 of
CERCLA.
(g) "Hazardous substance", means (1)
any substance designated pursuant to
section 311(b)(2)(A) of the Federal
Water Pollution Control Act. (2) any
element compound, mixture, solution, or
substance designated pursuant to
section 102 of this Act (3) any
hazardous waste1 having the
characteristics identified under or listed
pursuant to section 3001 of the Solid
Waste Disposal Act (but not including
any waste the regulation of which under
the Solid Waste Disposal Act has been
suspended by Act of Congress). (4] any
toxic pollutant listed under section
307(a) of the Federal Water Pollution
Control Act (S) any hazardous air
pollutant listed under section 112 of the
Clean-Air Act and (8) any tmminenlry
hazardous chemical substance or
mixture with respect to which the
Administrator has taken action pursuant
to section 7 of the Toxic Substances
Control Act The term does not include
petroleum. Including crude oil or any
fraction thereof which is not otherwise
specifically listed or designated as a
hazardous substance under •
subpangnphs (1) through (6) of (his
paragraph, and the term dam not
include natural gas. natural gas liquids.
bquefled natural gas, or synthetic gaa
usable for fuel (or mixtures of natural
gas and such synthetic gas).
(h) "National Contingency Plan," or
"NCP." means the National Oil and
Hazardous Substances Contingency
Plan (47 FR17832. revised March 19.
1080). developed under section 311(c) of
the Clean Water Act and revised
pursuant to section 105 of CERCLA (40
CFR Part 300.47 FR 31180 et «•*. July
18.1982).
(i) "Natural resources," means land
fish, wildlife, biota, anr. water, ground
water, drinking water suopbea, and
other such resources belonging to.
managed by. held in trust by;
appertaining to. or otherwise controlled
by the United Slats* (inchuttag toe-
resources of the fishery conservation:
zone established by the Fishery
Conservation and Management Act of
1976). any State or local government or
any foreign government.
(j) "Party," means EPA or a claimant.
(It) "Preuthorizarion" means EPA's
approval to submit a claim for
reimbursement to the Fund.
(I) "Response action." means remove.
removal, remedy, and remedial action.
(ml "Response claim" means a
preauthonzed demand in writing for a
sum certain for response costs referred
to in section lll(a](2) of CERCLA.
(n) "Restoration" or "Restore", means
the restoration, rehabilitation.
replacement or acquiring the equivalent
of any natural resources injured.
destroyed or lost as a result of a release
of a hazardous substance.
(o) "Restoration claim" means a
praauthorized or emergency claim for
restoring, rehabilitating, replacing or
acquiring tha equivalent of any natural
resources injured by the release of a
hazardous substance.
(p) Tmstse" means any Federal
natural resources management agency
designated in subpart C of the NCP, and
any State agency that may prosecute
claims for damages under section lll(b)
of CERCLA.
of ma
(a) Mamban of the Board of
Arbitrators for CERCLA dams shall be
appointed by the Administratoc. The
Arbitrator for a particular claims dispute
shall be selected in accordance with
I30SJ1.
(b) The Administrator shall screen
applicants for membership la the Board
by evaluating s*ch criteria as
background in hazardous nbslanca* or
administrative procedures. Those
applicants selected by the. Administrator
will be forwarded to the American
Arbitration Association (AAA) for that
body to evaluata whether they meet the
AAA~e reqairaaeata for membership. If
theaa iwnurewnta are met the
applicant's name will be returned to the
Administrator for possible appointment
to tha Board.
(c)(l) Bxotpl as provided to paragraph
(c)(2). members of the Board serve at tha
pleasure of the Adzofaaetrator. who may
dismiss any member for such reasons n
the Administrator deems appropnanE
(2) A member may not be dismissed
during tha pendency of a claim befon
such member except lot causa sa
provided to eactioa S05JZ.
(d) The Board shall consist of as many
members s* the Administrator may
determine) is necessary for the-
expeditions reeolutie« of disputes.
(e) Appointment to me Board shall be
for a three year term, unless a member
-------
9590
Federal Register / Vol. SO. No. 46 / Friday. March B. 1985 / Proposed Rules
it dismissed pursuant to paragraph (c) of
thii lection.
5 HTJ 1 JVfWwCVQfl W •OWQ M
Aitttratora.
(a) In accordance with the procedures
set forth in f 305.30. lha Board of
Arbitrators is empowered to adjudicate
claims asserted against the Fund
pursuant to section 111 of the Act when
the Administrator has denied luch
claims under section 112(b)(3) of
CERCLA or when the claimant haa
made a request for arbitration pursuant
to { 305.30 of this Put.
(b) The Board of Arbitrators is
authorized to award claims for the
reimbursement of response costs only if
such costs were:
(1) Necessary response costs incurred
as result of carrying out the NCR and
(2) reasonable and necessary to carry
out the response as preauthorued by the
Administrator pursuant to section 300.25
of this Part
(c) Subject to subsection (d). the
Board is authorized to award claims for
(1) The reimbursement of coats for
assessing injury to. destruction of. or
loss of any natural resources resulting
from a release of a hazardous substance;
or
(2) Costa of Federal or Stale efforts in
the restoration, rehabilitation, or
replacement or acquiring the equivalent
of any natural resources injured.
destroyed, or lost as a result of a release
of a hazardous substance.
(d) Costs may be reimbursed under
subsection (c)(2) only if such coats are:
(1) Necessary and reasonable to
implement a plan developed and
adopted under section lll(i) of the Act
or
(2) The costs were incurred in
response to a situation requiring
emergency action to avoid Irreversible
loss of natural resources or to prevent or
reduce any continuing danger to natural
resources or similar need for emergency
action.
(e) Except for claim for assessment of
injury to natural lesoutcee. aad except
as provided in subeeclfan (d)<2). the
Board is not authorized to:
(1) Consider or award claims which
have not been preauthorised by EPA in
accordance with 40 CFR 300.25(d) and
308.25:
(2) Award a claim in excess of the
amount preauthorued by EPA in
accordance with 40 CFR 300.25(d) and
306.25.
(0 The Board is nol authorized lo
review a decision by the Administrator
to deny a claim based on competing
priorities lor the expenditure of Fund
monies.
(g) The Board shall apply such legal
standards as are contained in (he
summary of applicable legal standards
and principles furnished by EPA under
40 CFR 305.30(b) or 305.40(8).
(h) In reviewing claims under this
Part, the Board shall accord substantial
deference to EPA decisions as reflected
in the administrative record.
Subpert C HefefrU of CtaJrne and
Artottretor Selection
Referretof
(a) If the Administrator denies a claim
under section 112 of CERCLA. he shall
within five days submit the claim to the
general office of the AAA. If a claimant
decides to challenge an award made by
the Administrator with regard lo the
claim, he may submit the claim to the
general office of the AAA within 30
days of the date of the award.
(b) When arbitration is initiated due
to EPA's denial of e claim, the
Administrator shall submit to the
general office of the AAA two copies of
a written statement which includes:
(1) The notice of the denial of the
claim, with a short explanation of the
reasons for that denial:
(2) A statement of the legal standard
applicable to the claim and any other
applicable principles of law;
[3] Any supporting documentation
which EPA deems necessary to explain
the reason(i) for the denial of the claim:
(4) A request for the expedited
procedures. If appropriate; and
(5) The identity of any potentially
responsible parties, if known, and a
copy of any written communications (or
gununoiy of oral communications) with
such parties.
(c) When arbitration Is initiated due to
the challenge of on award by the
claimant the claimant shall submit to
the general office of the AAA two copies
of a written statement which Includes:
(1) Aa maeerton of the natter la
dispute;
(2) The amount of money In dispute;
(3) The remedy sought:
(4) A copy of the Administrator's
disposition of the claim:
(5) Any supporting documentation
which the claimant deems necessary to
support the claimant's position:
(6) A request for the expedited
procedures, if appropriate: and
(7] The identity of any potentially
responsible parties, if known.
(d) The AAA shall within five days of
receipt, give notice of the referred
claims under this section to the other
panics in the claims dispute. Notice is
complete when a copy of the claim is
placed in the mail by the AAA
addressed to the last known address of
a party, or its attorney, or delivers'''
personal service. For the purpose
service to EPA. notice will he adc
to the Administrator at 401 M Street.
SW.. Washington. D.C. 20460.
I30U1 Sessctton of artttrator.
(a) After the filing of the submission
asking for arbitration, the AAA shall
submit simultaneously to EPA and each
claimant an identical list of names of
persons chosen from the Board. Each
party to the dispute shall have seven
daya from the mailing date in which to
cross off any names obiected to. number
the remaining names to indicate the
order of preference, and return the list to
the general office of the AAA. If a party
does not return the list within the time
specified, oil persona named therein
shall be deemed acceptable. From
among the persons who have been
approved on both lists, and in
accordance with the designated order of
mutual preference, the AAA shall Invite
the acceptance of an Arbitrator to serve.
If the parties fail to agree upon any of ,
the persons named, or if acceptable
Arbitrators ore unable to act or if for
any other reason lha appointment
cannot be made from the submitted lists.
the AAA shall have the power to make •
lha appointment from among other
members of the Board without (he
submission of any additional lists, c .
the AAA makes the appointment it
shall immediately notify the parties,
(b)(l) The dispute shall be heard and
determined by one Arbitrator, unless (he
Administrator in his discretion decides
that a greater number of Arbitrators
should be approved based on the
complexity of the Issues,
(2) When a large number of claims
srise from a single incident or set of
Incidents, a group of claims may be
submitted to a single Arbitrator if the
Administrator determines that it <• in
the best Interests of the parties.
(e) The AAA shall give notice of the
selection of the Arbitrator, together with
a copy of these rules, to the parties. A
signed acceptance of the case by the
Arbitrator shall be filed at the general
office of tha AAA prior to the opening of
the first hearing. Upon the final selection
of the Arbitrator, oil communications
from the parties should be directed to
the Arbitrator. (See I 306.82fb) for
communications prior to Arbitrator
selection.
(d) Unless the Administrator
determines otherwise, the expedite*
procedures described in 1 305.50 of
these rules shall apply kn any case
where the total claim of any parry does
net exceed $20.000, exclusive of interest
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Federal Register / Vol. 50. No. 46 / Fnday. March B. 1985 / Proposed Rule*
3591
coiti. or the parties agree to the
procedures for claiae exceeding $20.000.
(e) If any Arbitrator should resign, die.
withdraw, refuse, be disqualified or be
unable to perform the duties of the
office, the AAA may. on proof
satisfactory to it. declare the office
vacant. Vacancies shall be filled in
accordance wi'Ji the applicable
provisions of this section and the matter
shall be reheard unless the parties shall
agree otherwise.
(a) A person appointed as an
Arbitrator under i 305.31 shall within
five days of service disclose to the AAA
any circumstances likely to affect
impartiality, including any bias or any
financial or personal interest in the
result of the arbitration, or any past or
present relationship with the parties or
their counsel, or any past or present
relationship with any potentially
responsible party to which the claim
may relate.
[b] Upon receipt of such information
from such Arbitrator or other source, the
AAA shall on the same day
communicate such information to the
parties and. if it deems it appropriate to
do so. to the Arbitrator and others.
(c) The parties may request within
seven days of service by the AAA that
an Arbitrator be disqualified.
(d) The AAA shall make a
determination on any request for '
disqualification of an Arbitrator within
seven days. This determination shall be
within the sole discretion of the AAA.
and its decisions shall be final.
Disqualification under this section is
distinct from dismissal by the
Administrator under f 305.20(c).
ig» Barter* ttw Board
SubetvtD—He
of ArMtntora
J 305.40 Fang of |
(a) EPA or the claimant may file an
answering statement with the general
office of the AAA ao fester than seven
days after receipt of the notice provided
under | 305.30(d). hi the case of a matter
referred to the Board by a claimant EPA
shall provide a statement of applicable
legal standards and principle*.
(b) If either party desires to make any
new or different claim after the claim la
submitted to arbitration, such ckim
shall be made in writing and filed with
the general office of the AAA. and a
copy thereof shall be mailed to the other
party, who shall have a period of seven
days from the date of such mailing
within which to file sn answer with the
general office of the AAA. After the
Arbitrator is appointed, however, no
new or different claim may be submitted
except with the Arbitrator's consent
{305.41 st* hearing conference.
At the request of the parties or at the
discretion of the Arbitrator, a pre-
heanng conference with the Arbitrator
and the parties or their counsel will be
scheduled in appropriate cases to
arrange for an exchange of information.
including witness statements, exhibits
and documents, and the stipulation of
uncontested facts so ss to expedite tha
arbitration proceedings.
1308.42 Arbitral bearing.
(a) The Administrator shall select the
locale for the arbitral hearing, with due
consideration to any requests by the
claimants.
(b) The Arbitrator shall fix the time
and place for each bearing, within the
locale selected in accordance with
paragraph (a). The hearing shall
commence no later than 60 days after
the selection of tha Arbitrator. Tha
Arbitrator shall mail to each party
notice thereof at least 30 days in
advance, unless the parties by mutual
agreement waive such notice or modify
the terms thereof. The Arbitrator shall
publish, no later than 14 days before the
date of the hearing, a notice of the
hearing in the newspaper of largest
circulation in the dry where the hearing
is to take place and in the city cloeeet to
the site of cleanup or the natural
resource at issue.
(c) Any party may be represented by
counsel. A party intended to be so
represented shall notify the omer party
arid the Arbitrator of the name and
address of counsel at leest three days
pnor to the data set for tha hearing at
which counsel Is first to appear. When
an arbitration is initiated by counsel, or
where an attorney replies for the other
party, such notice is deemed to have
been given.
(d) The Arbitrator shall make tha
necessary arrangements for the taking of
a true and accurate record for all
arbitral hearing*.
(e) The Arbitrator shall make the
necessary arrangements for the services
of an interpreter upon the request of one
or more of the parties, sad the
requesting party(ies) shall assume the
cost of such service.
(f) The Arbitrator may take
adjournment upon the request of s party
or upon ma Arbitrator's own initiative
and shall take such adjournment when
all of the parties agree thereto.
(g) The Arbitrator shall take oaths of
all witnesses before they testify st the
arbitral hearing.
(h) (1) A hearing shall be opened by
the recording of the place, time.
date of the hearing, the presence of the '
Arbitrator and parties, and counsel if
any. and by the receipt by the Arbitrator
of the statement of the claim and
answer, if any. The Arbitrator may. at
the beginning of the hearing, ask for
statements clarifying the issues
involved.
(2) The claimant shall then present us
claim and proofs and its witnesses [if
any), who shall submit to questions or
other cross-examination. The Arbitrator
has discretion to vary this procedure but
shall afford full and equal opportunity to
all parties for the presentation of any
material or relevant proofs.
[3] Exhibits, when offered by either
party, may be received in evidence by
the Arbitrator. The names and
addresses of all witnesses and exhibits
in the order received shall be made a
part of tha record.
(i) The arbitration may proceed in the
absence of any party which, after due
notice, fails to bis present or fails to
obtain an adjournment An award shall
not be made solely on tha default of a
party. The Arbitrator shall require the
party who is present to submit such
evidence ae the Arbitrator may require
for the making of an award.
(j) Evidmcm. (1) The parties may offer
such evidence as they desm (subject to
such reasonable limitations as the
Arbitrator deems appropriate) and shall
produce such additional evidence as the
Arbitrator may deem necessary to an
understanding and determination of the
dispute.
(2) All evidence shall be taken in the
presence of the Arbitrator and of all the
parties, except where any of the parties
is absent in default or has waived the
right to b* present In any arbitration
proceeding, the claimant has the burden
of proof.
(3)(i) Arbitrators may subpoena the
attendance and testimony of witnesses
and the production of books, records.
and other evidence pertinent to tha
issues presented to him for decision.
(ii) Subpoenaa issued under this
section shall be issued and enforced in
accordance with 5 U.S.C. S55(d). •
(iii) If a person fails or refuses to obey
a subpoena, the Arbitrator may request
that the Administrator request that the
Attorney General invoke the aid of the
district court of the United States where
the person is found, resides, or transacts
business in requiring the attendance and
testimony of the person and the
production by him of books, paper*.
documents, o* any tangible thisigs.
(iv) The Administrator shall within
five days of a request mder paragraph
(j)(3)(iii). either
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Federal Register / Vol. 50. No. 46 / Friday. March 8. 1965 / Proposed Rules
(A) Request that the Attorney General
invoke the aid of the diitrict court as
provided in paragraph (j)(3)(iii): or
(B) Advise the Arbitrator in writing
that a request for invocation of judicial
aid will not be made.
(k) The Arbitrator may receive and
consider the evidence of witnesses by
affidavit, interrogatory or deposition.
but shall give it only such weight as the
Arbitrator deems appropriate after
consideration of any objections made to
its admission.
(I) Whenever the Arbitrator deems an
inspection or investigation to be
necessary, the Arbitrator may request
the EPA Administrator to undertake
such activities pursuant to CERCLA
section 104(b). The Administrator shall
have sole discretion whether to grant
the Arbitrator's request. In making such
a determination, the Administrator shall
consider the coat of the inspections or
investigations, the time they will take.
the reasonableness of the particular
activity requested, competing demands
on Agency resources, and the
availability of the technical and
Financial capacity to conduct the
requested studies, monitoring and
investigations.
(m) After the presentation of all
evidence, the Arbitrator shall
specifically inquire of all parties
whether they have any further proofs to
offer or witnesses to be heard. Upon
receiving negative replies, the Arbitrator
shall declare the hearings closed and a
minute thereof shall be recorded. If
bnefs are to be Tiled, the hearings shall
be declared closed as of the final date
set by the Arbitrator for the receipt of
briefs. If documents are to be filed as
provided for In paragraph (o) of this
section and the date set for their receipt
is later than that set for the receipt of
briefs, the later date shall be the date of
closing the hearings. The time limit
within which the Arbitrator is required
to make the award shall commence to
pjn upon the referral of the claim to the
Arbitrator.
(n) The parties may provide, by
written agreement for the waiver of oral
hearings.
(o) All documents not filed with the
Arbitrator at the hearing, but arranged
for at the hearing or subsequently by
agreement of the parties, shall be filed
with the Arbitrator. All parties shall be
afforded an opportunity to examine such
documents.
(1) All parties agree in writing to an
extension, or
(2) The Administrator extends the
time limit pursuant to section 112|b)(4)(I)
of CERCLA.
(b) The decision of the Arbitrator
shall be signed and in writing. It shall
contain a full statement of the basis and
rationale for the Arbitrator's
determination.
(c) If the parties settle their dispute
during the course of the arbitration, the
Arbitrator, upon their request, may set
forth the terms of the agreed settlement
in an award.
(d) Parties shall accept aa legal
delivery of the decision, the placing of a
true copy of the decision in the mail by
the Arbitrator, addressed to the parties'
last known addresses or their attorneys,
or by personal service.
(e) The Arbitrator shall upon written
request of a party, furnish to such party.
certified facsimiles of any papers in the
Arbitrator's possession that may be
required in judicial proceedings relating
to the arbitration.
Subpart E—Expedited Pnx
Other Pro vtaiona
•dun* and
5305.43
(a) The Arbitrator shall render a
decision within 90 days of submission of
the claim to the member of the Board.
except if:
I30UO Exa««rM preeedurea.
(a) Unless the Administrator
determines otherwise, the expedited
procedures of these rules shall be
applied in any case where the total
claim of any party does not exceed
$20,000. exclusive of interest costs. The
parties may also agree to these
expedited procedures for claims
exceeding $20.000. The Administrator
can make a determination not to uae the
expedited procedures either on his own
initiative or upon petition by a party.
The Administrator must notify the AAA
of any decision not to use the expedited
procedures. The AAA must notify til
parties in writing within five days of the
Administrator's decision.
(b)(l) The parties shall accept all
notices from the AAA by telephone.
Such notices by the AAA shall
subsequently be confirmed in writing to
the parties.
(2) Notwithstanding the failure to
confirm in writing any notice or
objection hereunder. the proceeding
shall nonetheless be valid if nonce of
obligation has. in fact, been given by
telephone.
(c) The AAA shall submit
simultaneously to each party to the
dispute an identical list of five members
of the CERCLA Board of Arbitrators
from which one Arbitrator shall be
appointed. Each party shall have the
right to strike two names from the list on
a preemptory basis. The list is
returnable to the general office of the
AAA within 10 days from the dale of
mailing. If for any reasons the
appointment cannot be made from the
list, the AAA shall have the authority
make the appointment From among oth«.
members of the Board without the
submission of additional lists. Such
appointment shall be subject to
disqualification for the reasons specified
in | 305.32. The parties shall be given
notice by telephone, within seven days
of any objections to the Arbitrators
appointed. Any objection by a party to
such Arbitrator shall be confirmed in
writing to the general office of the AAA
with a copy to the other party(ies). Upon
the final selection of the Arbitrator, all
communications from the parties should
be directed to the Arbitrator.
(d) The Administrator shall select the
locale for the arbitral hearing.
(e) The Arbitrator sKall fix the date.
time and place of the hearing. The
hearing shall commence no later than 60
days after the selection of the
Arbitrator. The Arbitrator shall notify
the parties by telephone seven days in
advance of the hearing date. Formal
notice of the hearing will be sent by the
Arbitrator to the parties, unless the
parties by mutual agreement waive such
notice or modify the terms thereof.
(0 The Arbitrator shall publish, no
later than five days before the date of
the hearing, a notice of the hearing in
the newspaper of largest circulation u
the city when the hearing is to take
place and la the city closest to the site
of cleanup or the natural resource at
tssua.
(g) In most instances, the hearing shall
be completed within one day. The
Arbitrator, for good cause shown, may
schedule an additional hearing to be
held within five days.
(h) Unless otherwise agreed to by the
parties, the decision shall be rendered
not later than five business days from
the date of the closing of the hearing. In
no event shall the decision b« rendered
more than 90 days from the date of
selection of the Arbitrator.
(a) The> a ward or decision of a
member of the Board shall be binding
and conclusive, and shall not be
overturned except for arbitrary or
capricious abuse of the member's
discretion.
(b) No award or decision shall be
adjustable as evidence of any issue of
fact or law in any proceeding brought
under any other provision of CERCLA or
under any other provision of law. Nor
shall any prearbitral settlement be
adrnissable as evidence in any such
proceeding.
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Federal Register / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rules
9593
1306.92 Mleceflafwaue prevlslone,
(a) Any party who proceeds with the
arbitration after knowledge that any
provision or requirement of these Rules
has not been complied with and who
fails to state objection thereto in writing.
shall be deemed to have waived the
nght to object.
(b) Until the Arbitrator n selected, all
oral or written communication! from the
parties for the Arbitrator's consideration
shall be directed to the AAA for
eventual transmittal to the Arbitrator.
(c) All papers connected with the
arbitration shall be served on the
opposing party either by personal
service or United States mad. First
Class.
|FR Doc. 85-4354 Filed 3-7-85; 8:45 am)
40 CFR Part 30t
(SWH-FRL 1908-1]
Superiund; CERCLA Natural RMOUTCC
Claims) Procedure*
AOCMCY: Environmental Protection
Agency.
ACDCMC Proposed rule.
iusssMim Section 111 of the
Comprehensive Environmental
Respome. Compensation, and Liability
Act of 1980 (CERCLA) allows the
submission of claims to the Hazardous
Substance Response Trust Fund (the
"Fund"] established under CERCLA.
Section 111 permits trustees to assert
claims for the costs of restoring.
rehabilitating, replacing or acquiring the
equivalent of natural resources injured
by releases of hazardous substances.
including damage assessments. Claims
may also be asserted for reimbursement
of the costs of responding to actual or
threatened releases of hazardous
substances, pollutants, or contaminants.
Section 112 of CERCLA directs the
President to establish forms and
procedures for the filing of claims
against the Fund. The President has
delegated this authority to the
Environmental Protection Agency (EPA)
under Executive Order 12316. EPA is
today proposing regulations to establish
the procedures for filing, evaluating, and
resolving claims for injury to natural
resources asserted against the Fund. The
procedures contained herein apply only
to natural resource claims against the
Fund. The procedures governing the
Board of Arbitrators, established under
section 112(b)(4)(A) of CERCLA. are
proposed elsewhere in today's Federal
Register (proposed 40 CFR Part 305). The
procedures for filing claims for
necessary response costs incurred by
third parties in carrying out the National
Contingency Plan will be issued
separately under 40 CFR Part 307.
DATIS: Comments must be submitted on
or before May 7.1985. As the court in
New Jersey v. Ruckelshaus. Civ. Action
No. 84-1668 (D.N.J.. Dec. 12.1984). has
ordered EPA to promulgate these
regulations by November 30.1985, the
Agency will be unable to consider
requests for an extension of the
comment period.
Aoonmil: Comments on the proposed
regulation and forma may be submitted
in triplicate to William N. Hedeman, Jr.,
Director, Office of Emergency and
Remedial Response (WH-M6).
Environmental Protection Agency, 401 M
Street SW.. Washington. D.C 20460.
Docket: The public docket for claims •
procedures ia located in Room S-325 at
the Waterside Mall. 401M Street SW,
Washington. D.C. 20460, and ia available
for reviewing from ftOO a jo. to 4:30 p-m.
Monday through Friday, excluding
holidays.
PC* pusTTHiii IMPOMIATIOSJ CONTACT:
William 0. Ross, Office of Emergency
and Remedial Response (WH-448).
Environmental Protection Agency, 401M
Street SW.. Washington. D.C 20480,
telephone (202) 382-4642.
nan
I. Introduction
This proposed regulation would
provide the forma and procedures
authorized by section 112(b)(l) of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980,42 U.S.C. 9801 et MO..
(CERCLA or the Act), for filing claims
allowed by section 111 of the Act for
injury to. or destruction or losa of
natural resources. This proposed
regulation would apply only to claims
for reimbursement from the Hazardous
Substance Response Trust Fund
established by section 221 of CERCLA
(the Fund), and not to judicial actions
under section 107 of CERCLA. The
regulation would apply only to natural
resource claims under section 111 (a)(3)
and (b)—claims by trustees for injury to.
or destruction or loss of (hereinafter.
collectively referred to aa "Injury to")
natural resources, including the cost for
damage assessments. This regulation
would not apply to claims against the
Post Closure Liability Fund established
under section 232 of CERCLA:
procedures for such claims will be
addressed at a later date.
This preamble explains: The
background of CERCLA. the types of
claims for natural resource injury
authorized by CERCLA. the distinction
between response actions and natural
resource activities, the Agency's
priorities for natural resource claims in
relation to the limited resources
available in the Superfund. the annual
planning end budget process through
which EPA will make trustees aware of
Fund priorities for natural resource
claims, the requirement that claims for
injury to natural resources be
preauthonzed by EPA. the process by
which EPA will review end evaluate
claims, what trustees should do in
emergency situations, the statutory time
limits within which natural resource
actions must be undertaken by trustees
in order to avail themselves of the
natural resource claims provisions of
CERCLA. and the regulatory status of
this regulation under Executive Order
12291. the Regulatory Flexibility Act
and the Paperwork Reduction Act of
1980.
0. Background
CERCLA provides several options for
responding to releases of hazardous
substances, pollutants, or contaminants.
This section describee briefly the
framework of the statute, as It applies to
this regulation, and the types of claims
compensable under CERCLA.
A. Statutory Framework
CERCLA. enacted on December 11.
1980, establishes broad authority for
responding to actual or threatened
releases of hazardous substances.
pollutants, or fflHt^in ""**** CERCLA
establishes a Fund which may be used
to respond to releases and to pay certain
claims to other parties for responding to
releases. CERCLA also imposes liability
on those responsible for actual or
threatened releases and provides
authority to undertake abatement
actions and to enforce against
responsible parties.
CERCLA authorizes certain responses
to releases or threats of releases of
hazardous substances, pollutants or
contaminants from vessels and facilities
"Hazardous substance" is defined by
section 101(14) of CERCLA. and
"pollutant or contaminant" is defined by
section 104(a)(2) of CERCLA. The
Government may take response actions
whenever there is a release or a
substantial threat of a release of a
hazardous substance, or whenever there
Is a release or substantial threat of a
release of pollutants or contaminants
which may present an imminent and
substantial danger to public health or
welfare or the environment
(Hereinafter, unless otherwise indicated
the term "release" refers to actual or
threatened releases of either hazardous
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9594
Federal Register / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rules
substances or pollutants or
contaminants). These racoons*
authorities may be utilized unless the
President (by delegation. EPA)
determines that a response action will
be done properly by a responsible party
(section 104). Any response actions
taken by the Government, pursuant to
this authority, must not be inconsistent
with the National Oil and Hazardous
Substance Contingency Plan (NCP) (40
CFR Part 300.47 FR 31180 et set). July Id.
1982).
The first major response action
authorized by section 104(a) of CERCLA
is a removal. In a removal action EPA
can respond to immediate and
significant threats to public heahh or
welfare or the environment posed oy a
release or threat of a release of
hazardous substances, pollutants or
contaminants into the environment
Removal actions generally are limited to
not more than six months in duration
and the expenditure of not more than SI
million. One hundred percent of the cost
of these removal actions may be paid
out of the Superfund.
The second major response action
available under section 104(a) of
CERCLA is a remedial action. Remedial
actiona are responses to prevent or
mitigate the migration of hazardous
substances, pollutants or contaminants
from the site in order to protect health.
welfare and the environment Under the
NCP. CERCLA funded remedial actiona
must be cost-effective and an restricted
to sites that an on the National
Priorities List (NPL). Remedial actions
may take several yean to plan, design.
and implement There is no statutory
limitation on the amount of time or
money that can be spent for a remedial
action: however. EPA is required to
balance the costs of the remedial action
selected against other demands on the
Fund in determining whether and how to
proceed with the remedial action. States
are required by statute to contribute ten
percent of the cost of fee isiiaillsl
action selected (or at level fifty percent
of all response costs at ta»aass if that
site is owned or operated by fee SUte or
politico] subdivision).
Section 1M(b) authorial stadia*.
investigations, monitoring, surveys.
testing, and other information gathering
necessary to identify the existence.
extent, source, and nature of an actual
or threatened release, and the extent of
danger to the public health or welfare or
the environment. Under this broad
authority, EPA may authorixe Fund
expenditures for studies «ad
investigations of Intury to natural
resource*, to the extent that such injury
may pose a threat to p«bhc health.
welfare, or the environment. For
example, a contaminated wetland could
be addressed through a section 104
response action.
Section 106 of CERCLA authorize!
Federal enforcement actions, including
administrative orders, to abate the
effects of releases. Section 107 imposes
broad liability for releases on current
and former owners and operators of
vessels or facilities, as well as on
persons, such as generators and
transporters of hazardous waste, who
arranged for the disposal or treatment of
hazardous substances. Section 107 also
confers a right of action upon the United
States and Slates as trustees to sue for
injury to natural resources. Under the
Act the measure of such damages may
not be limited by the sums which can be
.used to restore or replace such
resources, and could under section 107
include, for example, loss of use and/or
aesthetic value. Any sums recovered by
trustees must be available for use to
restore, rehabilitate, replace, or acquire
the equivalent of such natural resources.
Section 111 of CERCLA authorizes the
submission of claims from the Fund for
injury to. or destruction or loss ot
natural resources, including the cost of
damage assessment as a result of a
release of a hazardous substance. The
Federal Government or States, as
trustees, may submit claims against the
Fund for reasonable costs associated
with assessing damage to natural
resources and for restoring,
rehabilitating, replacing or acquiring the
equivalent of injured natural resources.
(Hereinafter, unless otherwise indicated.
the term "restoring" or "restoration"
includes restoring, rehabilitating,
replacing or acquiring the equivalent of.)
Unlike a section 107 suit the measure of
damages recoverable from the fund is
limited to reimbursement of restoration
costs and the costs of assessing
damages to the resource. Section 111
also authorizes the payment of claims
for response costs incurred by non-
governmental entities in carrying out the
NCP.
Section 112 of the Act sets forth
procedures by which claims may be
asserted against the Fund. That section
also requires the President and by
Executive Order die Agency, to
establish forms end procedures forfcofh
natural resource and response claims.
B. Natural Resource Claims Allowable
Under CERCLA
\. Definition of Trustee. Natural
resource claims nay be asserted against
the Fund only by file trustee for
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FeoWal Register / Vol. SO. No. 46 / Friday. March 8. 1985 / Proposed Rules
9595
contouring land to its original
topography, and restocking and
revegetating land. Other type* of
activities contemplated by CERCLA to
mitigate IOIMI to natural retoureai
include replacement of the natural
resource that hai been injured, lost or
destroyed with an equivalent resource.
preferably in the lame general
geographical area aa the lost resource.
An example of this would be the
restocking of an injured or destroyed
fish population with new fishstocks.
CERCLA also authorizes acquiring the
equivalent of an injured natural
resource. An instance of this would be
creating an equivalent wetland or
rehabilitating a functionally-stressed
wetland ecosystem, preferably in the
same geographical ana. for one injured
by the release of a hazardous substance.
It may also include development of a
new habitat from another potentially
equivalent wetland. The result of either
approach would be to ensure that the
overall sum of wetlands available for
the purpose(s) for which they were used
at the time of the release is maintained.
Section lll(i) ban the use of Fund
monies for natural resource restoration.
except in limited situation*, until a plan
for the uae of such monies has been
developed by the trustee and adopted
by affected Federal agencies and States.
The Agency interprets this section to
require "praauthorization" or the pnor
approval of EPA before natural resource
claims for restorations may be asserted
against the Fund "Preauthorization" is
discussed further In section III of this
preamble.
IIL Use of tbe Fund for Natural Keaource
ttmlimm
This section explains the priorities
which the Agency will use to approve
requests for natural resource
expenditures from the Trust Fund It
also explains why the annual EPA
budget process Is necessary for
evaluating reqeaeti far funding of
damage assessasBts sad restorations
and why the Agsai| prefers to address
injury to natural resources, when
possible. through its response
authorities. It then explains the
preauthorization process for
restorations.
A. Agency Priorities for Use of the Fund
There are many sites around the
country where the release or threatened
release of a hazardous substance poses
a threat to public health. The Agency
believes that response at those sites has
a higher priority on the Fund's limited
resources than does injury to natural
resources.
Section lll(e)(2) of the Act which
allows the Agency to spend no more
than 15 percent of the amount credited
to the Fund each year on natural
resource claims, makes it clear that such
a priority is consistent with
Congressional intent. Accordingly, at
least while many sites that appear to
pose human health risks remain
unattended, the majority of resources
available in the Superfund will be
utilized to support response ("removal"
and "remedial") actions. Because of this.
it is unlikely that the Agency will
allocate the maximum 15 percent of the
amount credited to the Fund to natural
resource claims in the next few yean.
B. Coordination of Response and
Natural Resource Action
In keeping with its emphasis on Fund-
financed response actions, the Agency
intends, where possible, to address
injury to natural resources within the
context of those actions. The reason for
linking natural resource activities with
response activities st s given site is
simple. Many of the removal and
remedial actions selected by EPA will
directly or indirectly address losses to
natural resources that have occurred st
the site aa a result of the release of
hazardous substances into the
environment For example, the
decontamination of ground water
involves both actual or potential Injury
to public health (requiring a remedial
action) and danger to a natural resource
(requiring a restoration). In some cases,
the removal or remedial action selected
to protect the public health will
essentially restore the ana to its natural
condition. For example, natural
resources such as Bah or wildlife that
were unable to inhibit the ana as a
result of the releases of hazardous
substances will be able to reinhabit the
ana once the threat is corrected or
minimized On the other hand removal
or remedial actions generally will
exclude specifically directed restoration
activities, such as the restocking of fish
in surface streams or lakes.
A fint step toward completing a
remedial action under section 104 of
CERCLA is the preparation of a
remedial investigation/feasibility study
("RJ/FS"). In preparing the RI/FS, the
Agency will evaluate actual or potential
injury to natural resources to the extent
that such injury is associsted with a
threat to human health or welfare, or to
the environment Similarly, the response
cleanup action may address injury to
natural resources. EPA has linked the
planning, budgeting and implementation
of natural resource activities with the
response program. Trustees of natural
resources should therefore become
actively involved in the review of
response actions planned at sites where
the release of a hazardous substance
may have injured a natural resource.
EPA will, to the extent practicable.
notify affected trustees of suspected
natural resource injury as provided by
I 300.S2(d) of the NCP. Involvement at
an early stage will allow trustees to
identify scuvities which are not
contained in a proposed remedial or
removal response action. Trustees nay
then request that the scope of planned
response actions (including RI/FS) be
expanded to address major natural
resource concerns.* If the Agency
determines that the response action
cannot be so expanded trustees may
follow the procedures necessary to
assert a claim against the Fund
The trustee is cautioned that his
actions at the site should neither
interfere with, nor disrupt response
actions planned or underway at the site
if known. In determining if an
emergency restoration should be
undertaken, the trustee should consult
the National Response Center, the
Regional Response Team, the on-scene
coordinator, and other Federal State or
private parties st the sits. Where the
response can include efforts to address
injury to a natural resource, trustees
should propose such actions. The
Agency will only reimburse for
emergency actions which either could
not have been addressed in the responi
action or wen specifically considered
but not included in the response action
Trustees may present claims for
emergency actions to the Fund only
after presentation of the claim for
emergency action to the potentially
responsible party.
The priorities that must be addressee
by EPA In utilizing the Fund make It
unlikely that many natural resource
claims will be swarded in the near
future. Accordingly, trustees an
encourgaged to obtain relief retarding
natural resources injured by suing
responsible parties. The priorities whic
us Agency will accord to natural
resource claims are discussed next
C. Priorities for Natural Resource
Claims
In evaluating natural resource claims
the Agency will give top priority to thoi
sites when imminent and substantial
endangerment to public health or the
environment warrant an immediate
removal or enforcement action. These
sites may or may not be-on the Nation*
Prioroties List (NFL). Conditions st
many of these sites, in addition to
posing serious sctual or potential thraa
to public health, could also cause
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9596
Federal Reyatet / Vol. 50. No. 46 / Friday. March B. 1985 / Proposed Rales
significant iniury to natural resources.
Where the efforts to stabiUn • iituatinn
can. with substantial benefit be
o jgnented by a specific natural
rrsource assessment or reiteration
activ ity. the trustee may notify the
Agency of its intent to file an
assessment cla:m or request
premithonzation of the restoration EPA
i\il! consider requests solely for «
rpstomtion only if trustee can justify
such actioni without an assessment
Where the site is on the N'PL the
Agency will take into consideration the
likelihood of a remedial action (beyond
the remc: al action) and its potential
scooe :r. making this decision. In some
cases, a seemingly desirable restoration
proposal may be deferred pending future
site decisions on remedial actions.
Where the site is not on the NPL. and
has little likelihood of being included.
the Agency will make Its decisions
based on the priority, coats and benefits
of the specific restoration proposed.
The Agency will accord second
highest priority for natural resource
claims at sires when the Agency has
instituted or intends to institute Fund-
financed remedial or enforcement
actions. To be eligible for a remedial
action, a site must be on the NPL 40
CFR Part 300 (Appendix B). As
discussed above, the Agency, where
possible, will attempt to develop-these
remedial actions in a manner that
addresses the injury to natural
resource*. At sites on the NPL for which
remedial action is planned or underway.
but for which natural resources will not
be completely addressed, trustees
should first request that the remedial
plan be expanded to address the natural
resource injury. If such expansion is not
possible, the trustee may proceed
against the Fund. In the case of a
restoration claim, the trustee must
obtain preauthonaaon from the
Agency. No preauthanzatioa is required
for a damage aasenineat deism.
However, in either caee. tfce tnetee is
advised to notify the Agency of his
intent to file a claim. Preenlhartution of
restoration claims and decseaana on
assessment claims will be made in part
on a pnority basis; an annual planning
process is essential to sound decision-
making.
Recognizing that sufficient resources
may not be available from the Fund te
implement a restoration plan once
developed, trustees ere encouraged to
pursue actions against responsible
parties to obtain restoration of natural
resources iniured as a result of the
release of a hazardous subcUnca. The
Agency is most Ukely to preemthoroe a
specific restoration actiae, when
prospects for recovery from a
responsible party appear limited, and
the Fund-financed remedial action does
not address a substantial natural
resource injury.
The third pnonty for natural resource
cisims will be given to injunes that are
not at NPL sites but result from releases
associated with NPL sites. Restorations
that fhll into this category may require
an area wide cleanup end are likely to
be greater than pnonty two restorations
m terms of scope and cost.
Finally, the last priority relates to
those sites that are not on the NPL and
which do not pose an immediate and
significant threat to public health
requiring the exercise of the removal
authorities under CERCLA. The Agency
is unlikely to allow natural resource
claims for these sites unless a natural
resource of unusual significance is
endangered or threatened.
The Agency will evaluate claims for
damage assessments and requests for
preauthorization of restoration claims
according to the above criteria. In
evaluating these claims and requests.
the Agency will also consider:
(1) The seriousness of the problem in
relation to competing demands on the
Fund
(2) The uniqueness or special
significance of the affected natural
resource as indicated by the trustee;
(3) The extent to which the injury has
been or may be addressed by a response
action
(4) The liability of the claimant for the
release or threatened release.
D. Preauthorization of Claims for
Natural Retourct Reiteration
This proposal provides that claims for
natural resource restoration may be
submitted to tfaa Fund only tf they are
approved in advance or "preeuthoruad"
by the EPA. EPA ieterprata CERCLA to
require that e plan for the restoration of
natural mouses* must be adopted
before a claim for restoration costs may
be submitted to the Fund. Section 112 of
CERCLA. which sets forth the
procedures whereby claims may be
asserted against the Fund, applies only
to "all claims which may be asserted
against the Fund pursuant to section 111
of this title." Thus, in order for • claim
to be filed, triggering all the procedures
of section 112. the-claim mast satisfy the
prerequisites of section 111. Among
those prerequisites Is section lll(i).
which provides:
Funds nuy not ba used under this Act for
the rerorarnoa, rchabiliiatioo. or rvpUcvnm*
or aonnaitioe of the equniterH of any nitval
ratouroaa sual • plan for Uw DM of (uee.
fund* kM bam devolopad and adopted * * *.
While the statute does not specify when
this plan must be adopted, there are
several reasons to believe that it must
be before a claim is filed. First, a claim
is defined by section 101(4) as a
' demand in writing for sum certain."
Since the section lll(i) plan is essential
For determining the nature and extent of
the natural resources restoration, it is
difficult to see how any meaningful
"sum certain" could be identified before
adoption of the plan. Furthermore.
section 112(b)(3) of CERCLA provides
that if no settlement is reached within 45
days of the filing of the claim, the
President (EPA) may make and pay an
award. If EPA declines to make an
award, the matter is referred to the
Board of Arbitrators. Wuk section
112(b)(3) does not specifically nquin
that an award be nude within 45 days.
it does contemplate that an award might
be made within that time frame. The
statute certainly don not contemplate
the post-dam development of a section
lll(i) plea, which requires "adequate
public notice and opportunity for
hearing and consideration of all public
comments." a process which would take
considerably longer than 46 day*.
As noted previously, section 112(b)
provides for the referral of denied
claims to a member of the Board of
• Arbitrators, whoae decision may be
disturbed only for "arbitrary and
capriooBS abuse of discretion." There is
no indication in the statute or Us
legislative oiatnry. bewever. thet the
Board should have authority to make
policy judgments o» the pnonty of
claims. Nor does the traditional role of
arbitrators suggest such a result. An
arbitrator would be ID-equipped to make
such a policy judgment since he would
not be aware ef or fdry appreciate the
prats of other owners which are
competing for the Fend's attention. It Is
worth noting • fkis regard thet although
Congms imposed a 15* oioxunuai on
amounts that conM be spent on natarml
resource eienna, thnra is no mnnmum.
Indeed, the Agency coott reasonably
determine that no money at ail should
be spent en lurbnoi Teeource deans
pending further progress in rimning np
NPL sites. Given these prioriUet, which
are consistent with Cemgreaeaenel
intent it would make little sense for
claims which EPA has determined to be
of insufficient priority to be subject to
an award by the Benrd of Arbitrators.
There isne mgfeenon m the statute or
its keaieBBtrve aaetery tent the Board was
to here the effective •uthonty to
attecete up ae UK of the Pond. Berths*.
the eecnsni 112 cwana pfocees
most •neee if tt e^rinaaeee oeej
claims which the Agency has
-------
Federal Register / Vol. 50. No. 46 / Friday. March & 1985 / Propoted Rules 959
determined an of sufficient importance
to merit Fund expenditure. The Agency
believes that Congress bai intended this
result by requiring the adoption of a
section lll(i) pi*" before the Tiling of a
claim under section 112.
EPA recognizes that the court in .Vew
Jersey v. Ruckelshaus, Civ. Action No.
1668 (JWB) (D.N.J.. Dec. 12.1964).
rejected the Agency's interpretation thai
preaulhonzauon of natural resource
claims is required by the Act. The
Federal Government is now in the
process of deciding whether to appeal
the .Vew/eruy order. Of course.
pending a reversal or stay, the Agency
will process the claims that an the
subject of the order. However, even if
the New Jersey court's opinion that the
statute does not require
preauthonzation prevails, the Agency
believes that the Act provides EPA with
the discretion to Impose the
preauthonzation requirement by
regulation, as part of its responsibilities
to manage the Fund and otherwise
implement the Act For this reason. EPA
does not believe this proposed
regulation to be inconsistent with the
court order. In any event the regulation
would not apply to any purported
claims, such as those that were the
subject of the Newjgney litigation.
which have already been submitted to
the Fund. These claims will be handled
on a case-by-case basis. To the extent
that a further judicial order precludes
the promulgation of the preauthonzation
requirement, the Agency would consider
incorporating into other portions of the
regulation alternative mechanisms
which would allow the Agency to ensure
that no awardi are made lor natural
resource injuries that would be
inconsistent with the Fond priorities
which the Agency otherwise establishes.
Commentars are requested to discuss
the merits of such an alternative
approach.
EPA believes that the
preauthortaBtsen leejalianiant to a
legitimate end ssapartant part of the
procedures being proposed today. First.
the Agency ana* harmonize the
requirements of saetien 111(1) with the
procedures for submitting • claim. We
believe that adoption of the section
lll(i) plan before submitting a claim is
most appropriate, in that the claims
process could then focus on only those
claims for which then is a reasoned
basis and which the Agency has
determined to be of sufficient priority.
This is in accordance with the
Congressional directive to spend Fund
monies In a cost-effective manner. As
stated by the Seaate Committee Report
on S. 1480: "JAJction to nston.
rehabilitate, or replace natural resource*
under the provisions of this Act [should]
be accomplished in the most cost-
effective manner possible. The process
of developing such a plan will be of
great assistance in avoiding
unnecessary costs" (S. Rep. No. 96-Ma.
90th Cong.. 2d Sets., p. 85 (1980)).
The primary function of the
preauthonzation is to allow EPA to
evaluate the merits of a proposed
restoration and determine whether it is
of sufficient priority for Fund
reimbursement. Preauthonzation will be
EPA's commitment to make an award to'
reimburse necessary and reasonable
restoration costs. A maximum
reimbursement may be specified at the
time of the preauthorizabon.
Preauthonzation thus will provide
assurance to the trustee that funds will
be available, although ultimate
reimbursement will depend on amounts
actually available in the Fund. In
addition, the preauthonzation
requirement will prevent the submission
of large claims to the Fund which, under
section lll(e) of CERCLA, must be paid
in the order in which they an finally
determined. By allowing the filing only
of high priority claims, the Agency will
ensure that one trustee doea not obtain
exclusive use of the Fund.
Preauthonzation also serves another
Important fim/-n«n Under section
112(a). trustees must elect whether to
file a lawsuit against a responsible party
or submit a claim to the Fund. Since a
request for pnauthorizatton does not
constitute the filing of a claim, denial of
praauthorizati'on will preserve the
trustee's tight to proceed against the
responsible partis. No election is made
until a claim or lawsuit is actually Bled.
Consistent with the priorities
discussed above EPA will consider
pnauthorizuig natural resource claims
for restoration activities. With limited
funds available for response actions, as
well as damage assessments and
restorations, trustees are encouraged to
recover the costs of restoration
activities from responsible parties,
whenever possible, using the
information in the damage assessment
to support these cost recovery actions.
The process by which EPA will consider
both assessment claims and requests for
preauthorization of restoration claims is
described In IV.
E EPA "i Planning and Budgeting
Process
Under its Fund management authority.
EPA has established an annual planning
and budgeting process to determine
funding prionbes for natural resoisrce
damage assessment and restoration
claims. The enemies discussed above
will be used by EPA to coordinate its
response activities under section 10*
with section 111 natural resource*
claims. This process is designed to
ensure that Fund monies are used to
address those sites which pose the
greatest threat to public health and
welfare and the environment. The
planning for a fiscal year of funding wil
begin dunng March, some eighteen
months pnor to the start of that fiscal
year (e.g.. planning w.ll start in March
1985 for the 1987 fiscal year which start
October 1.1988).
The Agency encourages, but does no:
require, trustees to file a notice of
intention to file a claim before filing an
assessment claim or a request for
praauthorizatioa of a restoration. Each
Federal and Slate trustee is requested i
furnish EPA with the following
information by April 1 of each year. (1)
The trustee's objectives for natural
resources, consistent with the prioriuei
above, (2) the estimated costs of and
schedule for such actions, (3)
alternatives to funding (U-. potential fc
action against a responsible party), am
(4) the date of discovery of the loss. Tb
Agency will assemble all submissions.
review the sites for consistency and
•chadaling sequence with response
activities), and establish a national
ranking of priorities within a range of
possible funding levels (i.e, anticipate!
appropriation levels).
If EPA's preliminary ranking of a
trustee's notice of claim is low (due to
an Insufficient fr">««"» in the Fund or
the low priority assigned to the site
when weighed against other sites or
alternative uses of the Pond) the truste
may modify the anttdpeted claim
amount or nw proposed schedule or
rasubmit the request in its original fort
in a following fiscal year.
The trustee's unreal submission ma;
request and the DA appropriation mi
allow. aD or any portion of the propose
restoration activities. The Agency will
impose, through the praaolhonzation
process, a limit on the sums which ma;
be recovered from the Fund for ail site
for which an appropriation to availabb
After the trustee's review of and
comment on the Agency's preliminary
annual priorities, the Agency will subi
a proposed budget to the Office of
Management and Budget The budged:
will then follow the traditional Federa
budget process.
There ere two principal benefits to (
trustee for participating tn the planmrt
process: (1) The Agency can better
attempt to address oaadtbana at the si
in concert wtth raaBonse acbtdbee. em
(2) the brastee wU have i
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9598
Federal Register / Vol. 50. No. 46 / Friday. March 8, 1965 / Proposed Rules
ai to which natural mourn activities
may be reimbursed through the Fund.
TV. Procedural for Pumtiag Natural
Resource Claims Against &• Fund
A. Trustee and Lead Trustee
Responsibilities
In case where there are multiple
trustees, because of co-existing or
contiguous natural resources or
concurrent jurisdiction, such trustees
shall coordinate and cooperate in
carrying out their responsibilities. For
example, if one trustee has
responsibility for a species which
inhabits land or water under the
protection or control of another trustee,
those trustees shall coordinate their
planning and any subsequent actions. If
the injury or any subsequent remedy is
realistically divisible (e.g.,
contamination of ground water and
aquatic life from the same release), the
trustees may act Independently and
pursue separate requests for funding or
preauthonzation. Conversely, where
there are multiple trustees and the
resources are not realistically divisible.
the trustees must coordinate their
actiona and submit a single request to
EPA. The Agency proposes in this
regulation a set of procedures for claims
against the Fund in the event that
multiple trustees are affected by the
same release of a hazardous substance
and desire to seek recourse against the
Fund. Under this proposal, trustees
must: (i) Notify other potential trustees
of their plan to pursue a claim against
the Fund. (2) select a single trustee to
act as "lead trustee" for purposes of
' administering the claim, and (3)
coordinate among themselves so that
they hie a request which respects ail
trustees' interests.
The basic for requiring a "lead
trustee" for claims against the Fund is to
facilitate processing of annual requests,
the claun. and any request* for
supplementary information. The lead
trustee will act as the central contact for
Agency communications regarding the
claun and should be selected by the
multiple trustees affected by the release.
Should the trustees fail to agree on a
lead trustee. EPA will designate, at its
discretion, a trustee to serve as lead
trustee for the purposes of claims
against the Fund. (Hereinafter, the term
"trustee" also means "lead trustee".
where applicable.)
B. Approaches to Natural Resource
Damage Assessment
Guidelines for conducting both
simplified and alternative protocol
damage assessments rr.andated under
section 301(c)(2) are scheduled for
proposal by the Department of Interior
in Apnl 1966 and December 1985.
respectively. The Act sets forth two
basic types of damage assessments: (1)
Simplified damage assessments.
specified in section 301(c)(2)(A). require
minimal field observations and include
establishing measures of damages based
upon units of discharge or release, or
units of affected area. Such assessments
should be straightforward and
inexpensive to conduct and take
relatively little time. (2) Alternative
protocol damage assessments, specified
in section 301(c)(2)(B), require a
determination of the type and extent of
short- and long-term injury to natural
resources. Such assessments shall
utilize the best available procedures to
determine damages, including both
direct and indirect Injury, destruction, or
loss, and take into consideration factors
including replacement value, use value,
and the ability of the ecosystem or
resource to recover. When trustees
intend to submit a restoration claim to
the Fund, a detailed restoration plan
must also be prepared. A claim for
assessment costs may Include the costs
of preparing the restoration plan.
The best time to undertake a damage
assessment will depend on the
particular situation at the site. In some
circumstances, it may be before or
during a remedial investigation: while.
in others, it may not be until after the
feasibility study, or even construction.
has been completed. The trustee must
carefully weigh the issue of the statute
of limitations since discovery of the lose
of the natural resource may occur during
the remedial phase. Under today's
proposal, the filing of a damage
assessment claim would satisfy the
statute of limitation* for a future
restoration claim against the Fund.
C. Rebuttable Presumption for
Assessments
Section Hl(h)(l) provides that in
accordance with regulations to be
promulgated under secton 3Ol(c) of
CERCLA. injury to natural resources
resulting from releases of hazardous
substances shall be asaeesed by
designated Federal officials. Section
lll(h)(2) provides that an assessment of
injury to. destruction, or losa of natural
resources shall have the effect of a
rebuttable presumption on behalf of a
claimant in any proceeding under
CERCLA or section 311 of the Federal
Water Pollution Control Act.
As noted in the proposed revision to
the NCP (50 FR 5862 ef sag. February 12.
1985), the Agency is considering whether
to adopt one of three possible
approaches for resolving the issue of
whether and under what circumstances
assessments of injury to natural
resources conducted by State trustees
are entitled to (he rebuttable
presumption established in lection
tll(h)(2) of CERCLA.
The first approach is to amend the
NCP to designate Federal officials who
could perform appropriate assessments
of State natural resources at the request
of State trustees. Slates could also
perform assessments: however, only
such Federal assessments, performed in
accordance with the regulations
required by section 301(c) of CERCLA.
would be entitled to the rebuttable
presumption established in section
lll(h)(2) of CERCLA.
The second approach would be that
only States would perform assessments
of State natural resources, and such
assessments performed by States would
be entitled to the rebuttal presumption
in section lll(h)(2).
The final approach would be that only
States would perform assessments of
State natural resources, but that such
assessments would be entitled to the
rebuttable presumption hi section
lll(h)(2) only where they an performed
in accordance with regulations
promulgated under section 301(C) of
CERCLA.
The preamble to the proposed NCP *
revision solicits comments on the role
Federal trustees in assessing State
resources. EPA's decision on this matter ,
will be embodied In the final
promulgation of this proposed regulation
and the NCP revisions. If EPA concludes
that only assessments of natural
resources by Federal trustees are
eligible for the rebuttable presumption.
It would be the responsibility of the
State trustee who desires the benefit of
a rebuttable presumption to contact the
appropriate Federal agency to arrange
for such assessments or for Federal
review and approval of a State's
assessment
D. Requests for Preauthonzation of
Natural Resource Restorations
Requests for preauthorizalon of
restoration activities may only be
submitted to the Agency after a
restoration plan is developed and
approved by all affected Federal
agencies (except EPA) and the State(s).
A request for preauthonzation of
natural resource restoration must
include: (1) A description of the injured
natural resource and its uses at the time
of the release, and may include a
statement of the uniqueness and speci
significance of the resource(s); (2) a bi
description of the extent of injuries (the
damage assessment will be an
attachment), the hazardous substances
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Federal Register / Vol. 50. No. 46 / Friday. March 6. 1965 / Proposed Rules
9591
from which the inhny resulted, and their
source*: (3) the identity of any known
potentially responsible parties and any
contact! with such parties (supporting
information shall be provided M an
appendix): (4) tha plan, developed by
the trustee and approved by affected
Federal agencies (other than EPA) and
stales, for restoration (divided Into
najor phases or segments if
appropriate), including the steps
necessary to cany out the selected
course of action, and reasons for
selecting the remedy (a copy of the plan
will be an attachment). (5) a description
of the stepa taken to ensure public
comment on and review of the plan: (6)
itemized estimates for restoration costs:
and (7) the timetable for carrying out the
plan.
The plan referred to in Hem (4) ia
required by section 111(1) of CERCLA.
The trustee rauat provide adequate
opportunity for public comment and
hearing on the Plan. While EPA may
comment on the Plan during the public
comment period, the Plan would not be
finally adopted unless and until the
Agency preauthorizas the restoration
claim. At a minimum- the trustee must
provide an adequate opportunity for
public review and comment, and a
public meeting on the restoration plan.
Additional activities may be undertaken
in accordance with EPA's Community
Relations in Superfund:A Handbook
(September. 1983). (See also EPA's
policy statement entitled Superfund
Community Relation* Policy, May 1963.)
EPA's involvement in the development
of the restoration plan la likely to ensure
that the remedy selected will fit within
the CERCLA budgetary constraints, and
thus minimize the probability of •
subsequent approval by EPA of the
trustee's preauthorization request for
leas than the amount necessary to
implement the selected remedy.
Forms and instructions for requesting
preauthorization are contained in
Appendix A to the lemuation.
Additional copssa may be obtained from
any EPA RefsMaJ OBee. The current
addresses for thaae oflees are
contained in Appendix 1 to tins
preamble. These forms must be filled out
completely, signed and submitted to
EPA in Washington. D.C.
EPA will endeavor to make final
decisions on preauthorization request
for restorations within 60 days. If. aa a
result of EPA's preauthorization
decision, the trustee decides to
undertake a restoration of narrower
scope than that contained in tha
restoration plan, the trustee is required
to notify the public before undertaking
the restoration. As discussed above, a
notice of intent to request
preauthorization will aid EPA's
budgeting process and expedite the
Agency's decision-making on
preauthorization.
£ Action* by Trustees in Emergency
Situation*
In accordance with section 111(1). EPA
will not require preauthoization of
restorations in situations where genuine
emergency circumstances exist. EPA
recognizes that some limited situations
may require immediate action in order
to avoid irreversible loss or to prevent
continuing danger to natural resources
(e.g.. where continuing contamination
must bs abated in order to avoid the
complete destruction of a resource, or
when continuing degradation threatens
more and more of the resource or the
ecosystem). However, the trustee
should, if at all possible, contact the
EPA Regional Office serving the ana in
which the release occurs and notify It
that a restoration is underway.
Minimally, the trustee must within five
days of initiating the restoration, send a
written notification that an emergency
restoration is underway to EPA in
Washington, D.C. Further, the trustee
may undertake only those actions
necessary to abate the emergency
situation. EPA will require the trustee to
follow normal pnauthorization
procedures before undertaking any
action over and above what is
necessary to abate the emergency
situation. The burden of proving, based
on information available at that time.
that irreversible harm would have
resulted if the emergency restoration
wen not undertaken, will rest with tha
trustee. EPA will award claims from tha
Fund only if it determines that an actual
emergency existed requiring imaediaia
restoration measures. The trustee will
have tha burden of demonstrating mat
aa apparent emergency existed at the
time the action was taken, based on
information than available.
Additionally, me trustee must prove that
costs associated with emergency actions
wen both reasonable and necessary. Of
course, claims for emergency
assesaments-and restorations will be
paid as funds an available.
The Agency, m the case of an
emergency, encourages trustees to
contact EPA or the National Response
Center (BOO 424-8802) to report the
actual or threatened release. The
Agency or the U.S. Coast Guard may
determine (hat immediate response
action is required under section 114 of
CERCLA. In such cases, the trustee may
find that the emergency situation is
abated and aa emergency assessment or
restoration is not requtawL
V. Submission of Natural Resource
Claims
This section describe* the election
which the trustee must make between
filing against the Fund or commencing
an action against the responsible party
The section also explains the
requirement that trustees submit the
claim for an assessment or
preauthorized restoration to the
responsible party after the restoration n
completed, but before the claim is
submitted to EPA.
A. Election to Commence a Court Actiot
or File a Claim
Up to the point where s 'trustee
actually files a claim for an assessment
or a preanthorized natural resource
claim, he is free, pursuant to section
112(a). to decide either to pursue the
Fund route or to sue under section 107 o
CERCLA for the costs of an assessment
or a restoration. This means that the
trustee has not made his election at the
time a notice of claim for an assassmen
' is filed through tha planning process an
throughout the assessment, or at tha
time preauthorization is requested and
throughout tha conduct of the
restoration. That is. a trustee preserves
the option of seeking reimbursement
either through a court action or an
administrative claim throughout tha
complatton of *"* specific action.
However, tha filing of an assessment
claim undar section 112 is an election u
proceed against the Fund for aaaeaamei
costs, and the filing of a restoration
claim Is aa election to proceed against
ths Fund for restoration cost*. EPA wiC
not consider a damage aasessmant ciai
or a pnanthorized restoration claim
while an action for tha sane costs is
before the courts. However, the bruits*
is free to pursue a claim against tha
Fund, if afl other reejuinmants for filial
a claim an satisfied, If he (ails to obtat
Judicial relief through a 107 action.
Likewise, the trustee ia free to initiate
fudiciai ^-H"** if his *•*»*•• against the
Fund is denied m part or ka whole.
Tha tsmstoe may. however, elect to
ahassitoosoaavy pursue a ^•JM| •§•••«•>
ths Fund for a damage assessment and
court action spahist potentially
responsible parties for restoration coat
and otbar damages at the same site. Tl
most cost-effective use of the hadtad
Fund resources euy «• to parade
fuming to a tinstos far an assussrniint
(instrnaasntai m tha preparation of mas
cases) and then enooanae tha trastae •
institute a court action for the costs of
conducting any required restoration.
Claims may be HM asminst the F
only far eases*** i
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9600
Federal Regular / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rules
rehabilitation, replacement or acquiring
the equivalent of a natural ratource.
Other measures of damaflm are not
recoverable from the Fund, but are
potentially recoverable under lection
107.
B. Presentation of Claims to the
Potentially Responsible Party
Section 112(a) states that claims may
not be submitted against the Fund
unless they have Tint been presented to
the owner, operator, or guarantor of the
vessel or facility from which the
hazardous substance has been released
or to any other person who may be
liable under section 107. The
requirement applies to trustees with
either an assessment or a praauthorized
restoration claim. If applicable, notice to
potentially responsible parties of a
damage assessment claim should
include notice that a restoration claim
will be Tiled against the Fund
subsequently. If the potentially
responsible party or any other person
who may be liable under section 107 of
CERCLA is unknown, the trustee must
conduct a reasonable search for the
party believed responsible for the
release. The standard for determining
what ii a "reasonable" March will
depend on the circumstances of the
release: however, a reasonable search
should include a search of deed records,
a letter to the last known address
requesting a forwarding address, and a
notice in a local newspaper requesting
information on. or witnesses to the
release. These efforts must be
documented and available for EPA's
review. Additionally, any reply received
from the potentially responsible party
should be retained and submitted with
the claim. If the trustee is unable to
locate the potentially responsible party.
he may submit a claim against the Fund.
Upon a request from the trustee, EPA
will provide that trustee with the names
and addresses of potentially responsible
parties to whom the Agency has sent
notice letters under section in of
CERCLA. or potentially responsible
parties who have reported • release at
the site pursuant to section 8(e) of the
Toxic Substances Control Act or section
103(a) of CERCLA.
Trustees able to identify the
potentially responsible party should
make a reasonable effort to settle the
claim. If the claim against the
potentially responsible party remains
unsatisfied after sixty days, the trustee
may present the preauthorized claim to
the Fund for payment.
C. Presentation to EPA
Only trustees who have obtained
EPA's preauthonzabon of a restoration.
performed the work as preauthorized.
and who have Tint presented their claim
to the potentially responsible party
(when identified) can submit a claim for
reimbursement against the Fund. For
assessments, trustees must perform the
work, and then present their claim to the
potentially responsible party, before
submitting a claim for reimbursement
against the Fund.
The EPA will approve assessment
claims only if a fully completed claims
form is submitted to EPA in Washington.
D.C. (Attention: Director. Office of
Emergency and Remedial Response).
and the Agency determines that the
claim is of sufficient priority to merit
reimbursement from the Fund.
In order for a restoration claim to be
considered by EPA. a fully completed
claim form must be submitted to EPA in
Washington. D.C Claims for restoration
may be filed only after the restoration.
or an authorized phase of the
restoration, is completed.
Forms and instructions for filing a
claim an contained in Appendix A to
the regulation. Additional copies may be
obtained from any EPA Regional Office.
The current addresses for these offices
are contained in Appendix A to this
preamble.
Among other things, the claim forms
require: certification that the restoration
was preauthorized by EPA. itemiution
of the claimed costs, and a statement of
the procedures followed in searching for
or identifying the party believed
responsible for the release and the
results of any contact. The forms must
be filled out completely, signed and
submitted to EPA In Washington. D.C.
Attention: Director. Office of Emergency
and Remedial Response.
VI k*A Revtew and Payment of Claims
Against the Fund
Upon receiving an assessment claim
or preauthorized restoration claim. EPA
will notify any known affected parties of
the existence of the claim and will
attempt to promote and arrange a
settlement between the trustee and any
person(s) who may be liable. Pursuant
to section 112(b](2)(A) of CERCLA.
where the trustee and the responsible
party(ies) agree upon a settlement, it is
final and binding upon them. Parties to a
settlement waive all recourse against
the Fund.
Where the responsible party is
unknown and cannot be identified, or if
no settlement among the parties has
been reached. EPA will consider the
claim against the Fund. EPA will review
the forms and documentation and
determine whether all filing
requirements have been met. Where the
trustee has complied with all filing
requirements, the assessment claim or
restoration claim will be considered
"perfected." It is only after a claim is
perfected that the statutory time limits
(i.e.. 45 days to reach a settlement. 90
days for decision by an Arbitrator, and
20 days for payment) for processing and
disposition of claims begins to run.
When EPA is unable to evaluate the
claim because of omissions in filed
documents, the Agency will return the
materials and advise the claimant of the
specific problems with the filing. When
EPA needs additional information to
properly evaluate the claim's validity.
EPA will suspend further processing of
the claim and will request that the
claimant provide the necessary
information. A claim that EPA returns
because of a filing deficiency may be
corrected and resubmitted to EPA.
Failure of the claimant to provide the
information in a timely manner can form
the basis for denial of the claim.
Claims will be adjusted using the
services of a private claims adjusting
firm (section 112(b)(2)(q). EPA will
make awards of restoration claims only
to the extant that the Agency determines
that the expenditures were reasonable
and within the scope of the
preauthorization. EPA will utilize
several criteria to determine if the
trustees' costs for both assessments ar
restorations an reasonable. These
include: (1) A review of the trustee's
documentation supporting the decision
to perform an activity in-house or to
contract It out. and (2) a determination
that all contracts were awarded using
maximum open and free competition.
These criteria an designed to conserve
Fund monies and ensure against fraud
and abuse. In most instances, applicable
State and Federal procurement practices
(formal advertising, competitive
negotiations or other procurement
methods) will meat the test for
contracts. Trustees may demonstrate
alternative costs by providing cost
estimates from firms qualified in such
anas, the results of competitive
procurements for similar activities, or
documentation of market coats based on
similar procurements by others.
Since only preauthorized restoration
claims may be submitted to the Fund.
the Agency will not deny such claims.
except to the extent the costs claimed
were not reasonable or necessary or in
accordance with the preauthonzation.
Denied restoration claims will be *
referred to the Board of Arbitrators.
However, damage assessment and
' emergency restoration claims may b«
submitted without praauthonzation. L
the Agency determines that a damage
assessment or emergency restoration
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Federal Register / Vol. 50. No. 46 / Friday. March B. 1985 / Proposed Rules
960
claim ii not of sufficient priority, it w.U
deny the claim. Assessment claims
denied on such grounds will not be
referred to the Board of Arbitrators.
Where a State trustee disagrees with
the amount of an award, the matter can
be referred for resolution to the Board of
Arbitrators (the "Board") established by
EPA. The trustee bears the burden of
proof in arbitration (section 112(b)(4)(D)
of CERLA). Additionally, where EPA
declines to make an award on a claim,
the State's claim will be referred to the
Board. However decisions by EPA to
deny damage assessment claims on the
basis of Fund priorities will not be
referred to the Board. Title 40 CFR Part
305. proposed elsewhere in today's
Federal Register, defines the role and
jurisdiction of the Board of Arbitrators.
Federal trustees will utilize internal
Executive Branch dispute resolution
procedures, including resolution by the
Executive Office of the President.
EPA will pay the award within 30
days. Any augmentation of the award
by the Board of Arbitrators or a court
will be paid within 20 days of the
• expiration of the appeal period for such
' arbitral or judicial decision, unless an
appeal is in fact taken. In order for the
claimant to receive payment the
claimant must waive further recourse
against the Fund and subrogate his or
her rights to the United States (section
112(c) of CERCLA). A claimant receiving
an award from the Fund must retain the
documentation supporting the claim for
a period of six yean or until EPA has
pursued a cost recovery action against
potentially responsible parties.
VTL Statute of limitations)
Section 112(d) of CERCLA provides:
No claim may be prevented, oat may an
action be commenced for damages under this
title. unl«M that claim u prevented or action
commenced within three years boss die oats
of the discovery of the leas or the data of
enactment of this Act whichever Is later
• • •
CERCLA we* enacted on December
11. isao. Therefore, after December 13.
1983. trustees could net file claims for
injury to natural resources where the
loss was discovered prior to December
11.1980. Congress designated passage of
the Act or "discovery of the loss" as the
event which triggers the time limitation
within which the trustee must file a
claim. This raises the issue of when the
loss may be considered to be
"discovered" for purposes of the statute
of limitations.
While the legislative history of
CERCLA does not speak directly to this
point. Congress did not intend that
"Dale of discovery" be used to
indefinitely extend the penod within
which trustees could act. (Senate Report
96-648. p. 67.) However, "date of
discovery of the loss" is not a self-
defining term. While a citizen may have
discovered a loss at some early date.
that knowledge cannot reasonably be
imputed to the trustee. EPA believes
that the date of discovery must be
linked To some formal indication that the
trustee has knowledge of the loss. The
reliability and adequacy of the
information an of obvious concern to
the trustee. As a public official, the
trustee can only be expected to act (i.e.,
to prepare to file a claim) on information
that Is reliable (i.e.. confirmed by some
Federal State, or local government
official) and factually adequate (i.e.,
sufficiently describes the loss). The
initial observation of natural resource
injury may not in every case constitute
discovery by the trustee. At the other
end of the spectrum, the damage
assessment which is usually performed
some time after identification of the
loss, will take place long after the actual
point of discovery. Somewhere in the
penod between these events, a
document or memorandum prepared for
the trustee should identify for the first
time the natural resources Injured, the
types of injury, and the hazardous
substances involved. This document or
memorandum should provide the
reasonably diligent trustee with
adequate information to constitute
discovery.
While the date of discovery will be
determined by the facts of each case,
the Agency proposes the following
definition of "date of discovery", which
incorporates information that must be
available to make a determination that a
loss compensable under CERCLA has
occurred:
The date on which the trustee became
aware of the (n)ury to the natural resource.
For aa injury that can be vUuolly observed.
this la the dale en which the trustee has
available, or reasonably ihould have
available, s document or memorandum
prepared for the trustee verifying the
observed Injury to the natural resource, the
types of Injury, and which suggests that the
Injury may be related to the release of a
hoxojdajia substance.
For aa Injury that cannot be visually
observed, this le the date on which the
trustee has available, or reasonably should
have available, a document or memorandum
prepared for the trustee. Including such
sampling and laboratory analysis as is
necessary, which Identifies the injured
natural resource, the types of injury, and
which suggests that the injury may be related
to the release of e hazardous substance.
This proposed definition attempts to
strike a balance between the earliest
possible date and the point at which a
reasonable basis for a decision exists.
VIII. Regulatory Status and Required
Analyses
Proposed and final rules issued by
Federal agencies are governed by
several statutes and executive orders.
These include Executive Order 12291.
the Regulatory Flexibility Act and the
Paperwork Reduction Act.
A. Executive Order 12291
Rulemoking protocol under Executive
Order 12291 requires that proposed
regulations be classified as major or
non-major for purposes of review by th<
Office of Management and Budget.
According to the E.O.12291. major rule-
are regulations that an likely to result
in:
(1) An annual effect on the economy
of $100 million or more: or
(2) A major increase in costs or pnce
for consumers. Individual industries.
Federal State, or local government
agencies, or geographic regions: or
(3) 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 or export
markets.
EPA has determined that this
regulation is a non-major rule under
Executive Order 12291 because it is
unlikely to result In any of the impacts
identified above. Therefore, the Agencj
has not prepared a regulatory impact
analysis for this regulation.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of IBS
require* that a Regulatory Flexibility
Analysis be performed for all rules that
an likely to have "significant impact 01
a substantial umber of small entities."
EPA certifies that this regulation will n<
have a significant impact on a
substantial number of small entities,
because only Federal and State trustee:
may submit claims under this regulaboi
Further, this regulation Imposes no
capital expenditures, nor any
compliance requirement on any
industrial sector.
C. Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1880.44 U.S.C. 3501 et
seq.. the reporting or recordkeeplng
provisions that are included In this
proposed rule have been submitted for
approval to the Office of Management
and Budget (OMB) under Section 3504(1
of the Paperwork Reduction Act Any
final rule will include an explanation ol
how the reporting or recordkeeping
provisions contained therein respond tc
any comments by OMB and the public.
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9602 Federal Register / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rules
list of Subjects In 40 CFK Part 308
Chemicals. Hazardous materials.
Intergovernmental relation*. Natural
resource*. Reporting and recordkeeping
requirements. Superfund. Wasta
treatment and disposal.
Dated: February 28, 1988.
Ue M. Thomas.
Arimtniitrotor.
[Note.—Thii Appendix will not appear in
the CFR.)
Appendix I
Environmental Protection Agency-
Region L John F. Kennedy Federal
Building. Boston. Massachusetts 02203
Environmental Protection Agency-
Region II. 28 Federal Plaza—Room
402. New York. New York 10278
Environmental Protection Agency-
Region III. Curtis Building. 8th and
Walnut Streets. Philadelphia.
Pennsylvania 19106
Environmental Protection Agency-
Region IV. 345 Courtland Street NE..
• Atlanta. Georgia 30365
Environmental Protection Agency—
Region V. 230 South Dearborn Street
13th Floor (HR-13). Chicago. Illinois
80604
Environmental Protection Agency-
Region VI. First International Building,
1201 Elm Street Dallas. Texas 75270
Environmental Protection Agency-
Region VQ. 324 East llth Street
Kansas City. Missouri 64018
Environmental Protection Agency-
Region VUL I860 Lincoln Street
Denver. Colorado 80008
Environmental Protection Agency-
Region IX 215 Fremont Street San
Francisco. California 94105
Environmental Protection Agency-
Region X. 1200 Sixth Avenue. Seattle.
Washington 98101.
Part 306. Title 40 of the Code of
Federal Regulations is added as set forth
below.
ENVIRONMENTAL I
COMPENSATION, AND LMMJTY ACT
(CERCLA)NATURAL I
CLAIMS PROCEDURES
Suopart A—Oaneral
Sec.
308.10 Purpose.
300.11 Scope and applicability.
300.12 Defuuuoni.
300.13 PenaJtiee and itatute of limitation*.
300.24 Review of natural preauthonxation
applications.
306.23 Requesting payment from the
responsible party
Subpart C PiuieOuiM (or FWng and
Processing Natural Reeouree Claims
308 30 Filing procedures.
300.31 Verification, settlement, and
ad|uatment requirement*.
300 32 Record retention.
300.33 Extension of settlement period.
Sufepert D-Peyi
i and Subrogation
300 40 Payment of approved claims.
300.41 Subrogation of claimant's nghta to
the fund.
Appendix A—Application for
Preauthonxation of Natural Resource)
Restoration Claim
Appendix B—Claim for CHICLA Natural
Resource Action
Authority: Seca. Ill and 112. Pub.L 80-S10,
94 SUL Z707-2811 (42 U.S C 0001 et seq.) and
E.0.12310. See. 7(a) and 7(e), 40 FR 42237.
(August 20,1981).
Subpart A—Osjrarai
1301.10
This regulation establishes forms and
procedures for presenting claims for
injury to, or destruction, or lota of
natural resources to the Fund.
I30t.l1
Claims for injury to, or destruction, or
loss of natural resources. Including costs
of damage assessment may be
submitted only through the procedures
established by this regulation. Under
this regulation, trustees may bring
claims for the coat of restoring.
rehabilitating, or replacing, or acquiring
the equivalent of natural resources
injured as a result of the release of a
hazardous substance, and the coats for
assessing injury to such natural
resources.
300.20 Who may preterit claims.
300.21 Scope of coverage.
306.22 Preauthonxauon.
300 23 Emergency action to avoid
irreversible loea.
1908,11
Terms not defined In this section or
restated herein, have the meaning given
by section 101 of CERCLA. Except when
otherwise specified:
(a) "Act" means the Comprehensive
Environmental Response.
Compensation, and Liability Act of I960.
(b) "Board of Arbitrators," or "Board"
means a panel of one or more persona
selected in accordance with section
112(b)(4)(A) of CERCLA and governed
by the provisions in 40 CFR Part 306.
(c) "CERCLA." meant the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980,42 U.S.C. 9801 at teg.
(d) "Claim." means a demand in
writing for a sum certain.
(e) "Claimant" means any person
who presents a claim for compensation
under section 112 of CERCLA.
({] "Damage assessment claim,"
means a claim for assessment costs
descnbed in section lll(c)(l) of
CERCLA.
(g) "Date of discovery." means the
date on which the trustee became aware
of the injury to the natural resource: (1)
For an injury that can be visually
observed, this is the date on which the
trustee has available, or reasonably
should have available, a document or
memorandum prepared for the trustee
verifying the observed injury to the
natural resource, the types of injury, and
which suggests that the injury may be
related to the release of a hazardous
substance: or (2) For an injury thai
cannot be visually observed, this is the
date on which the trustee has available.
or reasonably should have available, a
document or memorandum prepared for
the trustee, including such sampling and
laboratory analysis as is necessary,
which identifies the injured natural
resource, the types of injury, and which
suggest! that the injury may be related
to the release of a hazardous substance.
(h) "Fund." means the Hazardous
Substance Response Trust Fund
established under section 221 of
CERCLA.
(i) "Hazardous substance." means (1)
any substance designated pursuant to
section 311(b)(2)(A) of the Federal
Water Pollution Control Act (2) any
element compound, mixture, solution, or
substance designated ponuaat to
section 102 of this Act (3) any
hazardous waste having the
characteristics identified under or listed
pursuant to section 3001 of the Solid
Waste Disposal Act (but not iMtiirfiMg
any waste the regulation of which under
the Solid Waste Disposal Act has been
suspended by Act of Congress), (4) any
toxic pollutant listed under section
307(a) of the Federal Water Pollution
Control Act (5) any hazardous air
pollutant listed under section 112 of the
Clean Air Act and (6) any imminently
hazardous chemical substance or
mixture with respect to which the
Administrator has taken action pursuant
to section 7 of the Toxic Substances
Control Act The tstrm does not include
petroleum, including crude od or any
fraction thereof which la not otherwise
specifically listed or designated as e
hazardous substance under
subparagraphs (1) through (6) of this
paragraph, and the term does not
include natural gas. natural gas liquids,
liquefied natural gas. or synthetic gas
usable for fuel (or mixtures of natural
gas and such synthetic gas).
(j) "Lead trustee," means a trustee
authorized to act on behalf of all
affected trustee where there are multiple
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Federal Register / Vol. 50. No. 46 / Friday. March B. 1985 / Proposed Rules
trustees because of co-existing or
contiguous natural resources or
concurrent jurisdiction.
(k) "National Contingency Plan." or
"NCR" means the National Oil and
Hazardous Substances Contingency
Plan developed under section 311(c) of
the Clean Water Act and revised
pursuant to section 105 of CERCLA (40
CFR Part 300).
(I) "Natural resources." means land.
fish, wildlife, biota, air. water, ground
water, drinking water supplies, and
other such resources belonging to.
managed by. held in trust by.
appertaining to, or otherwise controlled
by the United States (including the
resources of the fishery conservation
zone established by the Fishery
Conservation and Management Act).
any State or local government or any
foreign government.
(m) "Notice of claim." means a written
notice of intent to file a claim in
accordance with 1300-22 of this Part
(n) "Perfected," means the point at
which EPA determines that the Tiling
requirements for a claim have been met
(o) "Potentially responsible party,"
means eitheR (1) An owner, or operator
of the vessel or facility from which there
it a release or threatened release of a
hazardous substance, or (2) any other
person who may be liable under section
107 of CERCLA.
(p) "Preauthorization." means EPA's
approval to submit a claim for
reimbursement to the Fund.
(q) "Response action." means remove.
removal remedy, and remedial action.
(r) "Response claim.'' means a
preauthonzed demand in writing for a
sum certain for response costs referred
to in section lll(a)(2) of CERCLA.
(s) "Restoration." or "Restoring."
means the restoration, rehabilitation.
replacement or acquiring the equivalent
of any natural resource injured
destroyed, or lost as a result of a release
of a hazardous substance.
(t) "Restoration claim." means a
preauthonzed '*••••'"' in writing for a
sum certain for the cost of restoring.
rehabilitating, replacing or acquiring the
equivalent of any natural resource
injured as a result of the release of a
hazardous substance.
(u) 'Trustee." means any Federal
natural resources management agency
designated in subpart C of the NCP. and
any State agency that may prosecute
claims for damages under section lll(b)
of CERCLA.
(he Fund may. upon conviction, be fined
up to $5.000 or imprisoned for not more
than one year, or both.
(b) No damage assessment claim may
he Tiled against the Fund more than
three years from the dale of the
discovery of the loss of or injury lo the
natural resource for which the
assessment was made.
(c) No restoration claim may be filed
against the Fund unless:
(l)(i) An assessment claim with
respect to the same natural resource
was filed with EPA within three yean
from the date of the discovery of the loss
of or ui|ury to the natural resource for
which the restoration claim is made: and
(ii) Any known potentially responsible
parties were informed prior to the filing
of such assessment claim so that a
subsequent restoration claim may be
presented to the Fund: or
(2) That preauthonzed restoration
claim is made to EPA within three years
from the date of the discovery of the loss
of or injury to the natural resource for
which that claim is made.
Subpert B—tietun
I30UO Who may present darnm
Damage assessment and restoration
claims may be asserted by:
(a) Any trustee for the natural
resource in question, except as provided
ini30&20(b).
(b) If a release results in injury to,
destruction or loss of natural resources
represented by multiple trustees, a "lead
trustee" selected by the trustees, to
assert the claim on behalf of all trustees.
Should the trustees fail to agree on a
lead trustee. EPA in its sole discretion
shall appoint a lead trustee for the
purposes of asserting a claim against the
Fund on behalf of all trustees.
(Mil)
anal statute of
(a) Any person who knowingly gives
or causes to be given any false
information as a part of a claim against
(a) Subject to the provisions of this
subpart only two types of costs are
eligible for reimbursement from the
Fund under this Part:
(1) Necessary and reasonable
restoration costs where the injury, loss
or destruction resulted from the release
or threat of release of s hazardous
substance from a vessel or facility: and
(2) Necessary and reasonable costs
associated with:
(i) Assessing both short-term and
long-term in)ury to. destruction of. or
loss of any natural resource resulting
from a release or threat of release of a
hazardous substance: and'
(u) Administrative costs and expenses
reasonably necessary for. and incidental
to. the restoration.
(b) No money In the Fund may be
used to pay natural resource claims
where such expenses are associated
with injury or loss resulting from long-
term exposure to ambient
concentrations of air pollutants from
multiple or diffuse sources.
(c) Natural resource claims may not
be presented where the iniury.
destruction, or loss of natural resource
and the release of s hazardous
substance from which such damages
resulted have occurred wholly before
December 11.1980. the effective date c
the Act
IMSU2 Preauthortzanon.
(a) Except as provided in { 30673. n>
claim may be asserted against the Fun
for costs of restoration of natural
resources, unless such claim has been
preauthonzed by the Administrator.
(b) Trustees may submit requests foi
preauthorization to the Administrator.
EPA. Washington. D.C 20460. Attentio
Director, Office of Emergency and
Remedial Response.
(c) Requests for preauthorization ma
be submitted on EPA Form -
found at Appendix A to this part
(d) An application for
preauthorization must include.-where
possible:
(1) A description of ths location and
nature of the natural resource injured.
destroyed or lost
(2) A description of the location and
nature of the release of a hazardous
substance from which the injury to or
loss of a natural resource resulted.
including the date upon which the
release was discovered:
(3) The date on which the injury to c
loss of the natural resource was
discovered;
(4) A plan for the use of the Funds fc
which the claim will be made.
developed in accordance with
paragraph (e) of this section:
(5) A copy of the damage aasessmen
if any, relating to the natural resource
issue, including any determination by
EPA on whether to pay a damage
assessment claim and any judicial ord
with respect to the damage assessmen
(6) A description of the methods use
to assess the damage or injury to the
natural resource;
(7) Reference to the applicant's
authority to act as trustee or lead trus'
for the injured natural resource:
(B) Identity of other known or
potential trustees for resources at or
about the same location:
(9) The identity of known potential!'
responsible parties, and any contact
with such parties: and
(10) Proposed schedule and projecte
costs of restoration activities.
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9604
Federal Regular / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rules
(e) The plan required in { 308.22(d)(4)
shall meet the following requirements:
(1) The plan shall be developed by the
trustee and adopted by any affected
Federal agency (other than EPA) and by
the Governors of any States which
managed the natural resource in
question or to which the natural
resource belonged or appertained:
(2) The trustee shall allow adequate
public notice of the plan and an
opportunity for a hearing. Notice of the
plan shall also be given to EPA. In
submitting the plan to EPA as part of the
preauthonzation. the trustee shall
include responses to ail relevant public
comments: and
(3) The plan will not be adopted
unless and until it is approved by EPA.
(0 The trustee may modify the
preauthonzation request at any time
before commencing restoration work
which is the subject of the modified
request.
{301.23 Emergency action* to avoid
Irrevvrslbto Ion.
(a) Preauthonzation is not required
with respect to a situation requiring
immediate action to:
(1) Avoid substantial loss of evidence
of the release from which injury to a
natural resource resulted:
(2) Avoid an irreversible loss of a
natural resource: or
(3) Prevent or reduce any continuing
danger to a natural resource, or similar
need for emergency action.
(b) Trustees who undertake actions
under { 308.23(a) must within five days,
notify EPA in writing that such action is
underway.
(c) The burden of proving that
emergency action was required shall
rest with the trustee.
(d) The trustee must request
preauthorization for that portion of »na
restoration which is not immediately
required.
$304.24 -T-rnr nf nmtt** mumm
pfMutnorUaflon sBpicama.
(a) The Administrator shall review
each preauthonzation application and
will notify the trustee or thu tad trustee
of the decision.
(b) Each request for preauthorization
will be evaluated based on the following
non-exclusive list of criteria:
(1) The senousness of the problem
when compared with competing uses of
the Fund:
(2) The uniqueness or importance of
the affected natural resource as stated
by trustee;
(3] The extent to which the injury has
been or may be addressed by a response
action:
(4) The extent to which the claimant is
liable for the release or threat of release
from which the injury to the natural
resource resulted.
(c) The Administrator may
preauthonze all or part of a proposed
restoration.
(1) The Administrator may set a limit
on the amount that may be claimed as
reimbursement from the Fund for any
restoration.
(2) If. asaresultofEPA's
preauthonzation decision, the trustee
plans to undertake a restoration action
of narrower scope than that contained in
the restoration plan, the trustee shall
notify the public before undertaking the
restoration.
(d) If EPA denies a preauthorization
request because of aa insufficient
balance in the Fund or the low priority
assigned to the restoration when
weighed against other requests, the
trustee may resubmit the application in
another fiscal year. If • preauthorizabon
request is denied because of substantive
inadequacies in the damage assessment
or restoration plan, the trustee may
resubmit the request only after
correcting the noted deficiencies.
RoQussdnQ payment from tnt)
(a) Where the responsible party it
unknown, the trustee must make a
goodfaith. reasonable effort to identify
the responsible party prior to submitting
a claim. If the responsible party is
identified, the trustee must then comply
with the procedures of | ?Pff.ZS (a) and
(b). Where a responsible party cannot
be identified the trustee may submit a
claim to the Fund pursuant to subpart C
Claims submitted under this subsection
must be accompanied by documentation
of efforts to identify responsible parties.
(b) A trustee or lead trustee must
present both damage assessment claims
and preauthonzed restoration claims to
all known responsible parties at least 80
days before Glint a claim against the
Fund. The presentation to the
responsible party must be a written
request for payment delivered either by
certified mail (return receipt requested)
or in such a manner as will establish the
date of receipt. At a minimum this
request must contain:
(1) The name(s) of the State(s).
Commonwealth(s). or U.S. Trust
Temtory(ies). or Federal agency(iea). or
other authorized trustee(s):
(2) The name(s) ntle(a). and
addresa(es) of any authorized
representative or lead trustee:
(3) The location of the injunes:
(4) The ownerts) of the property.
where the release of a hazardous
substance from which injury to a natural
resource resulted;
(5) The date(s) of the release and its
discovery:
(6) A copy of the damage assessment.
(7) The amount of the request (in
dollars) including costs of any
preliminary resource investigation, and
the assessment or the restoration
activities: and
(B) If applicable, notice of intent to file
subsequently a restoration claim against
the Fund subsequently.
(c) If the trustee and the responsible
party agree to a settlement, it shall be
final and binding upon them, and the
trustees) will have waived all recourse
against the Fund for damage arising out
of the release which resulted in injury to
the natural resource at issue. This
waiver shall not affect the rights of the
trustee to proceed against other
potentially responsible parties for
further or additional relief.
(d] If the claim is denied by the party
believed responsible, and has not been
satisfied after 60 days of presentation to
such party, the trustee may submit a
claim to the Fund in accordance with
subpart 0.
ProcsMsjIno Martyr* Haaiourc* OaJmt
I30LM
(a) For purposes of this regulation, a
natural resource claim is deemed
perfected when EPA determines that the
claim complies Fully with aU filing
requirements. When the claim is
perfected, a notice will be provided to
the trustee of EPA's receipt and
acceptance for evaluation.
(b) A restoration claim must be
submitted on EPA Pom and must
include:
(1) Documentation showing that the
claimed restoration activities were
preauthonzed by EPA: and
(2) Documentation showing that the
restoration activity was accomplished:
and
(3) Documentation that a search in
accordance with 308.28 was conducted
to identify potentially responsible
parties and any contacts with such
parties: and
(4) Substantiation that all claimed
costs are reasonable and necessary.
The following criteria will be used to
determine If the costs are reasonable
and necessary:
(i) Documentation supporting the
trustee's decision to use employees or
contractors to carry out restoration
activities, as applicable:
(ii) Documentation demonstrating tha,
contracts were awarded using maximum
open and free competition.
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Federal Register / Vol. SO. No. 46 / Friday. March B. 1985 / Propoied Rules
9605
The trustee may not seek oompenution
for restoration expenses thai have not
been preauthonzed.
(c) A natural retourct damage
assessment claim must be submitted on
EPA Form and must include:
(II Documentation showing what the
assessment activity accomplished: and
Ul Documentation that a search in
i'/^rdnnce with i .106.25 was concluded
10 identify potentially responsible
parties and any contacts with such
parties: and
(7) Substantiation that all claimed
costs are reasonable and necessary. The
following criteria will be used to
determine if the cosu are reasonable
and necessary:
(i) Documentation supporting the
trustee's decision to use employees or
contractors to cany out restoration
activities, as applicable:
(li) Documentation demonstrating that
contracts were awarded using maximum
open and free competition.
(d) Trustees (or their authorized
representatives) may amend their claims
at any time before final action by EPA.
Amendment of claims after final action
by EPA will be allowed only at EPA's
discretion. Each amendment must be
submitted in writing and signed by the
trustee or authorized representative. The
time limitations of |308Jl(g) begin from
the date (he amendment is filed.
(e) Trustees may not pursue both an
action in court against potentially
responsible parties and a claim against
the Fund at the same time for the same
injury to a natural resource. EPA will
return claims presented under this
subpart when the Agency determines
that a trustee has initiated an action for
recovery of the same costs, in court
against a party potentially liable under
section 107 of CERCLA.
S30L3t Vermeeflon,
(a) Upon receipt of a natural resource
claim. EPA will verily that It complies
with all filing lequiraiiienU. Where the
claim is incomplete or has significant
defects. EPA will reton the claim to the
trustee with written notification of its
deficiencies.
(b) A claim returned to the trustee for
failure to comply with the filing
requirements may be resubmitted to
EPA. Resubmitted claims are new
claims for purposes of the time
limitations of paragraph (g) of this
section. v
(c) Where a claim complies with all
filing requirements, it is deemed
perfected for purposes of this regulation.
(d) Alter a claim is perfected. EPA
will attempt to promote a settlement
between the claimant and any known
responsible parties. If the parties agree
upon a settlement, it Is final and binding
upon them, and they are deemed to have
waived all recourse against the Fund for
compensation arising out of the incident
giving rise to the settlement.
[e] If no settlement is reached within
45 days of the filing of a perfected claun
(unless extended in accordance with
8 306.33). the Administrator will proceed
to determine whether to make an award
on the claim and. if an award is made.
the amount of such award. Awards will
be made:
(1) Only for costs which an
reasonable and necessary:
(2) In the case of claims for restoration
costs, only to the extent that the claim
was preauthorized by EPA pursuant to
40CFR30&24:
(3) In the case of claims for damage
assessments, only to the extent the
Administrator determines that the claim
is of sufficient priority to merit Fund
expenditure.
Where a restoration activity is
determined to* have been ineffective due
to acts or omissions of the trustee.
payment of the claim will be adjusted to
disallow the costs associated with the
activity. EPA may require the claimant
to submit any additional information
needed to determine whether the
actions taken were reasonable and
necessary.
(f) If EPA determines that it cannot
complete its evaluation of a claim
because of insufficient information, it
will request the necessary information
from the trustee. This information must
be submitted within 30 days unless
specifically extended by EPA. The
failure of the trustee to provide in a
timely manner the requested
Information without reasonable cause
con be used by EPA as a basis for
denying the claim. The time limitations
of paragraph (j) •'tnu Mction will be
suspended during this period.
(g) Where settlement In accordance
with either paragraph (d) or (e) of this
section is not reached within 45 days of
the claim's perfection (unless extended
in accordance with I 306.33). EPA will
proceed to:
(1) Make en award on the claim: or
(2) Decline to moke an award and
refer the claim to the Board of
Arbitrators under the provisions of 40
CFR Part 306. except that. if the
Administrator's decision is made
pursuant to subsection (e)(3). the claim
shall not be referred to the Board of
Arbitrators.
(h) If the claimant is dissatisfied with
the amount of an award, the claimant
may submit claim to the Board of
Arbitrators in accordance with 40 CFR
Part 305.
(i) Notice of an award under
paragraph (g)(l) of this section will be
given by First Class Mail within five
days of the date of the decision.
Payment of approved claims will be
made according to i 306.40 of this
regulation.
()) Not withstanding any provision of
this Part no claims submitted by
Federal trustees shall be submitted to
the Board.
nflon.
S306JI Records
A trustee receiving an award from the
Fund la required to maintain all cost
documentation and any other records
relating to the claim and to provide EPA
with access to such records. These
records muit be maintained for at least
six years from the date of the award or
until cost recovery is completed by EPA.
i
Extension el settlement period.
(a) Where EPA determine* that
because of s large number of claims
arising from an incident or set of
incidents, it is in the best interest of the
parties concerned, the time for
prearbitral settlement (i 306.31) or for
rendering an arbitral decision (40 CFR
306.43) may be extended by up to 60
days.
[b) Where all parties to the claim
agree, the time limits of I 30&31 and 40
CFR 305.43 may be extended for a
mutually agreed-upon time period.
»0«rtl>-***i
{300.46
(a) An award against the Fund can
only be paid when monies an available.
An sword against the Fond in excess of
available appropriations in the Fund
may be paid only when additional
money is collected, appropriated, or
otherwise added to the Fund. As
appropriations in the Fund become
available, payment of awards will be
made in the order in which the claim
was finally determined^
(b) Subject to the conditions in
paragraph (a), payment will be made, as
applicable, within:
(1) 30 days of EPA's decision to make
an award in accordance with
I 306L31(g)(l): or
(2) 20 days of the expiratioa of the
penod for appeal of any arbitral award.
or
(3) 20 days of the final judicial
decision of any appeal taken. ,
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9606
Federal Register / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rules
830SX41 SubrooaSJofl Of
to the) fund.
(a) Payment of • claim by the Fund is
subiect to the United States' acquiring
by subrogation all rights of the trustee to
recover the cost of assessment or
restoration awarded by the Fund from
the person or persons liable for such
release to the extent to which the
claimant is compensated.
(b) Any person, including the Fund.
who compensates any trustee in
accordance with the Act for restoration
costs resulting from a release of a
hazardous substance will be subrogated
to all rights, claims, and causes of action
for such costs of restoration that the
trustee has under the Act or any other
law.
Appendix A—Application for
Praauthorization of Natural Resource
Restoration Claim
United SUIM Environmental Protection
Agency. Washington. O.C 20480
Application for Praautnorizatioa of Natural
Raaouic* RMlondan Claim
EPA Docket Number
General Instruction*. Complete all items in
ink or by typewriter. Where applicable, insert
the word "none." Use additional iheets if
necessary. Read carefully the specific
instruction* on the opposite page.
I. Name. Title and Address ol Trustee/Lead
Trustee (Attach delegation establishing
authority to represent all affected trustees)
II. Name. Title and Address of Authorized
Agent (if any) to Represent Trustee/Lead
Trustee
III. Relates to Actual Release of a Hazardous
Substance
A. Date/time (an/pm) of release (if known)
B. Date of discovery of loss of natural
resource(s)
C. Location of release and injured natural
resource(s)
D Description of release
E. Description of natural resource)s)
F. Are any potentially responsible parties
(PRPs) known to you?
Yes If ye*, atuch a list of Identified
PRPs and describe results of any
contacts with them.
. No. If no. describe efforts to Identify
.No.
PRPs.
IV Relates to Natural Resource Damage
Assessment
A Provide date/briefly describe the
findings of the damage assessment.
B. Briefly describe the methodology used to
sssess the natural resource injury.
C. Was court action Tiled to recover
assessment costs?
Yes If so. describe the results and
provide case name, case number.
jurisdiction of the court, and dale of
deternunaiion.
No.
EPA Form (2/85)
D Wai a notice of intent to submit a claim
for an assessment filed with EPA?
Yes If so. give date.
E. Was a claim Tiled against the Fund to
recover assessment costs?
Yes. If 10. give date, describe the
reeults and attach a copy of the Agency s
determination.
No.
V Relates to Natural Resource Restoration
Plan
A. Briefly describe the options considered
in developing the restoration plan.
[Attacb copy of plan)
B. Describe in detail the optional selected
as the basis for the restoration plan.
C Briefly describe the procedures used to
notify the public and to obtain public
comment*.
D. Was the restoration plan adopted by all
trustees and affected Federal agencies?
Yes. (Provide documentation)
No. If no. explain.
VI. Relates to Presuthonzation of Restoration
A. Briefly describe the restoration for
which you seek preauthorizabon.
B. Do you propose more than one phase?
Yes. If yes. describe each phase.
No.
C. Was a notice of intent to submit a claim
for the restoration Tiled with EPA?
Yes. If yes. give date.
No.
EPA
KEPAUM
Vffl. Is This Proposal Within EPA's Planned
Annual Budgetary Appropriation?
Yes. No.
IX Does This Application Revise a Previous1
Requeat?
Yes. No,
EPA Docket Number of Previous Request
Ccrnfkaoea
I certify that all Information contained
herein Is true to the best of my knowledge. I
agrav to supply additional Information, es
requested, la support of this application and
acceea to the site for purpose of inspection.
Signature of Claimant
Data ——^—^———————-——
Oil Penalty for Presenting Fraudulent Claim
The claimant will forfeit and pay to the
United States $2.000. plus double the amount
of damages sustained by the United States.
(31 USC 3729 and 3730.)
Criminal Penalty for Preventing Fraudulent
Claim or Making Falaa Statements
The claimant will be charged a maximum
Tine of not more than S10.000 or be
imprisoned for a maximum of 5 years, or
both. (See B2 Slat. 006. 74ft IB USC 2B7.1001.)
Instructions for Applying for Praauthoriaanoa
of Natural Reaoufoa Reelondon Claim
I Name any Federal natural resource
management agency, principal State.
commonwealth. U S Trust Territory, or other
political entity acting on behalf of all affected
trustees. Provide a list (including name, title
snd address) of all trustees for the injured
natural resources and supporting evidence
authorizing them to prosecute claims for
damages, ss defined in lll(b) of CERCLA If
you are the lead trustee, provide this
evidence and discnbe your efforts to identify
and coordinate with other trustees.
II. Self-explanatory.
111. A. provide documentation of the dale
and lime of the release, if known.
B. Provide the date of the initial report first
establishing that the injury resulted from the
release (III. A.) and provide a copy. (Dale of
the actual assessment is required in IV. A )
C. Provide the name of the city or town and
State when the release and injury occurred.
If the location is outside the city's limit*.
indicate the distance between it and the
nearest city or town.
D. Describe In detail all the known facia
and circumstances associated with the
release of the hazardous substance. Include
the name of the substances released (see
"Superfund Notification Requirement and
Raportable Quantity Adjustment*". 40 CFR
Part 302). and the type of facility that
released the substances (e.g. any building or
structure, pipe or pipeline, well lagoon.
landfill storage container, motor vehicle).
E. Describe In detail the raaource(s). its
use(s) prior to the release and Injury, and its
uniqueness or special characteristics.
Indicate whether its use and characteristics
at the time of the Injury were reeidennaL
commercial/industrial agricultural, forestral.
recreational, mixed use. etc.
f. List all potentially responsible partae
(PRPs) known to you. Describe effort* to
locate PRPs. date of presentation of your
claim, and any reply bom the PRPs.
IV. A. Summanza the natural resource
impacts. Including known and potential
Injury to both media and living organisms.
Atuch a copy of the damage aaeeeemenL
Also Indicate who approved the assessment.
who conducted the sesesemsnt when It was
conducted and when It waa completed.
B. Does the methodology selected comply
with the section 301
sment
regulations, or some other reasonable
methodology?
C Self-explanatory.
D. Supply date. HPA recommends that
tmsteee submit a notice of intent to Ale an
asaeesmenl claim by mean* of the annual
pi •fining pfOGMtV
E. Self-explanatory.
V. A. Identify the options considered, e g.. •
restoration, replacement rehabilitation.
acquisition of the equivalent, or "no action".
(Hereinafter, "restoration" refers to restoring.
rehabilitating, replacing, or acquiring the
equivalent of Injured natural resources).
B. Describe the basis for selection of the
alternative's) (e.g« ooot-effacuveneaa. cost-
benefit, total coat, impact on effected
ecosystems). Attach a copy of the restoration
plan.
C. For example, was there a town meeting.
public hearing, etc.? How were the public'
concerns addressed?
D. Self-explanatory.
VI. A. Provide the timetable for discrete
activities, including start and completion
-------
Federal Register / Vol. 50. No. 46 / Friday. March 8. 1985 / Proposed Rules
9607
OB tea Indicate the) projected Khedule for
submission of the) cUimfi).
B Trustees miy propoaa claims for
•iperable uniti (l.t. paasss) of work If
appropriate, include KM timetable for each
phase of (he planned •ctiviliet and the
p-ojened schedule for lubroitting each
p-ecuthonzation request and mbsequeni
•!dim
C Supply OHte EPA recommends tlidt
•..sires Submit • none* of intent to file a
.•psioratiun claim by meani of thr annual
planning proceti.
VII. Provide an itemization of the estimated
rn«;s of reitonng the injured natural
resourcai for each category. For the co»ti
proiected for actiona no identified (i.e..
'Other"), provide a written itatemenl
indicating the nature and extent of aaid
activity. Supply the baaia for all eatimaled
coftt. If phased clairna an requested, provide
separate ilenuzation of coata by phaae
Explain why the eitimated coita and
expenaea are reasonable and necenary for
reitonng the injured natural mource(s).
Vlll. If EPA notified you that a aufficient
les el cf funding exiata to cover your planned
restoration, please check "Yes".
IX. Self-explanatory.
Appendix B Clilm for CERCLA
Natural Resource Action
United SUtM Environmental Proiacnoa
Acncy. Weahingtnn. D.C. »«•
Claim for CEJtCLA Natunl Resource Action
EPA Docket Number
General Instruction*: Complete all item* in
ink or by typewriter. Where applicable, moert
the word "none." Use additional sheets if
necesary. Read carefully the specific
instructions on the opposite page. Check as
appropriate- D Assessment Qaun D
Restoration Claim
I Name. Title, and Addreea of Trustee/Lead
Trustee
II Name. Title, and Addratt of Autbonxed
Agent (if any) to Represent Trustee/Lead
Trustee
III EPA ID Number ana uaie (for
Preautherued Restoration Claims Only)
IV Relates to Actual Release of a Hazardous
Substance
A. Date/bmefam/pm) of release (if known)
B. Date of discovery of looa of natural
re sources)
C Location of raiaem and Injured natural
resource(s)
D Was the claim uiaeamlad to the
responsible party*
Yea. If yet, give dam and results.
No.
V Relates to Damage Assessment Claims
Only
A Are claimed costs contained within
EPA's annual appropriations?
Yes. If so. give date
No.
B. Briefly describe the findings of the
damage assessment.
C Briefly describe the methodology uaed to
assess the natural resource injury.
VI Relates to Restoration Claims Only
A Does this claim relate lu a pre\ lously
filed assessment claim7
No.
Yes If >es. give ditte and number of
claim.
B Indicate date of Agency preauthunzatiun
of restoration claim
FPA Form (2/85)
C. Indicate date of completion of
restoration protect {or preeulhorntd
phase)
D Detail, if appropriate, how the incident's
deacrption and activities as completed
have deviated from the given In the
approved preauthoruation and the
reasons for iL
VII. Amount of Damage Assessment Claim
(Attach all documents thai support thii
claim)
A Damage Assessment Claim S
B Other (Specify and justify $
C. Total I
Vin. Amount of Restoration Claim (Indicate
whether the claim is for total or partial
authorized costs, and altach all
document* that support this claim)
c TOM
Check One: . Q
Total authorized cost* Q
Partial authorized cost* O
CaatUlcanaa
I certify that the information contained
herein is true to the best of my knowledge. I
agree to supply additional information, as
requested, in support of this claim and access
jr rpjrtHiee* i
Signature of Claimant—
Date ————————
Uvil Penalty for Presenting Fraudulent Oa
The claimant will forfeit end pay to the
United Slates $2.000. plus double the amount
of damage* sustained by the United States.
(31 USC 3729 and 3730.)
Criminal Penalty far Presenting Fraudulent
Claim at Making Falaa Statements
The claimant will be charged a maximum
Tine of not more than S10.000 or be
imprisoned for a maximum of S year*, or
both (See U Slat. 698. 74». 18 USC 287.1001.)
Instructions for Submitting a CUlm for
Natural Resource Actton
I. Name any Federal natural resource
management agency, principal State.
commonwealth. U S. Trust Territory, or other
political entity acting on behalf of ell affected
trustees.
D. Self-explanatory
UL See the upper right-hand comer of the
approved preauthonzatlon form.
IV A. Provide documentation of the date
jnd lime of the release if known
B Provide the date of the initial report first
ea'ablishing that the injury resulted from the
release of a hazardous substance (IV A 1
(Date of actual damage assessment required
mV B)
C Provide (he name of the rity or (own and
State where the release and the injury
occurred. If the location t* outside the city'i
limut. indicate the distance bet Keen it and
the nearest city or town
D Lilt all potentially responsible pjrties
(PRPs) known to the trustee Describe efforts
4o locate PRPs. date of presentation of your
claim, and any reply from the PRPs.
V. A. It u recommended that the trustee
submit a notice of intent to Hie an assessment
claim by mean* of the annual planning
process. If you have followed this process.
give the date of receipt of Federal
government approval If you check "No".
indicate which of DOM two conditions apply
(1) you submitted a notice of claim a* pan of
the annual planning process, but the
assessment waa deemed a low priority, or (2)
you declined to file a notice of claim.
B. Summarise the natural resource impacts
including known and potential harm to both
madia and living organiama. Attach a copy of
the damage ssseesmenL Alao Indicate who
approved the sssessmrnt who conducted the
assessment, whan It we* conducted and
when It was completed.
C Does the methodology selected comply
with the Section 301 damage aaaesament
regulation*, or tome other reasonable
methodology? Specify If you ore asserting
that your assessment u entitled to rebuttable
presumption.
VL A. If this restoration claim relates to a
previously Bled aaaaaament claim for the
same Injury. Supply the data on which the
claim waa filed and the number assigned by
EPA. (Hereinafter, "restoration" refer* to
restoring, rehabilitating, replacing, or
acquiring the equivalent of an injured natural
reeourca).
B. C. Self-explanatory.
D. Deecribe and (uatify any method* used
in taking the natural resource action that
deviated from the preauthorued approach. I/
such deviation required modifying the
praauthernvd actiona or protect cost*, a
request for preanthorizanon detailing such
modification* must be retubnutted and
approved. (**• I 308. )
VIL Document that all action* conducted
by employ*** were more economical than
using contractor* and that all contractor*
were selected through maximum competition
A. Submit proof of all aspects of the
claimed coata associated with ascertaining
actual Injury to natural resources.
B. Submit proof of all aspect* of the
claimed coata associated with action* not
identified in "A" above.
VUL Document that all action* conducted
by employe** were more economical than
uatng contractor* and that all contractor*
were (elected through »"• «*"""« competition
A. Supply preauthortied cost* *nd actual
-------
9608 Federal Reptter / Vol. 50. No. 46 / Friday. March 8. 1985 / Propo»ed Rules
cotu. Submit proof of ill aipecti of lh«
claimed ectts aieoeiated with r»»loreiion of
miured natural reMweae and a written
statement indicating the aatare and extent of
juch activity.
B. Supply preauthomd cotw i.id actual
loiu Submit proof of all aapecta of the
claimed coatt attociated with actiona not
identified in "A" above.
If EPA approved a phased approach
authorizing partial reimburwmnl. check
"partial authorized coita:" if EPA approved
total reimbursement, check "total authorized
com."
(PR Doc. 85-5355 Filed J-7-8S: 8.45 am]
•iua»n rnn> inn la •
-------
Monday
March 11, 1985
Part IV
Environmental
Protection Agency
40 CFR Part 110
Water Programs; Discharge of Oil;
Proposed Rule
-------
9776
Federal Register / Vol. 50. No. 47 / Monday. March 11. 1985 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 110
IFRL 2742-7)
Water Programs; Discharge of Oil
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency is today proposing amendments
to the discharge of oil regulation (40 CFR
Part 110). which implements section 311
of the Dean Water Act (CWA).
The original regulation established a
trigger for notifying the federal
government of oil discharges that are
harmful to public health or welfare. The
regulation defined a harmful quantity as
the amount of oil that violates
applicable water quality standards or
reuses a Him or sheen upon or
discoloration of the surface of the water
or adjoining shorelines or causes a
sludge or emulsion to be deposited
beneath the surface of the water or upon
adjoining shorelines. It has come to be
known as the "sheen regulation."
Today's proposed regulation
incorporates the 1977.1978. and 1980
amendments to section 311 of the CWA
and implements section 18(m)(3) of the
Deepwater Port Act of 1974. The Agency
invites comment on the incorporation of
the CWA amendments and
.implementation of section 18(m)(3) of
the Deepwater Port Act of 1974. The
Agency is also soliciting comments on
two suggestions by industry for
modifications to the requirements of 40
CFR Part 110.
DATE: Comments must be received on or
before May 10.1985
ADDRESS: Comments should be
submitted in triplicate to. Emergency
Response Division. Docket Clerk.
Attention Docket Number 311 CWA-
OSA. U.S Environmental Protection
Agency. 401 M Street SW.. WH-548/B.
Washington. D C. 20460.
Docket Copies of matenals relevant
to this rulemakmg are contained in
Room S32S at the U.S Environmental
Protection Agency. 401 M Street. S W.
Washington. D.C. 20460. The docket is
available for review between the hours
of 8 00 a m. and 4 00 p m Monday
through Friday. As proMded m 40 CFR
Pdrt 2. a reasonable fee rruy be charged
for copying services.
FOR FURTHER INFORMATION CONTACT
Dr K. Jack Kooyoompan. Response
Standards and Cntena Branch.
Emergency Response Division (WH-
.vta/Bl. U S Environmental Protection
Agency. 401 M Street SW.. Washington.
D.C.. or the RCRA/Superfund Hotline.
(800) 424-9348. in Washington. D.C, 382-
3000.
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline
I. Introduction
II Background
III Statutory Changes Affecting the Oil
Discharge Regulation
A. 1977.1978. and 1980 Statutory
Amendments. Deepwdter Port Ad of
1974
IV Requests for Changes in the Oil Discharge
Regulation
A Volumetric Alternatives tu Sheen Test
B Special Use Applications of Oil
V Summary of Supporting Analyses
A Classification and Regulatory Impact
Analysis
B Certification Why a Regulatory
Flexibility Analysis Is Not Necessary
C. Paperwork Reduction Act
VI List of Subjects in 40 CFR Part 110
1. Introduction
The discharge of oil regulation (40
CFR Part 110). also known as the "sheen
regulation." has been codified since
September 1970. Over the years since its
original promulgation, it has been
extremely effective in requiring timely
notice of oil spills. Prior to this
regulation, there was no requirement to
report oil spills promptly This
regulation and the level of
consciousness it has raised among
responsible parties and governmental
officials have made the United States a
leader ID response to oil spills
The sheen regulation is simple in
concept. The regulation implements the
CWA's prohibition against discharges of
"harmful quantities" cf oil and requires
the responsible party to report to the
National Response Center (NRC) or an
appropriate EPA Regional Office or
United States Coast Guard (USCC)
District Office as soon as that party has
knowledge of such a release of oil. This
regulation is easy to understand.
implement, and enforce Detecting a
sheen does not require sophisticated
instrumentation since a sheen is easily
perceived by visual inspection The
sheen test has been proposed.
commented upon, and implemented
successfully. It has also withstood legal
challenges
In today's preamble, we discuss the
proposed changes in the regulation that
implement congressionally mandated
changes They include the 'ollowing'
1 The extension of geographical SLOpe
from the contiguous zone seaward to 200
miles
2 Modification of the harmful
quantity definition from discharges of
such quantities of oil "determined" to be
harmful to the public health or welfare
of the United States to such quantities
"as may be harmful" to the public health
or we If a re. of the United States.
1 The exemption of oil discharges)
controlled under CWA Section 402's
National Pollutant Discharge
Elimination System (NPDES) from
coverage under Section 311 provisions.
4. The incorporation in the regulation
of the provisions under the International
Convention for the Prevention of
Pollution from Ships. 1973. as modified
by the Protocol of 1978 (MARPOL 73/
78). Annex I.
S. The extension and application nf
the CWA definition of harmful
quantities of oil for purposes of Section
18(m)(3) of the Deepwater Port Act
(DWPA).
The preamble also solicits comment
on the following suggested changes to 40
CFR Part 110 that have been requested
by the regulated community:
1. Chevron has asked the Agency to
consider a volumetric trigger for
notification to replace the sheen.
2. Esgurd has requested that EPA
exempt its vegetable-oil-based product.
a corrosion inhibitor in ballast tanks.
from notification requirements.
IL Background
On September 11.1970. regulations
were promulgated setting forth a
determination of "those quantities of oil
the discharge of which ' ' ' will be
harmful to the public health or welfare
of the United Slates" (35 FR 14306-
14307. September 11.1970:18 CFR Part
810) pursuant to Section 311(b)|3) of the
Federal Water Pollution Control Act. as
amended (33 U.S.C 466. now 33 U S C
1251 ei seq ). commonly referre'd to ds
the Cleun Water Act (CWA) In 1971
and 1976. the regulations were modifier!
in a minor way to reflect, first, a new
codifiction that was established for F.PA
to conform to the pro\isions of a
reorganization plan (18 CFR Part 610
became 40 CFR Part 110) and second.
statutory amendments to the CWA
adopted by Congress in 1972 (41 FR
49810-49811. November 11. 1976)
The 1977.1978. and 1980 amendments
that are incorporated into the regulation
by th:s proposdl are discussed below
in. Statutory Changes Affecting the Oil
Discharge Regulation
A ;.«•'". 1978. and 1980 Stafjtor,
Ame->c;7ie/i/s. Deepwater Port Act or
19T4
1 Extension of Geographical Scope
In the 1977 amendments to the CWA
(Pub. L 95-217). Congress expanded the
geographical scope of Section 311
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9777
beyond the contiguous zone, which
extends seaward to 12 miles, to include
the fishery conservation zone, which
extends out to 200 miles. Specifically.
sections 311 (b) and (c) of the Act were
amended to apply not only to discharges
into navigable waters and the
contiguous zone of oil or hazardous
substances in harmful quantities, but
also to such discharges
• • • in connection with activities under the
Outer Continental Shelf Lands Act or the
Deepwater Port Act of 1974. or which may
effact natural resources belonging to.
appertaining to. or under the exclusive
management authority of the United States
(including resource* under the Fishery
Conservation and Management Act of 1970)
• ' ' (33 U S.C 1321 (b) and (cj).
The Agency proposes to amend the
junsdictional provisions of 40 CFR Part
110 to reflect the expanded scope of
section 311 as provided by Congress in
1977.
2. Modification of Harmful Quantity.
In 1978 Congress modified the harmful
quantity criteria of section 311 by
changing the quantities of oil discharged
that trigger the notification and other
provisions of this section from those
quantities that "will be harmful" to
quantities that "may be harmful." More
specifically. Congress modified the
scope of prohibited discharges under
section 311(b)(4) from quantities the
1 discharge of which, at such times.
locations, circumstances, and
conditions, will be harmful" (emphasis
added) to such quantities the "discharge
of which may be harmful" (emphasis
added) (Pub. L 9S-576). Section 311(b)(3)
was also amended to reflect this change.
The existing oil sheen test was
promulgated pursuant to the pre-1978
standard of " will be harmful." The
agency views the revised statutory
standard ("may be harmful") as being.
at a minimum, at least as stringent and
environmentally protective as the prior
-will be harmful" standard. In view of
the successful and effective implementa-
tion of the existing oil sheen test over the
past 14 years and the Agency's
continued confidence in that procedure.
and because the Agency at the moment
has insufficient information upon which
to establish an alternative test that
would meet the slatutonly based criteria
of environmental protection and assure
reliability and ease and consistency in
implementation and enforcement, the
Agency proposes to incorporate ihenew
"may be harmful" language in 40 CFR
Part 110. but is not proposing to change
the existing oil sheen test itself
As discussed in Section IV. A of the
preamble, the Agency has received a
suggestion to change the present trigger
for notification from the oil sheen test to
a volumetric determination. The Agency
is requesting comment on that
suggestion and welcomes any
information or analysis that those who
comment believe might be of assistance
in considering this suggested approach.
However, as noted above and discussed
further in Section IV. A. the Agency is
not proposing to modify the present oil
sheen test at this tune.
3. Exemption of Discharges Permitted
under Section 402 of the CWA. In
addition to changing the harmful
quantity language in the 1978
amendments to the CWA. Congress also
modified the definition of "discharge'* in
section 311(a)(l) to exclude from Section
311 coverage three types of discharges
that are subject to the Section 402
National Pollutant Discharge
Elimination System (NPDES) and
Section 309 enforcement provisions.
Specifically. Congress provided that the
following discharges be excluded from
section 311 coverage:
(A) discharges ID compliance with a permit
under section 402 of this Act (B) discharges
resulting from circumstances identified and
reviewed and made a part of the public
record with respect to a permit issued or
modified under secnon 402 of this Act. and
aubiect to • condition in such permit, and (C)
continuous or anticipated intenmttenl
discharges from a point source, identified in a
permit or permit application under section
402 of this ACL which are caused by events
occurring within the scope of relevant
operating or treatment systems.
The basis for this specific exclusion
stems from the uncertainty under the old
statute as to whether and to what extent
discharges from facilities with NPDES
permits were subject to the provisions of
section 311. Senator Stafford, a principal
sponsor of the amendment to section
311. explained the gereral nature of the
changes:
• • • we an attempting to draw a line
between me provisions of the set under
sections 301.301402 regulating chronic
discharges and 311 dealing with spills. At the
extremes it :• relatively easy to focus on the
difference but it can become complicated.
The concept can be summarized by stating
that those discharges of pollutants that a
reasonable man would conclude are
associated with permits, permit conditions.
the operation of treatment technology and
permit violations would result in 402/308
sanctions: those discharges of pollutants thai
a reasonable man would conclude are
episodic or classical spills not intended or
capable of being processed through the
permitted treatment system and outfall woulri
result in the application of secnon 311 [124
Congressional Record 37BB3 (1978))
More specifically. Senator Stafford
related that "the changes make it clear
that discharges, from a point source
permitted under section 402 which are
associated with manufacturing und
treatment, are to be regulated under
sections 402 and 309. 'Spill' situations
will be subject to section 311. however.
regardless of whether they occur at a
facility with a 402 permit' (124
Congressional Record 37683 (1978))
In the modified definition of
discharge, the first exclusion applies to
discharges of oil in compliance with a
402 permit limitation specifically
applicable to the oil Such limitations
include those that are designated by the
permitting authority as an indicator of
that substance and those that are
application-based. The second exclusion
applies to discharges from a point
source: Provided, that the type of oil
amount source, and treatment system
are identified in the public record, and
the oil to be discharged is subject to a
permit condition requiring treatment of
the discharge. The third exclusion
applies to chronic and anticipated
intermittent discharges from a point
source identified in a permit or permit
application. The third exclusion will
remain applicable after permit
reissuance or revision.
Discharges that are not subject to a
limitation or that are not covered by the
second or third exclusion will be subject
to the notification, civil penally, and
removal cost provisions of section 311.
Each of the exclusions is explained m
greater detail below.
E\clusion 1. In some cases, permit
effluent limitations representing an
appropriate waste 'treatment technology
level exceed the section 311 reportable
quantity for oil. Thus, a permittee may
be in compliance with his permit while
discharging oil in amounts greater than
the reportable quantity Under these
regulations, if a discharge is in
compliance with a permit issued under
Section 402. such discharge is excluded
from section 311. This exclusion applies
when the permit contains a limitation
specifically applicable to od. In cases
where specific technology-based
effluent limits are not applicable.
permits may contain effluent limitations
based on discharge amounts (or some
multiple of these amounts) reported in
permit applications. Such limits (known
as application-based limits) would also
be considered permit limitations for
purposes of these regulations, and
discharges from point sources complying
with such limits would be excluded from
secnon 311.
Exclusion 2. Some discharges of od
from permitted point sources may result
from circumstances that were identified
and considered in the issuance of a
permit, but are not subject to any
specific effluent limitations. The second
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Federal Register / Vol. 50. No. 47 / Monday. March 11. 1985 / Proposed Rules
exclusion addresses these situations
and applies where the source, nature.
and amount of potential discharge were
identified and made a part of the public
record, and a treatment system
demonstrated as capable of preventing
that potential discharge was made a
permit requirement.
The "public record" has been defined
to'include the permit application and
any supplemental documents contained
in the "record for final permit" as
deHned in 40 CFR 124.122. The public
record must identify the type of oil to be
excluded, as well as the amount and
origin or source of the oil.
The second exclusion exempts
discharges "resulting from
circumstances identified, reviewed and
made a part of the public record [of a
permit] * * * and subject to condition in
(a) permit." On its face, this exclusion
applies to a broad range of discharges.
including those resulting from onsite
spills to the treatment system as well as
to chronic process discharges originating
in the operating or treatment systems.
provided they are subject to a specific
permit condition. Owing to overlap
between the second and third
exclusions, however, certain continuous
and anticipated intermittent discharges
are exempted by the third exclusion.
regardless of the existence of an
applicable permit condition. Thus, the
second exclusion will, as a practical
matter, cover principally those
discharges resulting from onsite spills to
the permitted treatment system.
The legislative history makes it clear
that Congress intended discharges
caused by onsite spills to be excluded
from Section 311 (and subject to Section
402) only where it could be
demonstrated that such onsite spills had
been contemplated and had been
processed through a treatment system
that should have been capable of
preventing a reportable discharge (see
Congressional Record of October 14.
1978 (S192S9)) Thus, the "condition"
contemplated in 311(a)(2)(B) will be
placed m permits to exclude discharges
caused by spills only where the
permittee demonstrates that the
treatment system is m fact sufficient to
treat the potential spill identified. For
example, if a discharger has a drainage
system that will route spilled material
from a broken hose connection to a
holding tank or basin for subsequent
treatment and discharge dt a specified
rate, documentation must be submitted
with the application The proposed
permit condition must be sufficient to
treat the maximum potential spill from
the identified source This exclusion will
not exempt a discharge that results from
an onsite spill larger than the spill
contemplated in the public record.
Exclusion 3. The third exclusion
applies to all continuous or anticipated
intermittent discharges originating in the
manufacturing or treatment systems.
including chronic discharges and those
caused by upsets and treatment system
failures. The exclusion is not dependent
on the scope of the permit, so long as a
permit application has been submitted.
or a permit exists, covering the point
source m question. Discharges caused
by spills or episodic events that release
oil within the manufacturing system or
to the treatment system are not covered
by this exclusion.
4. Exemption of Discharges Permitted
under MARPOL 73/78. Annex I of the
International Convention for the
Prevention of Pollution from Ships. 1973.
as modified by the Protocol of 1978
(MARPOL 73/78). entered into force on
October 2.1983 (see 48 FR 45704-45727.
October 8.1983). The purpose of
MARPOL 73/78, which supersedes the
International Convention for the
Prevention of Pollution of the Sea by Oil.
1954. is to eliminate marine pollution
from ships.
Many of the requirements of MARPOL
73/78 were implemented by the Port and
Tanker Safety Act of 1978 (Pub. L 95-
474) The Act to Prevent Pollution from
Ships. 1980 (Pub. L 96-478: 33 U.S.C.
1901-1911). implemented the remainder
of the provisions of MARPOL 73/78.
Pub. L. 96-478 also amended the CWA
to reflect the supersession of the 1954
Convention by MARPOL 73/78.
Section 13(b) of Pub. L 96-478
amended section 311(b)(3)(A) of the •
CWA to exempt certain discharges into
waters seaward of the territorial sea
permitted under MARPOL 73/78. Such
discharges include the operational
discharge of limited quantities of oil-
water mixtures from ships. Thus.
discharges into those waters from ships
made in compliance with the
requirements of Regulation 9 of
MARPOL 73/78. Annex I (as
implemented through 33 CFR Parts 151
and 157). are not subject to notification
and liability provisions under the CWA
even if they would otherwise be of "a
quantity that may be harmful" under the
CWA. The MARPOL exemption does
not apply, however, to discharges into
the internal waters and the temtonal
seas of the United States Such
discharges must satisfy the CWA
"quantity that may be harmful"
discharge standard even if the MARPOL
73/78 discharge standards are met
Regulation 9 of MARPOL 73/78
applies to all "ships" operating in the
marine environment Such "ships"
include all vessels and both fixed and
floating platforms. As provided under 33
CFR Part 151. however, compliance with
an NPDES permit by a fixed or floating
drilling rig or other platform satisfies the
requirements of MARPOL 73/78. With
certain specific exemptions. Regulation
9 of MARPOL 73/78. Annex I. like
Section 311 of the CWA. prohibits the
discharge-of oil. One exception to the
general prohibition allows operational
discharges from the machinery space
bilges and fuel oil tanks of ships, but
requires that the oil content of the
effluents be fewer than 15 parts per
million (ppm) when within 12 nautical
miles of land and fewer than 100 ppm
when more than 12 miles from land.
Another exception applies to
operational cargo-related discharges
from oil tankers: it requires that
discharges be made only beyond 50
nautical miles from land and at a rate
not to exceed 60 liters of oil per nautical
mile. Finally, the total quantity of oil
allowed to be discharged is limited to I/
30.000 and 1/15.000 of the total quantity
of the particular cargo carried onboard
for "new" and "existing" tankers.
respectively. As stated above, these
MARPOL 73/78 discharge limitations
are contained in 33 CFR Parts 151 and
157.
In addition to the operational
limitations noted above. Regulations 9
and 11 ("Exceptions"] prohibit, for
purposes of section 311(b)(3) of the
CWA. oil discharges resulting from
damage to a ship or its equipment when
(1) measures are not taken to prevent or
minimize a discharge, or (2) the master
intended to cause damage or was
reckless and knew damage would result.
The only exceptions to the general
discharge prohibition of Regulation 9
are: (1) intentional discharges necessary
for the safety of the ship and to save life
at sea: (2) any discharges resulting from
damage to a ship or its equipment
(except as prohibited above): and (3) the
use of approved substances to combat
specific pollution incidents. Discharges
allowed by these emergency exceptions
are not "permitted" discharges. This
provision simply recognizes for purposes
of MARPOL 73/78 that, under certain
circumstances, a discharge cannot be
avoided. All discharges not complying
with MARPOL 73/78 discharge
limitations, including "emergency
discharges." are prohibited by section
311(b)(3) of the CWA and must be
reported. It should also be noted that dll
discharges, including permitted ones.
must be recorded in the ship s Oil
Record Book as required by 33 CFR
151 25
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Federal Register / Vol. 50. No. 47 / Monday. March 11. 1985 / Proposed Rules
9779
Because discharges subject to and
complying with Regulation 9 are
permitted by the CWA, they do not have
to be reported under Section 31l(b)(5)
even if they would otherwise constitute
a quantity thai may be hennfuL
5. Discharges at Deep-water Ports. In
addition lo implementing the 1977,1878.
and I960 amendments to the CWA. th»
proposed ruiemaking defines harmful
quantities of od for purposes of the
Deepwater Port Act (DWPA) of 1974 (33
U.S.C. 1501-1524). The DWPA applies to
the construction and operation of
deepwater ports off the U.S. coast. It
contains provisions thai prohibit the
discharge of oil into the marine
environment from deepwater ports and
from vessels within the "safety zones"
around such ports. The DWPA also
establishes deepwater port licensee and
vessel owner or operator liability for
cleanup costs and damages that result
from a discharge of oil Other features of
the DWPA include discharge
notification requirements, penalty
provisions, and the establishment of the
Deepwater Port Liability Fund. The fund
is liable, without regard to fault for all
cleanup costs and damages m excess of
those actually compensated by a liable
deepwater port licensee or vessel owner
or operator.
Action under each of the key pollution
provisions of the DWPA is triggered by
a discharge of oil in harmful quantities.
Although the USCG has overall
responsibility for administering the
Deepwater Port Lability Fund and
related statutory provisions of the
DWPA (see 33 CFR Part 137). the DWPA
directs EPA to define the term
"discharge." Section 18(ra)(3) of the
DWPA defines "discharge" in terms of
those "quantities of oil determined to be
harmful pursuant to regulations issued
by the Administrator of the
Environmental Protection Agency" (33
U.S.C. 1517(m)(3)).
The legislative history of section 18 of
the DWPA shows that Congress
expected the Administrator "to define
harmful quantities of od as defined in
regulations issued vukr section 311 of
the Federal Water Pollution Control
Act" (Sen. Rep. No. 83-1217.93d Cong..
2d Seas. (1974]). Consequently. EPA
proposes that the definition of harmful
quantities of oil in 40 CFR Part 110 (as
revised by this rulemaking) be used for
purposes of the DWPA. including the
Section 402 CWA permit-related
exclusions. (Although the Agency is
proposing to use the sheen test subject
lo the noted exclusions, as the reporting
trigger for deepwater ports, we would
like to receive comments on the
alternative volumetric approach as
discussed under Section IV. A. of the
preamble.)
It was though during the energy crises
of the 1970's that there would be
constructed a number of deepwater
ports to accommodate supertankers.
There is. however, currently only one
operational U.S. deepwater port: the
Louisiana Offshore Oil Port. Inc.
(LOOP), which is located in the Gulf of
Mexico, approximately 19 miles south of
Grand Isle. Louisiana. Only that port
and the vessels calling there will be
immediately subject to the definition of
a "discharge" proposed by this
rulemaking.
Because of the statutory changes
discussed above, it has become
necessary to redesignate it 110.6
(Exception for vessel engines).'ll0.7
(Dispersants). 110.8 (Demonstration
projects), and 110.9 (Notice) as if 110.8.
110.9,110.10. and 110.11. respetively.
IV. Requests for Changes in the Oil
Discharge Regulation
The Agency plans to promulgate
promptly the statutonly mandated
changes discussed above and today
solicits comments on them. In addition.
EPA requests comment and information
on other issues pertaining to 40 CFR Part
110. described below.
A. Volumetric Alternatives to Sheen
Test
Chevron U.S.A. Inc.. of San Francisco.
California, has commented to EPA that
the sheen test is too stringent and that
alternative, volumetric limits would
provide sufficient water quality
protection at a lesser cost to the
company. Chevron has suggested that
the reportable quantity threshold be
changed to 1 barrel (42 gallons), except
where water quaLty standards are more
stringent The company maintains that
spills of less than 1 barrel "rarely, if
ever, cause environmental damage."
Chevron claims, in material submitted to
EPA. that approximately 75 percent of
the spills it reports are of under 1 barrel
and estimates that the cost to the
company is $500 to S6.000 per spill
report
EPA is interested in receixing
comments on the appropriateness of a
volumetric reporting test of 1 barrel. 50
barrels, or any other appropnate level.
As discussed above, the statutory
requirement under the CWA is that the
reporting threshold is to be a "quantity
as may be harmful." Any alternative
reporting threshold must be consistent
with this statutory requirement
As noted above. EPA views the
revised "may be harmful" criteria of
Section 311 as being at least as stringent
and environmentally protective as the
prior "will be harmful" standard.
Compared to the present oil sheen test.
the alternative volumetric suggestion by
ChevTon would allow greater quantities
of oil to be discharged without being
subject to the notification requirements
or liability provisions of section 311. The
information submitted by Chevron.
however, does not provide an adequate
basis for concluding that such a
volumetric alternative is. in fact, at least
as environmentally protective as the
present oil sheen lest. Moreover, initial
comment from the USCC and from EPA
field personnel indicates that a change
to a volumetric limit of. for example. 1
barrel, would be less environmentally
protective and less enforceable than the
sheen lest since it is difficult to
determine the precise volume of oil once
it is discharged into the water. Finally.
those who implement the current
regulation seem to agree that it has been
successful in creating an effective early-
warning system, in improving oil-
handling techniques, and in reducing
spillage.
EPA. therefore. IB not proposing a
change to the present od sheen test. The
Agency does, however, request data on
industry's suggestion.
EPA would like to receive comments
on the environmental impacts reporting
costs, administrative impacts, and
enforceabihty of volumetric reporting
test The Agency is especially interested
in a comparison of the environmental
effectiveness of the volumetric approach
and the present sheen test. Those who
comment should, insofar as possible.
provide supporting documentation and
analysis in addition to their opinions on
th:s issue.
Other information that EPA is
interested in receit mg includes.
1 Environmental irr.racts of various
sizes of spills (for example, under 1
barrel 50 barrels. 100 barrels),
2. Circumstance affecting harm (type
of receiving water—fresh, brackish
salt—type of oil. and so forth).
3 Cumulative environmental impacts
of small release, need for cleanup
actions for accumulations of small
releases, and property damage resulting
from such accumulations.
4 Effectiveness of the sheen and the
volumetric alternative as an early
warning system to prevent larger spill.s
S Frequency with which corrective
action is necessary or required for small
releases:
B. Effectiveness of the sheen reoortina
threshold in inducing effective spill
prevention practices on the part of nil
handlers.
7 Number of spills reported each
year number under 1 barrel.
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Federal Register / Vol. 50. No. 47 / Monday. March 11. 1985 / Proposed Rules
B. Estimated number of small silts not
reported:
. 9. Discharges' reporting costs for
reporting small spills: direct,
admnistrative/recordkeeping. down
time, other (provide documentation);
10. Extent to which reporting costs are
(a) required by law or regulation: (b) a
responsible practice, but not directly
required: or (c) other
11. Extent to which reporting costs
vary as a function of spill sue. type, or
location:
12. Frequency with which the On-
Scene-Coordinalor responds in person
to reports of spills of 1 barrel or less;
13. Estimated administrative cost of
responding to small spills:
14. Difficulty and range of uncertainty
in determining volume of oil once it is
spilled (for example, would it be clearly
apparent that a 10-barrel spill was
greater than a 1-barrel spill?);
compliance/enforcement impact of
uncertainty in juding size of a spill after
the fact:
15. Extent to which a sheen is or is not
caused by different fractions and types
of oil:
16. Extent to which a volumetric limit
would be inconsistent with related
programs (such as MARPOL limits.
water quality standards):
17. Extent to which discharges smaller
than a volumetric quantity would be
rcportable any way under'MARPOL
provisions:
ia Extent to which the reporting and/
or sanctions mechanisms under
MARPOL might be less effective than
those under the CWA;
19 Problems that might result if
onshore facilities (covered under the
CWA only) have a different reportable
quantity than ships and offshore
facitites (which must report under
MARPOL): and
20. Problems that might result if the
liability provisions under Section 311(f)
are triggered at some volumetric release
level, resulting in an inability to recover
removal costs for individual and/or
cumulative effects of the release less
than the volumetric reportable quantity
(even though smaller releases must be
reported under MARPOL).
EPA also welcomes any additional
information or comments bearing on
these issues.
B. Special use Applications of Oil
EPA has authority under the CWA.
section 311 (b)(3(B). and Executive
Order 11735 (38 FR 21243) to permit the
discharge of oil "in quantities and at
times and locations or under such
circumstances or conditions" as the
Agency determines not to be harmful.
Thus. EPA may grant exemptions to
section 311 (b) and the sheen regulation
under appropriate circumstances. As
this section of the preamble explains.
the Agency has received the following
request for an exemption for vegetable
oil products on which it would like to
receive public comments.
The ballast tanks of ships and
semisubmersible oil ngs are subject to
significant corrosion from sea water.
This corrosion threatens the structural
integrity of the tanks. The tanks can.
however, be protected by floating oil on
the surface of the ballast water when
the tanks are flushed or emptied, some
of the floating oil coats the tank walls
and makes them less susceptible to
corrosion. Petroleum oil is sometimes
used for this purpose. Upon discharge of
the ballast water into a harbor or bay.
however, the coating oil is sometimes
released, thus creating an oil sheen. This
sheen is, of course, subject to the
notification requirements of the oil
discharge regulation. MARPOL 73/78
does not apply to vegetable (or animal)
oils and thus does not pertain to this
issues.
EPA has received a request to exempt
from the sheen regulation a vegetable oil
product manufactured by Esgard. Inc...
of Lafayette. Louisiana, that is used to
prevent salt water corrosion in the
ballast tanks and void spaces of ships
and semisubersible oil ngs. This
product, which is composed primarily of
a food-grade vegetable oil and calcium
soaps of fatty tnglycendes. floats on the
surface of the ballast water to coat and
protect the steel surfaces. When
discharged, the product produces a
sheen on the water's surface.
The Agency w considering a number
of regulatory options on such products.
They include the following:
1. Exempting discharges of vegetable-
based products used for tank coating
from reporting requirements under 40
CFR Part 110 (this option would require
the development of criteria for selecting
the products to be exempted)-.
2. Exempting discharges of such
products on case-by-case basis:
3. Requiring the discharge to be
reported to the appropriate authorities
in all cases.
The Agency requests comments on these
regulatory options.
The Agency also requests specific
technical and scientific data on the
following items
1. Evironrnental impacts of the use of
vegetable and other nonminera! oils.
particularly fish oils:
2. Biodegradabihty of such oils:
3. Conditions under which discharges
of such oils may be harmful.
4. Benefits of the use of such oils.
including data on the various uses,
5. Volume and frequency of
discharges of such oils from the ballast
tanks and void tanks of ships and
semisubmers;ble oil ngs:
6 Biological oxygen demand/chemical
oxygen demand requirements for
degradation:
7. Volume of material used per squdre
foot:
8. Volume discharges per day:
9. Length of time of discharge:
10. Other methods of tank coating for
corrosion protection in lieu of an oil
"float coat"; and
11. Any other relevant information
V. Summary of Supporting analyses
A. Classification and Regulatory Impact
Analysis
Proposed regulations must be
classified as major or nonmaior to
satisfy the rulemaking protocol
established by Executive Order 12291.
E.O. 22291 established the following
cnter.a for a regulation to qualify as a
major rule:
1. An annual effect on the economy of
$100 million or more:
2. A major increase in costs or pnces
for consumers, individual industries.
Federal. State, or local government
agencies, or geographic regions, or
3. 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 or export
markets.The proposed oil discharge
regulation is a nonmaior rule because
the Agency has concluded that it meets
none of the above cntena. Data
supporting this conclusion can be found
in the rulemaking docket.
B. Regulatory Flexibility Aa
Pursuant to the Regula'ory Fle\ibilit\
Act. 5 U S C. 001 et sec.. Whenever an
agency is required to publish a general
notice of ruJemaking for any proposed ot
final rale, it must prepare and maked
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
entities (i e.. small businesses, small
organizations, and small governmental
junsdictions). The Administrator mav
certify, however, that the rule will not
have a significant economic impact on a
substantial number of small entities
This amendment will not have a
significant economic impact on small
entities. There may be some incremental
costs of compliance owning to the
extension of lunsdiction beyond the
cont.guous zone to 200 miles. These
costs will, however, be borne by own?
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Federal Register / Vol. 50. No. 47 / Monday. March 11. 1985 / Proposed Rules
9781
of vessels larger than those defined as
small entiles. Accordingly. I herby
certify that this proposed regulation
would not have a significant economic
impact on a substantial number of small
entities. This regulation, therefore, does
not require regulatory flexibility
analysis.
C. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501 et seq.).
Submit comments on these requirements
to the Office of Information and
Regulatory Affairs. OMB. 726 Jackson
Place. N.W.. Washington. D.C. 20503.
market "Attention: Desk Officer for
EPA." The final rule will respond to any
OMB or pubic comments on the
information collection requirements.
VI. List of Subjects in 40 CFR Part 110
Administrative practice and
procedure. Coastal zone. Continental
shelf. Environmental protection.
Fisheries. Hazardous substances.
Intergovernmental relations. Liabilities.
Marine resources. Natural resources. Oil
pollution. Penalties. Petroleum. Public
health. Reporting and recordkeepmg
requirements. Rivers. Treaties. Vessels.
Water pollution control. Water
resources. Waterways.
Dated. March 1.1985.
Lee M. Thomas.
Administrator
For the reasons set out in the
preamble. 40 CFR Part 110 is proposed
to be revised as follows.
PART 110—DISCHARGE OF OIL
Sec
110.1 Definitions
1102 Applicability.
110 3 Discharge into navigable waters of
such quantities at may be harmful.
110 4 Discharge into contiguous zone of
such quantities as may be harmful.
110 S Discharge beyond contiguous zone of
such quantities as may be harmful
110 6 Discharge at deepwater ports.
1107 Discharge prohibited
110.8 Exception for vessel engines
1109 Dispersants
110 10 Demonstration protects
11011 Notice
Authority. Sees 311 and 501 (a). Federal
Uaier Pollution Control Act Amendments of
1972 (33 USC. 1251 et seq as amended).
Section 18(m)(3) of the Deepwater Port Act of
1974 (33 U.S C 1517(m)(3)): sec 12(b) of the
Act to Prevent Pollution from Ships (33 U S C
1901 el seq)
{110.1
As used in this part, the following
terms shall have the meaning indicated
below:
"Act" means the Federal Water
Pollution Control Act as amended. 33
U.S.C. 1251 et seq., also known as the
Clean Water Act:
"Administrator" means the
Administrator of the Environmental
Protection Agency (EPA):
"Applicable water quality standards"
means State water quality standards
adopted by the State and approved by
EPA pursuant to Section 303 of the Act
or promulgated by EPA pursuant to that
section;
"Contiguous zone" means the entire
zone established or to be established by
the United States under article 24 of the
Convention on the Territorial Sea and
the Contiguous Zone:
"Deepwater port" means an offshore
facility as defined in Section (3)(10) of
the Deepwater Port Act of 1974 (33
U.S.C. 1502(10)):
"Discharge" includes, but is not
limited to. any spilling, leaking.
pumping, pouring, emitting, emptying, or
dumping, but excludes (A) discharges in
compliance with a permit under section
402 of the Act. (B) discharges resulting
from circumstances identified and
reviewed and made a part of the public
record with respect to a permit issued or
modified under Section 402 of the Act.
and subject to a condition in such
permit, and (C) continuous or
anticipated intermittent discharges from
a point source, identified in a permit or
permit application under section 402 of
this Act, that are caused by events
occurring within the scope of relevant
operating or treatment systems;
A discharge "in connnection with
activities under the Outer Continental
Shelf Lands Act or the Deepwater Port
Act of 1974. or that may affect natural
resources belonging to. appertaining to.
or under the exclusive management
authority of the United States (including
resources under the Magnuson Fishery
Conservation and Management Act)."
means: (1) A discharge into any waters
beyond the contiguous zone from any
vessel or onshore or offshore facility.
which vessel or facility is subject to or is
engaged in activities under the Outer
Continental Shelf Lands Act or the
Deepwater Port Act oj 1974. and (2) any
discharge into any waters beyond the
contiguous zone that contain, cover, or
support any natural resource belonging
to. appertaining to. or under the
exclusive management authonty of the
United States (including resources under
the Magnuson Fishery Conservation and
Management Act).
"MARPOL 73/78" means the
International Convention for the
Prevention of Pollution from Ships. 1973.
as modified by the Protocol of 1978.
Annex I. which regulates pollution from
oil and which entered into force on
October 2,1983:
"Navigable waters" means the waters
of the United States, including the
territorial seas. The term includes:
(a) All waters that are currently used,
were used in the past, or may be
susceptible to use in interstate or foreign
commerce, including all waters that are
subject to the ebb and flow of the tide:
(b) Interstate waters, including
interstate wetlands.
(c) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats.
sandflats. and wetlands, the use.
degradation, or destruction of which
would affect or could affect interstate or
foreign commerce including any such
waters:
(1) That are or could be used by
interstate or foreign travelers for
recreational or other purposes:
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce:
(3) That are used or could be used for
industrial purposes by industries in
interstate commerce;
(d) All impoundments of waters
otherwise defined as navigable waters
under this section;
(e) Tributaries of waters identified in
paragraphs (a)—(d) of this section.
including adjacent wetlands, and
(f) Wetlands adjacent to waters
identified in paragraphs (a)—(e) of this
section: Provided. That waste treatment
systems (other than cooling ponds
meeting the criteria of this paragraph)
are not waters of the United States.
"NPDES" means National Pollutant
Discharge Elimination System;
"Offshore facility" means any facility
of any kind located in. on. or under any
of the navigable waters of the United
States, and any facility of any kind that
is subiect to the jurisdiction of the
United States and is located in. on. or
under any other waters, other than a
vessel or a public vessel.
"Oil" means oil of any kind or in any
form, including, but not limited to.
petroleum, fuel oil. sludge, oil refuse.
and oil mixed with wastes other than
dredged spoil.
"Onshore facility" means any facility
(including, but not limited to. motor
vehicles and rolling stock) of any kind
located in. on. or under any land within
the United States, other than submerged
land.
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9782
Federal Register / Vol. 50. No. 47 / Monday. March 11. 1985 / Proposed Rules
"Person" includes an individual, firm.
corporation, association, and a
partnership;
"Public vessel" means a vessel owned
or bareboat chartered and operated by
the United States, or by a State or
political subdivision thereof, or by a
foreign nation, except when such vessel
is engaged in commerce;
"Sheen" means and iridescent
appearance on the surface of water.
"Sludge" means an aggregate of oil or
oil and other matter of any kind in any
form other than dredged spoil having a
combined specific gravity equivalent to
or greater than water
"United States" means the States, the
District of Columbia, the
Commonwealth of Puerto Rico, the
Canal Zone. Guam. American Samoa.
the Virgin Islands, and the Trust
Territory of the Pacific Islands:
"Vessel" means every description of
walercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water other
than a public vessel: and
"Wetlands" means those areas that
are inundated or saturated by surface or
ground water at a frequency or duration
sufficient-to support and that under
normal circumstances do support a
prevalence of vegetation typically
adapted for life in saturated soil
conditions. Wetlands generally include
plava lakes, swamps, marshes, bogs.
and similar areas such as sloughs.
prame potholes, wet meadows, prairie
river overflows, mudflats, and natural
ponds
§110.2 AppKcaMHty.
The regulations of this part apply to
the discharge of oil into or upon the
Caters of the United States or adjoining
shorelines or into or upon the waters of
the contiguous zone, or in connection
v\;ih activities under the Outer
Continental Shelf Lands Act of the
Deepwater Port Act of 1974. or that may
afreet natural resources belonging to.
appertaining to. or under the exclusive
management authority of the United
States (including resources under the
Magnuson Fishery Conservation and
Manaeement Act), prohibited by section
in(b](3Jofthe Act.
§ 110 J Discharge Into navigable water* of
•ucri quantities •» may be harmful
For purposes of section 3ll(b) of the
Act. discharges of oil into or upon the
nav. 'gable waters of the United States or
dii;oinir.g shorelines in such quantities
that it has been determined may be
harmful to the public health or welfare
of the United States, except as provided
• in { 110.8 of this part, include discharges
of oil '.hat
(a) Violate applicable water quality
standards, or
(b) Cause a film or sheen upon or
discoloration of the surface of the water
or adjoining shorelines or cause a sludge
or emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines.
I 110.4 Discharge Into contiguous zone of
such quantities a* may be harmful
For purposes of section 311(b) of the
Act. discharges of oil into or upon the
waters of the contiguous zone in such
quantities that it has been determined
may be harmful to the public health or
welfare of the United States, except as
provided in ( 110.8. include discharges
of oil that:
(a) Violate applicable water quality
standards, or
(b) Cause a film or sheen upon or
discoloration of the surface of the water
or adjoining shorelines or cause a sludge
or emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines.
5110.5 Discharge beyond contiguous
zone of such quantities m may be harmful.
For purposes of section 311(b) of the
Act. discharges of oil in connection with
activities under the Outer Continental
Shelf Lands Act or the Deepwaler Port
Act of 1974. or that may affect natural
resources belonging to. appertaining to.
or under the exclusive management
authority of the United States (including
resources under the Magnuson Fishery
Conservation and Management Act) in
such quantities that it has been
determined may be harmful to the public
health or welfare of the United States.
except as provided in { 110.3. include
discharges of oil that:
(a) Violate applicable water quality
standards, or
(b) Cause a film or sheen upon or
discoloration of the surface of the water
or adjoining shorelines or cause a sludge
or emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines.
5 110.6 Discharge at deepwster ports.
(a) For purposes of section 18(m)(3) of
the Deepwater Port Act of 1974. the term
"discharge" shall indud. but not be
limited to. any spilling, leaking.
pumping, pouring, emitting, emptying, or
dumping into the marine environment of
quantities of oil that.
(1) Violate applicable water qudlity
standards, or
(2) Cause a Him or sheen upon or
discoloration of the surface of the water
or adjoining shorelines or cause a sludge
or emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines.
(b) The term "discharge" excludes: (1)
Discharges in compliance with a permit
under Section 402 of the Act. (2)
discharges resulting from circumstances
identified and reviewed and made a pan
of the public record with respect to a
permit issued or modified under section
402 of the Act. and subject to a
condition in such permit, and (3)
continuous or anticipated intermittent
discharges from a point source.
identified in a permit or permit
application under seciton 402 of this Act
that are caused by events occurring
within the scope of relevant operating or
treatment systems.
$110.7 Discharge prohibited.
As provided in Section 311(b)(3) of the
Act no person shall discharge or cause
or permit to be discharged into or upon
the navigable waters of the United
States or adjoining shorelines or into or
upon the waters of the contiguous zone
or in connection with activities under
the Outer Continental Shelf Lands Act
or the Deepwater Port Act of 1974. or
that may affect natural resources
belonging to. appertaining to. or under
the exclusive management authority of
the United States (including resources
under the Magnuson Fishery
Conservation and Management Act) any
oil in such quantities as may be harmful
as determined in {§ 110.3.110.4. and
110.5. and discharges under 110.6 except
as the same may be permitted in the
contiguous zone and seaward under
MARPOL 73/78. Annex I. as provided in
33 CFR Part 151.09.
6 110.8 Exception for vessel engines.
For purposes of section 311(b] of the
Act. discharges of oil from a porpoerly
functioning vessel engine are not
deemed to be harmful, but discharges of
such oil accumulated in a vessel's bilges
shall not be so exempt.
S 110.9 Dlsperssnts.
Addition of dispersants or emulsifiers
to oil to be discharged that would
circumvent the provisions of this part is
prohibited.
S 110.10 Demonstration projects.
Notwithstanding any other provisions
of this part, the Administrator may
permit the discharge of oil into or upon
the navigable waters of the United
Slates or adjoining shorelines or into or
upon the waters of the contiguous zone
or in connection with activities under
the Outer Continental Shelf Lands Act
or the Deepwaterport Act of 1974. or
that may affect natural resources
belonging to appertaining to or under
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Federal Register / Vol. 50. No. 47 / Monday. March 11. 1985 / Proposed Rules 9783
the exclusive management authority of
the United States (including resources
under the Magnuson Fishery
Conservation and Management Act).
inconnection with research.
demonstration projects, or studies
relating to the prevention, control, or
abatement of oil pollution.
(110.11 None*.
Any person in charge of any vessel or
onshore or offshore facility shall, as
soon as he has knowledge of any
discharge of oil from such vessel or
facility in violation of i 110.7:
immediately notify the National
Response Center (800-424-B802: in the
Washington. D.C.. metropolitan area.
(202) 426-2675). or if not practicable, the
appropnate predesignated On-Scene-
Coordinator m the EPA Regional Office
or U.S. Coast Guard District Office of
such discharge in accordance with such
procedures as the Secretary of
Transportation may prescribe. The
procedures for such notice are set forth
m U.S. Coast Guard regulations. 33 CFR
Part 153. Subpart B.
{FR Doc 85-5700 Filed 3-8-B5. B 45 am)
WLUNQ cooc ttu-w-u
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Thursday
April 4, 1965
Part II
Environmental
Protection Agency
40 CFR Parts 117 and 302
Notification Requirements; Reportabte
QuAnffiy Adjustments; Final Rule and
Proposed Rule
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13456 Federal Register / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 117 and 302 .
I SWH-fHL 2*85-6(0)1
its; Raportabto
Notification Require™
Qumttty Adjustments
AOEMCY: Environmental Protection
Agency (EPA).
ACTION; Final rule. _
SUMMARY: Sections 103(a) and I03(b) of
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 ("CERCLA") require that
persons in charge of vessels or facilities
from which hazardous substances have
been released in quantities'that are
equal to or greater than the reportable
quantities immediately notify the
National Response Canter of the release.
Section 102(b) sets a reportable quantity
of one pound for hazardous substances.
except those for which reportable
quantities have been established
pursuant to section 31I(b)(4) of the
dean Water Act ("CWA").
Section 102(a) authorizes the
("EPA") to adjust reportable quantities
for hazardous ffi^ff^**1^*^ ntui IQ
designate as hazardous substances.
substances which when released into
the environment may present
substantial danger to (he public health
or welfare or the environment This final
rule adjusts many of the reportable
quantities established in section 102(b).
These reportable quantity adjustments
an intended to reduce the burdens of
reporting on the regulated community.
allow EPA to focus its resources on the
most serious releases, and protect public
health and welfare •««! the environment
more effectively. This rule also
designates, under section 102(a] all
substances listed under the various
statutory provisions referenced in
section 101(14) of CERCLA. This rule
also revises reportable quantities
established pursuant to section 311(b)(4)
of the Clean Water Act for discharges of
hazardous substances into navigable
waters, so that the CWA section 311
reportable quantities will be identical to
and therefore consistent with those
promulgated under CERCLA. .
To help implement these changes.
today's rule clarifies requirements for
notifying the National Response Center
of a release of a hazardous substance in
a quantity equal to or greater than its
importable quantity. The toll-free
telephone number of the National
Response Center is listed under
"AOOfttsses."
•mCTTVI DATE July 3,1985.
CERCLA section 305 provides for a
. legislative veto of regulations
promulgated under CERCLA. Although
INS v. Chadha. 462 U.S. 919.103 S. Ct
2764 (1983), cast doubt on the validity of
the legislative veto, EPA has transmitted
a copy of this regulation to the Secretary
of the Senate and the Clerk of the House
of Representatives. If any action by
Congress calls the effective date of this
regulation into question, the Agency will
publish a notice of clarification In the
Federal Register.
: The toll-free telephone
number of the National Response Center
Is (800) 424-8802; in the Washington.
D.C metropolitan area (202) 426-2875.
The record supporting this rulemaking
Is available for public inspection at
Room S-325. US. Environmental
Protection Agency. 401M Street SW,
Washington. D.C 20460 (Docket Number
102RQ). The docket may be inspected
between 8.DO sun. and 4:00 pjn. Monday
through Friday. As provided In 40 CFR
Part 2, a reasonable fee may be charged
for copying services.
ran njRTMBi INFORMATION CONTACT:
Or. K. lack Kooyoomjian, Response
Standards and Criteria Branch.
Emergency Response Division (WH-
548B). US. Environmental Protection
Agency, 401M Street SW,
Washington D.C. 20460,
or the
RCRA/Supernmd Hotline (800) 424-
9346. in Washington. D.C, (202) 382-
SUmjMENTASJV INFORMATION: The
contents of today's preamble are listed
in the following outline:
L Introduction
A. Statutory Authority
C Organization of the Final Rule
0. Summary of Changes Prom the Proposed
Rule
OX Issues Addressed in the Notice of
Proposed Rulemaking But Not Resolved
in This Rule
A. Continuous Releases
B. Federally Permitted Releases
C. Radionuclide RQs
D. Carcinogen RQs
IV. Notification
A* iDtfoductlon
B. Purposes and Mechanics of Notification
C Persons Covered by This Rule
D. Releases Covered by This Rule
E. Exemptions From the CERCLA
Notification Requirements
F. Duplicate Reporting
C. Regulatory Consistency
H. Penalties
V. Reportable Quantity Adjustment!
A. Introduction
B. Number of Reportable Quanity Levels
and Their Values
C Methodology Used To Adjust Reportabl
Quantities
D. Criteria Used To Adjust Reportable
Quantities
E. Future RQ Adjustments
F. Application of the Methodology and
Criteria
C. Summary of RQ Changes From the May
ZS.1983NPRM
H. Retention of Statutory RQ for Methyl
Isocyanate
L Table 3014
VL Reportable Quantity Adjustments Under
Section 311 of the dean Water Act
VTL Summary of Supporting Analyses
A. Classification and Regulatory Impact
Analysis
B. Regulatory Flexibility Analysis
C. Information Impact Analysis
LI
A. Statutory Authority
The Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 [Pub. L 96-610], 42 US.G
9601 et MO* enacted on December 11.
1980. establishes broad federal authority
to deal with releases or threats of
releases of hazardous substances from
vessels and facilities. The Act defines a
set of "hazardous substances" by
reference to other environmental
statutes (section 101(14)): this list
currently MB*"<"« 698 substances. The
Environmental Protection Agency
("EPA") may. designate additional
hazardous substances (section 102).
The Act requires the person in charge
of a vessel or facility to notify the
National Response Center ("NRC")
immediately when there is a release of a
designated hazardous substance in an
amount equal to or greater than the
reportable quantity ("RQ") for that
substance (sections 103(a) and (b)).
Section 102(b) of CERCLA establishes
RQs for releases of designated
hazardous substances at one pound.
unless other reportable quantities were
assigned under section 311 of the
Federal Water Pollution Control Act
("dean Water Act" or "CWA"). Section
102 authorizes EPA to adjustall of these
reportable quantities.
A major-purpose of the section 103(e)
and (b) notification requirements is to
alert the appropriate government
officials to releases of hazardous
substances that may require rapid
response to protect public health and
welfare and the environment. Under the
Act the federal government may
respond whenever there is a release or a
substantial threat of a release into the
environment of a hazardous substance
or of other pollutants or contaminants
which may present an imminent and
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Federal Register / VoL 50, No. 65 / Thursday. April 4.1985 / Rules and Regulations 13457
substantial danger to public health or
welfare (section 104). Response
activities are to be taken, to the extent
• possible, in accordance with the
National Contingency Plan [40 CFR Part
300). which was originally developed
, under the CWA and which has been
revised to reflect the responsibilities and
authority created by CERCLA. EPA
: emphasizes (hat notification based on
reportable quantities is merely a trigger
for informing the government of a
1 release so that the appropriate federal
• personnel can evaluate the need for a
federal response action and undertake
any necessary response (removal or
remedial action) in a timely fashion.
• Reportable quantities serve no other
• purpose; for example, a reportable
quantity need not be released before a
claim for damages or cleanup costs may
be filed against the Hazardous
Substance Response Trust Fund. Federal
personnel will evaluate all reported
releases, but will not necessarily initiate
a removal or remedial action in
response to all reported releases.
because the release of a reportable
quantity will not necessarily pose a
hazard to public health or welfare or the
environment. Government personnel
will assess each release on a case-by-
case basis.
B. Background of This Rulemaking
On May 25.1S83. EPA proposed a rule
(48 FR 235S2) to clarify procedures for
reporting releases and to adjust
reportable quantities for 387 of the 8B8
CERCLA hazardous substances. That
Notice of Proposed Rulemaking (NPRM)
also listed, for the Bret time, the
"hazardous substances" designated by
section 101(14) of CERCLA. The NPRM
discussed In detail the CERCLA
notification provisions (including the
persons required to notify the NRG of a
release, the substances for which
notification is required, the types of
releases subject to the notification
requirements. "rH the exemptions from
these requirements), the methodology
and criteria used to adjust the
reportable quantity levels, and the RQ
adjustments proposed under section 102
of CERCLA and under section 311 of the
CWA. That same day. EPA also
published an Advance Notice of
Proposed Rulemaking (ANPRM)
concerning the designation of hazardous
substances in addition to those specified
in section 101(14) of the Act (48 FR
23802). In response to requests, and to
increase the public's opportunity to
express its opinion on the NPRM and
ANPRM. the original 60-day comment
period for both notices was extended by
30 days, so that the comment period
closed on August 25.1B83. EPA received
136 comment letters totalling over LOOO
pages: these comments represent the
first formal statements of public opinion
on the methodology developed for
adjusting RQs. the actual RQ
adjustments proposed, and various
issues relating to notification. A
summary of the comments received.
together with the Agency's responses, is
contained in the Responses to
Comments on the Notice of Proposed
Rulemaking on the Adjustment of
Reportable Quantities ("Responses to
Comments"], which is available for
inspection at Room S-325. US.
Environmental Protection Agency. 401M
Street SW. Washington. D.C. 20480.
Today, the Agency is promulgating
RQ adjustments and clarifications of
reporting procedures. The RQs of 340
CERCLA hazardous substances
(including 21 hazardous waste streams)
are adjusted in this final rule. Today's
Federal Register also contains aa NPRM
proposing RQ adjustments for 105 of the
pumafajiig 3S8 hazardous substances. All
of these adjustments apply not only to
CERCLA RQs, but to RQs established
pursuant to section 311(o)(4) of the
CWA. In preparing the final rule, EPA
has carefully considered all of die public
comments submitted on the proposals
made in the May 25.1983 NPRM.
Section n of this preamble notes the
Jficanl differences between today's
and the NPRM and refers the reader
to the detailed discussion of each
change elsewhere in the preamble.
Section ID presents issues raised m the
NPRM that an not resolved In todays
rule. Sections IV. V, and VI discuss the
operation of the rule, major public
comments, and the Agency's responses
to these comments. Section VH provides
a summary of the analyses supporting
the rule.
As was stated in the preamble to the
proposed rule, other provisions of the
Act may be applicable even where
notification is not required. Therefore.
nothing in this preamble or final rule
should be interpreted as reflecting
Agency policy or the applicable law
with respect to other provisions of the
Act For example, a party responsible
for a release is liable for the costs of
ClBADUUt HP CDftl XVnk'sUeS ttfiu ZOf QOS
natural resource damages, even if the
release is not subject to the notification
requirements of sections 103 (a) and (b).
Similarly, giaitn« may be filed "g"''"p*
the Hazardous Substance Response
Trust Fund for cleanup costs and
damages even if jess than a reportable
quantity has been released. Moreover.
proper reporting of a release in
accordance with sections 103 (a) and (b)
does not preclude liability for cleanup
aignii
rale i
costs. The fact that a release of a
hazardous substance Is properly
reported or that it is not subject to the
notification requirements of sections 103
(a) and (b) will not prevent EPA or other
governmental agencies from taking
response actions under section 104,
seeking reimbursement from responsible
parties under section 107, or pursuing an
enforcement action against responsible
parties. Note also that this rule does not
affect hazardous substance reporting
requirements imposed by CTT*"'" other
regulations and statutes. (See, e.g, the
discussion of MARPOL 73/78 and TSCA
section 8(e] in section IV.C. below.)
This Bn«l fill* formally designates
those substances which an listed under
the statutes referred to in section
101(14). Substances listed under the
Solid Waste Disposal Act. commonly
known as the Resource Conservation
and Recovery Act ("RCEtA"), will now
be "hazardous substances" under
CERCLA, regardless of whether they are
hazardous wastes under RCRA. This
final rule does not otherwise address the
designation of hazardous substances
which an not already designated under
the statutes listed in CERCLA section
101(14). The Agency has conducted
•even! preliminary ijcoinniiii! and
technical analyses on this subject (see
48 FR 23803), and the May 25, 1983
ANKRM Invited public comment EPA
has carefully reviewed the comments
received and U in the process of further
developing its designation policy. The
Agency's designation policy will be the
subject of a separate nilemaldng.
C Organisation of the Final Rule
Today's final rule emends 40 CFR by
adding Part 302. Section 302.1 describes
the fourfold purpose of the new
regulation. Including (1) listing those
substances designated aa hazardous
under section 101(14) of CERCLA: (2)
identifying reportable quantities far
these substances; (3) describing the
notification requirements for releases of
these substances; and (4) identifying
reportable quantities for hazardous
substances that wen previously
assigned RQs under section 311(b)(4) of
the Clean Water Act
Section SOU explains the
abbreviations used in the rule. Section
302J HafttiM the following terms:
1. The Act" "CERCLA." and
"Superfund"
2. "Administrator"
3. "Consumer product"
5. "Facility"
6. "Hazardous substance"
7. "Hazardous waste"
8. "Navigable waters"
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13458 Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
9. -Offshore facility"
10. "Onshore facility"
11. "Person"
12. "Release"
13. "Reportable quantity"
14. "United States"
15. "Vessel"
Section 302.4 includes Table 302.4,
which lists the substances designated as
hazardous under section 101(14) (and
now section 102) of CERCLA together
with the RQ established for each
substance. Section 302.4 also denotes
the conditions whereby a solid waste
not specifically listed as a hazardous
substance can still be a hazardous
substance if it exhibits any of certain
characteristics. Section 302.5 provides
that each quantity listed as the "Final
RQ" in Table 302.4 is the reportable
quantity for that listed hazardous
substance. Section 302.5 also presents
the RQs for unlisted hazardous wastes.
Section 302.8 incorporates the statutory
requirement that any person in charge of
a vessel or facility must immediately
notify the NRC whenever he or she has
knowledge of any release of a
hazardous substance from the vessel or
facility in a quantity equal to or greater
than the RQ; it also provides rules for
determining when notification is
required for releases of (1) mixtures or
solutions that contain hazardous
substances, and (2) releases of massive
forms of metals. Section 302J
incorporates by reference the statutory
penalties for failure to notify the NRC. of
hazardous substance releases that equal
or exceed the RQs. Today's rule also has
an appendix that lists each hazardous
substance in Chemical Abstracts
Service Registry Number (CASRN)
order.
Finally, this rule revises 40 CFR117 J
to make the CWA RQs equal to those
shown in Table 302.4 of 40 CFR 302.4.
IL Summary of Changes Fm the
Proposed Rule
EPA has made the following changes
from the proposed rule. Each change is
discussed in detail in the preamble
section noted.
1. Wastes classified as hazardous
under RCRA that are properly delisted.
deleted, or exempted by a state
pursuant to an approved state program
shall not be considered hazardous
substances for purposes of CERCLA
notification requirements so long as they
do not contain any other listed CERCLA
substances (see section IVJD.l.b.}.
2. A supplement to Table 302.4 that
lists CERCLA hazardous substances in
CASRN order has been added as an
appendix to today's rule to help users
identify hazardous substances (see
section IV.D.l.d.).
X'The exemption from notification
requirements of releases of metal where
the diameter of the particles of metal
equals or exceeds 100 micrometers
(0.004 inches) now appears both as a
footnote to Table 302.4 and as part of 40
CFR 3024 (see section FVJ).l.f.).
4. Proper disposal of hazardous
substances in interim status facilities or
facilities with final permits under RCRA
need not be reported under CERCLA
(see section IVJJia.).
5. The rule for determining when
notification is required for releases of
mixtures and solutions containing
hazardous substances is now stated in
40 CFR 302.6 (see section IVD J.b.).
8. "[NJormal application of pesticides"
is no longer defined in 40 CFR 302J:
instead, the preamble interprets the
statutory phrase "application of
pesticides" (see section IVi).
7. The specific penalties imposed by
CERCLA Section 103(b) no longer
appear in 40 CFR 302J(a); instead, the
section incorporates the statutory
penalties by reference (see section
FV.H.).
8. Language has been added to the 40
CFR 302£(b) discussion of "Unlisted
Hazardous Substances" to emphasize:
(1) that the 100-pound RQ for unlisted
hazardous wastes applies only to
substances which are wastes prior to
their initial release: and (2) that the RQ
given in Table 302.4 for unlisted wastes
that exhibit EP toxicity applies to the
waste itself, not merely to the toxic
contaminant (see sections IV-D.i. and
VJ.4.).
9. Various RQ changes have been
made (see section V-G.).
10. Retention of statutory RQ for
methyl isocyanate-(see section V.H.).
11. Various other changes have been
made in Table 302.4 (see sections V.G.
through VI).
DL Issues Addressed in the NPRM But
Not Resolved In Thia Rule
A. Continuous Releases
Section 103(0(2) of CERCLA exempts
certain releases from the general
•notification requirements of CERCLA if
they are "continuous." "stable In
quantity and rate," and notification has
been given either under sections 103(a)
and (b) "for a period sufficient to
establish the continuity, quantity, and
regularity" of the release or under
section 103(c) (which relates to
notification of the existence of certain
facilities that are or have been used for
storage, treatment or disposal of
hazardous wastes). Notification of
continuous releases must be given
"annually, or at such time as there is
any statistically significant increase" in
the quantity of the hazardous substana
being released.
In the May 25.1883 NPRM. EPA
requested comment on the types of
releases that could qualify for the
section 103(f)(2) exemption and on
possible notification systems for such
releases. Many comments on these
issues were received. Due to the
complexity of the issues involved, the
Agency has decided to study the
continuous release exemption further
today's rule does not resolve continuoui
release issues.
B. Federally Permitted Releases
One of the exemptions from section
103 reporting requirements is for
"federally permitted releases." The
definition of "federally permitted
release" in CERCLA section 101(10)
specifically identifies releases permittee
under other environmental statutes.
In the NPRM, EPA explained the
Agency's interpretation of each of the
types of releases exempted by the
definition of "federally permitted
release." EPA received many comments
on various aspects of the federally
permitted release exemption, most of
which urged a broader interpretation of
one or more of the federally permitted
releases. Due.to the complexity of the
issues involved, the Agency has decided
to study the scope of this exemption
further today's rule does not resolve the •
"federally permitted release" issue.
C. RadionucUde RQs
Radionuclides are hazardous
substances under CERCLA because the}
are designated as hazardous air
pollutants under section 112 of the dear
Air Act The NPRM noted that EPA is
considering several issues for future
adjustments to radionuclide RQs. Two
major related issues are:
(1) The units the Agency should use to
measure RQs: and
(2) Whether one RQ should be set for
•11 radionuclides or whether different
RQs for specific radionuclides should be
used.
EPA received many comments on these
issues. Today's final rule does not adjust
the RQ for radionuclides: the issue is
being evaluated for action in a future
nilemaking. Until then, the one-pound
(0.454 kilogram) RQ is applicable. As
noted in the NPRM. the Agency
recognizes that the pound or kilogram is
not a suitable unit on which to base a
notification requirement for
radionuclides. because releases much
smaller than one pound may pose a
significant threat to public health or
welfare or the environment The Agency
encourages releaaen to report
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Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations 13459
. radionuclide releases of leas than one
pound.
D. Carcinogen RQs
• The May 25.1963 NPRM noted that
the Agency has been collecting and
evaluating data on the relative activity
of substances as potential carcinogens.
The methodology for adjusting RQs on
the basis of potential carcinogenicity
will be presented for public comment in
' a future rulemaking, and adjusted RQs
, for potentially carcinogenic substances
will be proposed at that time. Until these
! substances receive final adjusted RQs,
' their statutory RQs will apply.
The NPRM published elsewhere in
today's Federal Register proposes
adjusted RQs for 12 substances that
. were evaluated as potential carcinogens
but for which EPA's Carcinogen
• Assessment Group (GAG) did not find
any sound evidence of potential
carcinogenicity.
w. Notification
A. Introduction
CERCLA sections 103 (a) and no
require any person in charge of on
offshore or onshore facility or a vessel
to report to the National Response
Center as soon as he or she has
knowledge of any release of a
hazardous substance that is equal to or
greater than the reportable quantity. In
the preamble to the May 25,1983 NPRM.
EPA elaborated on the notification
requirements established by CERCLA.
addressing such issues as the mechanics
of notification, the persons required to
notify the NEC of a release, the
substances for which notification is
required, the types of releases subject to
the notification requirements, the
exemptions bom these requir
B*BiupuuuB aum uieae requirements,
and duplicate reporting. The following
sections discuss comments received on
these and other notification Issues.
B. Purposes and Mechanics of
Notification
Notification based on RQs serves as a
trigger for informing the government of a
release so that the need for response
can be evaluated and any necessary
response undertaken in a timely fashion.
Federal personnel will evaluate all
reported releases, although the
government will not necessarily respond
to all reported releases with a removal
or remedial action. The reportable
quantities do not themselves represent
any determination that releases of a
particular quantity are actually harmful
to public health or welfare or the
environment
CER
auant to
>. sections 103 (a) and (b) is to be
made by telephone to the National
Response Center. The toll-free number
of the NRC is (BOO) 424-8802: in the
Washington. D.C. metropolitan area the
number is (202) 426-2875. Pursuant to
the National Contingency Plan (NCP) (40
CFR Part 300). the duty officer at the
NRC will record pertinent information
about the release and relay this release
information directly to an On-Scene
Coordinator ("OSC') at either the
relevant EPA regional office or the
relevant 113. Coast Guard district office.
The OSC will men evaluate the
circumstances of the release, give
pertinent information to appropriate
state and local officials, and decide
whether and in what manner the federal
government should respond to the
release.
A few commenters suited that it is a
misuse of time and money to report
releases which do not result in a federal
removal or remedial action; they argued
that the probability of a federal
response action should be an Important
consideration in designing the
notification system. EPA disagrees. The
government is not obligated to respond
to every release to which it has
authority to respond and therefore
should not design a notification system
on such a basis. Reportable quantities
have been established so that the
Agency is alerted promptly to situations
that may warrant a government
response. While EPA will not initiate a
removal or remedial action for every
release that is reported, EPA must
obtain the information it needs to
determine who has response authority.
to assess whether there is a need for a
federal response action, and to check
that action is properly taken by others
where appropriate.
C Parsons Covered by This Rule
The NPRM preamble considered the
issue of which persons are required to
notify the NRC of a release. In so doing.
definitions of the key terms of the
CERCLA notification requirements were
presented. Responses to die major
comments received an provided below.
1. Facility
Several commenters discussed the
Agency's statement that "for notification
purposes. EPA will consider the entire
contiguous plant or Installation and
contiguous grounds under common
ownership to be the reporting facility
rather than each vent pipe, or piece of
equipment at such a plant" (48 FR
23553). Some of the commenters
appeared to misinterpret EPA's
intentions.
The Agency intended the statement to
reflect its belief that numerous
concurrent releases (releases occurring
within the same 24-hour period) of die
same hazardous substance from one
contiguous plant or installation need not
be reported individually, but should be
reported in a single notification. This
policy will avoid unnecessary and
burdensome calls where a plant is
experiencing more than one reportable
release, because it allows the regulated
community to consider multiple
concurrent releases of the same
substance as one release for reporting
purposes.
The comments received favored this
policy, although a few commenters
suggested that EPA expand the
definition of facility to include outdoor
areas within die boundary of a plant In
addition, some commenters questioned
whether a releaser must aggregate the
total volume of concurrent released in
order to determine if a reportable
quantity has been met or exceeded.
The "facUlty" from which a release
has entered or may enter into the
environment does not include outdoor
areas. Rather, the definition of
"environment" includes all outdoor (La,
not completely enclosed) areas
surrounding and within a given facility.
All concurrent releases of the same
substance from a particular facility Into
the environment must be aggregated to
determine if an RQ has been exceeded
Releases from separate faculties.
however, need not be aggregated. EPA
intends for multiple concurrent releases
of the same substance from a single
facility to be reported in a single
notification as a single release. Where
multiple concurrent RQ releases are
occurring at various parts of a
contiguous plant or installation on
CODtiffUOUS BTOllDGS 1U1Q61* COfDJBOn
ownership (e.g.. at a chemical
manufacturing plant or an oil refinery),
the person in charge should also report
these multiple concurrent releases in a
single notification. The policy of
consolidating notifications also applies
to concurrent releases from separate
storage facilities, so long as the releases
are at the same location, to. located on
contiguous grounds under common
ownership.
2. Person In Charge
The NPRM preamble discussion of
"person in charge" stated that EPA
would not seek to designate the specific
individuals or positions within business
entities who would be responsible for
reporting hazardous substance releases.
The Agency indicated that such
decisions are better made by the
management of the affected
organization. Two commenters argued
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13460 - Federal Register / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
that the lack of a clear definition of
"person in charge" would result in
responsible individuals being unaware
of their duty to report releases and
would lead to delayed reporting or
failure to report EPA was urged to
define explicitly the term "person in
charge."
EPA disagrees with these
commenters. The proper assignment of
reporting responsibilities depends on the
specific operation involved,
management structure, and other case-
specific considerations. It would be
unnecessary and unwise for the
government to try to determine "persons
in charge" at all entities affected by
CERCLA.
D. Releases Covered by This Rule
The NFRM addressed the substances
for which notification is required, the
types of releases subject to the
notification requirements, and the
determination of when a reportable
quantity has been released. Many
comments wen received on various
topics under each of these issues.
1. Hazardous Substances Subject to This
Rule
section 101(14)(C] of CERCLA. -These
characteristics are commonly known as
ICRE: ignitability, corrosivity, reactivity.
and extraction procedure unddty (see
40CFR28L21-2BL24).
•The obligation to report releases to
the environment of substances
exhibiting the characteristics of
ignitability. corrosivity, or reactivity has
been the subject of some confusion. '
Under section 103(a) of CERCLA.
persons in charge of a vessel or facility
must notify the NRC of the release of a
"hazardous substance." The term
"hazardous substance" includes all
substances designated in i 302.4 of
today's rule as well as wastes exhibiting
the ICR characteristics under RCRA.
Therefore, the release of a non-
designated substance exhibiting an ICR
characteristic is the release of a
hazardous substance only if the
•hlbltiitt thi characteristic of
extraction procedure (EP) toxiaty IN rat it liene
here. becauM (fa* chemali it which the EP toxicttjr
tnt (• lined in ill ipeofically dnlgoilad •*
baurdoin under Section 3014 of todiy'i ragalifion.
substance is a waste. If a non-
designated ICR substance is spilled and
immediately cleaned up for repackaging,
reprocessing, recycling, or reuse, it is not
a waste and the spill need not be
reported (see 45 FR 78540. Nov. 25.1980).
However, if the substance is not cleaned
up. or is cleaned up for eventual
disposal it is then a waste (and thus a
hazardous substance) which has been
released to the environment and must be
reported if it exceeds the RQ..
The Agency acknowledges that the
proposed rulemaking may not have been
clear on this point Accordingly, we are
publishing elsewhere in today's Federal
Register a proposal to set the RQ at 100
pounds for non-designated substances
which are not wastes prior to their
initial release but which exhibit an ICR
characteristic. '
Pending completion of final
rulemaking on that proposal, notice
given to the NRC pursuant to-40 CFR
171.15, if required under that section, of
the release of a non-designated
substance that is not a waste prior to its
initial release, will be deemed to satisfy
the reporting requirements of section
103(a) of CERCLA. Note that this policy
does not apply to the- release of non-
designated substances which exhibit an
ICR characteristic and which are wastes
pridr to their <"<«•! release. Such
releases must be reported if they are
equal to or in excess of the 100-pound
RQ. Section 302J(b) of today's final rule
has been clarified to show the
distinction between substances that are
wastes prior to their initial release and
substances that become wastes after
their initial release.
b. State Delating under RCRA.
Several commenters disagreed with
EPA's statement in the NPRM that
reporting is required even for releases of
hazardous waste which the state has
properly delisted. deleted, or exempted
from the state's RCRA program pursuant
to authority granted by EPA. Upon
further review of the RCRA regulations
governing "delisting" of RCRA
hazardous wastes. EPA has decided to
alter its policy. Under 40 CFR 2BO22. a
person may petition for a regulatory
amendment to exclude a waste at a
particular generating facility from the
lists of hazardous wastes in §8 261.30-
281*33. The petitioner must demonstrate
that the waste produced by the
particular facility does not meet any of
the criteria under which the waste type
was listed or characterized as a
hazardous waste. Moreover, if granted,
the exclusion applies only to the waste
generated at the individual facility
covered by the petitioner's
demonstration. State RCRA regulations
must be substantially equivalent to
these federal regulations to obtain EPA
approval of the state program.
Once a specific waste from a
particular facility has been shown not to
contain constituents or exhibit
characteristics that are considered
hazardous under RCRA. (here appears
to be no reason to require notification
under CERCLA of a release of the
exempted waste. By definition.
exempted wastes lack the hazardous
constituents or characteristics for which
the waste type was listed as hazardous.
Therefore, so long as a state-exempted
waste does not contain any other listed
CERCLA substances. EPA will not
consider the exempted waste subject to
CERCLA notification requirements.
e. Petroleum Exclusion. As defined in
CERCLA section 101(14). the term
"hazardous substance"-under CERCLA
does not include
petroleum. Including crude oil or»nny fraction
thmof which is not otb«rwiae specifically
listed or designated •• s hazardous
substance under nibparagrapha (A) through
(F) of this paragraph, and the term doea not
include natural gat. natural gas liquid*.
liquefied natural gaa. or lynthetic gat uiable
for fuel (or mixture* of natural gaa and such
lynthettc gas).
Some commenters raised questions
about the limits of the exclusion of
petroleum from the definition of
hazardous substance. EPA interprets the
petroleum exclusion to apply to
materials such as crude oU. petroleum
feedstocks, and refined petroleum
products, even if a specifically listed or
designated hazardous substance is.
present in such products. However, EPA
does not consider materials such as
waste oil to which listed CERCLA
substances have been added to be
within the petroleum exclusion.
Similarly, pesticides are not within the
petroleum exclusion, even though the
active ingredients of the pesticide may
be contained in a petroleum distillate:
when an RQ of a listed pesticide is
released, the release must be reported.
- d Nomenclature. The May 25.1983
NPRM requested comments on several
options for a nomenclature system that
would be most useful for the
promulgated list of CERCLA hazardous
substances. The first option was that
actually employed in Table 302.4 as it
appeared In the NPRM. i.e.. the names of
the substances as they appear in the
environmental statutes (and
implementing regulations] that are
incorporated in the CERCLA definition
of a hazardous substance. A second
alternative presented was to use only
the Chemical Abstracts Collective Index
System name, and a third was to list the
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Federal Register / Vol 50. No. 85 / Thursday. April 4. 1985 / Rales and Regolatioai 1MB1
di hazardous
ma for synonyms foN
substance.
Five cominenlen recommended IIM ot
the namei provided oy the Chemical
Abstracts Service (CAS) in the Chemical
• Abstracts Collective Index System.
Although use of the Collective Index
names would avoid much of the
confusion involved with using synonym
and would serve as positive
identification of the iar>latai, many of
the individuals who may need to report
releases wffl not have easy access to
Collective ip«i« names for the
substances under their control Even
among professional chemists. CAS
Collective Index names an not yet
'• widely used. For example, the tern
"chloroform" remains widely preferred
over the Collective Index asms
CAS Registry Number, when available.
uniquely identifies the designated
hazardous substance. Such a list
appears as an appendix to toe rule as a
convenience to the regulated
community.
e. Generic Classes ef Organic and
Metallic Compounds. EPA. decided oot
to establish RQs for the many broad
generic classes of organic and metallic
compounds fl**jpiaiaA as toxic
pollutants wider section 307(a) of the
Clean Water Act such as "chlorinated
phenols.** "phthalato eaten,"
"methane, trichloro-.
Several
recommended
yms for each
listing the "major" sy
substance, pointing out that moat
individuals who must report releases an
not chemists and therefore an familiar
with the substance only by the name
provided by the aappliet. lie
commenten stated that the potential
releaser cannot be expected to
determine whether me substance ha Is
dealing with fa a CERCLA hazardous
substance unless the name provided Is
also oa the CERCLA Ot
The Agency Teeognzes lhat Bating
major synonyms wuuld. is some
respects, stapfcfy determining sriiethera
particular named chemical is a
hazardous substance. Howevet as
several commenten puiutec out* IBB
difficulties involved to making such a
list would be great For same of to
substances, more than 80 synonyms
might be necessary, making Table 9QZ.4
very unwieldy. The length ef the table
would be increased by a factor of at
least five, increasing the difficulty of
finding a named material on the list
Moreover, the thuiue of synonyms to be
included would still be subjective, and
constant updates would be needed as
onritted names were found.
The names of the CERCLA hazard
e>uw UWMVMW •*•• •••«# •^•^••••^••w v «™^^«^™ -™»—
substances that appeared fa Table 3024
are those that are already familiar to the
regulated community under other
statutes. The Agency has therefore
determined that, fa today's final rah.
Table 302.4 will contain the same uames
as were listed in the NPRM. plus any
other names not previously discovered
by which A substance «identified in Use
other statutes listed in section UHtM)
and their implementing regulations.
Several commentem suggested that in
addition to the list of names in Table
302.4. a supplementary list in CAS
Registry Number order be provided.
EPA has-adopted this suggestion. The
polyaade
tkhydrocarboaa."
u"The
and ,
majority of the commenten who
addressed this issue understood and
supported this decision. It was
recognized that to establish a single RQ
for broad classes of hazardous
substances would* be Inappropriate lor
many of the compounds within each
class. Many of the genetic rlmses of
compounds encompass hundreds or
even thousands of specific cwniyi?*1^*
It would be virtually Impossible for the
Agency to develop a reportable quantity
for a generic class of compounds that
would take into account the varying
characteristics of aS of the specific
compounds in the class. To establish
reportable quantities for generic groups
of chemicals would conflict with
existing knowledge of Individual
chemicals and their properties.
Several commentan were unsure of
the Agency's posroon on reporting and
liability fergeneric classes. These
commanten bettered that ff no other RQ
is estabfisbadfor a generic class, men
they must stifl use me statutory one
pound RQ established under uaiQA
section «&$>). EPA has determined that
the notification reuufaements need apply
only to those specific compounds for
which RQs are listed in Table 302.4,
rather than to the generic classes of
inters supported this
i three commenten
W«MfWvan«w« • *** »•• » »• * »™ ^~» - |fj —~f
indicated in the NPRM preamble, this
does not pcednde Babflity wifii respect
to nleases of specific compounds which
are withm one of these generic listings
but which an not Bated In Table 302.4.
In other words, a releaser Is liable for
the lUisnup of releases ef hazardous
substances which fall under any of me
broad, generic classes, but does net
have to mport such releases when the
spedfic compounds, sad hence the RQs.
are not bated mTabto 30Z4.
f. Mourn Ram o/Mstoik EPA
proposed that it would not require
notification of releases of massive forms
of me twelve solid metals origmaUy
hated under CWA section 307(a) when
the diameter of the pieces of metal
released equals or exceeds 100
micrometen (O004 inches), eleven of
fourteen i
approach, whii
suggested a smaller cutoff level One of
these commenten suggested that the
cutoff be set a! 10 micrometen rather
than 100 micrometers, consistent with
standards developed pursuant to the
Occupational Safety and Health Act
The cutoff size was deliberately set
ten times larger than the maximum size
considered by EPA to be respirable dust
to eassra that nleases containing small
particles of metals would "result in
notification to the NRC The Agency has
deuaiuiued that the iOHnicfumeter
cutoff is sufficiently small to be the
particle size below which notification of
release of an RQ is nouired. The
primary purpose of notification is to
ensure that zeteasen notify the
government so that the government
pursuant to the NCR can assess the
need to respond to me release. Although
It is extremely unlikely that a release of
saU ssetai particles of 100 micrometen
or larger would require a response, the
Agency wants to he notified of releases
sihTpartaclesb.
ide
•us
.rehases of metal
particles in the ID- to 100-nncrometer
range assy require a response.
One of the eleven eommeaten
supporting the 100-mieroraeter cutoff
level suggested that this policy be mom
Diammeniiy displayed m the warding of
the final rub. (m the NPRM. me 100-
mioraaaeter limitation appeared only as
a footnote to Xante 30Z.4.}40CFB 3026
NoUBcrtos of the ntnM ef an WJ «! tefld
. bwy&um.
vac Is not
raqulisd tf the IIMII .lima IIT trf me partietai
telaassd to iaojer thaa UO BrfcfomrtBrs fo0M
laches).
1100 micrometers
in dissneter will not pass through aa
American Society for Testing and
Materials standard 140-mesh sieve.
i ofReleases Subject to This
Z. Definite
Rule
a. U*po*iJ of Hazardoa* Substance*
in RCRA Fedlitie*. The May 25.1983
NPRM discussion of the term "release"
did not specify whether me term
Included or excluded the proper disposal
of hazardous substances at a disposal
facility that has been accorded interim
states or diet has received a final permit
under RCRA. Somecomraentea
suggested clarification of the miming of
the *nT in this regard.
EPA agrees that disposal of hazardous
substances at a disposal facility in
accordance with B>A regulations is not
subject to CERCLA notification
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Federal Register / VoL 50, No. 65 / Thursday. April 4. 1985 / Rules and Re
u. When the disposal of
to permitted or interim status
is properly documented
the RORA manifest system and
jlations are-followed.
tion under CERCLA does not
* significant additional benefit
as the facility is in substantial
ance with all applicable
ions and permit conditions.
i the disposer knows that the
/ Is not in substantial compliance,
il of an RQ of a hazardous
M must be reported to the NRG
me. spills and accidents occurring
disposal that result in releases of
ble quantities of hazardous
lances must also be reported to the
Releases "Into the Environment." A
element of the definition of
use" is the phrase "into the
ironment" As defined in CERCLA '
ion 101(22), a hazardous substance
it be released "into the environment"
raportable quantity before
ution of the release is required
ier CERCLA. Thus, the distinction
tween the "facility" (or "vessel") from
lich a substance is released ni"^ the
nvironment" into which a substance
isses is the determining factor in
Hazardous substances may be
{leased "into the environment" even if
ley remain on punt or installation
rounds. Examples of such releases an
ipiUs from tanks or valves onto concrete
)ads or into lined ditches open to the
outside air, releases from pipes into
open lagoons or ponds, or any other
discharges that an not wholly contained
within buildings or structures. Such a
release, if it ocean in a reportable
quantity (e.g^ evaporation of an RQ into
the air from a dike or concrete pad),
must be reported under CERCLA. On the
other hand, hazardous substances may
be spilled at a plant or installation but
not enter the environment. e.g^ when the
substance spills onto the concrete floor
of an enclosed manufacturing plant.
Such a spill would need to be reported
only if the substance wen in some way
to leave the building or structure In a
reportable quantity. (Note, however.
that the federal government may still
respond and recover coats where then
is a threatened release into the
environment.)
Most of the commenters on this issue
agreed with EPA's position that the
distinction between "facility" and
"environment" is central to determining
when notification is required and that a
release "into the environment" ia a
reportable event but they disagreed
with EPA on when a release reaches the
suggestion was to exclude from the
definition of "environment" all of the
grounds surrounding a facility that are
controlled by the facility's owners or
operators. Several commenters
suggested that reporting should not be
required as long as the facility operators
an in control of released substances
and initiate swift and adequate response
efforts to prevent the environment from
being endangered, consistent with
prudent management practices. It was
also suggested that so long as a release
remains on facility property it would be
inaccessible to the public and thus
would not be a public hazard.
While EPA recognizes and
appreciates the caution exercised by the
majority of handlers of hazardous
substances, accepting this redefinition
of "environment" would be inconsistent
both with the broad definition of
environment in CERCLA section 101(8)
and with the purpose of reporting. A
primary function of CERCLA is to
ensure that the government Is made
aware of any potentially serious release
of a hazardous substance, so that the
government has the opportunity to
determine whether and how it needs to
act to exclude releases occurring near
handlin MM! storage facilities from
CERCLA notification requireirients
would keep the federal government
unaware of a very common form of
release that may require government
action. Releases onto the grounds
surrounding a plant can migrate off-site
through ground water or through release
into the air. Defining "environment" to
begin at the property line of a
manufacturing plant or other installation
is thus unacceptable to the Agency.
Following this same reasoning,
A»flrdn«i environment in terms of public
access, as several commenters
suggested is also unacceptable. Lack o!
public access to the site of a release
does not preclude advene effects on
public health or welfare or the
environment from the release. The
volatilization of substances or their
migration via ground water are obvious
examples of how releases can travel off-
site and threaten adjacent areas. EPA
does not believe a reinterpratation of
when e release eaten the environment
is necessary. A release into the
environment will be nportable whether
or not it remains on the grounds of a
facility site.
One commenter requested that EPA
clarify the meaning of the term "ambient
air" in the definition of "environment"
provided in 40 CFR Section 302J. For
the purposes of CERCLA. "ambient air"
shall refer to the air that is not
completely enclosed in a building or
structure and that is over and around
the grounds of a facility.1 A release into
the air of a building or structure that
•does not reach the ambient air (either
directly or via a ventilation system) is
not a reportable event under CERCLA.
c. "Workplace Exposure" Exclusion.
CERCLA section 101(22] excludes from
the definition of release "any release
which results In exposure to persons
solely within a workplace, with respect
U> a claim which such persons may
assert against the employer of such
persons." In the May 25,1983 NPRM
preamble. EPA stated that the
workplace exclusion was apparently
Intended to restrict the potential scope
of third-party actions for personal
injuries under the Act and that the
limitation of hazardous substance
exposure to persons within a workplace
is not relevant in determining whether
notification is appropriate.
Several commenters argued that the
workplace exposure exclusion should be
applied to workplace releases for
purposes of CERCLA notification
requirements. EPA disagrees. By its
terms, the exclusion applies only to
claims compensable through workers'
compensation. The availability of
workers' compensation does not appear
to have any relation to the need for
reporting of hazardous substance
releases that threaten public health or
welfare or the environment While
Congress intended to bar payment of
Superrand monies to persons covered by
workers' compensation systems, the
legislative history clearly indicates that
Congress did not intend to exclude all
workplace releases of hazardous
substances from CERCLA reporting
requirements and response authorities.
"Forexample, if a release occurring
solely within a workplace created a
hazard of damage to human life OMO the
environment it is contemplated that the
Fund would nave the authority to
respond with all of its authorities except
for compensating workers whose
employers an liable for their injuries
under worker's compensation law" (S.
Rep. 848.96th Cong, 2d Sesa. 94 (1980)).
Thus, the need for notification must be
determined by whether or not a release
from a CERCLA "facility" or "vessel"
•T1» Agaacy'a Interpretation of -ambient air" for
CDtCLA reporting parpoeaa dlfhn tram the
definition of ambient air to the regulation
promulgated pnnuanl to the dean Air Act (CAA).
Theaa regulation* define ambient air with reference
to public acceu (tee 40 CFR SB.1(«J). EPA belleww
that the CAA definition la inappropriate for
CERCLA purpOMa. becauae the point of releaae for
nine potentially unotu releaaea may be
aaible to the general public. bg. on prlvat*
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Federal Register / VoL 50. No. 65 / Thunday. April 4. 1965 / Rules and Regulation!
13463
enters "into the environment" If a
release does not remain wholly
contained within a building or structure.
, then ii is a release into the environment
, for CERCLA purposes, whether or not it
; occurs within a workplace.
3. Determination of When a Reportable
Quantity Has Been Released
Once it has been determined that a
• hazardous substance release is covered
' by CERCLA, the releaaer must
; determine if the release is in a quantity
equal to or greater than the reportable
quantity of that substance. Two critical
issues in making this determination are
the period of release and the application
of RQs to mixtures and solutions. This
section discusses EPA's positions on
these issues and responds to comments
received on the NPRM.
a. Period of Release. EPA proposed to
• use a 24-hour period for measuring
whether the reportable quantity of a
substance has been released, noting that
the 2«4iour period has been used
successfully under regulations
implementing the CWA section 311. As
soon as the person in charge knows that
the amount of a release within that
period equals or exceeds the applicable
reportable quantity, me NRC must be
notified. Eleven commenten concurred
with me Agency's decision to use the 24-
hour veriod. citing the consistency of the
decision with the CWA section 311
regulations.
Three cemrnenten misinterpreted the
purpose of the M-oour period as the
time a person has In which to establish
me knowledge that a release has
occurred. EPA wants to clarify that
when the amount ef a CERCLA
hazardous substance release equate or
exceeds the reportable quantity, the
person in charge once he or she knows
of the release, mast immediately notify
the National Response Center. The 24-
hour period lefea to the period within
which a reportable qnmntity of a
hazardous substance must be released
for the release to be considered
reportable: it -does not refer to the time
available Jar a person to report a
release. Such reporting oust occur
Immediately. ,,
a. Mixtures efHasantoaa Substance*.
When deteanining if notification is
required far releases of mixtures and
solutions conuuning hazardous
substances, me Agency intends to apply
the mixture rule developed in
connection with the CWA section 311
regulations. This rule provides that
•*[d]ischanjes of mixtures and solutions
are subject to these MguJatMos only
where a component hazardous
substance of the mixture or volution is
discharged in a quantity equal to or
greater than its RQ" {44 FR S07B7,
August 29.1979). RQs of different
substances are not additive under the
mixture rule, so that spilling a mixture
containing half an RQ of one hazardous
substance and half an RQ of another
hazardous substance does not require «
report.
Most commenten supported using the
CWA mixture rule. These eommenters
agreed with EPA that it is generally
technically appropriate to consider the
RQs of component hazardous
substances of a mixture individually
when determining if a report is required.
They also note that applying the CWA
mixture rule to CERCLA hazardous
substances would allow the regulated
community to continue with "y»iiMing
monitoring and notification procedures.
One commenter opposed use of the
CWA mixture rale, arguing that EPA has
no data to support the implicit
assumption that toxic effects are not
additive or synergiatic. The commenter
stated that additive or synergistk effects
often occur.
EPA recognizes that the toxic effects
of chemical mixtures may in some
instances be additive, synergistic. or
even antagonistic. Unfortunately, only
limited data exist on the extent of such
effects. Moreover, trying to incorporate
such data Into the mixture rale for
CERCLA notification imL«w»in would
make the detenmnation of whether an
RQ had been released much more
contptexanilcearasmg. The RQ would
vary with each mixture, depending on
whether the components of the mixture
had additive, synergistic. or antagonistic
effects. Thus, a different RQ would have
to be determined tor each potential
release situation, a highly complex
approach that EPA has consistently
tried to«oid{see section V.C& behrw).
To be effective, the CERCLA notification
system must be simple to admiawter
and apply. For this reason, the Agency
will apply the CWA mixture rule—
contained hi 1302JB of today's rule—to
releases subject to CERCLA reporting
requirements.
Several ceanejanten were uncertain
when to apply the mixture rale to me
various aCRA regulated westes (F and
K lists) and to the unlisted ICRE mates.
The Agency emphasizes mat. for
CERCLA parpens, me CWA mixture
rule applies to ICRE wastes and to the
RCRA P and X waste •tnams (all of
which tend to be mixtures), if me
concentration* of ail the hazardous
substances in the waste are known. If
the concentrations of the substances are
unknown, the RQ of the waste stream or
unlisted waste applies. In addition, if me
person in charge knows that an RQ of a
hazardous constituent of a wests has
been released before the RQ for the
waste stream or unlisted waste has been
exceeded, be or she must report the
release. However, CERCLA does not
itself impose any testing reqirements.
Somecommenters objected to
application of the CWA mixture rule to
waste streams, arguing that under-
reporting could result if the components
of the waste were incorrectly identified.
The Agency, however, maintains that if
the concentrations of the hazardous
substances contained in the mixture are
known, waste streams should be treated
like any other mixture. If the releaser
does not know the composition of the
listed waste stream. EPA agrees that
applying the RQ of the entire waste
stream is the only reasonably
conservative alternative.
For example, a mixture of spent (used)
enrols and nitrobenzene is identified in
the RCRA regulations (40 CFR 201.31) as
a hazardous waste from a non-specific
source, F004. F004 baa an RQ of 100
pounds, because the RQ for cresols is
100 pounds, the RQ for nitrobenzene is
1000 pounds, and the lowest RQ for any
of the hazardous substances hi the
mixture applies. If the person in charge
knows only that a waste material
contains unspecified amounts of cresoli
and nitrobenzene, then he or she would
have so opart If 100 pounds or more of
the waste wen released. The person in
charge may. however, if sufficient data
are available, apply the CWA mixture
rule, ffbe or she knows that the POM
waste contains SO percent cresols and 50
percent nitrobenzene, (he releaser
would have to report only when the
total release equalled or exceeded 200
pounds, because at that point the 100-
pound RQ of the cweol component
would be enualled or exceeded. Because
the concentrations of the hazardous
substances in the waste stream an
known, mere is no reason to reitnd the
releaser to the FOOt waste RQ of 100
pounds, fa (his case, for notification
purposes, the waste stream is no
different than a known mixture of pun
substances.
A few commenten questioned
whether the mixture rule applies to
products where the ectrre chemical
ingredient for which it is named Is
present in leas than tOOpercent
concentration. While the NPRM
discussion of the mixture rule did not
explicitly nentian -formulations of less
than in percent strength," such
formulation are indeed mixtures or
solutions end an covered by me
mixture rule. Two commeiUers wanted
EPA to waive me CERCLA notificatun
requirements for mixtures containing
very km concentrations of hazardous
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13464 Federal Register / Vol. 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations
substances. These comment'en
suggested assigning a concentration
value to each hazardous substance
below which notification would not be
required. This approach would, in effect
result in two rules for each substance.
making application of the mixture rule
cumbersome for the regulated
community. Moreover, determining each
concentration value would require the
use of specific release scenarios, a
methodology that EPA has rejected (see
48 FR 23589 and Section V.O3. of this
preamble). For these reasons, EPA is
retaining the mixture rule for all
mixtures containing any concentration
of a hazardous substance, no matter
how low the^concentration.
£ Exemptions From the CERCLA
Notification Requirements
CERCLA provides four types of
exemptions from the notification
requirements applicable to releases of
hazardous substances in nportable
quantities. Each type of exemption was
discussed in the May 25,1983 NPRM
preamble. Responses tojnajor
comments received on the exemption for
the application of pesticide products
registered under the Federal Insecticide.
Fungicide, and Rodentiride Act (FIFRA)
are-provided below. Issues relating to
the limited exemption far-continuous
releases and exemptions for "federally
permitted releases" are not resolved in
today's rule.
Section 103(e) of CERCLA exempts
from the notification provisions of the
Act "the application of a pesticide
product registered under the Federal
Insecticide, Fungicide, ""^ Rodentiade
Act (FIFRA] [and] the handling and
storage of such a pesticide product by
an agricultural producer." In the
proposed rule, EPA interpreted the
application of pesticides as the normal
application of registered pesticides (and
pesticides used in accordance with
FIFRA sections experimental use
permits or FIFRA section 18 emergency
exemptions) in ways that are consistent
with the labeling instructions.
Commenters objected to several
aspects of EPA's pesticide exemption
policy as stated in the NPRM; The first
category of objections concerned the
wording of the policy. Some commenters
suggested that the phrase "pursuant to
the label directions" as used in the
definition of "normal application of
pesticides" applies more to consumer
goods than to industrial chemicals.
because the label directions of the latter
may not include complete application
practices. Other commenters objected to
the use of the. term "normal" in the
definition of "normal application of
pesticides." because the term does not
appear in CERCLA section 103(e) and
constitutes a potentially unnecessary
restriction on the exemption.
EPA agrees that the definition of
"normal application of pesticides" is
unnecessary, and the definition does not
appear in today's final rule. The
legislative history of CERCLA suggests
that Congress intended that the
pestitidj! exemption apply to the .
application of a pesticide generally In
accordance with its purpose. S. Rep. No.
848.98th Cong. 2d Sess. 45 (July U
1980). While strict compliance with
labeling direction is-nota prerequisite
for the exemption, the extent of
compliance will be a critical factor in
determining whether the application
was generally in accordance with the
pesticide's purpose. EPA does not
consider a spill of a pesticide to be
either an "application" of the pesticide
or in accordance with the pesticide's
purpose. Consequently, such spills must
be reported. Note, moreover, that use of
a pesticide inconsistent with its labeling
is a violation of FIFRA that is
potentially subject to both civil and
criminal penalties.
P. Duplicate Reporting
1. General
CERCLA notification requirements is
not great At most the duplication that
exists may require that more than one •
telephone call concerning a release be
made by the releaser and recorded by
government agencies.
Today's final rule does not affect
hazardous substance reporting
requirements imposed by certain other
regulations and statutes, as discussed in
section iV.G. below.
2. Newspaper Notification Requirement
CERCLA section lll(g) requires that
owners or operators of any vessel or
facility "provide reasonable notice to
potential injured parties by publication
in local newspapers serving the affected
area" of any release of a hazardous
substance. One commenter asked
whether RQ notification requirements
revoke section lll(g). The newspaper
notification requirement established by
section lll(g) of CERCLA is not affected
by any of the notification requirements
in today's rule.
C. Regulatory Consistency
EPA has always made every effort to '
coordinate its regulations of hazardous
i with other government
EPA is seeking to
unnecessary duplication between
CERCLA reporting requirements and the
reporting requirements of other
environmental statutes. However, some
commenters complained of the
duplicative reporting burden created by
CERCLA and of a lack of coordination
among federal, state, and local agencies.
Eight of these commenters suggested
that one report to the NRC should
suffice for all government agencies.
Currently, one call to the NRC fulfills the
requirement to report releases of
hazardous substances under CERCLA
and several other regulatory programs,
including the Clean Water Act the
Resource Conservation and Recovery
Act and the Hazardous Materials
Transportation Act which is
administered by the Department of
Transportation. The May 25,1983 NPRM
preamble discussed the equivalence of
compliance with certain RCRA reporting
requirements and CERCLA notification
requirements. Section 103(f)(l) of
CERCLA exempts from the notification
requirements of sections 103 (a) and (b)
releases that an subject to reporting
requirements (or specifically exempted
from such reporting) under Subtitle C of
RCRA and have been reported to the
National Response Center. The Agency
has reviewed all other areas of duplicate
reporting created by CERCLA and has
found that the burden imposed by
agencies. For example. EPA and the
Department of Transportation (DOT)
(which includes the U.S. Coast Guard)
have cooperated over the yean in a
series of regulatory actions, including
• (he establishment of the centralized toll-
free telephone number for reporting
spills of hazardous substances to the
NRC EPA recognizes that cooperation
with other agencies is vital to the
development of clear and consistent
regulatory policies in areas of
complementary or shared responsibility.
The* Agency has carefully reviewed
comments from other government
agencies on the NPRM and does not
believe that the CERCLA RQs or
notification requirements create
regulatory inconsistencies.
Many commenters questioned the
extent of EPA-DOT coordination
concerning CERCLA RQ regulations and
regulations pursuant to the Hazardous
Materials Transportation Act (HMTA).
EPA recognizes the need for consistency
between the RQ regulations and DOTs
Hazardous Material Regulations (HMR).
The Agency believes that the
cooperative efforts of EPA and DOT will
result in an RQ adjustment regulatory
approach that will be consistent with
any related regulations promulgated by
DOT. EPA has promoted and will
continue to promote coordination
between the RQ adjustment regulation
and the HMR. EPA .wishes to clarify.
however, that while it strongly supports
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Federal Register / VoL 50. No, 85 f Thursday. April 4. 1985 / Rules and Regulations 13465
' cooperation between EPA and DOT, it
has no authority to revise the HMR, Any
changes must be made by DOT.
The International Convention for the
Prevention of Pollution from Ships
(MARPOL 73/78), as implemented
. through the Act to Prevent Pollution
from Ships (33 U.S.C. 1901 etseq.l
. currently imposes reporting
• requirements concerning releases of
, harmful substances from U.S. ships
' wherever located and from foreign ships
within the navigable waters of the
United Slates. Under 33 US.C 1908. as
soon as a person in charge of a ship has
knowledge of an event involving the
actual or probable release into the sea
. of a harmful substance (broadly
denned), he or she must report the
. incident to the Secretary of the
department in which the Coast Guard is
operating (currently DOT). No
reportable quantities an specified.
Thus, MARPOL 73/7a as implemented
by 33 U.S.C. } 1906, may require'
. reporting even when CERCLA does not
Annex D of MARPOL 73/78 prohibits
discharges of noxious liquid substances
within 12 miles tram shore. Beyond 12
miles, discharges are either prohibited
or limited, depending on the nature of
the cargo and compliance with several
criteria. Annex IL scheduled to take
effect in October 1B86. applies to all
ships carrying noxious liquid substances
in bulk and limits operational discharges
of these substances'by setting minimum
or maximum numerical values for
distance from shore, depth of water.
ship speed, concentration of substance
in snip's wake, and maximum quantity
of cargo residues that may be
' discharged. To improve regulatory
consistency and enhance coordination
with the U.S. Coast Guard. EPA Intends
to investigate the scope and intent of
MARPOL 73/78 Annex 0 regulations
(including a Coast Guard ANPRM (48 PR
1519-1521. Ian. 13.1983) dealing with
certain types of hazardous substances
that are intended to be regulated in
accord with MARPOL) and to examine
regulatory and technical concerns
arising from coordination between
CERCLA and MARPOL
Section 8(e) of the Toxic Substances
Control Act (TSCA) may also require
reporting where CERCLA does not
Pursuant to a Statement of
Interpretation published March 18,1878,
43 FR11110. all emergency incidents of
environmental contamination that
present a "substantial risk of injury to
health or the environment" must be
reported to EPA under TSCA section
8(e). Section B(e] could require
notification even where no CERCLA
hazardous substances or RQs have been
released. Persons subject to the
notification requirement include both
natural persons and business entities
engaged in the manufacturing,
processing, or commercial distribution
of chemical substances or mixtures. No
notification is required if the
manufacturer, processor, or distributor
knows that EPA has been informed of
the risk presented by the incident For
hazardous substance releases subject to
CERCLA, a single notification to the
NRC will satisfy both CERCLA and
TSCA section 8(e) reporting
requirements; the Agency will ensure
that section 8(e) reports an passed to
the proper authorities.
H. Penalties
Section 30Z7(a) of the proposed rule
set forth the penalties imposed by
CERCLA Section 103(b) for failure to
notify the NRC of a reportable release.
Section 3027(a) of today's final rule
does not specify the penalties
established by CERCLA section lOSfb);
rather, the rale incorporates the
statutory penalties by reference. The
regulation still informs responsible
parties of the statutory sanctions for
failure to notify, but the change will
avoid the need to amend 40 CFR 3017
should CERCLA section 103(b) be
amended. Currently. CERCLA section
103(b) provides that any person in
charge of a facility or vessel from which
a hazardous substance is released, other
than a federally permitted release, in a
quantity equal to or greater than the
reportable quantity, who fails to notify
the appropriate federal agency as soon
as he has knowledge of the release, shall
upon conviction be fined not more than
$10.000 or imprisoned for not more than
one year, or both. Notifications received
under sections 103(a) or 103(b) or
information obtained by such notice
cannot be used against any reporting
person in any criminal case, except a
prosecution for perjury or for giving a
false statement.
V. Rgpurtable Quantity Adjustments
A. Introduction
The primary purpose of the CERCLA
notification requirements, discussed
above in section IV, is to ensure that
releasen notify the government so that
the need for a federal response can be
evaluated and any necessary response
undertaken in a timely fashion.
With this purpose in mind. EPA
proposed adjustments to the statutory
RQs of CERCLA hazardous substances
based on specific scientific and
technical criteria that relate to the
possibility of harm from the release of a
hazardous substance in a reportable
quantity. The adjusted RQs do not
reflect a determination that a release of
a substance will be hazardous at the RQ
level and not hazardous below that
level EPA has not attempted to make'
such a determination because the actual
hazard will vary with the unique
circumstances of the release, and
extensive data and analysis would be
necessary to determine the hazard
presented by each substance in a
number of possible circumstances.
Instead, the RQs reflect the Agency's
judgment of which releases should
trigger mandatory notification to the
federal government so mat the
government may assess to what extent
tf any. a federal removal or remedial
action may be necessary.
• Over forty commenten supported
both the methodology EPA used in
determining RQs and the results of this
methodology. These commenten agreed
that the RQ adjustments will:
(1) Increase the efficiency and
certainty of the Superfund program;
(2) Reduce burdens on the regulated
community; and
(3) Improve EPA's ability to
concentrate its attention and resources
on the releases that an potentially most
threatening to public health or welfare
Of (B9 BQYIfOlUBfiDt*
In addition. EPA received many
comments on'various specific topics
relating to the RQ adjustments that were
discussed in the NPRM. Some
commenten also discussed issues that
were not explicitly addressed in die
proposed rule. Responses to both types
of comments are presented below.
A Dumber of Reportable Quantity
Levels and'Their Values
1. Five RQ Levels
For purposes of making RQ
adjustments under CERCLA. EPA has
adopted the five RQ levels of 1.10,100.
1000. and 5000 pounds originally
established pursuant to CWA section
311 (see 40 CFR Part 117). The Agency
adopted the CWA five-level system
primarily because (1) II has been
successfully used pursuant to the CWA,
(2) the regulated community is already
familiar with these five levels, and (3) it
provides a relatively high degree of
discrimination among the potential
hazards posed by different CERCLA
hazardous substances. Many
commenten voiced general support of
the five-level system; however, as the
next section discusses, some
commenten criticized the use of one
pound as the lowest RQ level
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13466
JfejeraTRegister / Vol. 50. No. 65 / Thursday, AprU 4, 1985 / Rules and Regulations
2. One-Pound RQs
Several comments were received on
the one-pound RQ level. A few
commenters argued that a one-pound
RQ ia too small for reporting purposes.
They reasoned that a one-pound release
of a hazardous substance would have an
inconsequential impact on public health
and welfare and the environment and
that federal agencies would not respond
to such small releases.
The one-pound RQ ia consistent with
prior regulation under the dean Water
Act (see 40 CFR Part 1Z7). One pound
was selected under the Clean Water Act
as the lowest reporting level because
one pound ia typically the smallest
container size used in commerce for
transporting moderately or extremely
hazardous substances 40 FR 59989,
December 30.1975. Moreover, the
Agency interviewed a large cross-
section of field response personnel and
all of those interviewed indicated that
they want to be notified of most
releases, even at the one-pound level In
the interviews, the field response
personnel recognized that the
government may not institute removal or
remedial actions for many one-pound
releases, but they emphasized that
notification was a prerequisite for
determining (1) the need for a response
under the circumstances. (2) the
adequacy of any cleanup efforts, and (3)
the degree to which post-release
monitoring may be required
Furthermore, many releases tend to be
escalating events, and early notification
helps ensure an effective response.
Six commenten criticized the one-
pound RQ level for posing an
unreasonable burden on the regulated
community. One commenter indicated
that the adoption of one-pound RQs will
require many companies to do extensive
testing of raw materials in order to
assure compliance with this regulation.
CERCLA does not require any testing,
and EPA does not intend to require any
further testing beyond that which ia
already required by other statutes and
their implementing regulations.
C. Methodology Used To Adjust
Repayable Quantities
1. The Methodology Chosen
The selected strategy for adjusting
RQs begins with an evaluation of the
intrinsic physical chemical, and
lexicological properties of each
designated hazardous substance. The
intrinsic properties examined—called
"primary criteria"—are aquatic toxicity.
mammalian toxicity (oral, dermal, and
inhalation), ignitability. reactivity, and
chronic toxicity. (For the purposes of
this rule, chronic toxicity—referred to as
"other toxic effects" in the May 25.1SB3
NPRM—is defined aa toxicity resulting
from repeated or continuous exposure to
either a single release or multiple
releases of a hazardous substance.) In
addition, substances that were
identified as potential carcinogens have
been evaluated for their relative activity
aa potential carcinogens; the RQs for
these substances will be proposed in a
separate rulemaking, and the
methodology for adjusting RQs on the
basis of potential cartinogenicity will at
that time be presented for public
comment.
The Agency ranks each intrinsic
property on a five-tier scale, associating
a specified range of values on each scale
with a particular RQ value. Thus, each
substance receives several tentative RQ
values based on its particular
properties.*The lowest of all of the
tentative RQs becomes the "primary
criteria RQ" for that substance. (See
Section VU.1. below for further detail)
After the primary criteria RQs are
assigned, substances are further
evaluated for their susceptibility to
certain extrinsic degradation processes.
These extrinsic processes (referred to as
"secondary criteria" in the May 25.1983
NPRM) are biodegradation. hydrolysis,
and photolysis, or "BHP." If the analysis
indicates that a substance degrades
relatively rapidly to a less harmful
compound through one or more of these
processes when it ia released Into the
environment the primary criteria RQ ia
raised one level (See section VJX2,
below for further detail) The single RQ
assigned to each substance on the basis
of the primary criteria and BHP becomes'
the adjusted RQ for that substance.
2. Multiple RQs and Media-Specific RQs
Many commenten objected to the
Agency's proposuj to establish a single
RQ for each hazardous substance. It
was suggested that either (1) the Agency
should develop several RQs for each
hazardous substance, for example, one
RQ for each of the various
environmental media (air. water, soil)
into which a release might occur, or (2)
the Agency should base the adjusted RQ
for each substance on the most likely
medium of release rather than on the
most sensitive environmental trigger (as
is currently done).
Several of the objecting commenten
believed that the RQs would be
arbitrary if they did not reflect the
Mf available evidence itiowi thai • mbaianca
hydralyxn Into i reaction product that u more
baurdoiu than tht anginal aubtUnce. (ha primary
enlena are applied to the reaction product rather
than to the anginal lubttancc to determine the
primary criteria RQ values for the anginal
lubsla
varying degrees of risk presented by
releases into different environmental
media. For similar reasons, they argued
that the RQs should vary depending on
the form of the substance released (i.e_
whether it is a solid, a liquid, or a gas]
and its ability to dissipate into the
environment. The objecting commenten
believed that if the RQs were to reflect
more accurately the hazards of given
releases, the overall reporting burden
would be reduced, because reports
would not have to be made in situations
when the government would be unlikely
to respond.
As has been stated, the RQs are not
intended to represent judgments by the
Agency as to the specific degree of
hazard associated with certain releases.
The actual hazard will vary with the
circumstances of the particular release.
and many factors other than the size of
the release will influence the
government's response."The single RQ
approach was adopted to provide a
relatively simple reporting system thai
does not unduly burden either EPA or
the regujated community. Since releases
into more than one medium often occur. •
the single RQ approach will prevent
confusion. Section 102(a) of CERCLA
expressly authorizes the Administrator
to set a single quantity for each
hazardous substance, and the legislative
history emphasizes the virtues of
simplicity and administrative
• convenience (see Sen. Rep. 848.96th
Cong.. 2d Sesa. 29 (1980)). Moreover, the
Agency simply does not have the
resources to obtain the vast quantity of
technical data required to develop RQs
that, on the one hand, are tailored to fit
every release situation, and that, on the
other band, are consistent equitable.
and adequately protective of public
health and welfare and the environment.
EPA will be able to refine the single-
RQ approach over time as more
information becomes available, without
having to expend substantial resources
to develop a massive technical data
base and undertake other burdensome
rulemaking support. Radionuclides,
because of their unique characteristics.
are the one category of substances for
which the Agency is considering
deviation from the single RQ approach.
As noted in section IILC. of this
preamble, radionudide RQs will be
addressed in a separate rulemaking.
A number of commenters expressed
the opinion that the RQ adjustment
criteria should take particular release
circumstances into consideration. The
suggested circumstances included
release into a sewer system, release
near a public drinking water supply,
release near a residential area, and air
-------
Federal Register / Vol 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations 13467
emission! from elevated sources (tall
stacks). One conunenter even'stated
that "determinations of actual harm"
should be made for all substances with
one- and ten-pound RQs by examining
release potential release history, the
degree of hazard or risk of particular
releases in various environmental
media, and the likelihood that such
releases would require federal action.
The Agency position is that particular
circumstances should not affect the RQ
level: instead, they may influence the
government's decisions concerning
whether and how it should respond to a
particular release.
Many commenters focused on the
appropriateness of a single RQ
governing emissions into the air as well
as releases into other media. They
argued as follows:
• Because the government cannot
respond to most air emissions by
containing or cleaning up the emissions,
and because other government
responses (e.g, evacuation of the nearby
populace) an required only
'nfrequently. requiring routine reporting
if air emissions under a single-RQ
ipproach would be wasteful and
mrdensomB.
• The impacts of emissions into
unbient air are substantially less than
•eleases of similar size to water or sou,
ind the photolysis and degradation of
nany air emissions tend to be relatively
rapid.
• Relatively few substances would be .
sligible for separate air release RQs, and
EPA would not have to devote a
substantial amount of effort and
resources to make the appropriate
adjustments.
The Agency believes that an
exception to the single-RQ approach for
air releases could not be restricted to air
releases alone under the above
reasoning. Several other types of •
releases exhibit certain of the
characteristics of air releases, such as
releases into large bodies of rapidly
moving water. If the circumstances of
particular releases were taken Into
account In setting RQs, the entire
process would place an intolerable
burden on Agency resources. The
process would also-become potentially
inconsistent inequitable, and subject to
delay. Moreover, the resulting
complexity hi RQs would be likely to
engender both confusion and further
charges of arbitrariness.
One commenter believed that for the
most part releases that would be
affected by a separate air release RQ
would be those which are "continuous"
and released from facilities subject to
Clean Air Act regulations. If an air
release falls within the exemptions
provided by CERCLA for "continuous"
or "federally permitted" releases, of
course, no notification is necessary
(except as required for continuous
releases); if many air releases are
exempt a separate air release RQ would
provide very few benefits.
3. Alternative Methodologies
Considered
In the May 25.1983 NPRM, EPA
described and solicited comments on
three alternative methodologies for
adjusting RQs: Hazard Index Scenarios.
and Fate and Effects. Most commenters
agreed with the Agency that these
methodologies would be impractical to
implement and would introduce
unnecessary complexities into the RQ
adjustment process, although several
commenters encouraged further
research Into the Hazard Index
approach. No new data to facilitate a
more complete evaluation of these
methodologies have been submitted.
Because these methodologies are .
complex and require much data that an
unavailable at this time, EPA is not
currently pursuing these methodologies
further for RQ adjustment purposes.
D. Criteria Used To Adjust Reaortable
Quantities
1. Primary Criteria
a. Aquatic Taxieity. In adjusting RQs.
EPA used the categories of aquatic
toxicity that were established pursuant
to section 311 of the CWA. As Exhibit 1
shows, each category is linked to one of
the five RQ levels. The RQ value based
on aquatic toxicity is identical to the RQ
promulgated under the CWA section 311
except where the use of updated aquatic
toxicity data has resulted in a different
RQ fsee section VJ.2. below).
EXHIBIT* I.-CKTEOOMES FOR REPORTABU
QUANTITY ASSIGNMENTS PURSUANT TO CWA
SECTION 311
RO
tC.< <0.1 mg/wr
0 Img/M* <100 mg/kg_
100 mg/kg < WO mg/kg — •
in. -COO* mo/kg. _______——.
OM mg/kg cLJD. <0 4 mg/tg ___ . —
04 mg/kg < 400 ppm.
400 ppm
-------
134811 Federal Roaster / VoL 50, No. 65 / Thursday, April 4, 1985 / Rules and Regulations
e. Ignitability and Reactivity. The
Agency used a five-level scale to assign
RQs based on ignitability. The NPRM
discussed this scale in detail (48 FR
23563). Exhibit 3 shows the scale used
The Agency did not assign one-pound
RQs based on ignitability because small
releases of a flammable substance
would generally be consumed so quickly
that any federal government response
action would be infeasible.
EXHIBIT 3.—CATEGORIES FOR RETCRTABU
QUANTITY ADJUSTMENTS BASED ON
IOMTABWTY*
no
100_
10QO-
No 1-powd RO* on M
FP>. MB'P.
ff. 100-M40-F.
•far a
•ff.- rakm to 0» Mi pert. V» MIVMM «
_ _^^^^^» te^BK m» li^^l^MA ^^H«k^B ^M* M^ ^to
• sju^imsi iWTBsi an SV^^BBSI IIKBWSJ wui w aw
The Agency also used five-level
scales for assigning RQs based on two .
types of reactivity: reactivity with water
and self-reaction. For reactivity, as for
ignitability, no one-pound RQs were
assigned. The NPRM discussed the
reactivity scales and their development
Exhibit 4 shows the scales used.
One commenter requested that the
RQ level tor the ignitabflity
and reactivity RQ scales be set at 100
pounds instead of 10 pounds. The
Agency has decided to retain the 10-
pound tiMnimnm RQ laveL As 8 result of
interviews with federal government field
response personnel, the Agency decided
to remove the one-pound RQ level from
the ignitability and reactivity RQ scales.
Government response personnel
indicated that releases of less than 10
pounda of ignitable and reactive
substances normally would be
adequately handled by appropriate local
or state response personnel and they
concurred with the Agency's proposal to
raise to 10 pounds the minimum
reporting level for the ignitability and
reactivity RQ scales. Government
response personnel however, objected
to raising the minimum reporting level
any further. They believed that reporting
levels should be kept low to ensure
timely reporting of releases and timely
government response, if necessary.
EXHIBIT 4—CATEGORIES FOR REPORTABIE
QUANTITY ADJUSTMENTS BASED ON
REACTIVITY*
100.
Mo 1-pound ROt on
•F* t
& Chronic Toxicity. The Agency used
data on chronic toxicity (referred to as
"other toxic effects" in the May 25,1983
NPRM) to adjust the statutory RQs for
some hazardous substances. For other
hazardous substances, data on chronic
toxidty were still being evaluated at the
time of the May 29.1983 NPRM. RQs
were not adjusted for those substances
undergoing evaluation! thus, the
statutory RQ applies. In addition, then
are a few substances for which an RQ
was proposed in the NPRM but for
which EPA subsequently determined
that further evaluation was necessary.
The statutory RQ applies for these
substances until a final RQ is
promulgated (see section VJi below).
When analyzed for chronic toxidry,
substances are assigned scores based on
both the mhifaimai effective dose (MED)
levels for repeated exposures and the
severity of the effects caused by
repeated or continuous exposure. The
scores an then used to assign RQs. The
NPRM described the methodology used
(48 FR Z35o4l: Exhibit S shows the RQ
i based on chronic toxidry.
(48 FR
levels!
EXHIBIT 5.—CATEGORIES FOR REPORTABU
QUANTITY ADJUSTMENTS BASED ON CMMON-
c Toxcrrv*
aq tym i |
Cam.
11-101
4140
21-40
•-20
i-a
•for •
of M
Rutmuig Punun to CERCLA Swoon 102.
A number of commenters suggested
that chronic toxidty should not be used
to determine RQs or should be used only
with additional restrictions. These
commenters believed that chronic
toxidty, which is a function of
prolonged exposure, should not be
considered because the purpose of the
RQ program is to monitor episodic
releases. Hie Agency decided to use
chronic toxidty as a criterion in setting
RQs because episodic releases which
an not rapidly and completely deaned
up may result in repeated or continuous
exposure to a toxic substance.
Moreover, CERCLA reporting
requirements cover both episodic and
continuous releases. Continuous
releases may also lead to repeated or
continuous exposure to toxic
e. Potential Carcinogenicity. Today's
role does not use-any measure of
potential carcinogenidty to adjust RQs.
EPA Is in the process of developing
adjusted RQs for substances which have
been Identified as potential carcinogens.
The statutory RQs for these substances
apply while they an being considered
for RQ adjustment Table 302.4 notes
those substances which an being
evaluated for their relative activity as .
potential carcinogens (but which may or
may not be potential carcinogens).
2. Other Criteria Used to Adjust RQs
(BHP)
a. Use of BHP Criteria. Twenty
commenters supported the use of the
natural degradation processes of
biodegradation. hydrolysis, and
photolysis ("BHP") as additional criteria
for adjusting RQs. The BHP criteria an
used, when appropriate, to raise RQ
values one level from that suggested by
the primary criteria analysis. Four
commenters opposed the use of BHP to
adjust RQs.
The supporting commenters agreed
that the above degradation processes
tend to nduce the relative potential for
harm to public health and welfare and
the environment of certain harzardous
substance releases. It was seen that
taking the environmental fate
characteristics of particular substances
into account in setting RQ levels was an
appropriate method to reduce the
overall reporting burden while still
adequately protecting public health and
welfare and the environment However.
one commenter emphasized that the
BHP criteria an a useful RQ adjustment
tool only when the assodated analysis
is not overly complex, expensive, or
Several commenters requested
clarification of the methodology used in
-------
Federal Register / Vol. SO. No. 65 / Thursday. April 4. 1985 / Rules and Regulations 13469
applying BHP. The Technical
Background Document supporting this
rulemaking sels forth in detail the
relatively simple, yet scientifically
conservative methodology used to apply
these criteria. First, several elimination
criteria are used to limit the number of
substances eligible for the one-level
increase based on BHP. The elimination
criteria include the fallowing: tendency
to bioaccumulate. environmental
persistence, th« presence of unusual
hazards (e.g., high reactivity), the
existence of hazardous degradation or
transformation products, or a primary
criteria RQ already at the maximum
assignable level of 5000 pounds. The
remaining substances are evaluated for
their susceptibility to biodegradation,
hydrolysis, and photolysis. As discussed
below, the Agency uses ranges of
degradation rates sufficient to ensure
that the substances selected for the one-
level increase in RQ (27 in today's final
rule] are in fact relatively degradable.
Two commenten believed that the
Agency's evaluation pursuant to the
BHP criteria should lead to a downward
adjustment if the risk posed by the
release of a hazardous substance is
increased as a result of biodegradation.
hydrolysis, or photolysis (I.e. if the
natural degradation processes produce
materiala in the environment that are
more hazardous than the original
substance released). The Agency agrees
thai consideration must be given to the
toxicity of the degradation products.
When reaction products more
hazardous than the original substance
are readily known and identified, the
Agency has based (ha primary criteria
RQ of the original substance on the
characteristics of the more hazardous
reaction products, effectively resulting
In a "downward adjustment"
Application of the primary criteria to
the reaction products rather than to the
original substances occurred in ten
cases for the substances assigned final
adjusted RQs in this rule. For example.
substances known to generate hydrogen
sulfide or phosphine upon hydrolysis
have been assigned primary criteria RQs
on the basis of these reaction products.
The few commenten opposing the use
of BHP felt that biodegradation.
hydrolysis, and photolysis should be
considered by the On-Scene
Coordinator in determining the
government's response after a release
has been reported, but that EPA should
not use such processes to alter the initial
reporting level suggested by the primary
criteria. For the reasons given below, the
Agency disagrees.
First, the commenters asserted that
biodegradation. hydrolysis, and
photolysis should not be applied in the
setting of RQs because these processes
may not affect the immediate hazard
posed by a given release and instead
may only reduce the potential long-term
dangers of the release. However. EPA
has used degradation measures thai
address both short- and long-term
potential hazards. The RQ of a
substance is not raised unless (1) the
reported biological oxygen demand of
the substance over a five-day period at
20 degrees Celsius is at least fifty
percent of the theoretical oxygen
demand (the stoichiometric quantity of
oxygen needed to oxidize a substance
completely to carbon dioxide and
water), or (2] when subjected lo
hydrolysis, photolysis, or either process
in conjunction with biodegradation, the
estimated half-life of the substance is
equal to or less than five days.
The primary criteria RQs of four
substances (allyl chloride, butylamine.
diazuion, and ethyl acrylate) were
adjusted upwards In the May 25.1983
NPRM on the basis of degradation data
involving periods greater than five days.
because data for shorter periods were
unavailable. The Agency has since
decided to adjust RQs according to the
criteria stated above (Le.. evidence of
degradation within five days), to ensure
that all substances selected for the one-
level increase will tend to degrade
rapidly once they are released.
Therefore, allyl chloride, butylamine.
diazuion. and ethyl acrylate are
assigned their primary criteria RQs in
today's final rule.
The second major argument raised by
the commenten opposed to the use of
BHP was that the methods for measuring
the occurrence and rate of
biodegradation, hydrolysis, and
photolysis do not take into account the
entire range of environmental conditions
that could potentially affect each
process. The Agency acknowledges this
limitation in its analysis. RQs cannot be
designed to account for every
environmental condition of each release
of a hazardous substance. Instead, each
RQ level represents the Agency's best
judgment concerning the threshold at
which the NRC should be notified.
Although environmental conditions
an not considered in the RQ adjustment
process. EPA baa taken into account
certain physical characteristics of
substances in adjusting RQs on the
basis of biodegradability. The test for
biodegradability is performed using a
closed container, which may provide
misleading data for highly volatile
substances that are unlikely to remain in
microbe-bearing soil or water. The
Agency has therefore elected not to
apply the biodegradation criterion to
any highly volatile substance (i.e.. with
a boiling point less than 100 degrees
Fahrenheit] unless that substance is also
highly water soluble. Highly water
soluble substances will tend to be
retained in water or in soil (by soil
moisture). The primary criteria RQ of
acetaldehyde was raised one level
under these circumstances: even though
the boiling point of acetaldehyde is less
than 100 degrees Fahrenheit the
substance is also highly water soluble.
b. Other Criteria Considered and
Rejected, hi the NPRM preamble, EPA
noted that it had considered using
volatilization (the process by which a
substance vaporizes into the air) as an
additional criterion for adjusting RQs.
but had rejected it because the hazard
posed by a release of a hazardous
substance does not necessarily decrease
when the substance moves from soil or
water into the air. One commenter
disagreed with the Agency's decision
not to use volatilization, arguing that
where a compound is particularly
volatile, no response action may be
feasible. EPA maintains its earlier
position that the movement of a
substance between environmental
media (from the soil or water into the
air) does not necessarily affect the
potential hazard The feasibility of a
response is a decision for the On-Scene
Coordinator.
e. Broadening the Scops of the BHP
Criteria. The NPRM noted, without
discussion, that the criteria of
biodegradation. hydrolysis, and
photolysis wen not used to raise RQs
based on chronic toxicity. and it did not
mention the application of BHP to
substances being evaluated for potential
carcmogenicity. Several commenten
expressed the opinion that BHP should
be applied to hazardous substances
evaluated for chronic toxicity and/or
potential cardnogenidty. They noted
that the processes of biodegradation.
hydrolysis, and photolysis may. in
certain cases, reduce the potential
hazard of such substances. EPA agrees
that BHP should be applied to those
hazardous substances evaluated for
chronic toxidty, and the Agency is
considering whether to apply BHP to
substances evaluated for potential
cardnogenidty.
In fact the Agency has already
evaluated BHP with respect to those
substances that were analyzed for
chronic toxidty. Two substances
evaluted for chronic toxidty have had
their primary criteria RQa increased one
level on the bans of biodegradability:
acetonitrile (1000 to 5000 pounds] and
methyl ethyl ketone (1000 to 9000
pounds)..
-------
13470 ' Federal Register / VoL 50, No. 65 / Thursday. April 4. 1985 / Rules and Regulations
A number of commenten argueu that
RQs should be adjusted more than one
RQ level on the basis of the BHP criteria
to reflect the speed and completeness
with which a substance degrades. In a
related suggestion, several commenten
requested that EPA develop formal
ranking scales for these criteria.
The lack of extensive data and the
uncertainty of much of the existing data
concerning the environmental fate of
various hazardous substances prevent
adjustments of more than one level to
reflect the speed and completeness with
which a substance degrades. The
Agency believes that an upward
adjustment of one level adequately
lessens the reporting burden on the
regulated community regarding releases
of the 27 substances involved and
satisfactorily protects public health and
welfare and the environment
Similar data gaps hinder development
of formal ranking scales for the BHP <
criteria. Moreover, even if adequate
data were available, the BHP criteria
could not be easily applied through a
more formal multi-tier ranking system.
.for many of the same reasons a hazard
index is currently impractical For
example, there is no objective way to
determine the proper numerical weights
for the different primary and BHP
criteria that would be combined in a
ntore formal ranking system. Therefore,
the Agency has determined that jnore
formal ranking scales for the application
of BHP are not practical at this time.
Further refinement of the use of BHP
may be undertaken in connection with a
future nilemeKing. <
For a more detailed discussion of the
BHP criteria and the problems of
combining different criteria *«iiri"g, see
the discussion of hazard indices in the
May 25,1983 NPRM at 48 FR 23568-
23560, and the Technical Background
Document to Support Rulemaking
Pursuant to CERCLA section 102.
available for inspection at Room 5-325.
UJS. Environmental Protection Agency.
401M Street. SW. Washington, D.C.
20460.
d Additional Data Suggested Some
commentert suggested specific data
lources for analysis of BHP. EPA used .
one of these sources in making the
adjustments proposed in the May 25,
1983 NPRM. On the basis of data
contained in the other available sources,
the RQs of acetonitrile and furfural have
each been raised one level to 5000
pounds.
3. Additional Criteria Considered but
Not Currently Used To Adjust RQs
a. Release History and Release
Potential. Several comments were
received on the use of release history
and release potential as criteria for
adjusting RQs. EPA agrees with those
commenten who stated that the manner
in which releases have been handled in
the past under different circumstances is
not directly related to whether a
particular release in the future will pose
a threat to public health or welfare or
the environment The potential hazards
of each release must be considered on a
case-by-case basis. For this reason, and
because of the data problems mentioned
in the NPRM. the Agency has decided
not to adjust RQs on the basis of release
history and release potential at this
time.
A. CoTToaivity. Two commenten
supported the use of corrosivity as a
criterion for adjusting RQs. A major
difficulty in applying corrosivity as a
criterion is developing a scale relating
comsivity to RQs that is useful for all
CERCLA hazardous substances. None of
the comments included a scale that the
Agency considered adequate, and EPA
has not identified a corrosivity scale
that would be generally practicable.
Therefore, corrosivity will not be used at
this time as a criterion for adjusting
RQs.
£ Future RQ Adjustments
1. Interim RQs
As-noted below hi section V.G,
adjusted RQs for 358 of the 698 CERCLA
hazardous substances do not appear in
today's rule. One.commenter urged EPA
to publish proposed RQs for these
substances as quickly as possible.
Today's Federal Register contains an -
NPRM proposing RQs for 105 of the 358
substances not receiving an adjusted RQ
In today's rule. EPA will propose RQ
adjustments for the remaining
substances as soon as sound technical
evaluations for them are complete.
Another commenter indicated that
potential delays in performing such
evaluations could result in an unfair
reporting burden for many substances
that will temporarily retain their present
RQs. The commenter therefore
recommended that EPA propose interim
RQ adjustments for Such substances
based on existing information and
scientific jungrn
EPA disagrees. Proposing new
temporary RQs for hazardous
substances would be time-consuming in
itself, and. because the temporary RQs
would be based on incomplete analysis,
they would be unfair to the regulated
community and the general public.
Interim levels would still need to be
changed when RQ evaluations are
completed. EPA will move expeditioualy
to complete its evaluations of the
remaining CERCLA substances, but will
not establish a set of interim RQs.
2. New Data
One commenter requested that
provisions be specified for allowing RQ
changes when new information relating
to the primary criteria or BHP becomes
available. This commenter felt that EPA
should acknowledge the role of
interested parties in effecting
appropriate revisions to the final RQs
and should clarify procedures for the
submission of new data.
EPA welcomes the submission of new
data concerning the primary criteria and
BHP at any time. RQs are based on the
beat data available at the time of
promulgation, but they are subject to
change on the basis of new information.
The Agency will periodically review
submitted data to ensure that RQs are
not based on supeneded information.
P. Application of the Methodology and
Criteria
1 Introduction
Many commenten voiced general
support for EPA's choice of methodology
and the results of the methodology.
These commenten stated that the
proposed RQ adjustments would
increase the efficiency of the Superfund
program, reduce burdens on the
regulated community, and allow EPA to
concentrate its resources on the releases
which pose the potentially greatest
threat to public health or welfare or the
environment
The remainder of this section
responds briefly to comments received
by the Agency concerning the RQ» of
various specific substances and
discusses in greater detail the comments
received concerning PCBs and unlisted
hazardous wastes.
2. Comments on RQs of Specific
Substances
The Agency received comments from
over 100 commentera concerning the
RQs of 90 individual substances and 12
groups of waste streams. The majority of
these comments suggested raising the
RQs for specific substances.
One commenter recommended several
RQ changes on the basis of aquatic
toxidty data recently compiled by the
U.S. Department of the Interior. The
Agency-has reevaluated the RQs of
several hazardous substances in light of
these new data, and four of the
substances singled out by the
commenter have received new adjusted
RQs. In addition, the new data were
used to alter the proposed adjusted RQs
of 12 other substances. Exhibit 6 lists the
16 substances which received new
-------
Federal Register / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules aad Regulations 13471
adjusted RQs on the basis of the new
aquatic toxicity data. Statements by the
same commenter contributed to a
reexamination of the mammalian
toxicity data for phosgene and the
lowering of the phosgene RQ front 1000
to 10 pounds.
EXHIBIT 6.—SUBSTANCES WHICH RECEIVED
FINAL ADJUSTED RQs DIFFERENT FROM
PROPOSED ADJUSTED RQs ON THE BASIS or
NEW AQUATIC Toacrrv DATA
tvd IS- •*
PMM
2AS.TAMI
2AS.TE<*i
SAS-TSrti
"W-
100
10*
100
100
to
in
10
to
1
ion
tan
ion
Some commenters suggested RQ
changes for particular substances OB the
basis of volatility or particular incidents.
Similarly, one commenter proposed new
RQs for several waste streams based on
the public impact of past releases of
these wastes. However, as discussed in
previous sections, neither volatility nor
release history an currently being used
to adjust RQs. The RQs of these
substances and waste streams will
therefore not be changed.
Commenten suggested raising the
RQs of four substances on the basis of
biodegradability. Two of these
substances—crotonaldehyde and
pentachlorophenol—have already been
examined for biodegradability and been
found not to meet the criteria for an
upward RQ adjustment EPA has
reexamined the third substance,
ammonia, on the basis of both chronic
toxicity and BHP (although «»™«5«ifo Is
volatile, it Is also highly water soluble)
and has proposed for ammonia an
adjusted RQ of 100 pounds in the NPRM
published in today's Federal Register.
EPA has adjusted the RQ of the fourth
substance, methyl ethyl ketone, from
1000 pounds to 5000 pounds on the basis
of biodegradability.
Several commenters suggested that
the RQs of metals might be based on the
metal compound RQs (for soluble salts)
that wen assigned under CWA section
311. However, solid metal powders do
not necessarily hsve the same effects as
their soluble salts, and. therefore, the
same RQs would not necessarily apply.
Many commenters argued that the RQ
of ammonia should be raised from Its
current level of 100 pounds under the
CWA: they died the volatility of
ammonia, the fact that most ammonia
releases occur into air, the fact that the
aquatic toxicity of the ammonium ion is
much lower than that of ammonia Itself.
and the biodegradability of ammonia. It
was also suggested that the 100-pound
RQ would create a burdensome
reporting requirement. Ammmta has
undergone revaluation since the May
25.1983 NPRM: based on this
Devaluation, the NPRM In today's
Federal Register proposes to retain the
100-pound RQ for ammonia under
CERCLA. The 100-pound RQ established
under the CWA applies until a final
adjusted RQ Is promulgated.
3. PCBs
In the May 25,1983 NPRM, tha Agency
proposed to lower the RQ for PCBs to
one i
I set under section 311 of the Clean
Water Act The lower RQ was based on
more recent aquatic toxicity data. The
Agency acknowledged that because of
the ubiquitous use of PCBs, it was
concerned about the increased
notification burden that might result
from this proposed reduction of the PCB
RQ. Comments wen requested on these
issues.
All of the comments received on this
issue objected to the Agency's proposal
to reduce the PCB RQ to one pound. The
major concern of tha commftnturs was
that die one-pound RQ would
appreciably increase the number of
raportable releases and the burden on
die regulated community while
negligibly improving die protection of
public health or welfare or the
environment Most commenten argued
that restrictions on the location of
equipment containing PCBs, current PCS
management regulations under TSCA.
and existing Industry'good housekeeping
practices with regard to PCBs make
exposure to PCBs unlikely.
Several commenten also expressed
concern that significant over-reporting
ly increase the
may dramatics
government's administrative costs for
the notification program. Other
commenters suggested alternative
methods for estimating me number of
PCB releases of different quantities for
the purpose of efllmlattng the economic
effects of changing the PCB RQ.
Several commentera questioned the
validity of the aquatic toxicity data used
by the Agency and the manner in which
it was employed to set the proposed RQ.
Also, two commenters cited data
indicating that PCBs do not pose any
serious threats to human health, even
though the Agency had explained that
the proposed PCB RQ was based on
aquatic toxicity.
After considering the comments
received on the PCB RQ. the Agency baa
decided to defer any promulgation of a
final PCB RQ until a future rulemaking.
The Agency is currently evaluating PCBs
to determine whether the RQ should be
based oa the primary criterion of
. potential carcinogenidty. Until a final
' RQ is promulgated for PCBs. the existing
RQ of 10 pounds (established under the
CWA) will remain In effect
4. Unlisted RCRA Wastes (ICRE
Wastes)
CERCLA section 10I(14)(c) includes in
the definition of hazardous substances
"any hazardous waste having the
characteristics Identified under or listed
pursuant to section 3001 of the Solid
Waste Disposal Act . . ."Therefore.
solid wastes, as defined by RCRA.
which exhibit ons'or more of the
characteristics of ignitabiUty,
corrosivity, reactivity, or extraction
procedure taxjdty (ICRE) are
considered CERCLA hazardous
substances, even though they are not
specifically listed under RCRA. The RQs
of ICRE wastes are listed in Table 302.4
under "Unlisted Hazardous Wastes."
These RQs apply only to substances
that an wastes prior to being released
(see section FV.D.1. above). The RQ for
ignitable, corrosive, or reactive unlisted
wastes is 100 pounds, and unlisted
hazardous wastes that exhibit
extraction procedure (EP) toxldty have
the reportable quantities listed in Table
302.4.
Some commenten suggested changing
the RQ established for ignitable.
corrosive, or reactive wastes. The
comments that suggested raising the RQ
for ICR wastes were based mainly on
the assumption that a government
response would seldom be required for
releases of these wastes smaller than
1000 pounds. However, each of these
suggestions assumes some specific
scenario and ignores the fact that an RQ
only reflects the-Agency's Judgment that
the federal government should be
notified of releases to which a response
might be necessary. Espedally when
releases are of unknown mixtures.
conservatism is a sensible approach;
therefore, the RQ is designed to cover all
hazardous substances potentially
present With this in mind, the RQ for
ICR wastes will remain as proposed at
100 pounds.
Two commenten suggested that the
releaser be given the opportunity to
report releases of reactive or ignitable
wastes based on the primary criteria RQ
-------
13472 Federal Register / VoL 50. No. 65 / Thursday, April 4. 1985 / Rules and Regulations
scales of Exhibits 3 sad 4 in the NPRM
(48 FR 23563). However, simply testing
for the reactivity or ignitability of the
waste does not further identify the
composition of the waste; therefore, the
waste is still unlisted. The primary
criteria are designed to apply only to
specific substances. Moreover, the
Agency has not determined that listed
and unlisted wastes pose similar
potential hazards*
If an unlisted ICRE waste is analyzed
and the concentrations of all of its
hazardous components are identified*
the waste is no longer an unlisted waste.
but one characterized by its
components. The specific substances
present will then determine the
applicable RQ in accordance with the
Clean Water Act mixture rule (see
section IV JX3.b. above). For example, if
a waste is known to be corrosive
because of its sulfuric acid content and
no other CERCLA ^"*y'*riiom substances
or other ICRE characteristics an
present the RQ of the waste is reached1
when 1000 pounds of sulfuric acid is
released. If the aforementioned waste-is
a 25 percent solution of sulfuric acid hi
water, the RQ of the waste is not
reached until 4000 pounds of the waste
is released.
Several eommenters suggested that
the RQ for an EP toxic waste should
apply to the EP toxic constituents of the
waste rather than to* the waste itself. If
the composition of the waste stream is
completely known, the waste is no
longer an unlisted waste, and the
mixture rule win apply. If the hazardous
constituents of the waste and their
concentrations are not completely
known, however, it is impossible to
apply the mixture rate as these
eommenters suggested Unlisted wastes
that exhibit EP toxhaty have the
reportable quantities listed in Table
302.4 for the contaminant on which the
characteristic of EP toxidty is based: the
RQ given applies to the waste itself, not
merely to the toxic constituent A
sentence has been added to § 30U(b) to
clarify this point
C. Summary ofRQ Changes From the
May 25.1983 NPRM
The May 23. 1983 NPRM proposed
raising the RQs for 177 CERCLA
substances (including 15 waste streams)
and lowering the RQs for 28 substances.
leaving the RQs of 182 substances
(including 11 waste streams) -at their
previous levels. On the basis of new
aquatic toxieity data located by a
commenter, the proposed adjusted RQs
of 18 substances have been changed.
Exhibit 6 lists these IB substances.
Similarly, new data on BHP has led to a
one-level Increase in the adjusted RQ of
furfural, and a Revaluation of
mammalian toxieity data has led to a
decrease in the phosgene RQ from 1000
to 10 pounds. Applying BHP to
substances exhibiting chronic toxieity
has raised the adjusted RQs of two
other substances. The decision not to
apply BHP to substances for which five-
day degradation rates are insufficient to
justify a one-level increase in RQ has
resulted in a lower RQ for four
substances. The use of data overlooked
at the time of the NPRM has affected the
adjusted RQs of four additional
substances.
The NPRM proposed adjusted RQs for
47 substances p*igi«Hi«a 8 waste
streams) that were subsequently
selected for chronic toxidty and/or
potential carcinogenidty assessment
these 47 substances will therefore
remain at their statutory RQ levels
pending future RQ adjustments. Of these
47 substances, however. 23 (including 6
waste streams] already had RQs of one
pound on the basis of one or more of the
other primary criteria. Further
evaluation of chronic toxidty or
potential carcinogenidty t» unlikely to
change these one-pound RQs, because
there is no RQ level less than one pound
and the analysis of the other primary
criteria indicates that a one-pound RQ is
appropriate (although new data on the
primary criteria or on BHP may suggest
otherwise). '
Table 302.4 in the May 25.1083 NPRM
incorrectly described eighteen
substances as having one-pound
statutory RQs under CERCLA: however,
these substances had been assigned
RQs under the dean Water Act (40 CFR
Parts 118 and 117J). Exhibit 7 lists the
eighteen substances and their correct
statutory and (where appropriate) final
RQs.
In sum. final adjusted RQs now
appear for 319 of 608 specific substances
and 21 of 90 waste streams. Statutory
RQs appear for the remaining
substances.4
For further information concerning
these RQ changes, see the Technical
Background Document to Support
Rulemaking Pursuant to CERCLA
Section 102. available for inspection at
Room 5-325, U.S. Environmental
Protection Agency. 401M Street SW.
Washington. O.C. 20460.
• Ad|uttmnu hive been piopoMd for IDS of
theee fubitanen In in NPRM thai appeue la
today1! Fedenl Ragiilar. Thete cubiianeai «ro
noted by two number lymbol* (**) In the Toundi
(Kg)" column of Table 302.4.
H Retention of Statutory RQfbr Methyl
Isocyonata
The December 4. 1984 release of
methyl isocyanate (MIC) in Bhopal.
India caused major loss of human life.
This event pointed out the
extraordinarily serious nature of MICs
acute toxidty. At this point EPA is
withdrawing its proposal to amend the
RQ for MIC and is requesting further
data on its toxidty.
The one-pound statutory reporting
requirement will continue to apply to
releases of this hazardous substance
until a rule adjusting its RQ is
ExHiarr 7.— SUBSTANCES WTTM RQs As-
SIGNED UNDER THE CLEAN WATER ACT THAT
THE MAT 25. 1983 NPRM LISTED AS HAVING
ONE-POUND STATUTORY ROs UNDER CER-
CLA
1221.
1232-
1241.
124S.
Z.«*.Titi
CWA
10
10
10
10
M
10
10
WO
100
1000
1000
RO
•10
•10
•10-
•10
•10
•10
•10
1000
100
10
•1000
•1000
100-
100
•10
•M
L Table 302.4
1. Introduction
Table 302.4 hats all of the CERCLA
hazardous substances together with
their adjusted and statutory RQs. The
first part of the table lists the individual
hazardous substances regulated under
the statutes died hi CERCLA section
101(14). The generic groups of chemicals
designated under CWA section 307(a),
such as "SILVER AND COMPOUNDS,"
are printed in capital letters and have no
RQ assigned to them. These generic
groups of chpm
-------
Federal Register / VoL 50. No. 65 / Thursday. April 4. 1965 f Rules and Regulations 13473
•^^•^•••••^•HB^^^^BMi^HBnMMI^B^tl^^^H^B^MVMB^^^^^^^^^^^^^^^^^^^^B^^B^^B^^^^^^^^^^^^^Ba^B^^B^^B^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^B^^B^^B
listings but not specifically listed in
• Table 302.4.
The second part of the table contains
the 90 hazardous waste streams
designated under 40 CFR 281 Jl and
. 261.32 (RCRA P and 1C lists). The Agency
designated many of these waste streams
as hazardous under RCRA because of
• the presence of specific hazardous
1 constituents in the waste streams as set
, forth in Appendix vn of 40 CFR Part
. 281. The Agency is assigning RQs for
these waste streams based on these
• hazardous constituents. The primary
' criteria and BHP. discussed above, were
• applied to each hazardous constituent In
order to derive an RQ value. If a waste
stream in 40 CFR 261 Jl and 281.32 has
more than one hazardous constituent,
• the RQ assigned to the particular wast*
stream represents the lowest RQ
' associated with the hazardous
constituents present in that waste
stream.
2. Minor Changes
In addition to the changes in proposed
• RQs described above In Section Gt the
following minor changes in Table 302.4
have been made:
(1) The liiHi^g for Chromium D007, i*1*
of the constituents of the characteristic
of EPtoxidty under the "Unlisted
Hazardous Wastes." will now be "total
chromium" (although It may be changed
to hexavalent chromium at some time in
the future under proposed amendments
to RCRA}. It was listed incorrectly as
hexavalent chromium (VI) In Table 3014
in the NPRM.
(2) The RCRA waste numbers for the
characteristics of ignitability (D001).
comsivtty (DOOZJ. and reactivity (DOM)
are now included in Table 302.4. They
were omitted from Table 302,4 In the
NPRM. In addition, the waste
identification numbers for the
constituents of the characteristic of EP
toxidty. and the waste Identification
numbers for wastes FOCI through JC10B,
which wen also omitted in the NPRM.
ere now properly included in the column
for RCRA Waste Numbers in Table
302.4.
(3) In response to the suggestion of a
commenter. the Table now notes that
the RQ for asbestos is limited to friable
forma of the substance: reporting of
releases of other forms is not required
although other CERCLA liabilities may
attach.
VL Reportabh) Quantity Adjustments
Undex Section 311 of the Cfoan Water
Act
In the May 25.1983 NPRM. EPA
requested comments on its proposal to
make RQa adjusted under CERCLA the
applicable RQs for purposes of reporting
discharges of hazardous substances
pursuant to section 311 of the dean
Water Act Making RQ» the same for
substances listed under both statutes
would make the notification
requirements for the substances
involved consistent and less confusing
for the regulated community.
Of nine comments received on the
Issue of adjusting CWA RQs. five were
completely in favor of the Agency's
proposal and agreed that it would
alleviate much confusion. However, four
comments indicated that such
adjustment should proceed only for
those substances for which CWA RQs
would be raised. These commenten
claimed that CWA RQa are based on
aquatic toxidty. while CERCLA RQs
most consider release* into other media.
Thus, they reasoned, lowering CWA
RQs based on criteria used to set
CERCLA RQs would be unfair.
EPA does not feel that different RQs
under the two statutes would serve any
purpose. Even if the CWA RQs were not
lowered, release* of CWA substances
would still be reportabte whan released
at CERCLA RQ level* because
CERCLA's scope and jurisdiction fully
discharges reportable under CWA. The
primary purpose of equalizing RQs
under CERCLA and the CWA is to make
the task of reporting releases leu
confusing for the regulated community.
VIL Summary of Supporting Analyses
A Clauificatioaaad Regulatory Impact
Analysis
Rutemakmg protocol under Executive
Order 12291 requires that proposed
regulations be classified as "major" or
"non-major" for purposes of review by
the Office of Management and Budget
According to the E.0.12281. major rules
are regulations that an likely to result
in:
(1) An aunup] effect on the economy
of $100 millioc or more: or
(2) A major Increase in costs or prices
for consumers, individual industries.
federal, state, or local government
agendas, or geographic regions: or
(3) Significant advene effects oa
competition, employment, investment.
productivity, innovation, or the ability of
United States-based enterprise* to
compete with foreign-baaed enterprises
in domestic or export markets.
The Regulatory Impact Analysis.
available for inspection at Room S-325,
U.S. Environmental Protection Agency.
401M Street. SW. Washington. IXC.
20460. shows mat today's regulation is
"nan-major" because it resulU in a net
cost savings of approximately $17
million annually, of which about !E7fl
million annually will be saved by the
regulated community (the remainder to
be saved by the government).1
A Regulatory Flexibility Analyais
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for aU rules that
an likely to have "significant impact on
a substantial number of small entities."
Chapter 7 of the Regulatory Impact
Analysis estimates the potential impact
of today's regulation on a model small
chemical firm. The chapter first
estimates an upper-bound total annual
cost of compliance by a small firm at
$5.804 (in 1983 dollars) and men
compares this figure to other measures
of a small firm's economic status. Even
with this extremely conservative
estimate, the total cost per year of
compliance is a negligible percentage of
both the pre-tax annual cash flow and
equity of the model small turn—«
traction ot one percent for both
measures. EPA therefore certifies thai
this regulation will not have a
significant impact on a "•*«•*'"«*«•''
number of small entities, and thus no
Regulatory Flexibility Analysis is
needed.
C Information Impact Analysis
EPA anticipates that RQ adjustments
wiB change the paperwork burden
imposed oa the regulated community for
Information collection associated with
reporting releases. As estimated in the
Regulatory Impact Analysis, today's
regulation will reduce the paperwork
burden of notification and
recordkeeping on private parties by
almost 50.000 hours.
The information collection
requirements contained hi this rule an
covered by the U.S. Coast Guard
submission for infbrmatkn collection by
the National Response Center. The
requirements have been approved by
the Office of Management and Budget
(OMB) under the provisions of the
Paperwork Reduction Act of 1880.44
U.S.C. 3501 efseo, and have been
assigned OMB control number 211S-
0137.
List of Subject* fa 4ff CFR Part 30
Air pollution control. Chenricntm.
Hazardous materials. Hazardous
materials transportation. Hazardans
substances. Intergovernmental relations,
Natural resources. Nuclear materials.
Pesticides and pests. Radioactive
materials. Repotting and lecordkecping
• TtwM flgum do not tndoda Ik* eotu or
bmofltai -
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13474
Federal Register f VoL 50. No. 65 / Thursday, April 4. 1985 / Rules and Regulations
requirements, Superfund. Waste
treatment and disposal Water pollution
control.
Dated February 13.1985.
Lea M. Thomas,
Administrator.
1.40 CFR is amended by adding Part
302 as follows:
PART 302-OESIGNATION,
REPORTABLE QUANTITIES, AND
NOTIFICATION
Sea
302.1 Applicability.
3012 Abbreviations.
SOU Definitions.
302.4 Designation of hazardous substances.
302J Determination of reportable
quantities.
fl^ffl ff Notification reoiiirements.
30L7 Penalties.
Authority: Section 102 of the
ComprBuMui v0 EnviitnukiiBOteU Rcsponn,
Compensation, and Liability Act of 1880,42
USC 9602: Section! 311 and S01(a) of the
Federal Water Pollution Control Act. 33 USC
1321 and 1381.
(302.1 AppOcaMtty. '
This regulation designates under
section 102(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
("the Act") those substances in the
statutes referred to In section 101(14) of
the Act identifies importable quantities
for these substances, and seta forth the
notification requirements for releases of
these substances. This regulation also
sets forth reportable quantities for
hazardous substances designated under
section 311(b)(2)(A) of the Clean Water
Act
93023 Abhfevlatlons.
CASRN--Chemical Abstracts Service
Registry Number
ROtA-Resourca Conservation and
Recovery Act of 1978. aa amended
Ib« pound
kg-kilogram
RQ—reportable quantity
930U Definitions.
Aa used in this part all terms shall
have the meaning set forth below:
"The Act". "CERCLA", or
"Superfund" means the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
(Pub. L 96-610);
"Administrator" means the
Administrator of the United States
Environmental Protection Agency
("EPA");
"consumer product" shall have the
meaning stated in 15 U.S.C. 2052:
"environment" means (1) the
navigable waters, the waters of the
contiguous zone, and the ocean waters
of which the natural resources are under
the exclusive management authority of
the United States under the-Fishery
Conservation and Management Act of
1978, and (2) any other surface water,
ground water, drinking water supply,
land surface or subsurface strata, or
ambient air within the United States or
under the jurisdiction of the United
States;
"facility" means (1) any building,
structure, installation, equipment pipe
or pipeline (including any pipe into a
sewer or publicly owned treatment
works), well pit pond, lagoon,
impoundment ditch, landfill, storage
container, motor vehicle, rolling stock.
or aircraft or (2) any site or area where
a hazardous substance has been
deposited, stored, disposed of. or placed,
or otherwise come to be located: but
does not include any consumer product
in consumer use or any vessel:
"hazardous substance" means any
substance designated pursuant to 40
CFR 302:
"hazardous waste" shall have the
meaning provided in 40 CFR 281J;
"navigable waters" or "navigable
waters of the United States means
waters of the United States, including
the territorial seas;
"offshore facility" means any facility
of any kind located in. on, or under, any
of the navigable waters of the United
States, and any facility of any kind
which is subject to the jurisdiction of the
United States and is located in, on, or .
under any other waters, other than a
vessel or a public vessel;
"onshore facility" means any facility
(including, but not limited to, motor
vehicles and rolling stock) of any kind
located in, on, or under, any land or non-
navigable waters within the United
States;
"person" means an individual firm,
corporation, association, partnership.
consortium, joint venture, commercial
entity, United States Government State,
municipality, commission, political
subdivision of a State, or any interstate
body;
"release" means any spilling, leaking,
PMiHpinff. pounnffa
discharging. Injecting, escaping.
leaching, dumping, or disposing into the
environment but excludes (1) any
release which results in exposure to
persons solely within a workplace, with
respect to a claim which such persons
may assert against the employer of such
persona. (2) emissions from the engine
exhaust of a motor vehicle, rolling stock.
aircraft vessel or pipeline pumping
station engine, (3) release of source.
byproduct or special nuclear material
from a nuclear incident as those terms
are defined in the Atomic Energy Act of
1954. if such release is subject to
requirements with respect to financial
protection established by the Nuclear .
Regulatory Commission under Section
170 of such Act or for the purposes of
Section 104 of the Comprehensive
Environmental Response.
Compensation, and Liability Act or any
other response action, any release of
source, byproduct or special nuclear
material from any processing site
designated under section 102(a)(l) or
302(a) of the Uranium Mill Tailings
Radiation Control Act of 1978, and (4)
the normal application of fertilizer;
"reportable quantity" means that
quantity,' as set forth in this part the
release of which requires notification
pursuant to this part:
"United States" include the several
States of the United States, the District
of Columbia, the Commonwealth of
Puerto Rico, Guam. American Samoa.
the United States Virgin Islands, the
Commonwealth of the Northern
Marianas, and any other territory or
possession over which the United States
has jurisdiction; and
"vessel" means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on-water.
J3OZ4 Designation of hazardous
(a) Listed hazardous substances. The
• elements and compounds and hazardous
wastes appearing in Table 302.4 are
designated as hazardous substances
under section 102(a) of the Act
(b) Unlisted hazardous substances. A*
solid waste, as defined in 40 CFR 2812,
which is not excluded from regulation as
a hazardous waste under 40 CFR
281.4(b), is a hazardous substance under
section 101(14) of the Act if it exhibits
any of the characteristics identified in 40
CFR 281 JO through 261.24.
Tab!* 302.J Uat of Hazardous Substance*
•iid ReportaUe Quantities
Note—The numben under the column
headed "CASRN" are the Chemical Abstracts
Service Registry Numben for each hazardous
substance. Other names by which each
hazardous substance is Identified in pther
statutes and their implementing regulations
are provided In the "Regulatory Synonyms"
column. The "Statutory RQ" column lists the
RQs for hazardous substances established by
section 102 of CERCLA. The "Statutory
Code" column indicates the statutory source
for designating each substance as a CERCLA
hazardous substance: "1" indicates that the
statutory source is section 311(b](4) of the
dean Water Act T indicates that the
source is section 307U) of the Clean Water
Act "3" Indicates that the source is section
112 of the dean Air Act and "4" Indicates
that the source is RCRA section 3001. The
-------
Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
13475
letter* "X." "A." "B." "C" and "D." which are quantity for each harardouo oubatance in
waste identification numoen assignou » aaiodated with reportable quantitiee of 1.10, pounds and kilograms.
varloua eub9tance9 by RCRA regulaliono. The 100.1000. and 5000 POMdV«8P^tl™J[-H|Vi?
column headed "Category" IUU the code "Pounds (kg)" column providea the reportable
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
Htafdou* SIMM*
ni«tfMi|Hi i«uw
•u40n ••! •«• M«*n
_ taW-l-*-J».-*
*
CASRM
70070
79979
93442
•40107
94107
141799
Of749
301041
109247
79999
79091
91919
991092
79091
70101
("Mi ^
- ^^
^ —
"
- • •§•
»~~*"*~~-+
.. -
..
!
T
RO
p
P
1000
p
p
p
1*
p
p
1000
p
p
9000
p
MOO
,.
• 0)
w
,.
,.
p
p
. 9000
. 8000
P
P
Maori
t .
a L
M
4
4
4
4
4
4
1
4
4
M
4
1
4
4
M
.
4
4
4
1
M
4-
1A4
4
4
KRA
won
Nuntwr
U001
no*
U094
POO2
UMJ
UOOS
pan
—
uua
POM
U144
IB14
POOS
U002
POM
U003
P001
U904
0009
^^M*^K^H
UOOS
pooa
pooa
uoor
uoos
C4HOD-
X
X
C
c
X
c
X
X
•
0
D
A
D
X
D
•
' D
A
D
•
D
X
1 B
D
C
X
0
D
rtf RQ
1»f (04M)
1M (0.4M)
1000(494)
1000(494)
1t(0494|
1000(494)
1*10494)
1»»494)
100(49.4)
9000 CB9O)
6000(2270)
M (4.84)
•MOf (2270)
1M9M94>
9000 (2270)
100(494
6000(2270)
10(414)
OOOS0270)
109(494
9000(2270)
if
-------
13478 ' Federal Register /' VoL 50. No. 65 / Thursday? April 4, 1985 / Rules and Regulations
TABLE 302.4. LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTITIES-Continued
"•"*"*—-
.
t_J^ >J_
n
_ _ ^
MmMn
*- n
_ .
i t ,
I 1 1 tt^MTioaB
^ ^_
'
'
tart
*ttlOirt«
iWTlMOHV Wff flOMPTrlffHTI
i*iuHOf i(B?
funrinr *7fT
CASRN
9ffl25
7BBM17
OltIS
13*14(7
10103300
11117V)
121ZS010
^^
5072739
131741
1611(110
1S1K701
neon
1230Z2
aaiei
1101 27
7M7100
T1000II
11104B8
11141108
R^S^.
.
.
«
*•
BO
1»
100
5000
(000
•IM
1000
(000
(000
8000
(000
1000
(000
MM
(BOB
|«
1000
(000
' (000
(ODD
0000
l»
1000*
1000
1«
t«
l«
1000
1000
1000
1000
(BOO
10
10
10
10
SMMy
GodM
4
1
1
f
j
f
1
1
1
j
I
I
1
I
1
1
1
4
1-
1
1
1
1
j
f
4
f .
1^4
a
t
i
i
i
i
i
f
1,2
f j
u
u
BOU
WO»
NUKMT
U011
POM
P1 10
U01S
1
C4MOO.
If
X
8
0
o
g
0
0
0
o
0
g
o
p
B
g
D
A
c
0
(
o
0
o
o
e
o
o
X
I
c
B
c
c
Q
c
A
A
A
A
•MHO
PoumSOCg)
If (0.4S4)
IGOff (4S4)
3000 (2270)
IOOIM i4Aii
SOQOf f (22/U)
5000 CB70I
5000 (2370)
lOOOf (4(4)
100(40.4)
1000(4(4)
5000 (2270)
10 (4J4)
1000 (4S4)
100 (49.4)
1000(404)
1«»(OL4S4)
Iff (0.4(4)
••
1000(4(4)
100(45.4)
1000(4(4)
1000(4141
1000 I4S4I
1000(404)
lOf (4£4)
10* (4.S4)
IM (4£4|
10(P (4.54)
-------
Federal Register / Vol 50. No. 65 / Thursday. April 4. 1985 / Rulea and Regulation! 13477
TABLE 302.4 • UST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTTnES-ConttmMd
"«—"— -
•
-
auj
OjJiUAjmU. J 1 Ml M H *•
DVIUiHlMHL *HHB9^^» liytiNHlMMBIvBw^^BM^NH^Hn^^
CMRM
1807ZM
nmn
77189M
119780
• 7IMM1
19V71M
1(1004
9MUJ
HW"
STvre
tOMTf
00)17
101144
M493
tQ1683
B6S01
H^S^.
•ui-ojuju. i- t uxriKTin in 111.1
• - - •
•wtfolM*—
•maWnnnem
f^MHM^ A 1 MMBteW^MM
WBVUunraBvnv
,• .ntt," or- i
n
HO
to
to
to
V
r
i>
me
MOO
am
soeo
v
i«
!•
1«
|«
t»
10
1«
^«
1«
!•
t'
1"
V
1000
!•
t«
)•
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1»
1*
|*
1000
1'
100
100
100
SftUBT
CttMl
Ij
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u
V
4
f
1
1.4
U
14
1
1.*
1
4
u
4
4
4
4
M
4
4
4
4
M
a.4
4
M
4
4
4
4
4
4
4
1.2*4
M
1A4
M
1A4
ncn*
W«M
NUTMT
nto
Kit
P011
P011
Kit
POM
U014
U01»
MM
U010
fon
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U010
U010
U01T
uoto
UBtl
UOM
U01I
U014
POM
M40
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UtH
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U1I1
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U010
UD30
uoar
P030
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1
CM9»-
"»
A
*
A
X
X
0
0
D
0
D
0
O
X
X
X
X
X
X
A
X
X
X
0
X
X
X
0
X
c
1
X
X
x
X
D
c"
B
•
B
B
tat no
PBWtfMKO)
10* (434)
10* (4.34)
HWI4J4)
W0.4M)
I»CB.4M)
..
SOODf 0970)
IOOMCBIO)
omupnB)
OOMBZTO)
i600B# USI/0)
nOOf (870)
gowfBzro)
KI0.4MI
1# (0.464)
If (Ok4MI
If (OL4M1
1f P454)
If (MM)
1OI4J4)
If (9.4M)
If «V4M)
If fMM)
If (0.464)
If (MM)
If (0454)
8000(2270)
IF (0.434)
1000(464)
If (0.4M1
If (0,414)
If (0.454)
If (0^4M)
If (0.404)
lOOOf (4M)
10OI4S.4)
100(4&.4|
100* (4S.4)
100(454)
-------
13478 Federal Register / VoL 50, No. 65 / Thursday. April 4. 1985 / Rules and Regulations
TABLE 302.4 - LOT OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTTnES-Continuad
H«MMaM»
»
o»
>
•
•
olo^wf^NW^^i fwllWJ e^^oWi
flovrmf •] ovrmm
thrU-Unr!*!!!! -M-JI-B-MM
OWN
106487
364848
OMB?
26471620
06479
106429
118741
iifloWF
108661
121 *4f
130661
06077
04742
6400T
1 17640
61434
07675
WM9
209802
307066
nvQwMvy 5)pioMyfiit
»
->
V
3*0tt
Ofetf*«MMM
Dl-AttetfMl MofltB^aCjBl
no
t«
100
t*
t«
1000
!•
MOO
1000
1000
1000
1000
!•
I*
!•
|«
1000
f«
!•
' |«
!•
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!•
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100
!•
!•
t«
1000
|«
J«
|«
|«
!•
!•
t-
1-
1'
SMMonr
Co«l
^4
(•2.4
4
1 4
2,4
f 4
1JL*
1^4
1A4
17.4
4
4
4
4
1JL4
4
4
4
4
4
4
JL4
1i4
2.4
2.4
2.4
M
4
4
4
4
2.4
4
2.4
2
2
RCMA
Warn
NumMr
U071
U072
U017
iftft
U2J9
U1Z7
UOS6
was
U220
U10S
utos
IB09
U141
UBOO
UOSS
U1H
uin
U10S
U207
U02J
IBM
UOM
U1«0
U020*
UOOO
UOM
U102
U107
U201
PO42
U07Q
U020
P014
UOI1
ujoa
U010
i
CMgo-
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g
B
o
p
c
X
c
c
e
c
c
i
X
i
o
e
X
X
0
X
X
x
0
X
A
e
D
0
D
e
B
B
B
X
X
X
X
1 *
1
MHO
PounWKQ)
100 (4S 4)
100(454)
100(43.4)
1000(4841
If (0.4M)
1000(454)
10DOM (484)
1000(454)
1000* (454)
10DOI (484)
If (O454T
If (O454)
If 01454)
1000(454)
Iff (0.464)
If (OL454)
If 0X454)
tff (Ol454)
If (0*454)
if (a4S4i
10(434)
1000(454)
6000(2270)
1000(484)
100(48.4)
100(45.4)
NO (45^4)
If (0454)
If (0454)
If (OL4S4)
If (0.454)
If (0.4*1)
-------
Federal Ihgiater / VoL 50. No. 65 / Thursday. April 4. 1985 / Ruie«andRegulaMoM 13479
TABLE 302.4-UST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES CunoraMd
— —
•"»*""
.
itw PT
»—
IMI
|I.IW«MUlMalTlM*
1**—"
tut on uuauj_JMw*uiuii«« _
_
f
100(14
S10010
1004*7
7440417
7440417
7717417
7717181
MOW
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100M1
76MI
1MM
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•
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t
MO
r
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ion
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r
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uon
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UOM
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X
0
0
X
X
X
X
X
e
X
•
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0
X
0
0
X
X
X
X
X
X
X
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X
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C
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fonazJB)
Iff (MM)
tffMM
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1«*MMI
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1004«M>
IffMMI
1ff)M4l
««4)4M
BQQDCffPOt
fiOOOtffFOI
-------
13dm Federal Rooster / VoL 50. No. 65 / Thursday, April 4, 1985 / Rules and Regulations
TABLE 302.4 • LIST OP HAZARDOUS SUBSTANCES AND REPORTABLE OUANTTnES-Conttnu»d
—a—
to-
•»
fc»
IB*
to.
-"1
"
*
**t n
C_I__JO_ Ml Jiu«M
CASHN
1338234
417U01
MAAIB
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105464
7130
78010
SIMM
TIM*
MjMf
04741
799»
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fffMTfTJ
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75190
79180
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.
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amftu rr_
•
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m
r
100
V
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r
1000
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100
r
r
MO
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no
no
1000
0000
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1000
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MM*
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1.4
4
4
1
t
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1
4
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1
M
M
1
1
1A4
1
4
4
4
4
4
4
4
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1,4
4
4
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WMM
UlM
U003
UB74
U091
uoa*
U190
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Mn
.
na
uao
um
um
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p>oa
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X
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X
X
X
X
B
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0
0
X
e
e
PoundtfKg)
10 (4.54)
100 (45.41
l(Oi4S4)
5000(2270)
5000(2770)
1000(454)
100(45.4) •
10(».34>
5000 (2270)
1* (0.464)
I* (0.454)
IQOf (454)
••
10MI4&4)
lOOt (454)
lOOOt (454)
100M(4S4)
10(4J4)
1000f(494|
10(4.94)
1000(454)
10(4.54)
1«P.4S4)
1M«(4A4)
If (0.464)
l» (0.494)
1# (0.464)
If (0464)
If (OL454)
If* (0.454)
If (Ob404)
100 (45.4)
10(4A4)
sooof f (zzn
JOOOf f (2270
Iff (0464)
1000(464)
1000(4841
-------
Federal Register / VoL 50, No. 65 / Thursday, April 4. 1985 / Rules and Regulations 13481
TABLE 302.4 • UST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTmES-ContlnMd
H-— *~
METASOUTE3).
.
UM,t
asm
7SMS
Msm
SH4i
mm
4MOB1
MffJM
fQHOT
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now
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tlW
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B944f1
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4.7-WMWrtnMN. 1A4Alk7A»«CWMB» 1M.7.7*
"
tintMCtmamniQ
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RO
6000
(000
l«
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r
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i
i
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r
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4
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i
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4
4
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4
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tail
POOS
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MM
uoa>
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uoao
pon
uoa
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no*
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uotr
UOM
UOM
not
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r
nf
0
A
C
X
X
X
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A
A
X
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C
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X
c
D
X
0
0
•
•
»
•
e
e
X
X
e
VMM
PoMMKg)
SOOOf (2270)
10(454)
1000(454)
1fW4S4)
If (0.4S4)
• •
14>IX4M
If |K4MI
• •
f
*.
••
10 (4M
10(A54»
If (04M)
tOOO(484)
• 0)
1000(40*)
MO(4M)
6000(2270)
BDDO (2BTO)
M044U)
100M (414)
Iff (04S4)
1000 |4M)
BOOOif {JUFW
If (0.484)
6000 12270)
6000 Q2TOI
tOOHM)
100 (4&4)
60000270)
100I4C4)
100044S4J
ten (454i
1f (0,4541
1(04541
lOOOf f |4'l)
-------
13482 Federal Register / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTmES-Cortlnuod
MaMMaMM
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1«<0.4S4)
1000(414)
1000(484)
1000(484)
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10(434)
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100Wf (484)
1000f«(4S4)
100(48-4)
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100(414)
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1000(494)
9UUJT«U!V|
1f (0*84)
If (0.484)
-------
Federal Register / VoL 50. No. 65 / TTiursday. April 4. 1985 / Rulesjn^Regulations___134IB
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND HEPOHTABLE QUANTmES-Contlnu«J
•_.*_.'
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If VMM)
If (01454)
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If (0.454)
M
If (0.454J
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1f (8.454)
If (Ov4M)
K0.4M)
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1f|04M|
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1000(454)
in (45.4)
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9000 (2270)
-------
13484 Federal Register / VoL 50. No. 65 / Thursday. April 4, 1985 / Rules and Regulations
TABLE 30Z.4. LIST (
"—"•**—
~- - J
U-OkMnvopn
f *[• ' _.„ _...., ..... „
DFHA-IAI
CWM
»WT77t
06S01
941731
103437
141731
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31341
78174
734410
73713
HUM
?33M
111444
•4707
7BM3
73373
Hhlfll I i«l
moo
•9737
OB871
I4O453S
000421
1DOUS SUBSTANCES AND REPORTABLE
IWTSOT.
*ajJ-J
*»*— —
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,.««M»M.
0 r-OMi^iKM^-a-rt.jjdtaMBn.
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8000
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9000
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-------
Federal Register / Vpl. sg No. 65 / Thursday. April 4. 1985 / Rule» and Regulations 134BS
TABLE 302.4- LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTmES-Cortlnurt _
UI04M)
-------
13488 Federal Register / VoL 50, No. 65 / Thursday, April 4,1985 / Rules and Regulations
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTTTlES-Contlnu«d
fMAO
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142047
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50000270)
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-------
Federal Reebter / Vol. 50, No. 65 / Thursday, April 4. 1985 / Rules and Regulations
13487
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITlES-Continued
"—— ""1 1 tl .1
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62500
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100 (45.4)
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1000 (4M)
1000 <«4»J
100(454)
1000(4541
10 14 M)
-------
13488 Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
TABLE 302.4. LIST OF HAZARDOUS SUBSTANCES AND RETORTA8LE OUANTmES-Conttnued
M^S-in.
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1000(454)
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100 (494)
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-------
Federal Register / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations^
13489
TABLE 3(0.4 • UST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTmES-Continiiad
HurtcM SuNuim
"
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1 V •" .
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CASRN
540738
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70198
74808
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801 SB
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70800
88487
188998
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7848282
10102484
1008874
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8285288!
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100(414)
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1000(404)
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sooof torn
SOOOff (227<
If (0484)
SOOOff (2271
If (0481)
-------
13490 Federal Register / Vol. SO. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
TABLE 302.4 - UST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTmES-Cominu«d
. Hovdoui SUbttra
•
M. HI* ~ ' '
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SOW** (2270)
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100(484
5000(2270)
5000(2270)
5000 12270)
1000 f*M)
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10(4441
1(0494)
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10**(4J4)
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1000(484)
1000ft (48*1
1000(494)
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1000(484)
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1COM84)
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9000 ^10)
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100 (48.4)
100 (49.4)
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9000(22701
-------
13491
Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
TABLE 302.4 - UST OF HAZARDOUS SUBSTANCES AND REPOHTABLE OUANTmES-Contmued
FratRO
100(494)
-------
13492 Federal Register / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules and_Regulatign»_
TABLE 3014 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTmES-Contlrawd
HnriM &*«•••
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M
-------
Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations^
13493
TABLE 302.4 . LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTlTIES-Contlniied
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-------
13494 Federal Register / VoL 50, No. 65 / Thursday. April 4, 1985 / Rules and Regulations
TABLE 302.4. LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTmES-Conttnoed
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tOOf f (49.4)
1MI4.94)
-------
Federal Register / VoL 50, No. 65 / Thursday. April 4. 1985 / Rules and Regulations 13495
TABLE 302.4 • LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE CilANTITIES-CoiillriuwJ
*—9— -
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-------
13496 Fadetii RagbUr / VoL 50. No. 65 / 11iur»day. April 4.1985 / RulesjndRegulagga^
TA8L£ 30H • LOT OF HAZARDOUS SUBSTANCES AND REPOHTABIE OUAIflTTlES-Contlnuod
— —
1
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rVWDl J.IU. ".1 -J*J"
-------
Federal RegJrter / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations 13497
TABLE 302.4. 1ST OF HAZARDOUS SUBSTANCES JND REPORTABLE QUANTlTlES-Conllnuod
__
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-------
13498 Federal Register / VoL 50, No. K / Thursday, April 4, 1985 / Rules and Regulation.
TABLE 302.4 • UST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES—CotrtnuwJ
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-------
Pedant Reoister / VoL SO. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
13499
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTmES-CortJnu*!
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MOO
0007
0000
0000
OD10
0011
0018
D01J
0014
0018
nr
•
B
X
c
•
e
X
c
c
•
D
A
A
A
c
e
0
' e
X
c
X
X
s
•
0
X
e
X
X
X
X
X
X
X
X
X
X
1
POHMK0
100(43.4)
100 <4&4|
1» (01484)
lOOOtf <4S4)
100 (4&4)
1000(494)
1»0U94)
1000* (414)
10DM (4M)
100 (4M>
0000 UW)
1MI4M)
lOf |«M)
lOfKM)
10004484)
10001494)
00000870)
fljppflp (494)
IMIOKM)
1000(454)
1HVM64)
1»«M64)
100(4X4)
100(454)
100(484)
If (0.464)
1000)404)
1*10404)
1» (0.444)
1M (01414)
1(0.484)
<•» (0.484)
KOL484)
lOMM)
1*0X484)
1(0484)
If (0.484)
-------
195m Ffldnl Kcciitar / VoL BO. No. 65 / Thusday. April 4,1885 / Roles and Regulations
TABLE 902.4 - UST 0
— «.
_ 1^
•>
^
W-.^.-t-^iflituran.iw 1*
. •
y" ' • *
•
FC01
F HAZARDOUS SUBSTANCES AND REPORTABLS OUANTTTlES-CortlnuBd
..
•m
otni
30470TOO
nMoti
W«tl
.27774180.
•7BW4
7M4
• nni
•
3=
•mi
100717W1
•*W9WI-
•
Uid.OOM«nna«n)Mlnol
^^^—
»
* .
«
1
NO
100
100
r
!•
f«
NOB
1000
1000
1000
«•
9000
r
1000
1000
!•
r
'i'
MOO
1000
aoo
•000
M
wo»
woo
nw
10DB
9000
1000
SDOO
9000
9000
9000
1«
Cad»<
14
M
4
4
4
M
M
1
1
UU4
1A4
4
14
1
4
1
1
1
1
.1
1
1
1
M
1
1
1
1
1
M
1
1
1
1
i
«
4
•aw
WH»
0016
0017
UB7
UBT
mi
nao
P120
U041
uon
not
UBO
ucoo
.
nit
Pitt
FOD1
n»
•
•
i
i
0
0
e
e
e
e
e
•
0
•
e
c
0
•
e
0
c
a
e
e
A
e
c
e
D
c
0
c
D
C
0
0
I
tanMKtf
100(48.4
100(494
••0M94I
1ffRL494)
mOMOtTO)
900MI llfJIR
100BMI494I
1000MI4MI
100M0I4MI
SOOO (227Q|
140L404)
9000f U"OI
lOOHM
1000 H04)
90000701
WfUMI
* ••
MOOMH04)
lOOMf «4B4
iooo##CBni
m»tom
IMP |4J4|
laaoMpa*!
lODOfffHM
nooff 14041
900M«CB70)
100MI (404)
90DBMaZ70l
tfltTftf f (*S*I
9000 Q270)
1000(404)
SOOO (23701
9000 (8TOI
19(0.49.1)
-------
Federal Regular / VoL 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations 13501
TABLE 302.4 - UST OF HAZARDOUS SUBSTA
10 REPORTABlf QUANTmES-ContoMd
CASRN
MO Ccd»(
FMRO
llwl
WTltaMBMn)
(el UitiKau d
(d) 1.l.1.TricHa
75010
719M
ffl
(HI
M 1.1.1-TikNa
WThd
F003
W>
MEOH4I
(DIMM
POM.
M1TM
ttMM
•mi
(d)
FOM.
T81BO
FOOT.
FtM.
I In at* (
RttO-
X
e
c
e
o
a
X
e
c
e
D
•
o
•
e
o
o
c
•
o
o
D
o
e
e
e
o
a
o
i
10000(464)
1000«454|
1000(454)
BOOOf tiU'O)
50000270)
If (0^54)
If (Ou«4|
1000(454)
100I4L4)
100 (4M)
MOO(2Z70)
5800 (gTO)
1000 H54)
100H&4)
SBOOggfPj
5000 B2VQ)
Iff *V*M
CWO)
If *X«M)
r I «
101*44)
.0*84)
A 10(444)
A 10(444)
-------
/ VoL 50. No. 65 / Thursday. April 4.IMS / Rulei and Regulations
TABLE 302.4 - UST OF HAZARDOUS SUBSTANCES AND REPORTABIC OUANTtHES-ContauBd
FMMO
rat«.
10H.MI
if iao«
HDII.
IkIM
MBM.
W14
lt|&«M)
If T0i€8«»
-------
Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rule8^ndjtegulagons__13503
TABLE 3014. LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTmES-Conflnu*
CA9M
flCW
VMRQ
N01S_
sa
K018-
Ml
K017-
M
•l
K01I-
Hi
I
HOW.
ikon aw
KB21.
I Of MM*
K02»_
(now
KOS4-
praducoanafi
H016
NOit
If «W64»
If (0.4M
»f (MM
tf (04M
If (OuM4)
HOD P"
1MI&4M)
tf IMS4)
If I&4M)
If I04M
If (Ob«4|
If (MWI
1(0«S4(
-------
13504 Federal Resistor / VoL 50, No. 85 / Thursday. April 4. 1985 / Rules and Regulations
TABL£ 302.4 - UST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTmES-Contmued
RCRA
WOU
FMRO
K037-
NMV
IhMf
140
iMMMMMCfl
moo.
N081.
KOTt •
KOJ7
XD38
KM1
KOtt
1M (0.444)
1«|04S4)
If (0.454)
If (0.454)
1*10454)
KD47
KD01
K071
Iff (0.454)
10(4.54)
If (0.454)
If (0.454)
If (0.454)
1f (0.454)
Iff BU54)
If I
if ia454)
If (0484)
1» (0.454)
1 (0.454)
-------
Federal Resistor / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations 13505
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPOHTABLE OUANTITIES-Contlnuad
CMH
RCRA
FMRO
K073-
>oim*
dan
d 1.1.1-
»cl 1.1.1-
moo.
K101.
iMBlMUHOll
Ktaa.
K104.
KIOS.
MP to m» preducdon ol c
K108.
.1*
i*
i*
KBI3
If (0.4M)
100 (40.4)
!»
ltCB.4541
If «04S4)
1MIQL4S4I
BOa BZ70)
moo
1ff(OL4S4)
1*0.454)
If (OL4M)
If (MM
If (04M)
ma
KIM
ma
ma
If (0454)
If 10454)
tOO(4M)
If (MS4)
If (0.484)
-------
1350B Federal Register / VoL 50. No. 85 / Thursday, April 4. 1985 / Rules and Regulations
of tn»
Of thto
CERCLA to CWA Sorton 31KWW
CERCLA • CWA Stcttl 307(l|
CERCLA to CAA S«Mn 112
CERCLA to RCRA SocMn 3001
01 ttIO P«0 Of «<• «OM I
unM OM *0 fMMiv l^ound RO
t • MCMM MMMon; HUM M Mtad by 1.2. I^w 4
2-
J-
tt - ra npartnVol nMMi oTihto nnrtoui weraneo • raqund t m*
Tf T • no RO tor MDIMOB • toMd to tniBM tormi only
I • «o A«Miey in^ •qua dw RO tor noorucMM n • Mum
r - MUM ma no i-oouna RO • • CEROA unutory RO
" liiiiriiiiinanoBQ»b«»sit»an«d»B<«o»»ncore ^
t • •MCiioi Hut OM RO to cubiMi to cfunqo wfitn Bio MMnmnt of POMMM
»». nocaMt mot an •ajuaM no to propojuo n • MPWIU HPRM n toatrt "-.•jrzriL —^_ .^__< on
»f • - «w Afmy mMOMr•• *» tar mMhyl toocywu ti • Mm njlwioUnj; u«* m» B» «M«»y 1-pound RO
APPENDIX A • SEQUENTIAL CAS REGISTRY I APPENDIX A - SEQUENTIAL CAS REGISTRY
i 100
(0004
r •nd/or cftorac Bwrty •
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES—Continued
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES—Continued
-------
Federal Reister / Vof 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
13507
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES—Continued
CASPM
74885
749M
74811
74853
non
7S014
7B047
rsose
75O70
ratso
75267
75218
7S2S2
78274
7SJ43
75354
754*5
75303
75556
78648
7S71S
4.7 liUBune iH*id»i«.l AMJ
3>4.7,T« mi«B»Ou
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-Continued
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES—Continued
CASRH
88007
S80I8
8411
M5-TI
-------
13508 F«d«ai Ragbtar / VoL 50. No. 68 /. Thursday. April 4. 1985 / Rules and Regulations
APPENDIX A - SEQUENTIAL CAS REGISTRY
NUMBER UST OP CERCLA HAZARDOUS
SUBSTANCES-ContlnMd
APPENDIX A - SEQUENTIAL CAS REGISTRY
COMBER UST OF CERCLA HAZARDOUS
SUBSTANCES-CeMlmMd
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER UST OF CERCLA HAZARDOUS
SUBSTANCES-Contnuad
-------
Federal Register / VoL 50. No. 63 / Thursday. April 4. 1985 / Rules and Regulations 13509
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-ContnuBd
1S18SS
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-ConUnwd
CASH*
i
134M7
Bb»t
M17H
148711
1S1«
»»M
nmi
301048
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-Contrawd
BM«.*hH"l»
ii««a
HUM
1*T.
JJA10.1
-«MC
-------
13510 Federal Register / Vol 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations
APPENDIX A-SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-Contlnued
APPENDIX A - SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES—Continued
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-Conttnued
POLtOMW»MH> BfHBtna PCM
-------
Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Rules and Regulations 13511
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-Cantmued
CASRN
101
t
1020470
lenoto
44>EMff
2AS-TMOT
2A5T
04An
MM)
2704720
3013147
41
807(736
WU87U
74211
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES-Contmued
CASRN
74M4M
743M81
7439078
7440020
7440224
7440Zn
APPENDIX A . SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCUA HAZARDOUS
SUBSTANCES-ConamMd
c*sm
7T1U49
7719122
7440417
7440430
7440473
7722047
7723140
7440142
7440100
7440277
7447304
2A5-TI
1<»
*QHB
2A5-TI
2AS-TI
7047010
7047100
7770113
77703M
7T70441
0*1*1
7004417
7001404
7001020
7703100
-------
13512 Federal Register / Vol 50. No. 65 / Thursday. April 4. 19&5 / Rules and Regulations
APPENDIX A. SEQUENTIAL CAS REGISTRY
NUMBER LIST OP CERCLA HAZARDOUS
SUBSTANCES-Continued
APPENDIX A - SEQUENTIAL CAS REGISTRY
NUMBER LIST OP CERCLA HAZARDOUS
SUBSTANCES-ContlnuwJ
APPENDIX A - SEQUENTIAL CAS REGISTR>
NUMBER LIST OP CERCLA HAZARDOUS
SUBSTANCES-Continuad
CASMN
-------
Federal Rerister / Vol. SO, No. 65 / Thursday, April 4.1985 / Rules and Regulations 13513
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OP CERCLA HAZARDOUS
SUBSTANCES-Cofittraied
CASRN
JB47182S
MS-TPlddi
r12tt
quantities.
(a) Listed hazardous substances. The
quantity listed in the column "Final RQ"
for each substance in Table 302.4 is the
reportable quantity for that substance.
(b) Unlisted hazardous aubatancaa.
Unlisted hazardous substances
designated by 40 CFR 302.4(b). which
substances are wastes prior to their
Initial release into the environment.
have the reportable quantity of 100
pounds, except for those unlisted
hazardous wastes exhibiting the
characteristic of extraction procedure
(EP) toxicity identified hi 40 CFR 281.24.
Unlisted hazardous wastes which
exhibit EP toxicity have the reportable
quantities listed in Table 302.4 for the
contaminant on which the characteristic
of EP toxicity is based. The reportable
quantity applies to the waste Itself, not
merely to the toxic contaminant If an
unlisted hazardous waste exhibits EP
toxidty on the basis of more than one
contaminant the reportable quantity for
that waste shall be the lowest of the
reportable quantities listed hi Table
302.4 for those contaminants. If on
unlisted hazardous waste exhibits the
characteristic of EP toxidty and one or
more of the other characteristics
referenced hi 40 CFR 30Z4(b), the
reportable quantity for that waste shall
be the lowest of the applicable
reportable quantities.
13024 Motlflcetton requirements.
(a) Any person in charge of • vessel or
an offshore or an onshore facility shall.
as soon as he has knowledge of any
release (other than a federally permitted
release or application of a pesticide) of a
hazardous substance from such vessel
or facility hi a quantity equal to or
exceeding the reportable quantity
determined by this part hi any 24-hour
period. Immediately notify the National
Response Center ((800) 424-4802; hi
Washington. D.C (202) 428-2875).
(b) Releases of mixtures and solutions
are subject to these notification
requirements only when a component
hazardous substance of the mixture or
solution is released hi a quantity equal
to or greater than its reportable
quantity.
(c) Notification of the release of an
RQ of solid particles of antimony,
arsenic, beryllium, «««!«•<«"•, chromium,
copper, lead, nickel selenium, silver,
thallium, or zinc la not required if the
mean diameter of the particles released
is larger then 100 micrometers (0X04
Inches).
(Approved by the Office of Management and
Budget under the control number 2118-0137)
(1) In charge of a vessel from which a
hazardous substance is released other
than a federally permitted release, Into
or upon the navigable waters of the
United States, adjoining shorelines, or
Into or upon the waters of the
contiguous zone,
(2) hi charge of a vessel from which a
hazardous substance is released, other
than a federally permitted release.
which may affect natural resources
belonging to, appertaining to. or under
the exclusive management authority of
the United States (including resources
under the Fishery Conservation and
Management Act of 1978), and who is
otherwise subject to the Jurisdiction of
the United States at the time of the
release, or
(3) In charge of a facility from which a
hazardous substance is released, other
than a federally permitted release, hi a
quantity equal to or greater than that
reportable quantity determined under
this part who fails to notify immediately
the National Response Center as soon
a* he has knowledge of such release
shall be subject to all of the sanctions.
including criminal penalties, set forth hi
section 103 of the Act with respect to
such failure to notify.
(b) Notification received pursuant to
this section or Information obtained by
the exploitation of such notification
shall not be used against any such
person In any criminal case, except a
prosecution for perjury or for giving a
false statement
(c) This section shall not apply to the
application of a pesticide product
registered under the Federal Insecticide.
Fungicide.-and Rodentitide Act or to the
tmndlino and storage of such a pesticide
product by an agricultural producer.
PARTItT-KAMENDED]
2.40 CFR Part 117 is amended by
revising 8117-3 to read as follows:
1117.1 Determination of reportable
{382.7
(a) Any person
Each substance hi Table 117 J that is
listed in Table 302.4.40 CFR Part 302. is
assigned the reportable quantity listed
hi Table 302.4 for that substance.
[PR Doe. 85-4238 Filed 4-3-85:845 am.
-------
13514
Federal Register / Vol. 50. No. 65 / Thursday. April 4.1985 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40CFRPwt302
.[SWH-fRt286S
-------
Federal Register / Vol. 50. No, 65 / Thursday. April 4. 1985 / Propoeed Rules
13515
reporting releases and to adjust
reportable quantities for 387 of the 698
CERCLA hazardous substances. That
Notice of Proposed Rulemaking (NPRM)
also listed, for the first time, the
"hazardous substances" designated by
section 101(14) of CERCLA. The NPRM
discussed in detail the CERCLA
notification provisions (including the
persons required to notify the NRC of a
release, the substances for which
notification is required, the types of
releases subject to the notification
requirements, and the exemptions from
these requirements), the methodology
and criteria used to adjust the
reportable quantity levels.-and the RQ
adjustments proposed under section 102
of CERCLA and under section 311 of the
CWA. Today's Federal Register contains
a final rule that clarifies reporting
procedures and promulgates most of the
previously proposed RQ adjustments.
The final rule contains adjusted RQs for
319 of the 608 specific substances and 21
of the 90 waste streams that an
designated as hazardous substances
under CERCLA. In preparing the final
rule. EPA carefully considered all of the
public comments submitted on the
proposals made in the May 25,1983
NPRM.
This NPRM proposes RQ adjustments
for 105 additional CERCLA hazardous
substances (including 7 waste streams)
for which the Agency has now
completed its analysis. These proposed
adjustments would amend Table 302.4 of
40 CFR 302.4 and. consistent with 40
CFR 117 J as amended in today's final
rule, would apply not only to CERCLA
RQs. but also to RQs" established under
section 311(b)(4) of the Clean Water Act
Section n of this preamble discusses the
proposed RQ adjustments and the
methodology used in making these
• adjustments. Section in addresses RQ
adjustments under section 311 of the
Clean Water Act Section IV provides a
summary of the analyses supporting this
proposed rulemaking.
It should be noted that other
provisions of the Act may apply even
where CERCLA does not require
notification. Therefore, nothing in this
rulemaking should be interpreted as
reflecting Agency policy or the
applicable law with respect to other
provisions of the Act For example, a
party responsible for a release is liable
for the costs of cleaning up that release
and for any natural resource damages,
even if the release is not subject to the
notification requirements of sections 103
(a) and (b). Similarly, proper reporting of
a release in accordance with sections
103(a) and (b) does not preclude liability
Tor cleanup costs. The fact that a release
of a hazardous substance is properly
reported or that it is not subject to the
notification requirements of section 103
(a) and (b) will-not prevent EPA or other
governmental agencies from taking
response actions under section 104,
seeking reimbursement from responsible
parties under section 107, or pursuing an
enforcement action against responsible
parties. Note also that this rule does not
affect hazardous substance reporting
requirements imposed by other
regulations and statutes (except the
CWA—eee Section ffi below).
.Neither this rulemaking nor today's
final rule addresses the designation of
hazardous substances which an not
designated under the statutes listed in
CERCLA section 101(14). The Agency
has conducted several preliminary
economic and technical analyses on this
subject (see 48 FR 23603), and an
Advance Notice of Proposed
Rulemaking (ANPRM). also published
on May 25.1983. invited public
comment EPA has carefully reviewed
the comments received and is in the
process of further developing its
designation policy. The Agency's
designation policy will be the subject of
a separate rulemaking.
IL Reportable Quantity Adjustments
A. Introduction
Section 102(b) establishes a
reportable quantity of one pound for all
hazardous substances other than those
.with different RQs established under
section 311 of the Clean Water Act Jor
these latter substances, section 102(b)
adopts the CWA section 311 RQs.
Congress enacted this provision in part
to ensure that reporting of releases
urould begin Immediately upon
enactment of CERCLA. because
reporting is essential for response.
The RQs established by CERCLA
were intended to be temporary pending
EPA review and adjustment of those
> in late
1980 to revise those reportab
quantities (128 Cong. Rec. H11792
(December 3.1980)). This rulemaking
proposes adjustments to the statutory
RQs based upon specific scientific and
technical criteria that relate to the
possibility of harm from the release of a
substance in a reportable quantity.
These'revised RQs. therefore, enable the
Agency to focus its resources on those
releases which an most likely to pose
potential threats to public health and
welfare and the environment Such RQ
adjustments will also relieve the
regulated community and emergency
response personnel from the burden of
making and responding to reports of
releases which are unlikely to pose such
threats.
This NPRM proposes adjusted RQs for
98 of the 289 specific substances and 7
of the 69 waste streams that an not
assigned adjusted RQs by today's final
rule. EPA is proposing to raise the RQs
of 34 specific substances, lower the RQs
of 31 specific substances, and leave the
RQs of 33 specific substances at the
levels originally established by CERCLA
(or under CWA section 311). EPA is also
proposing to raise the RQs of the 7
waste streams. In addition, this NPRM
proposes a 100-pound RQ for releases of
non-designated substances which
exhibit the RCRA characteristics of
ignitability. corrosivity. or reactivity but
which an not "wastes" (and thus
CERCLA hazardous substances) until
after they an released and an not
cleaned up for repackaging, recycling, or
reuse. Adjusted RQs for the remaining
191 specific substances and 62 waste
streams not addressed by this notice or
today's final rule will be proposed, as
appropriate, as soon as the RQ
adjustment analysis for these
substances (now ongoing) is complete.
The primary purpose of notification Is
to ensure that releasers notify the
federal government so that federal
personnel can assess the need to
respond to the release. The different RQ
levels do not reflect a determination that
a release of a substance will be
hazardous at the RQ level and not
hazardous below that level EPA has not
attempted to make such a
determination, because the actual
hazard will vary with the unique
circumstances of the release, and
extensive scientific data and analysis
would be necessary to determine the
hazard presented by each substance
under a number of possible
circumstances. Instead, the RQs reflect
the Agency's judgment that the federal
government should be notified of
releases to which a federal response
might be necessary. The reportable
quantities do not represent any
determination that releases of a
particular size are actually harmful to
public health or welfare or the
environment
Many other considerations besides
the quantity released affect the
government's decision concerning
whether and how it should conduct a
removal or remedial action pursuant to
the National Contingency Plan (40 CFR
Part 300) with respect to a particular
release. The location of the release, its
proximity to drinking water supplies or
other valuable resources, the likelihood
of exposure or injury to nearby
populations, and other factors must be
-------
13518
Federal Register / Vol 50. No. 65 / ITiursday. April 4.1985 / Propoaed Rules
assessed by the federal On-Scene
Coordinator on a case-by-case basis.
The reporting requirement enables the
government to learn when such
assessments should be made.
Because CERCLA's RQ adjustment
methodology differs from that used
pursuant to section 311 of the dean
Water Act some of the RQs being
proposed today are not the same as
those initially promulgated under the
CWA. In the final rule published
elsewhere In today's Federal Register.
EPA has amended 40 CFR 117 J to make
RQs adjusted under CERCLA the
applicable RQs for purposes of CWA
section 311. Thus, when made final
today's proposed RQ adjustments will
apply to both CERCLA and CWA RQs.
A person in charge need not report a
release into navigable waters twice
under CERCLA and the CWA; one
report to the NRC suffices.
& Summary of the Methodology
Underlying the Reportable Quantity
Adjustments
The Agency has wide discretion in
adjusting the statutory RQs for
hnmniffMf substances under CERCLA.1
Administrative feasibility and
convenience an important
considerations. The Agency's selected
strategy for adjusting RQs begins with
.an evaluation of the intrinsic physical
chemical and lexicological properties of
each designated hazardous substance.
The intrinsic properties.examined—
called "primary criteria"—an aquatic
toxidty. ;«""itii«Han toxidty (oral
dermal, and inhalation), ignitability,
nactivtty. chronic toxidty. and potential
eardnogenidty. (For the purposes of this
rule, chronic toxidty—referred to as
-other toxic effects" In the May 25.1983
NPRM—is defined as toxidty resulting
from npeated or continuous exposure to
either a single nlease or multiple
releases of a hazardous substance.)
The Agency ranks each Intrinsic
property on a five-tier scale, associating
a specific range of values on each scale
with a particular RQ value. This five-tier
scale uses the five RQ levels of 1.10.
100.1000. and 5000 pounds originally
established pursuant to CWA section
311 (see 40 CFR Part 117). Each
substance receives several tentative RQ
values based on its particular
properties.'The lowest of all of the
tentative RQs becomes the "primary
criteria RQ" for that substance.
For a more detailed discussion of the
primary criteria, see the preamble of the
May 25.1983 NPRM (48 FR 23562-23565),
the preamble of today's final rule
adjusting reportable quantities (Section
VD.I), and the Technical Background
Document to Support Rulemaldng
Pursuant to CERCLA Section 102.•
available for inspection at Room S-325,
US. Environmental Protection Agency,
401M Street SW. Washington. D.C.
20460.
After the primary criteria RQs an
assigned, substances an further
evaluated for their susceptibility to
certain extrinsic degradation processes.
These extrinsic processes an
biodegradation, hydrolysis, and
photolysis, or "BHP." These processes of
degradation tend to reduce the relative
potential for harm to public health and
welfan and the environment of many
hazardous substance releases. If
substances have primary criteria RQs
already at the TJIST^P""" assignable
level of 5000 pounds or an found to be
Uoaccamulative, environmentally
persistent highly reactive (or otherwise
unusually hazardous), or degradable to
more hazardous products, their
susceptibility to degradation is
considered only in relation to the
primary criteria analysis (see footnote
2)Tand they are not eligible for a one-
level RQ Increase on the basis of BHP.
On the other hand, if analysis indicates
that an eligible substance degrades
relatively rapidly to a less harmful
substance or compound through one or
man of these processes when it is
released into the environment the
primary criteria RQ is raised on the
basis of BHP. The single RQ assigned to
each substance on the basis of the
primary criteria and BHP becomes the
adjusted RQ for the substance.
The portion of Table 302.4 (40 CFR
302.4) printed in this Notice lists only
those * '*•'*** '* ^ ^nyi"TiffMf substances
for which adjusted RQs an being
proposed in this rnlemaking. The table
shows both the statutory RQ currently
in effect and the proposed adjusted RQ
for each substance.
For a more detailed discussion of the
BHP criteria and their use in
1 Aa Scuta Report No. 848.98th Congraee.
Second Section (1MO) netM it page 2ftla
determining reportibla qnantltlea under tail
paragraph (taclton 3U)(2) of 3.1480). the President
may consider any facton denned relevant to
administering the reporting requirement* or the
Pneldenf i other mponeibiUtte* under thU Act"
•If available evidence ahowe that a mbaunee
hydrolyxn into • reaction product that to more
hasardm than the original mbftanoa. the primary
criteria are applied to the nun haxardou* reaction
product rather than to the original iub*taace to
determine the tentative RQ valnae for the original
tuhttw~ per example, mbttancet known to
•curate hydrogen mlfide or puoiphine upon
hydrolyiii art aialgaed primary criteria RQi on the
bast* of tbeae degradation product*. Application of
the primary criteria to the reaction product* rather
than to the original mbataneee occurred In four
cneee far the eubetancoa for which thU NPRM
propoan (diluted RQa,
combination with the primary criteria.
see the preamble of the May 25,1983
~NPRM (48 FR 23565), the preamble of
today's final rule adjusting reportable
quantities (Sections V.C.L and V.D.2.),
and the Technical Background
Document to Support Rulemaking
Pursuant to CERCLA section 102.
available for inspection at Room S-325.
U3. Environmental Protection Agency,
401M Street SW, Washington. D.C.
20460.
C Substances for Which Adjusted RQs
Are Being Proposed
The 105 substances for which this
NPRM proposes adjusted RQs have all
been evaluated for potential chronic
toxidty and/or potential
eardnogenidty. This section describes
the process by which EPA selected these
105 substances for proposal in this
NPRM.
Prior to the May 25.1983 NPRM. EPA
identified a number of CERCLA
substances that potentially exhibited
chronic toxidty or eardnogenidty (or
both). Lists of these substances were
submitted to EPA's Environmental
Criteria and Assessment Office (ECAO)
for further chronic toxidty analysis and
n EPA's Cardnogen Assessment Group
(CAG) for further eardnogenidty
analysis. EPA identified the potentially
chronically toxic substances using a
variety of EPA background documents.
' reports prepared by state agendes, and
other sources. EPA identified the
potential carcinogens using the
Monographs of the International Agency
for Research on Cancer and the First
and Second Annual Reports on
Carcinogens of the National Toxicology
Program. U.S. Department of Health and
Human Services.
For further information concerning the
selection of substances for ECAO and
CAG review, see the Technical
Background Document to Support
Rulemaldng Pursuant to CERCLA
Section 102. available for inspection at
Room S-325. U.S. Environmental
Protection Agency. 401M Street SW.
Washington. D.C. 20460.
Because all of the potential
carcinogens and many of the potential
chronic toxicants (as identified at that
time) wen undergoing evaluation when
the May 1983 NPRM was published.
these substances retain their statutory
RQ levels in the final rule published in
today's Federal Register. Analysis is
now completed, however, for the
substances that were being evaluated
for chronic toxidty in May 1983. In
addition. CAG has performed a more
detailed and more critical review of
available date than the Initial review
-------
Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Proposed Rules 13517
used to place the substances on the
GAG list. The GAG assessment
determined that there is no sound
evidence of potential carcinogenic effect
for a number of the substances on the
list.
The 105 substances in this NFRM
consist of substances that have been
evaluated for chronic toxicity and.
where appropriate, assigned a chronic
toxicity ranking, and substances for
which GAG has determined that no
sound evidence of potential
cardnogenidry exists. Because
assessments under all primary and BMP
criteria have been completed for these
105 substances, proposing RQ
adjustments is appropriate at this time.
The portion of Table 302.4 printed hi this
NPRM lists only the CERCLA
substances for which adjusted RQs an
being proposed in this rulemaking. The
table indicates both the RQ level
originally established by CERCLA and
the proposed adjusted RQ for each
substance. EPA is proposing to raise the
RQs of 34 specific substances .and 7
waste streams, lower the RQs of 31
specific substances, and leave the RQs
of 33 specific substances at their original
levels.
D. ICR Substances
As noted In the preamble to the final
rule on RQs published elsewhere in
today's Federal Register, the obligation
to report releases into the environment
1 of substances exhibiting the RCRA
characteristics of ignitability.
corrosivity, or reactivity ("ICR") (see 40
CFR 261.21-261.23) • has been the
subject of some confusion. Under
section 103(a) of CERCLA, the person hi
charge of a vessel or faculty must notify
the NRG of the release of a "hazardous
substance." The term "hazardous
substance" includes all substances
designated in 8 302.4 of today's final
rule as well as wastes exhibiting the ICR
characteristics under RCRA. Therefore.
the release of a non-designated
substance exhibiting an ICR
characteristic is the release of a
hazardous substance only if the
substance is a waste. If a non-
designated ICR substance Is spilled and
Immediately cleaned up for repackaging.
reprocessing, recycling, or reuse, it is not
a waste and the spill need not be
reported (see 45 FR 78540. Nov. 25.1980).
However, if the substance is not cleaned
up. or is cleaned up for eventual
disposal it is then a waste (and thus a
hazardous substance) which has been
released to the environment and must be
reported if the release equals or exceeds
theRQ.
The Agency acknowledges that the
May 25.1983 NPRM may not have been
clear on this point Accordingly, we an
now proposing to create a separate RQ
for releases of non-designated
substances which an not wastes prior
to their initial release but which exhibit
an ICR characteristic. We propose to eat
an RQ of 100 pounds for such releases.
This is the same RQ that has been
established for ICR substances that an
wastes prior to their initial release, as
the environmental impact of a release of
a substance exhibiting an ICR
characteristic does not depend on
whether that substance was a waste
prior to its release. We hereby solicit
public comment on whether a different
RQ is warranted. Of course, if the
substance is recovered for purposes of
recycling or use as a product, it never
becomes a waate (or a hazardous
substance) and thus la not subject to
reporting requirement*.
EPA recognizes that transporters may
not be aware that products they an
carrying exhibit ICR characteristic*. We
acknowledge that in order for a criminal
prosecution to be warranted, the person
in charge muat have known or
reasonably should have known that the
substance waa a hazardous 1110118000.
Accordingly. EPA would enforce the
reporting requirement for releases by
transporters of non-designated
substances exhibiting an ICR
characteristic only if the substance was
labeled as hazardous under DOT or
State regulations or If other
circumstances put the transporter on
notice that a hazardous substance was
released. If a product which is so
labeled is spilled In excess of the
reportable quantity of 100 pound* (or
such other RQ as may be finally
releases must be reported if they are
equal to or in excess of the 100-pound
RQ. See 1302£(b) of today's final rule.
m. Reportable Quantity Adjustments
Under Section 311 of the dean Water
Act
The final rule published elsewhere in
today's Federal Register amends 40 CFR
{117 J to make reportable quantities
adjusted under CERCLA the applicable
reportable quantities for notification of
discharges of •hazardous substances
pursuant to Clean Water Act section
311. Thus, when made final the RQ
adjustments proposed In this rulemaking
will epply to both CERCLA and CWA
section 311 RQs. Reportable quantities
under both statutes are set forth in
Table 302.4. A single report of a release
Into navigable waters to the National
Response Center by the person in charge
will satisy the-notification requirements
of both statutes. (For a further
discussion of the relationship between
CERCLA RQs and CWA section 311
RQs. see the May 25.19B3 NPRM
preamble at 48 FR 23569.)'
IV. Summery of Supporting Analyses
Rulemaking protocol under Executive
Order 12291 requires that proposed
regulations be classified as major or
non-major for purposes of review by the
Office of Management and Budget
According to B.0.12291. major rules are
regulations that an likely to result in:
(1) An annual effect on the economy
of $100 million or more: or
(2) A major increase in costs or prices
for consumers, individual industries.
federal state, or local government
agencies, or geographic regions: or
(3) Significant advene effects on
etition. employment investment
• Substance! exhibiting the characteiiitic of
extraction procedure (BP) toxidty are not at tame
hen. became the chemical* at which the EP toxicity
test ii aimed are all ipecifically designated ai
haiardoui under tectlon 302.4 of today'! final role.
lWiUt4Ama»>m| •*"• •»•••••>!»•• •"• --—
uable for failure to report if it turns out
that the waste exhibiting an ICR
characteristic waa released to the
environment in excess of the RQ.
As noted in the preamble to today's
final rule, pending completion of final
rulemaking on this proposal notice
given to the NRG pursuant to 48 CFR
171.15. if required under that section, of
the release of a non-designated
substance that is not a waste prior to its
initial release, will be deemed to satisfy
the reporting requirements of section,
}03(a) of CERCLA. Note that this policy
does not apply to the release of non-
designated substances which exhibit an
ICR characteristic and which are wastes
prior to their initial release. Such
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
An economic analysis performed by the
Agency, available for inspection at
Room S-325, UA Environmental
Protection Agency. 401M Street SW,
Washington. D.C 20480, shows that
today's proposed regulation is non-
major, because adoption of the proposed
rule will result hi additional net coat
savings (beyond those provided by
today's final rule) of approximately $1.3
million annually. Of this amount about
$2tM>,(w annually will be saved by the
regulated community (the remainder to
be saved by government).
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis'be performed for all rules that
an likely to have a "significant impact
-------
Federal Register / VoL 50. Nu. 65 / Thursday. April 4. 1985 / Proposed Rules
13S1B
on a wbstantial number of small
entitle*." This NPRM propoaea adjusted
RQ» for substances that have a
substantially lower total production
volume than the substances receiving
adjusted RQs in today's final rule. The
economic effects as estimated in EPA's
analysis are proportional to production
volume. Thus, the impact of the
proposed rule on small entities will be
•substantially less *h«« the impact of the
Bnal rule. The analysis of the final rale
demonstrated that the final rule will not
have a significant impact on small
entities. See the Regulatory Impact
Analysis of Reparable Quantity
Adjustments Under sections 102 and 103
of CERCLA. available for inspection in
Room S-32S. U.& Environmental
Protection Agency. 401M Street SW.
Washington. IXC 20460, Therefore, as
with the final rule, EPA certifies that no
Regulatory Flexibility Analysis is
necessary for the proposed rale.
The Information Impact Analysis
performed for the final rale indicated
that the final rale would decrease the -
paperwork burden imposed on parties
outside EPA by about 50.000 hours. A
brief analysis indicates that the RQ
adtttstments proposed by this NPRM
will provide a small additional reduction
in the paperwork burden imposed on the
regulated community for information
collection associated with reporting
releases. Because me effect of this
proposed rule on the paperwork burden
is not only minimal, bntalso a reduction,
EPA has determined that no further
Information Impact Analysis need be
The Office of Management and Bndget
(OMB) has approved the information
collection requirements contained In this
proposed rale under the provisions of
the Paperwork Reduction Act of 1980. 44
U.S.C section 3501 at Beg* and has
assigned OMB control number 2115-
0137. Submit comments on these
requirements to the Office of
Information and Regulatory Affairs.
OMB. 728 Jackson Place. NW,
Washington. D.C. 20503. marked
-Attention: Desk Officer for EPA/" The
final rale wul respond to any OMB or
public comments on the information
collection requirements.
List of Subjects in 4B CFR Part 30
Air pohu
materials transportation. Hazardous
substances. Intergovernmental relations.
Natural resources. Nuclear materials.
Pesticides and pests. Radioactive
materials. Reporting and recordkeeping
requirements. Superfund. Waste
treatment and disposal. Water pollution
control.
Dated: Febroary 13.1985.
UoM-Tfaomao.
Adminutrator.
PART 302-1 AMENDED]
For the reasons set out in the
preamble. II is proposed to amend 40
CFR Part 302 as follows:
L The authority citation for Part 302
reads as follows:
Authority: Swtiaa 102 of the
Comprehensive Environmental Response.
CompenuHoB, and Liability Act of 1980,42
U AC MR tactiims 311 and S01(a) of the
Federal Water Pountton Control Act 33
USJC.13a and 1361.
2. In Part 302. Table 302,4 of t 302.4 is
amended by revising certain hazardous
' entries to read as follows:
TABLE 30t4 - UST OF HAZARDOUS SUBSTANCES AND REPOHTABLE QUANTITIES
4>
m*L*~*fl
S_ a. .
*
•
CWUrtotP*
cum
VBM417
1*41407
VB1S7
7440980
iwH
MO814
•HIM
78160
78180
m«i
^^^fcito
^b*»
no
i*
i*
i*
100
mo.
i*
r
10W
!•
r
i«
i*
!•
!•
10
t*
9000
!•
1«
1000
CDOtot
I
•
1
1
I
t
IJL*
«
4
14
a
4
t
i
4
M
1.4
4
t
1
ROM
Utl4
.
VIM
U1«
ton
uuo
vm
MOO
rat
• P022
uns
nr
•
0
a
•
a
D
0
c
c
A
a
0
A
i
A
e
s
s
s
s
c
PBUMMX0
MXI&4)
SBOO (2970)
100 (*M
10>(«14I
100 (4M)
9000 (0701
(000(22701
MOO (4*41
1000(4*41
WHM
100(48.4)
8000(8701
W(4A4)
1(8.4*4)
«(4,54»
1000(4141
100<4&4)
100(48.4)
WO MM
100(48.4)
1000(484)
-------
Federal Register / Vol. 50. No. 65 / Thursday. April 4. 1985 / Proposed Rules
13519
TABl£ 301*- UST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTrTIES-Contlmud
HBVdM SuMm
n»
»
P-
Hk
»
P-
•Q**
OUUUUUHIB OUJ-i*J«*«»(r-
tMKItiitlMCV- ijHiu^H M
'""""
CASRN
100*04
80407
108446
108684
80487
100440
100814
0003100
tm*mf
64ZTOO
12*403
78917
00010
•M40
TMH
mum
7TUOS4
opmfl§i
7B7B0
7439021
101016N
1O72961
SB1HOW
7448149
131487C
l804«MC
MWM.
• - ^
«k
»
P-
«•
»•
PMIHU. JIWW
_
ftA§Thf*tti
""•^
no
1000
woo
r
1000
1000
to
10
100
••
no
6000
0000
1000
woo
100
1«
to
1*
!•
1«
!•
1*
MO
NO
r
1000
1*
MOO
8000
0000
6000
6000
10
coatt
i
I
M
M
4
1
1
1*4
t
M
M
4
1
4
tA •
»
4
4
M
M
4
1
t
1
1
1
1
1
1
1
1
1
1
ROW
uou
UOS1
U107
U004
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pon
U104
irao
U100
NOO
Uttt
U1*5
vno
inn
CMOC
IT
C
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c
A
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t
•
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0
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e
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•
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•
•
•
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. •
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1000(404)
1000<4M)
0000 0S70)
1000(404)
1000(414)
WH04)
10(4*4)
100(4614)
10(4J4)
100(4*4)
100 (4M)
UO (464
100(414)
•*^M M^ili
100(414)
tO«4M
W«4J4)
6000 can*
MO (404)
6000 OBTO)
tOH*4)
MD14MI
100 (4t4)
100(404)
6000 om
100(404)
0000 GBIO)
MO (414)
M0(404)
MO (404)
M0<404)
100(404)
aooo onm
100(404)
100(404)
100(404)
WH»4)
-------
Fadaral Bogbto / VoL 50. No. 68 / TTmrBday. April 4. 1885 / Proposed Rules
TABLE 302.4
- UST OF HAZMDOUS SUBSTANCES AND HEPORTABCE OUAWITOS-ConfciMd
— _
1
,
uriMi|iMi*nM i « rt
^
- .^^
r.4»i-*i*im MO*
IMMMMt
•
CA9HN
i>44oa
7409
74073
70017
MB
IflMM
rmm
T"tffT*
7440101
T3BB
IB74B
13140
M3M
••mi
_ mm
n ii i
"• «•!
•MMnro
n^,juj an. ao«.n iu,»u. -• J
""
-
_ . _ »^^
- ' ' i^bta
_ —
M|*°-l*"-
_ . ^^
A«««tt.Mun(l)ltfl
MnMHMdMtoifflM
i
m i
w
10
10
r
r
tool
t«
i*
MO
1*
NOB
r
r
r
ton
V
r
r
109
om
r
i"
MO
r
1000
. 1000
. aoao
wo
MOO
. we
r
r
»•
••
•UHT
teMt
I
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4
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i«
Z4
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4
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4
1A4
4
4
4
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1JU
s
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V*
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4
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4
4
4
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wan
«m
mo
rat
uoat
U04S
U04S
pon
U1»
uia
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UIOO
nox
TC04
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^^^•••^••B
tmo
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tmo
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»wo
fill
nn
1 U314
UtIO
UtM
un?
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nr
A
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B
e
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B
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B
C
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A
•
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•
t
•
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B
B
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1 •
AawdMKa
W4UH
10<4*»
10(444)
W|4J4|
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1000(4041
10044MI
100 (414)
MOMt4>
MO 1414)
MOHS.4)
MOO <464)
M14J4)
•••• f^BlB^Bf
1000(404)
100 (4U)
1000(404).
1001 f464)
10(43*)
100 MM)
BOOO'COTQ
10001404)
10 (4M)
10(434)
100 MM)
M*X04)
10(434)
1000 MM)
100 MM)
100(40^)
100 MM)
100(45.4)
100 MM)
10(434)
10(434)
100(404)
1000 (414
100(4&4|
MO(4S4
WOHM
M0f4&4
-------
Federal Register / VoL SO. No. 65./ ITnirsday. . .tfil 4. 1985 / Proposed Rules
13521
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OAJANTITlES-Contlnued
— 9~ -
iu,jiu
Mlldl
"
•• MB bOQQm fcQM Vis) NOOWy 4f MM
MMMK (i) TokMM (W MM* aim K«om M
CMon MMHt M MMml W *>*IMM
SUplHQ ffl nHi fcm dM pradwMncf iwitf*
RMr OM torn M MMon ol
(MOM
WttMMMr MBVMM sAldOM ftWH 0t9
mniliK&ffn^ tannrfuon md totflnQ of mfr
CASRN
1314329
eosim
T4M1H
NX
541(M3
131401
1914A81
T44MH
HWt
•7416
1914M7
1M717K
"•^9W-
hta
(UkiHiiMLintfuii«)iM
^^^^^^
g»*^
. .
no
r
r
1000
1000
MOO
1*
8000-
1000
N09
1000
1000
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0100
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W
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MOO
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r
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e
e
A
e
e
c
c
0
a
0
e
c
a
c
a
a
A
PBundWg)
100(484
1000(494)
nom.4)
100(494
NO (4B4
10(444)
10 (444)
100(494
100(484
1000(484)
1000(4041
1000(400
1000 <48D
1000(494)
1000(484)
1000(494)
MOO (494)
MOO 1484)
MOO (414)
10(444)
1000(490
MOO (494)
MOO (494)
1000(49*1
6000 v0hn
100(494
5000(2770)
HDD (494)
1000(494)
100(484)
1000(494)
100 (494
100(454)
10(494)
-------
13522
Federal Register / Vol 50.'^ . 65 / Thursday. April 4.j985jjrgpgged_Rules_
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTITIES-Continued
«• CERCLA to CWA Swoon 307(1)
. _*• CEPOA •) CJA S*eWl112
»wdv CEROA bj HOU SOGBBI 3001
[PR Doc. 8S-4Z4B Piled 4-3-6* 8:48 to)
-------
Federal Reggter / Vol. 50. No. G9 / Wednesday. April 10. 1985 / Proposed Rules 14115
ENVIRONMENTAL PROTECTION
AGENCY
40 CfW Parti 152 and 159
Submission at PeetteMe Data?
Me4Mcatton to trie Secretary of
Agriculture of a Proposed Regulation
on the nagging of Studies tar
Potontfef Effects)
r. Environmental Protection
Agency (EPA*
: TransmittaJ of a proposed rale.
R Notice i» given that the
Adminwtrator of EPA has forwarded to
the Secretary of the U.S. Department of
Agriculture a proposed regulation that
would establish criteria to Identify data
demonstrating potential advene effects
when they are fust submitted to the
Agency. Registrants and applkants for
regtstntioB woo submit certain type* of
toxfcohgtcaL environmental fate, or
ecological effects data would be
required to inchtde a statement
identifying ("or flagging") a study if It
demonstrated effects or characteristics
defined in the proposal Flagging by the
data subm'Uer would enable the Agency
to ghre priority review to pesticides thai
may potentially pose unreasonable risks
to man or the environment, thereby
focusing EPA's regulatory actions oa
pesticides of greatest concern. This
action is required by section 25(aJ(2KA)
of the Federal Inaecriddn. Fungicide.
and Rodenncide Act (FIFRAJ. as
amended.
CT.
TBTCtODsneof
Division (TS-.
rrogn
i Agency. 401
M Si. SUM. Washington. D.C. 20480.
Office location and telephone nassbor
Ran. 1114, CM*2, M21 (efienon Davto
Highway. Arlington. VA. |703~6&7-
2SfnNI)(A) of FDPHA provides tnet the
Adnrimstrator shall provide the
Secretary of Agriculture with a copy of
any proposed lagiitarlca at lea* 09 daya
prior to atgmng ft far pabneanon in me
Fedasnlffigjilii tf the Secretary
iBwrrbngraeardtagme
iwftnsaSOdayeaftar
receiving it "me Adansustrator snail
issue far penMeano* fa the fanasal
Regiater. with the proposed regulation.
the comments of the Secretary. If
requested by the Secretary, and me
response of the AdoMnistraJor
concerning die Secretary's conunenla. n
the Secretary dons not omnnant in
writing within 30 days after inualsiug
the proposed regulation, the
Administrator may sign the regulation
for publication in the Federal Register
anytime after the 30-day period.
As required by FTFRA section 25(aft3.).
« copy of this proposed regulation has
been forwarded to the Committee on
Agriculture of the House of
Representatives and the Committee on
Agriculture. Nutrition, and Forestry of
the Senate.
(Sec 23. Pub. L 92-516, 66 Slat 973 as
amended: (7 US C. 138 e( KO.»
Dated March 11.1985.
Ac&ag Director. OfficaafPtaticidePfap
(PR Ooc. S8-B334 Pnad 4-a-aB: 8.46 ami
40 CFR Pert 300
(sw-na.-«ti4-3T
Amendment to Nrtooai Of. <
i Contingency
r: Environmental Protection
Agency.
ACTMSC Proposed rale.
r The Environmental Protection
Agency ("EPA") is proposing the third
update to the National Priorities List
("NPL"). This apdate contains 28 new
sites. The NPL to Appendix B to the
National OH and Heaardoue SebatancM
Contingency Plan |"NCF*). «•*><<* EPA
•HH^K_&^« a^_J ^^^^—..•^rf *— ^^M^i^MM 4AR Jlf
uiuuMUgaieo pnrauani 10 secncn m or
the rniBSiinhonsiirii Rnvtaomnental
Response. Coonnnaenon, and UaMNty
Act of 1980 ("CERCLA-) and Executive
Order 12318. CERCLA requires that the
NPL be revised at least armaaOy. and
today's notice pioposee the third seeh
OATCSr Comments may be submitted on
or before fnne 10.1985. May KL1985 for
the Lansdowne. Pennsylvania site.
AMMCSSnat Ceennents ssey be marled
to Rossei H. Wyer. Drrecror. Hajtanfous
Site Control Dfvision (Arm: NPL Staff).
Office of Emergency and Remedial
Response (WH-54aB). Environmental
Protection Agency. 401M Sine*. &W,
Washington, DuC. 20480. The
Headquarters pahnc docket for the third
andate to the NPL will contain: Heard
Rankrnf System (MRS) score sneers for
each pionostd site and each Federal
facility site beted in Section fV of this
notice: a Documentation Record for each
site Juanihama the information uaed to
compute the scores; and a Hal of
document references. The Headquarters
pnbbc docket ia located m EPA
rfaadnaerten. Room S3SS of Waterside
Mall. 401 M Street. SW., Washington.
D.C. 20460. and is available for viewing
.by appointment only from WO a m. to
4:00 p.m. Monday through Friday
excluding holidays Requests for copies
of the documents from the Headquarters
public docket should be directed to the
EPA Headquarters docket office. The
HRS score sheets and the
Documentation Record for each site in a
particular EPA Region will be available
fur viewing in the appropriate Regional
Offices upon publication of this notice.
These Regional dockets will also
contain documents containing (he
background data relied upon by the
Agency in calculating or evaluating the
HRS scores. Copies of these background
documents may be viewed to the
appropriate Regional Offices and copies
may be obtained upon request. A third
category of documents with some
relevance to the scoring of each site also
may be viewed and copied by
arrangement with the appropriate EPA
Regional Office. An Informal written
request, rather than a formal request.
should be the ordinary procedure for
requesting copies of any of these
documents. Requests for HRS score
sheets and Documentation Record
should be directed to the appropriate
Regional Office docket (:ee addresses
below). Reqnests for background
docssnents snoold be directed to the
appropriate Regional Supeifend Branch
office.
Copies ofoanaaents nailed to
Headquarter, daring the 80-day pmbUc
comment penod (30-day public comment
penod for Lansdowne. Pennsylvania)
may be viewed only in the Headquarters
docket during the comment period. A
complete set of comments pertaining to
sites in a particular EPA Region will be
available for viewing in the Regional
Office docket appronrissatary one week
following the doaa of A
penod. Comments received after the
close of comment penod wiD be
available at Headonartere end in the
appropnate Regional Office docket on
an "as received- beats. An informal
written request rather than a formal.
renveat should be the ordinary
procedure for requeetiag copies of these
comments. Addresses for the
Headquarters and Regional Office
dockets are:-
Demise Sines. Headquarters. U.S. EPA
CERCLA Docket Office. Room S525.
401 M Street SW, Washington. D.C.
20480. 2O2/382-30M
Peg Nelson. Region 1. US. EPA Library.
Room BI21. form F. Kennedy Federal
Hdg. Boston. MA 02203.817/223-5791
Audrey Thome* Region a U.S. EPA
Library. 28 Federal flan. 7th Floor.
-------
1411R
Federal Resistor / Vol. 50. No. 69 / Wednesday. April 10. 1985 / Proposed Rules
Room 734. New York. NY 10278. 212/
284-2881
Diane McCreary. Region III. U.S. EPA
Library. 5th Floor. 841 Chestnut Bldg.,
9th & Chestnut Streets. Philadelphia.
PA 19106. 215/597-0580
Caylr Alston. Region IV. U.S. EPA
Library. Room C-6. 345 Courtland
Street. ME.. Atlanta. CA 30365. 404/
881-4216
Lou Tilley. Region V. U S EPA Library.
Room 1420. 230 South Dearborn
Street. Chicago. IL 60604. 312/353-2022
Nita House. Region VI. U.S. EPA
Library. Room 2876. InterFirst II
Building. 1201 Elm Street. Dallas, TX
75270. 214/767-7341
Connie McKenzie. Region VTI. U.S. EPA
Library, 726 Minnesota Avenue.
Kansas City. KS 66101.913/236-2828
Dolores Eddy, Region VIII. U.S. EPA
Library. I860 Lincoln Street Denver.
CO 80295. 303/844-2560
lean Circidlo. Region IX. U.S. EPA
Library. 6th Floor. 215 Fremont Street.
San Francisco. CA 94105. 415/974-
8076
loan McNamee. Region X. U.S. EPA.
llth Floor. 1200 6th Avenue. Seattle.
WA 98101. 206/442-4903.
FOR FURTMBR INFORMATION CONTACT
C. Scott Pamsh. Hazardous Site Control
Division. Office of Emergency and
Remedial Response (WH-548E).
Environmental Protection Agency. 401 M
Street SW« Washington. D.C 20460.
Phone (800) 424-0348 (or 382-3000 in the
Washington. D.C,. metropolitan ana).
Tabia of Coolant*
L Introduction
0. Purpose of the NPL /
m NPL Update Proceu and Schedule
(V. Eligibility
V. Conter.ta of the Proposed Third NFL
Update
VL Regulatory Impact Analy*U
VIL Regulatory Flexibility Act Analyst
I. Introduction
Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980. 42 U.S.C. 9801-9657
("CERCLA" or "the Act"), and Executive
Order 12316 (46 FR 42237. August 20.
1981). the Environmental Protection
Agency ("EPA" or "the Agency")
promulgated the revised National
Contingency Plan ("NCP"). 40 CFR Part
300, on July 16.1982 (47 FR 31180). Those
amendments to the NCP implement the
responsibilities and authorities created
by CERCLA to respond to releases and
threatened releases of hazardous
substances, pollutant*, or contaminants.
Section 105(8)(A) of CERCLA requires
that the NCP include criteria for
determining priorities among releases or
threatened releases throughout the
United States for the purpose of taking
remedial action and.to the extent
practicable, taking into account the
potential urgency of such action, for the
purpose of taking removal action.
Removal action involves cleanup or
other actions that are taken in response
to emergency conditions or on a short-
term or temporary basis (CERCLA
section 101(23)). Remedial action tends
to be long-term in nature an'd involves
response actions which are consistent
with a permanent remedy for a release
(CERCLA section 101(24)). Criteria for
determining priorities are included in
the Hazard Ranking System ("MRS").
which EPA promulgated as Appendix A
of the NCP (47 FR 31219. July 16.1982).
Section 105(8)(B) of CERCLA requires
that these cntena be used to prepare a
list of national priorities among the
known releases or threatened releases
throughout the United States, and that to
the extent practicable, at least 400 sites
be designated individually. CERCLA
requires that this National Priorities List
("NPL") be included as part of the NCP.
Today, the Agency is proposing the
addition of 28 sites to the NPL This
brings the number of proposed sites to
272 in addition to the 540 currently
promulgated.
EPA is proposing to Include on the
NPL sites at which there are or have
been releases or threatened releases of
hazardous substances, or of any
"pollutant or contaminant" The
discussion below may refer to "releases
or threatened releases" simply as
"releases," "fadlitiea," or "sites."
IL Purpose of the NPL
The primary purpose of the NPL is
stated in the legislative history of
CERCLA (Report of the Committee on
Environmental and Public Works,
Senate Report No. 98-648,96th Cong.. 2d
Sess.60(1980)):
The priority lists lerve primarily
informational purposes. Identifying for the
States and the public those facilities and utes
or other releases which appear to warrant
remedial action*. Inclusion of a facility or site
on the Uit doee not in itself reflect a judgment
of the activities of Its owner or operator. It
does oof require thoae penom to undertake
any action, nor don it aaalgn liability to any
penon. Subsequent government action In the
form of remedial action* or enforcement
action* will be nece**ary in order to do *o.
and these action* will be attended by all
appropriate procedural safeguard*.
The purpose of the NPL therefore, is
primarily to serve as an informational
tool for use by EPA In identifying «tes
that appear to present a significant risk
to public health or the environment The
initial identification for a site on the
NPL is intended primarily to guide EPA
is determining which sites warrant
further investigation to assess the nature
and extent of the public health and'
environmental risks associated with the
site and to determine what CERCLA-
financed remedial action(s). if any. may
be appropnate. Inclusion of a site on the
NPL does not establish that EPA
necessarily will undertake remedial
actions. Moreover, listing does not
require any action of an private parry.
nor does it determine the liability of any
party for the cost of cleanup at the site.
In addition, a site need not be on the
NPL to be the subject of CERCLA-
financed removal actions or of actions
brought pursuant to sections 106 and 107
of CERCLA.
In addition, although the MRS scores
used to place sites on the NPL may be
helpful to the Agency in determining
priorities for cleanup and other response
activities among sites on the NPL EPA
does not rely on the scores as the sole
means of determining such pnonties. as
discussed below. The information
collected to develop MRS scores is not
sufficient in itself to determine the
appropriate remedy for a particular site.
EPA relies on further, more deUiled
studies to determine what response, if
any. is appropriate. These studies will
take into account the extent and
magnitude of contaminants in the
environment the risk to affected
populations and environment, the cost
to correct problems at the site, and the
response actions that have been taken
by potential responsible parties or
others. Decisions on the type and'extent
. ot action to be taken at these sites are
' made in accordance with the criteria
contained in Subpari F of the NCP. After
conducting these additional studies.
EPA may conclude that it is not
desirable to conduct response action at
some sites on the NPL because of more
pressing needs at other sites. Given the
'.united resources available in the
Hazardous Substance Response Trust
Fund established under CERCLA. the
Agency must carefully balance the
relative needs for response at the
numerous sites it has studied. Also, it is
possible that EPA will conclude after
further analysis that no action Is needed
at a site because the site does not
present a significant threat to public
health, welfare, or the environment
m. NPL Update Process and Schedule
Pursuant to section 105(8)(B) of
CERCLA. 42 U.S.C. 980S(8)(B). EPA Is
required to establish, as part of the NCP
for responding to releases of hazardous
substances, a NPL of sites of such
-------
Federal Register / Vol. 50. No. 69 / Wednesday, April 10. 1985 / Proposed Rules
14117
releases. The pnncipal purpose of this
notice is to propose the addition to the
NPL of 26 new sites All of these sites
except one have MRS scores of 28.50 or
above The Lansdowne Radiation site,
Lansdowne. Pennsylvania, as described
in section V. is being proposed on the
basis of J 300 66{b)(4) of the recently
proposed amendments to the NCP (50
FR 5882. February 12. 1985).
CERCLA requires that the *JPL be
revised at least once per year.
Accordingly. EPA pi-blished the first
NPL (48 FR 40658J in September 1983.
containing 406 sites. In May 1984. EPA
recognized that a serious problem
required immediate remedial action and
therefore added 4 sites to the NPL (49 FR
19480). In September 1984. EPA added
128 sites to the NPL (49 FR 37030). An
additional 244 new sites were proposed
for inclusion as the second update to the
NPL on October 15.1984 (49 FR 40320).
On February 14.1985. EPA added two
sites in New Jersey to the NPL (50 FR
6320). For each proposed NPL update.
EPA informs the States of the closing
dates for submission of candidate sites
to EPA. This proposed update is the
second within one year and initiates
EPA's plan to increase the frequency of
updating of the NPL In addition to these
periodic updates. EPA believes it may
be desirable in rare Instances to propose
or promulgate separately individual
sites on the NPL because of the apparent
need for expedited remedial action. This
occurred in the case of the proposed
listing of Times Beach. Missouri (48 FR
(8311. March 4.1983). the promulgation
of four San Gabnel Valley. California,
sites (4B FR 19480. May 8.1984) and the
promulgation of two New Jersey radium
sites (February 14.1985. 50 FR 6320).
As with the establishment of the
initial NPL and subsequent revisions.
States have the primary responsibility
for selecting and scoring sites that are
candidates and submitting the candidate
sites to the EPA Regional Offices. States
may also designate a site as the State
pnonty site. The EPA Regional Offices
then conduct a quality control review of
the Slates' candidate sites. After
conducting this review, the EPA
Regional Offices submit candidate sites
to EPA Headquarters. The Regions may
include candidate sites in addition to
those submitted by States. In reviewing
these submissions. EPA Headquarters
conducts further quality assurance
audits to ensure accuracy and
consistency among the various EPA and
State offices participating in the scoring.
In this Federal Register notice, the
sites listed consist of sites not currently
on the NPL that the Agency is proposing
to add to the NPL These additions are
contained in the list immediately
following this preamble.
Public Comment Period
EPA requests public comment on
these 26 proposed sites. Comments on
the Lansdowne. Pennsylvania. Health
Advisory site only will be accepted for
30 days following the date of publication
of this notice in the Federal Register.
Comments on the remaining proposed
sites will be accepted for 60 days
following publication of this notice in
the Federal Register. EPA is also
soliciting comments on 6 Federal
facilities that have MRS scores of 28.50
or higher and that may be added to the
NPL in the future. The following section
of this preamble identifies these sites
and discusses EPA's Federal facility
approach. See the "ADDRESSES"
portion of this notice for information on
where to obtain documents relating to
the scoring of the 26 non-Federal and 8
Federal sites. After considering the
relevant comments received during the
comment period and determining the
final score for each site, the Agency will
add to the current NPL all proposed
sites that meet EPA's criteria for listing.
EPA may add the 6 Federal facility sites
contingent upon the outcome of
proposed changes to the NCP (50 FR
5862, February 12,1985). This is
discussed in greater detail in the
following section.
IV. Eligibility
CERCLA restricts EPA's authority to
respond to certain categories of releases
and expressly excludes some
substances from the definition of
release. In addition, as a matter of
policy. EPA may choose not to use
CERCLA to respond to certain types of
releases because other authorities can
be used to achieve cleanup of these
releases. Preambles to previous NPL
rulemakmgs have discussed examples of
these policies. See. e.g.. 48 FR 40658
(September 8.1983); 49 FR 37074
(September 21.1984): and 49 FR 40320
(October 15.1984). Generally, this
proposed update continues these past
eligibility policies: however, changes in
the RCRA sites policy are proposed, and
the Agency's policy of listing Federal
Facilities is discussed. In addition, the
Agency has evaluated one mining site
for this update that is not being
proposed for listing at this time. The
Agency intends to initiate discussions
with the Department of Ulterior (DOI) to
determine whether DOI will take
appropriate action under the Surface
Mining Control and Reclamation Act to
protect public health and the
environment at this site if it appears to
the Agency that remedial action will be
necessary.
RCRA Sites
In 1978. Subtitle C of the Resource
Conservation and Recovery Act (RCRA)
mandated a Federal program to provide
a "cradle-to-grave" management system
for hazardous wastes that exhibit
certain characteristics or are listed
under section 3001 of the Act. Persons
who generate, transport or treat, store or
dispose of listed wastes or wastes of
certain characteristics must comply with
management standards promulgated by
EPA. CERCLA also has authorities that
can be used to address problems
associated with wastes covered by the
RCRA regulatory program, as well as
other hazardous wastes and materials.
The Agency has considered eligible
for listing on the NPL those RCRA
facilities where a significant portion of
the release appeared to come from a
"non-regulated land disposal unit" of the
facility. Non-regulated land disposal
units are defined as portions of the
facility that ceased receiving hazardous
waste prior to January 26.1983. the
effective date of EPA's permitting
standards for Land Disposal facilities
(47 FR 32349. July 26.1982). Regulated
land disposal units of RCRA facilities
generally have not been included on the
NPL except where the facility is
abandoned or lacks sufficient resources
and RCRA corrective action could not
be enforced (49 FR 37074, September 21.
1984).
The Hazardous and Solid Waste
Amendments of 1984 have expanded the
Agency's authority to require corrective
measures under RCRA. Owners or
operators of RCRA treatment and
storage facilities are now required to
clean up releases of hazardous wastes
and hazardous constituents
(constituents listed in Appendix VIII of
40 CFR Part 261) from all solid waste
management units at the facility. New
corrective action authorities include the
following:
• EPA can issue an administrative
order to or initiate a civil referral
against the site owner or operator to
compel corrective action or any other
response necessary to protect human
health or the environment at interim
status facilities where there is or has
been a release of hazardous waste
[section 3006(h)).
• A facility to which a RCRA permit
is issued after November 8.1984. must
address all releases of hazardous waste
or hazardous constituents from any
hazardous or solid waste management
unit, regardless of the time at which
-------
14118
Federal Register / Vol. 50. No. 69 / Wednesday. April 10. 1985 / Proposed Rules
waste was placed in the unit [section
3004(u)|.
• EPA car. ,-equire the owners or
operators 01 some facilities sub|cct to
RCRA requirements to take corrective
action beyond tne facility boundary
unless the adjoining property owner
refuses permission [section 3004(v)|.
The Agency intends to use (he
expanded provisions of RCRA to the
extent practicable to effect cleanup of
releases fro.?, uniti that can be reached
under those authorities. _
In light of the new RCRA authorities.
and the Agency's intention to use them.
where practical, to effect cleanup, the
Agency is reconsidering the current
policy (49 FR 40324. October 15.1984) of
listing RCRA-related sites that have
MRS scores of 23.50 or above on the
NPL Specifically, the Agency is
considenng deferring listing RCRA-
related sites that score 28.50 or higher
on the NPL until the Agency determines
that RCRA corrective measures are not
likely to succeed due to factors such as:
(1) The inability or unwillingness of the
owner/operator to pay for such actions;
(2) the inadequacies of the financial
responsibility guarantees to pay for such
costs: or (3) the Agency or State
priorities for addressing the sites under
RCRA. This proposed deferred listing
policy would be applicable only to sites
with release* subject to RCRA Subtitle
C regulatory or enforcement authorities.
The following are examples of RCA-
related sites for which the Agency is
reconsidering its present listing policy:
• Sites at which a RCRA permit
addresses releases of hazardous waste
or hazardous constituents from
hazardous waste or solid waste
management units. Permit conditions
will specify corrective measures and
"those conditions can be enforced
through a compliance order or court
action. Action may also be taken under
RCRA section 7003 or CERCLA section
108 if there is an imminent and
substantial endangermenL
• Operating hazardous waste units
that have RCRA interim status. There
are no regulatory requirements for
corrective action applicable to interim
status units. EPA can compel corrective
action at its discretion under the
enforcement authority of section 3008(h)
if the Agency has inforation that there is
or has been a release of hazardous
waste, under RCRA section 7003 or
CERCLA section 106 if there is an
imminent and substantial
endangennent
• Solid waste management units
(activie or inactive) or closed RCRA
hazardous waste management units at
an operating intenm status facility. EPA
can use the intenm status corrective
action authority of section 3008(b) to
address releases from those units or a
RCRA permit compelling corrective
measures can be issued. Action may
also be taken under RCRA section 7003
or CERCLA section 108 if there is an
imminent and substantial
endangennent. Hazardous waste units
tnat ceased receiving hazardous waste
before January 28.1983. and solid waste
management units are eligible for the
NPL under the current policy.
• Closed hazardous waste
management units or active or inactive
solid waste management units at a
facility that has ceased treating, storing.
or disposing of RCRA hazardous waste.
The interim status corrective action
authority may be applicable to these
units. Hazardous waste land disposal
units that closed after January 28,1983.
are required to have a post-closure
permit. In addition. RCRA section 7003
or CERCLA section 108 may be used if
there is an imminent and substantial
endangermenL Hazardous waste land
disposal units that are closed before
January 28,1983 and solid waste
management units an eligible for the
NPL under the currant policy.
The Agency solicits comments on the
appropriateness of revising its present
RCRA listing policy by deferring listing
of RCRA-related sites until the Agency
determines that RCRA corrective
measures are not likely to succeed due
to factors such as: (1) The inability or
unwillingness of the owner/operator to
pay for such activities: (2) the
inadequacies of the financial
responsibility guarantees to pay for such
costs: and (3) EPA or State priorities for
addressing the sites under RCRA.
Commenters should address this
suggested revision to the listing policy
with respect to the examples of RCRA- ,
related sites mentioned above and are
asked to suggest other examples of
RCRA-related sites that may be
appropriate for deferred listing. The
Agency also solicits comments on
appropriate criteria to determine when
RCRA corrective measures are not likely
to succeed and listing is appropriate
(e.g.. inability or unwillingness of
owner/operator to pay for such actions
and EPA and State priorities). Listing
would oniybe considered for those sites
which score 28.50 or above.
In addition, the Agency intends to
apply any revised RCRA-related site
listing policy to RCRA-related sites that
are currently proposed or promulgated
on the NPL and. in appropriate cases.
delete sites from the NPL. For example.
such sites could be removed from the
proposed or final NPL if the Agency
determines that: (1) All necessary
corrective measures are likely to be
completed under RCRA authorities: and
(2) CERCLA Fund-financed activities.
such as remedial investigation/
feasibility studies, remedial design, or
remedial action, or CERCLA
enforcement action have not been
initiated. If such a policy were applied
to currently proposed and promulgated
sites on the NPL and it is determined
that such sites shcv.ild be removed from
the proposed or final NPL these si'es
could be relisted if Agency later
determines that RCRA corrective
measures at these sites are not likely to
succeed.
Four RCRA-related sites with HRS
scores of 28.50 or above were submitted
for consideration for Update *3. The
Agency applied the current RCRA listing
policy to these sites and has include
them in today's proposed listing. The
sites are: Love's Container Services
Landfill. Buckingham County. Virginia:
Conservation Chemical Compsy. Kansas
City. Missouri: Frit Industries.
Humboldt Iowa: and Union Chemical
Company. Inc.. South Hope. Maine. The
Agency may elect to defer a final
rulemaking decision on these four sites
until the Agency determines the
appropriateness of a revised RCRA
listing policy.
Release From Federal Facilities Sites
CERCLA section lll(e)(3) prohibits
use of the Fund for remedial actions at
Federally owned facilities, and
S 300.88
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Federal Register / Vol. 50. No. 69 / Wednesday, April 10. 1985 / Proposed Rules
H119
sS. s** '
Sftenama
City or county
cjtaqory
OeanuD
UO ' Aoaraaan Proving Gm*o£ agaajuuJ
OK T«war »F8 iSoUar Craak/BUg 3001)
PA ' Lanamanny Army Oaoot (POO Anal
H [ Jo-el Army Arnmuranon Plant (LAP Ana)
CA Monan Naval Ar Suocn
I
MfMx Browig Ground-UcnMKvvto UndM
Friniim County
,'JOMI
Sumyvitt
i Aowdaen
R
. fl
F.Faovu «nioteam«nt O-Actun 10 M daumnaff B-Faoarti «nd SUM
1 V • Vaunt** or nagottalad m
Raioonaa S ' Sun entorcamenL
' i „ imowmnution tcivny unaamy an* or mom ooanuxa unm O-Ona or moia
M unoenny C •. imeiamanmon activity comomad fc» *g ooatina mil
The Agency is soliciting comments on
the scoring of these sites and may
promulgate the sites without soliciting
further comments if the Agency decides
to amend the NCP and include Federal
facilities in future NPL listings.
V. Contents of the Proposed Third NPL
Update
All of the sites, except one, included
in today's proposed revision to the NPL
meet the Agency's criteria for listing of
an HRS score of 28.50 or above. The
Lansdowne Radiation site. Lansdowne,
Pennsylvania is being proposed on the
basis of S 300.66(b)(4) of the recently
•proposed amendments to the NCP (50
-FR 5882. February 12.1985).
Section 300.66{b){4) provides that "in
addition to those releases identified by
•their HRS scores as candidates for the
NPL EPA may identify for inclusion on
the NPL any other release that the
Agency determines is a significant
threat to public health, welfare or the
environment. EPA may make such a
determination when the Department of
Health and Human Services has issued
a health advisory as a consequence of
the release."
The Lansdowne Radiation site
consists of a residential duplex in
Lansdowne. Pennsylvania. For
approximately 20 years, beginning in the
1930's, the basement of the duplex was
used by a radio-chemist to manufacture
radium sources for radiotherapy. In
1964. the property was decontaminated
by the Pennsylvania Department of
Health and the U S. Public Health
Service and the property was certified
safe for residential use.
In 1984. measurements of radon and
radon daughters in the indoor
atmosphere of the property indicated
elevated levels of radiation. The study.
conducted by the Argonne National
Laboratory concluded that many
measurements of radon daughters
exceed EPA recommended action levels
and many measurements of external
gamma radiation exceed the EPA
remedial action guideline of 20
microroentgens per hour.
In light of this information, the
Department of Health and Human
Services (HHS) issued a health advisory
on March 5,1985. citing that the entire
duplex structure should be considered to
.pose a significant health nsk to long-
term occupants. With the issuance of the
health advisory and the apparent need
for remedial action, the Agency is
proposing the addition of the
Lansdowne Radiation site to the NPL
Upon promulgation of S 300.86(b)(4) of
the NCP, the Agency may add the
Lansdowne site to the final NPL
Each entry on the proposed third NPL
update contains the name of the facility.
the State and city or county in which it
is located, and the corresponding EPA
Region. A site EPA is proposing to add
is placed by score in a group
corresponding to the groups of SO sites
presented within the final NPL For
example, sites in group 3 of the
proposed update have scores that fall
within, the range of scores covered by
the third group of 50 sites on the final
NPL Each entry on this proposed update
and at sites already on the NPL is
accompanied by one or more notations
referencing the status of response and
cleanup activities at the site at the time
this list was prepared. This site status
and cleanup information is described
briefly below.
EPA categorizes the NPL sites based
on the type of response at each site
(Fund-financed. State enforcement.
Federal enforcement and/or voluntary
action). In addition, codes indicating the
general status of site cleanup activities
are provided. EPA is including the
cleanup status codes to identify sites
where significant response activities are
underway or completed. The cleanup
status codes on this NPL update are
included in response to public requests
(or information regarding actual site
cleanup activities and to acknowledge
situations where EPA. States, or
responsible parties have undertaken
response actions. The status codes for
these proposed sites and all final NPL
sites will be updated each time EPA
promulgates additional sites to the NPL.
Response Categories
The following response categones are
used to designate the type of response
underway. One or more categories may
apply to each site
Voluntary or Negotiated Response
l\') Sites are included in this category if
private parties have started or
completed response actions pursuant to
settlement agreements or consent
decrees to which EPA or the State is a
party This category includes privately-
financed remedial planning, removal
actions, initial remedial measures and/
or remedial actions.
Federal and/or State Response iR).
The Federal and/or State Response
category includes sites at which EPA or
State agencies have started or
completed response actions These
include removal actions.
nonenforcement remedial planning.
initial remedial measures. And/or
remedial actions under CEPCLA [NCP.
S 300.66{fMi) 47 FR 31217. |uly 16.1982|.
For purposes of assigning a :ategory, the
response action commences when EPA
obligates funds.
Federal Enforcement (F) This
category includes sites wheie the United
States has filed a civil complaiht
(including cost recovery actions) or
issued an administrative order It also
includes sites at which a Federal court
has mandated some form of response
action following a judicial cro:eedmg.
All sites at which enforcement-lead
.remedial investigations ana feasibility
studies are underway are also included
in this category.
A number of sites on the NPL are the
subject of investigations or have been
referred to the Department of Justice for
possible enforcement action. EPA's
policy is not to release information
concerning a possible enforcement
action until a lawsuit has been Hied.
Accordingly, these sites are not included
in this category, but are included under
"Category To Be Determined."
State Enforcement (S). This ca»e«nry
includes sites where a State has filed a
civil complaint or issued an
administrative order. It also includes
sites at which a State court has
mandated some form of response action
following a judicial proceeding. Sites
where State enforcement-lead remedial
investigations and feasibility studies are
underway are also included in this
category.
It is assumed that State policy
precludes the release of information
concerning possible enforcement action
until such action has been formally
taken. Accordingly, sites subject to
possible State legal action are not
included in this category, but are
included under "Category To Be
Determined."
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Federal Register / Vol. 50. No. 69 / Wednesday. Apnl 10. 1985 / Proposed Rules
Category To Be Determined (D). This
category includes all sites not listed in
any other category. A wide range of
activities may be in progress at sites in
this category EPA or a State may be
evaluating the type of response action to
undertake, or an enforcement case may
be under consideration. Responsible
parties may be undertaking cleanup
actions that are not covered by a
consent decree or an administrative
order.
Cleanup Status Codes
EPA has decided to indicate the status
of Fund-financed or private party
cleanup activities underway or
completed at proposed and final NPL
sites. Fund-financed response activities
which are coded include: significant
removal actions, initial remedial
measures, source control remedial
actions, and off-site remedial actions.
The status of cleanup activities
conducted by responsible parties under
a consent decree, court order, or an
administrative order also is coded.
Remedial planning activities or
engineering studies do not receive a
cleanup status code.
Many sites listed on the NPL are
cleaned up in stages or "operable units."
For purposes of cleanup status coding.
an operable unit is a discrete action
taken as part of the entire site cleanup
that significantly decreases or
eliminates a release, threat of release, or
pathway of exposure. One or more
operable units may be necessary to
complete the cleanup of a hazardous
waste site. Operable units may include
removal actions taken to stabilize
deteriorating site conditions, initial
remedial measures, and remedial
actions. A simple removal action
(constructing fences or berms or
lowering free-board) that does not
eliminate a significant release, threat of
release, or pathway of exposure is not
considered an operable unit for
purposes of cleanup status coding.
The following cleanup status codes
[and definitions) are used to designate
the status of cleanup activities at
proposed and final sites on the NPL
Only one code is ased to denote the
status of actual cleanup activity at each
site since the code are mutually
exclusive.
Implementation Activities Are
Underlay for One or More Operable
Units (1). Field work is in progress at the
site for implementation of one or more
removal or remedial operable units, but
no operable units are completed.
Implementation Activities An
Completed for One or More (But Not
All) Operable Units. Implementation
Activities May be Underway For
Additional Operable Units (O). Field
work has been completed for one or
more operable units, but additional site
cleanup actions are necessary.
Implementation Activities Are
Completed for All Operable Units (C).
All actions agreed upon for remedial
action at the site have been completed.
and performance monitoring has
commenced. The site will be considered
for deletion from the NPL subsequent to
completion of the performance
momtonng and preparation of a deletion
recommendation. Further site activities
could occur if EPA considers such
activities necessary.
VI. Regulatory Impact Analysis
The costs of cleanup actions that may
be taken at sites are not directly
attributable to listing on the NPL. as
explained below. Therefore, the Agency
has determined that this rulema
-------
Federal Resistor / Vol. 50. No. 69 / Wedne»day. April 10. 1965 / Proposed Rules
The act of listing a hazardous waste
site on the final NPL does not
necessanly cause firms responsible for
the site to bear costs. Nonetheless, a
listing may induce firms to dean up the
sites voluntarily, or it may act as a
potential trigger for subsequent
enforcement or cost recovery actions.
Such actions may impose costs on Grins.
but the decisions to take such actions
are discretionary and made on a case-
by-case basis. Consequently, precise
estimates of these effects cannot be
made. EPA does not believe that every
site will be cleaned up by a responsible
party. EPA cannot protect at this time
which firms or industry sectors will bear
specific portions of response costs, bnt
the Agency considers such factors as:
the volume and nature of the wastes at
the site to the parties: ability to pay; and
other factors when deciding whether
and how to proceed against potentially
responsible parties.
Economy-wide effects of this
proposed amendment are aggregations
of effects on firms and Slate and local
government*. Although effects could be
felt by some individual firms and Slates.
the total impact of this revision on
output prices, and employment is
expected to be negligible at the national
level, as was the case in the 1982 RIA.
Benefits
The benefits associated with today's
proposed amendment to fast additional
sites are increased health and
environmental protection as a result of
increased public awareness of potential
hazards. In addition to the potential for
more Federally-financed remedial
actions, this proposed expansion of the
NPL could accelerate privately-financed.
voluntary cleanup efforts to avoid
potential adverse publicity, private
lawsuits, and/or Federal or State
enforcement actions.
As a result of the additional NFL
remedies, there will be lower human
exposure to high risk chemicals, and
higher quality surface water, ground
water, soil, and air The magnitude of
these benefits is expected to be
significant, although difficult to estimate
m advance of completing the RI/FS at
these particular sites.
Associated with the cost* of remedial
actions are significant potential benefit*
and cost offsets. The distributional costs
to firms of financing NPL remedies have
corresponding "benefits" in that funds
expended for a response generates
employment, directly or indirectly
[through purchased materials).
Vtt. Regulatory FfedbiHty Ad ABatyate
The Regulatory Flexibility Act of 1980
requires EPA to review the impacts of
this action on small entities, or certify
Chat the action will not have a
significant impact on a substantial
number of small entities. By small
entities the Act refers to small
businesses, small governmental
jurisdictions, and nonprofit
organizations.
While proposed modifications to the
NPL are considered revisions to the
NCP. they are not typical regulatory
changes since the revisions do not
automatically impose costs. The
proposed listing of sites on the NPL does
not in itself require any action of any
pnvate party, nor does it determine the
liability of any party for the cost of
cleanup at the site. Further, no
identifiable groups are affected as a
whole. As a consequence, it is hard to
predict impacts on any group. A site's
proposed inclusion on the NPL could
increase the likelihood thai adverse
impacts to responsible parties (ia the
form of cleanup costs) will occur, but
EPA cannot identify the potentially
affected businesses at this ttane not
estimate a number of small businesses
that might be affected.
The Agency does expect that certain
industries and firms within industries
that have caused a proportionately high
percentage of waste site problems could
be significantly affected by CERCLA
actions. However. EPA don not expect
the impacts from the proposed listing of
these 28 sites to have a significant
economic impact on a substantial
number of small businesses.
In any case, economic impacts would
only occur through enforcement And cost
recovery actions which are taker at
EPA's discretion on a site-by-siii basis.
EPA considers many factors when
determining what enforcement a> 'lions
to take, including not only the fir n's
contribution to the problem, but HBO the
firm's ability to pay. The impacts [from
coat recovery) on small governments
and nonprofit organizations wouid be
determined on a similar case-by-case
basis.
List of Subjects in « CFR Part »
Ak pollution control. Chemicals.
Hazardous materials. Intergovernmental
relations. Natural resources, Oil
pollution. Reporting and recordkeeping
requirements. Superfund. Waste
treatment and disposal, Water poDutkn
control. Water supply.
pARTMO-fAMENOED]
It is proposed to amend Appendix B of
40 CFR Part 300 by proposing to add the
following sites to the National Priorities
List
Authority: 42 U&C 8601-8667
Dated: Much 2ft. 1884.
Adauaiitnlar.
NATIONAL Pmowncs Lnrr. Pnwoaee UPDATE 3 9rra
EPARG.I
OS M Hod
OS OS CM
OT M Ml
M*
06 M
09 PA
02 NJ
rOo.
(Ton*
.Jo
*
0
10
a* PA
*•_ ~ . ______ l-
------ ---- ' 0
-------
14122
Federal Register / Vol. 50. No. 69 / Wednesday. April 10. 1985 / Proposed Rule9
NATIONAL PWORITIES UST. PROPOSED UPDATE 3 SITES—Continued
EPA RG. Stnt ML and Mm*
04 NC
Nttonri SMcn « Owned Cap
OUT 01 «•«»
C(^£|ay „ . „
ctHgonr1
0
«. 3
O
010*11
I Co.
03 PA RMWl LmdM
97 MO Cu»»»»«uun Om
OS «M
03 PA Uirtnarn taauon SIM
0
R r
R
R
[Fit Doc. 85-8587 Filed 4-9-85; 8.45 am]
•JJMO COM MM IB •
FEDERAL MARITIME COMMISSION
48CFRCh.IV
[Docket No. •»-•]
Inquiry Concerning interpretation of
Section 8(a) and Section 8
-------
-------
r.egii.er /
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Federal Register / Vol. 50. No. 103 / Wednesday. May 29. 1985 / Proposed Rules
21877
comments will be a\ailab!e for public
inspection in Rm. 236 at the address
given above, from 8 a.m. to 4 p.m..
Monday through Friday, except legal
holidays.
FOR FURTHER INFORMATION CONTACT:
By mail. Donald Stubbs. Emergency
Response and Minor Use Section (TS-
767C), Registration Division,
Environmental Protection Agency. 401
M St.. SW.. Washington. D.C. 2D4~60.
Office location and telephone number.
Rm. 716B. CM =2.1921 Jefferson Davis
Highway. Arlington. VA 22202. (703-
557-1192).
SUPPLEMENTARY INFORMATION: The
Interregional Research Project No. 4 (1R-
4), New Jersey Agricultural Experiment
Station. P.O. Box 231, Rutgers
University, New Brunswick. NJ 08903.
has submitted pesticide petition 3E2819
to EPA on behalf of Dr. Robert H.
Kupelian, National Director. IR-i Project
and the Agricultural Experiment
Stations of Hawaii. Idaho. Michigan.
New Jersey. Washington. Wisconsin.
and the U.S. Department of Agriculture.
This petition requested that the
Administrator, pursuant to section
408[e) of the Federal Food'Drug, and
Cosmetic Act, propose the.
establishment of a tolerance for the
combined residues of the insecticide
chlorpynfos |O O-diethyl O-(3.5.6-
trichloro-2-pyndyI) phosphorothioate)
and its metabolite 3.5.6-tnchloro-2-
pyndinol in or on the raw agricultural
commodity crop group Brcssica [cole]
leafy vegetables, as defined in 40 CFR
180.34(0- at 2 parts per million (ppm).
The petition was later amended to
propose a tolerance of 2 ppm [of which
no more than 1 ppm is chlorpynfos).
The data submitted in the petition and
other relevant material have been
evaluated. The pesticide is considered
useful for the purpose for which the
tolerance is sought. The lexicological
daia considered in support of the
proposed tolerance were a 2-year rat
fceding/oncoge.nicity study (core
supplementary data) with a red-blood-
cell (RBC) cholmesterase (ChE) no- '
observed-effect level (NOEL) of 0.1
milligram (mgj/kilogram [kgj/day and
negative for oncogenic effects under the
conditions of the study at all levels
tested (0.03.0.1.1.0 and 3.0 mg/kg): a 2-
year dog feeding study (core
supplementary data) with an RBC ChE
NOEL of 0.1 nig/kg/day and a NOEL of
3.0 mg/kg/day (highest dose tested) for
systemic effects: a voluntary human
study with a ChE NOEL of 0.03 mg/kg/
day (based on 20 days of exposure at
'his level): a 2-year mouse oncogenicitv
study (core supplementary data] which
was negative for oncogenic effects
under the conditions of the study at all
levels tested (0.5.5.0 and 15 ppm): a 3-
generalion rat reproduction study [core
minimum data] with a NOEL for
reproductive effects at 1.0 mg/kg/day
(highest dose tested); a rat teratology
study (core minimum data) which was
negative for teratogenic effects at 15.0
mg/kg/day: a mouse teratology study
(core minimum data] which was
negative for teratogenic effects at 25.0
mg/kg/day [highest dose tested); and an
acute delayed neurotoxicily study in the
hen (core minimum data] which was
negative at 100 mg/kg. The registrant
has agreed to repeat oncogenicity
studies in two species, and chronic
feeding studies in two species. These
studies are to be submitted to the .
Agency no later than October of 1988.
Tolerances are currently established
for residues of the insecticide at 2 ppm
in or on the following raw agricultural
commodities in the crop group Brossica
(cole) leafy vegetables: Broccoli.
Brussels sprouts, cabbage. Chinese
cabbage and cauliflower. With the
establishment of the proposed crop
group tolerance, tolerances would also
be established for residues of the
insecticide in or on collards. kale.
kohlrabi. Chinese broccoli. Chinese
mustard cabbage, broccoli raab.
mustard greens and rape greens at 2
ppm.
The provisional acceptable daily
intake (PADI). based on the human
voluntary ChE study (ChE NOEL of 0.03
mg/kg/day) and using a 10-fold safety
factor, is calculated to be 0.003 mg/kg of
body weight [bw)/day. The maximum
permitted~mtake (MPJ) for a 60-kg
human is calculated to be 0.1 B mg/day.
The theoretical maximum residue
contribution (TMRC) from existing
tolerances for a 1.5-kg daily d'ct rs
calculated to be 0.5637 mg/day: the
current action for collards will increase
the TMRC by 0.002-J5 mg'day. 0.43
percent: kale by 0.00090 mg/day. 0.16
percent: kohlrabi by 0.00090 mg/day.
0.16 percent: mustard greens by 0 00184
mg/day. 0.33 percent: and the remainder
of the Brassica group (Chinese broccoli.
Chinese mustard cabbage, broccoli raab
and rape greens) by 0.00090 mg/day. ,
0.16 percent.
Although there are significant data
gaps for the chemical, the Agency has
concluded that the amount of
chlcrpynfos added to the diet from the
proposed uses will not significantly
increase dietary exposure in humans.
Thus, the tolerance that will be
established by this proposed rule is
considered to pose a negligible
increment in risk.
The nature of the residues is
adequately understood and an adequate
analytical method, gas-liquid
chromatography. is available for
enforcement purposes. There are
presently no actions pending against the
continued registration of this chemical.
Based on the above information
considered by the Agency and the fact
that currently established tolerances for
meat and milk are adequate to cover
any residues resulting from use as
animal feed the tolerance established
by amending 40 CFR 180.342 would
protect the public health. Therefore, it is
proposed that the tolerance be
established as set forth below.
Any person who has registered or
submitted an application for registration
of a pesticide, under the Federal
Insecticide. Fungicide, and Rodenlicide
Act (FIFRA) as amended, which
contains any of the ingredients listed
herein, may request within 30 days after
publication of this notice in the Federal
Register that (his rulcmakmg proposal
be referred to an Advisory Commitlee in
accordance with section 408(e) of the
Federal Food. Drug, and Cosmetic Act.
Interested persons are invited to
submit written comments on the
proposed regulation. Comments must
bear a notation indicating the documrr
control number [PP 3E2819/P366). AH
written comments filed in response to
this petition will be available in the
Information Sen-ices Section, at the
address given above from B a.m. to 4
p.m. Monday through Friday, except
legal holidays.
The Office of Management and Budget
has exempted this rule from the
requirements of section 3 of Executive
Order 12291.
Pursuant to the requirements of the
Regulalory Flexibility Act (Pub. L 96-
354. 94 Stat. 1164. 5 U.S.C. 601-612). the
Administrator has determined that
regulations establishing new tolerances
or raising tolerance levels or
establishing exemptions from tolerance
requirements do not have a significant
economic impact on a substantial
number of small entities. A certification
statement to this effect was published in
the Federal Register of May 4.1981 (46
FR 24950J.
List of Subjects in 40 CFR Part 180
Administrative practice and
procedure. Agricultural commodities.
Pesticides and pests.
-------
21873
ei BTLI
D.iiud M.IJ 14.
Robert V. Brown.
Art ing Director. Rf>«istrotioi, Division. Offit,e
afl'estiaae Programs.
PART 180—[AMENDED]
Therefore, it is proposed that 40 CFR
Part 180 be emended as follows:
1. The authority citdtion for Part 180
continues to read to follows-
Authority: 21 U.5.C. 346a
2. Section 180.342 is amended by
removing the commodities broccoli.
Brussels sprouts, cabbage. Chinese
cabbage, and cauliflower and adding
and alphabetically inserting the raw
agricultural commodity crop group
Brcssica (cole) leafy vegetables, to read
as follows:
§180.342 Chlotpyrifos; tolerances for
residues.
Commotuei
Pans per mllion
• • •
Broccoli Iwflovcd 1 _ _ _.._
PIVPHHS sprouts (rerttMHll . .
Cattaoe Qnnese (removwJl _
CauMiowar [renovaa]
• *
_ 2 (removed
_ 2 (removeOl
2 (removed
_ 2 (removed]
_ 2 (lemmeoL
VegeiaMes. learv Bnaia fccle) 2 (01 »(•<«. no more
than 1 ppma
eWoroynlosL
|FR Doc. 65-12416 Filed 5-25-35.845 nm|
6ILUNC COOt 6560-W-M
DEPARTMENT OF TRANSPORTATION
Coast Guard
45 CFR Parts, 25,26. 30,33,35,70,75,
78, 90, 94, 97,108,109,160, 167,175,
176,180.185,188,192, and 196
ICGD 78-1741
Inflatable Life Jackets and Hydbrid
PFD's
AGENCY: Const Guard. DOT.
ACTION: Proposed rules.
SUMMARY: This notice proposes
approval and operating requirements for
inflatable life jackets and hybrid
infla table personal notation devices
(hybrid PFD's). Their use would be
optional but. if carried, certain
limitations would apply. To be counted
.toward Coast Guard carriage
requirements on recreational boats and
uninspected commercial vessels, hybrid
PFDs would be REQUIRED TO BE
WORN when the intended wearer was
not within an enclosed space and
underway. Inflatable life jackets would
be allowed only on certain inspected
vessels and submersible* mid would
have to be serviced annually at
approved servicing facilities. Inflatable
life jackets need only minimal siow.ige
space and would be well suited fur use
on vessels that have stowage space and
weight limitations. Since hybiid PFD's
have reduced inherent buoyancy, they
ere less bulky, making them more
comfortable to wear. This comfort
feature should result in increased wear
rates and lead to a corresponding
reduction in the number of drownings in
boating accidents.
DATES: Comments must be received on
or before: July 15.1985.
ADDRESSES: I. Comments should be
mailed to the Commandant G-CMC/21)
(CGD 76-174). U.S. Coast Guard. 2100
Secojd St., SW., Washington. D.C.
20593. Comments may be delivered to
and will be available for inspection and
copying a! the Marine Safety Council
(G-CMC/21). Room 2110. U.S. Coast.
Guard Headquarters. 2100 Second St..
SW., Washington. D.C. between the
hours of 6.00 a.m. and 4:00 p.m. Monday
through Friday.
2. A draft regulatory evaluation has
been included in (he public docket for
this rulemakmg and may be inspected
and copied at the Marine Safety Council
(G-CMC/21) at the address listed above.
The other materials referenced in this
document are also available for
inpsection and copying in the public
docket.
3. Copies of Coast Guard studies
discussed in this document are also
available from the National Technical
Information Service. Springfield, VA
2215] by referring to ihcir publication
numbers. The publication number for
Report No. CG-M-5-81 is AD A107941.
The publication number for Report No.
CG-M-84-1 (16714) is PB 84 156900,
4. UL Standard 1517. which is
referenced in proposed Subpart 160.077,
may also be obtained from Underwriters
Laboratories. Standards Dept., Attn: Mr.
C. 1. Provo-st. 333 Pfinastcn Road.
Northbrouk IL60062. The L'L revision
incorporated into this proposal is dated
November 111904.
FOR FURTHER INFORMATION CONTACT:
Mr. Samuel Wehr. Office of Merchant
Marine Safety. (202) 426-1444.
SUPPLEMENTARY INFORMATION:
Request for Comments
Interested persons are muted to
participate in this proposed rulemaking
{NPRM) by submitting written views.
data, or arguments. Comments should
include names and addresses of persons
making them, identify this NPRM (CCD
78-174) and the specific section or
of the NPRM to which ij.n.h
comment applies, and g:ie reasons Fur
ewch common! The rug-.iloiions may bij.
changed in light of comments received.
All comments received before the
expiration of the comment period will be
considered before final action is taken
on this proposal.
No public hearing is planned, hut one
may be held if a written request fur a
hearing istreceived and it is determined
that an opportunity to make oral
presentations will aid (he rulemaking
process.
ANPRM
On March 15.1979, the Coast Guard
published an Advance Notice of
Proposed Rulemaking (ANPRM) in the
Federal Register (44 FR 15923). Fifty-one
comments were received. Most
commenters raised issues and concerns
relating to inflatable life jacket
reliability Comments are spectrally
requested as to whether these issues
and concerns are adequately addressed
in the various provisions in this NPRM.
Early Application* for Hybrid PFD
Evaluation
The Coust Guard encourages
manufacturers to submit applications for
evaluation of hybrid PFD's while final
action on this NPRM is pending.
Evaluation of proposed designs.
including alternatives submitted under
proposed § 160 Or7-33(c). mav disclose a
need for clarification of the proposed
standards and will expedite issuing
approvals upon publication of the final
rule. Substantial changes in the
performance standards are not
anticipated because (hey closely follow
a published industry standard. Prompt
action on approvals will allow a
significant number of hybrid PFD's to bu
available prior to the 1986 boating
season.
Additional Requirements for
Recreational Boats and OCS Facilities
Elsewhere in this issue of the Federal
Register. The Coast Guard is proposing
to amend the requirements concerning
the carnage of hybrid PFD's on
recreational boats and Outer
Continental Shelf Facilities to conform
to this proposal.
Drafting Information
The principal persons involved in
drafting this proposal were: Mr. Samuel
Wehr and LTjg Timothy R. Girlon.
Office of Merchant Marine Safety, and
Mr. William Register. Office of the Chief
Counsel.
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Monday
September 16, 1985
Part II
Environmental
Protection Agency
40 CFR Part 300
National Oil and Hazardous Substances
Contingency Plan; Final Rule
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37624
Federal Register / Vol. 50. No. 179 / Monday. September 16. 1965 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
ISWH-FRL 2853-lal
National OH and Hazardous
Substances Contingency Plan
AGENCY: Environmental Protection
Agency.
ACTION; Final rule.
SUMMARY: Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA) and Executive
Order 12316. the Environmental
Protection Agency (EPA) is amending
§ 300.66(b) of the National Contingency
Plan (NCP). As amended. 5 300.66(b)(4)
adds a mechanism by which EPA can
place sites on the National Priorities List
(NPL) promulgated pursuant to section
105 of CERCLA. This section allows the
EPA to list sites on the NPL under
certain limited circumstances where a
site would not have previously qualified
but where a public health threat exists
and where a Fund-Financed remedial
action may be warranted and more cost-
effective than a removal action.
DATES: The effective date for
§ 300.66(b)(4) of the NCP shall be
October 16.1985.'
ADDRESSES The public docket for
S 300.66(b)(4) of the revised NCP is
located in the sub-basement of the U.S.
Environmental Protection Agency. 401M
Street SW.. Washington. DC 20460. and
is available for viewing from 9:00 a.m. to
4:00 p.m. Monday through Friday.
excluding holidays.
FOR FURTHER INFORMATION CONTACT:
Linda Carczynski. Office of Emergency
and Remedial Response (WH-54B D).
U.S. Environmental Protection Agency.
401 M Street SW. Washington. DC
20460. oc telephone the RCRA/
Superfund Hotline at (800) 424-9346 or in
the Washington. DC area (202) 382-3000.
SUPPLEMENTARY INFORMATION:
I. Introduction
Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation and Liability
Act of 1980. 42 U.S.C. 9605 ("CERCLA"
or "the Act") and Executive Order
12316. the Environmental Protection
Agency ("EPA" or "the Agency"), on
February 12.1985, proposed revisions to
the National Contingency Plan (NCP) (50
FR 58G2). Section 300.66(b)(4) of these
proposed revisions would expand the
circumstances under which EPA can list
a release on the National Priorities List
(NPL) and thus make it eligible for Fund-
financed remedial action. EPA provided
a 30-day comment period on
9 300.66(b)(4) rather than the 60-day
comment period provided for the
remainder of the proposed revisions of
the NCP. The Agency received 18
comments during the comment period on
proposed § 300.66(b](4).
Today, the Agency is promulgating
S 300.66(b)(4] of the NCP. essentially as
it was proposed. The Agency has
carefully considered all of the public
comments submitted on i 300.68(b)(4) of
the proposed revisions to the NCP. In
response to the public comments, the
Agency has made a clarifying change in
the language of S 300.66(b)(4) and
explains below how the Agency expects
to use this provision of the NCP.
All significant comments on
§ 300.66(b)(4) and the Agency's
responses to them are discussed in
sections III-VIII of this notice. All other
actions on the February 12.1985.
proposed revisions to the NCP will be
taken in a separate rulemaking at a later
date.
The Agency is also adding the
Lansdowne Radiation Site in
Lansdowne. PA. to the final NPL in a
separate final rulemaking. The
Lansdowne Site was proposed to be
added to the NPL in the NPL Update #3
on the basis of proposed § 300.66(b)(4)
of the NCP (50 FR 14115. April 10.1985).
At that time, the Agency stated in the
preamble that EPA would not add the
Lansdowne Sits to the final NPL until
S 300.66(b)(4) ut the NCP became final.
II. Purpose of S 300.66(b)(4)
1 CERCLA •ectiun 305 provide! for • legislative
veto of regulations promulgated under CERCLA.
Although /,VS v Chadhu. 4U U.S.C 919.103 S Ct.
::M (1983). c»fl the validity of Ihe legislative veto
into quesliun. EPA has lmn»rmlt«d i copy of Ihn
regulation lo Ihe Secret*? of Ihe Senate *nd Ihe
Clerk at Ihe Home of Keproenldlives. II any action
by Congress calls the effective dale of ihn
n-xiilaiion into queilion. Ihe Agency will publish e
nuiiee of djWicalion in Ihe Fodonl KefMar.
Section 10S(8)(A) of CERCLA requires
that the NCP include criteria for
determining priorities among releases or
threatened releases throughout the
United States for Ihe 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 action involves cleanup or
other actions that are taken in response
to emergency conditions or on a short-
term or temporary basis (CERCLA
section 101(23)1. Remedial action tends
to be long-term in nature and involves
response actions which are consistea*
with the permanent remedy for a release
(CERCLA section 101(24)).
To be eligible for Fund-financed
remedial action, a site must be listed on
the NPL (40 CFR 300.68(a)). The primary
purpose of the NPL is to serve as an
informational tool for use by EPA m
identifying sites that appear to present a
significant risk to public health or the
environment.
The initial identification of a site of
the NPL is intended primarily lo guide
EPA in determining which sites warrant
further investigation in order to assess
the nature and extent of the public •
health and environmental risks
associated with the site and to
determine what response action, if any.'
may be appropriate. Inclusion of a site •
on the NPL does not establish that EPA •
necessarily will undertake response
actions. Moreover, listing does not •;
require any action of any private party.!
nor does it determine the liability of any
party for the cost of cleanup at the site..
In addition, the NPL serves as guidance
to EPA in setting priorities among sites
for possible response actions. Criteria •
for determining priorities for listing oa i
the NPL are included in the Hazard ~
Ranking System (HRS). which EPA
promulgated as Appendix A of the NCP
(47 FR 31219. July 16.1982). A release
will also be listed on the NPL if the
release is designated by a State as its
highest priority release (40 CFR
300.66(d)(3)).
The Agency has found that the HRS
generally provides a go»d estimated o'
the relative hazards at sites for the
purpose of establishing a list of national
priorities for possible remedial action.
The HRS total score used for the NPL is
designed to take into account a standard
set of factors related to the potential for
harm from migration of substances
through ground water, surface water.
and the air. The HRS also provides an
approximation of harm from direct
contact with substances and from the
possibility of fire and explosion. The
pathway scores for direct contact and
fire and explosion, however, are not
considered in computing the HRS total
score of a site for purposes of listing.
Rather, scores from the direct contact
and fire and explosion pathways are
used as guidance in determining the
need for removal action at a site. A site
need not be on the NPL to qualify for
Fund-financed removal action.
Since the direct contact scores are not
included m calculating the HRS total
score for purposes of listing sites on the
NPL some of the sites involving direct
contact to residents, where remedial
action, rather than removal action.
appear* necessary to address the
problem, may not receive a sufficient1
high HRS total score to be listed on (
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Federal Register / Vol. 50. No. 179 / Monday. September 16. 198S / Rules and Regulations 37625
NPL to make them eligible for remedial
action. There are also other
circumstances where a site would not
ualify for the NPL under the MRS but
.There a public health threat exists and
where a Fund-Financed remedial action
may be warranted and more cost-
effective than a removal action. One
example is a site where a small number
of people are or will be exposed to a
hazardous substance. The HRS was
designed so that larger exposed
populations receive higher scores than
smaller exposed populations.
The Lansdowne Radiation site in
Lansdowne. Pennsylvania, is an
example of a site that presents a
significant risk to the public that may
warrant remedial action, although its
HRS total score is too low for the site to
be include on the NPL This site consists
of a residential duplex where for
approximately 20 years, beginning in the
1920's. the basement of the duplex was
used by a radiochemist to manufacture
radium sources for radiotherapy. In
1964. the property was decontaminated
by the Pennsylvania Department of
Health and the U.S. Public Health
Service, and the property was certified
safe for residential use. In 1984.
measurements of radon and radon
daughters in the indoor atmosphere of
the property indicated elevated levels of
radiation. The study, conducted by the
Argonne National Laboratory concluded
that many measurements of radon
daughters exceeded EPA recommended
action levels and many measurements
or external gamma radiation exceeded
the EPA remedial action guideline of 20
microroentgens per hour. On March S.
1985. HHS issued a public health
advisory citing that the entire duplex
structure should be considered to pose a
significant health risk to long-term
occupants. EPA'a current assessment is
that remedial action (e.g.. permanent
relocation) as opposed to a removal
action—may be the most cost-effective
response that adequately protects
human health and the environment.
Lansdowne was proposed to be added
to the NPL in the NPL Update *3 (50 FR
14115. April 10.1985fort the basis of
i 300.66(b)(4) of the proposed NCP.
EPA is promulgating { 300.66(b)(4) to
address situations like those existing at
the Lansdowne site. Several
commenters suggested that adoption of
I 300.66{b)(4) will add large numbers of
sites to the NPL resulting in a decrease
in the effectiveness of CERCLA. EPA.
however, intends to apply { 300.66(b)(4)
to a limited number and type of sites. To
qualify for inclusion on the NPL through
the application of I 300.66(b)(4) as
promulgated In today's rulemaking.
several criteria must be met: (1) The
Agency for Toxic Substances and
Disease Registry (ATSDR) must have
issued a public health advisory
recommending dissociation of
individuals from the source of harmful
exposure; (2) EPA must have determined
that the potential for harm presented is
significant from the standpoint of the
CERCLA program: and (3) EPA
anticipates that it will be more cost-
effective to use remedial authority than
to use removal authority to respond to
the release.
The Agency intends to continue using
the HRS as the decisionmaking tool for
listing sites for the vast majority of the
sites considered. The HRS has proven to
be an effective tool for approximating
the potential for harm posed by sites
and. with rare exception, will remain the
principal critenon for listing sites on the
NPL
In addition. EPA wants to clarify that
the sites being added to the NPL
pursuant to i 300.66(b)(4) would be
proposed for inclusion on the NPL
through the usual rulemaking process.
The public will be given the opportunity
to comment on the significance of the
threat and each specific health advisory
when a site is proposed to be added to
the NPL This will help ensure that
S 300.66(b)(4) is applied in a manner
consistent with CERCLA and the NCP.
III. Comments on EPA's Authority To
Establish the New Listing Mechanism
Comment: Several commenters argued
that EPA does not have statutory
authority to list sites on the NPL on any
basis other than an appropriate score
under the HRS or designation as a
State's top priority site.
Response: CERCLA does not require
that the HRS be the exclusive method
for listing sites (other than states' top
priority sites) on the NPL Section
105(8)(B) requires that a national
priorities list be developed and revised.
at least annually, based upon the
criteria set forth in section 105(8)(A).
Section 105(8)[A) lists some of the
considerations that should be taken into
account by EPA in compiling the list and
leaves others to the Agency's discretion.
Section 105(8)(A) provides:
Criteria for determining priorities among
releases or threatened releuet throughout
the United State* for the purpote 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. Criteria and priorities under this
paragraph shall be bated upon relative risk
or danger to public health or welfare or the
environment, in the judgment of the
President taking Into account to the extent
possible the population at risk, the hazard
potential of the hazardous substances at such
facilities, the potential for contamination of
drinking water supplies, the potential for
direct human contact, the potential for
destruction of sensitive ecos>stems. Sidle
preparedness to assume State costs and
responsibilities, and other appropriate
factors.
The Agency believes that
§ 300.66(b)(4) of the NCP is entirely
consistent with section 105(8)(B) of
CERCLA. Among other things, the
additional listing mechanism allows the
Agency to list a site on the basis of a
public health advisory issued from
ATSDR which considers, among other
factors, whether there is a potential
threat arising from direct contact This is
one of the factors listed in section
10S(8)(A). The Agency also will consider
other factors specified in section
105(8)[A) when applying } 300.66(b)(4).
The inclusion of "other appropriate
factors" in section 105(8)(A) indicates.
moreover, that EPA was to have broad
discretion in implementing that
provision of the statute.
Comment Several commen-ters stated
that there are established criteria under
the HRS for placing sites on the NPL
They believe that if the HRS fa not
working satisfactorily, then if should be
modified.
Response: EPA believes that the HRS
has proven to be an effective tool for
approximating the potential for harm
posed by the vast majority of sites that
snould qualify for Fund-financed
remedial action. EPA intends
S 300.6fl(b)(4) to cover rare situations. It
is not possible for the Agency now to
predict all of the circumstances in which
sites that would not score high enough
on the HRS would present a significant
threat and warrant Fund-financed
remedial action. Thus it is not feasible
to modify the HRS to accommodate
these situations. See Section V of this
notice.
IV. Comments on the Necessity of the
New Listing Mechanism
Comment: Several commenters stated
that they believed this proposed
additional listing mechanism to be
unnecessary because EPA's existing
removal authority under section 104 of
CERCLA could be used to respond to
these types of situations.
Response: Then are certain situations
where EPA's removal authority does not
extend. e.g. permanent relocation cannot
be performed as part of a removal
response. EPA intends to use
S 300.66(b)(4) to place a site on the NPL
in these situations only if EPA
anticipates that exercising its remedial
authority will be more cost-effective
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37026 Fedeial Register /. Vol. 50. No. 179 / Monday. September 10. 1985 / Rule3 and Regulations
than EPA uses its removal authority to
respond to (he release EPA will not use
S 300.66(b)M) to place a site on the NPL
if EPA anticipates that a removal action
is the most cost-effective response that
adequately protects human health and
the environment.
Comment: Some commenters stated
that the additional listing mechanism is
not necessary because the authority
granted in section 106 of CERCLA may
be used to respond to a release if there
is an immediate and substantial
endangennent There is no requirement
under CERCLA section 100 that the
release be included on the NPL.
Response: The Agency agree* with the
commenters that existing enforcement
authorities can be used to respond to
releases similar to those that would be
considered candidate! for listing
pursuant to i X».66(b)(4) in many
situations. However, that enforcement
authority may. In appropriate cases, be
available does not mean that a release
may not also warrant a fund-financed
response. As is discussed earlier, the
Agency has concluded that releases that
meet the criteria of § 300.68(b)(«) should
be placed on the NPL so that a fund-
financed response would be available.
The Agency then, in appropriate cases.
would be able to choose whether a fund-
financed response or an enforcement
action would provide the more effective
or expeditious response. Moreover, it
should be noted that there are situations
where existing enforcement authority is
not adequate. For example, sometimes
no responsible party can be found, or it
may appear that a responsible party is
not likely to take necessary action if a
section 106 order is issued.
Comment: One commenter stated that
the Resource Conservation and
Recovery Act (RCRA) provides
adequate authority for ensuring that
releases are remedied at RCRA
facilities, and that it is EPA's policy not
to list RCRA facilities on the NPL The
commenter believe* that the 1884 Solid
Waste Disposal Act strengthens this
position.
Response: EPA does not agree with
the commenter's position. EPA's current
policy is that where a site consists only
of "regulated units" of a RCRA facility
operating pursuant to a permit or interim
status, it will not be included on the NPL
but. to the extent possible, will be
addressed under the authorities of
RCRA (49 PR 40334. October IS. 1984).
EPA does, however, consider eligible for
listing on the NPL those RCRA facilities
at which a significant portion of the
release appears to coma from
nonregulated land disposal units of the
facility, that is. portions of the facility
that ceased operation prior to January
26.1983. Regulated land disposal units
of RCRA facilities generally have not
been included on the NPL except where
the facility is abandoned or lacks
sufficient resources and RCRA
corrective action could not be enforced.
The new RCRA amendments [42 U.S.C.
6901-i] give the Agency considerably
greater authority to respond to releases
under RCRA. Therefore, the Agency has
announced that it is reconsidering the
currant policy of listing RCRA-related
site* on the NPL. (Sea 50 FR 14115. April
10.1985). Specifically, the Agency is
considering deferring listing RCRA-
related site* on the NPL until the
Agency determines that RCRA
corrective measures are not likely to
succeed due to factors such ar (1) The
inability or unwillingness of the owner/
operator to pay for such actions; (2) the
inadequacies of the financial
responsibility guarantees to pay for such
costs: or (3) the Agency or State
priorities for addressing the sites under
RCRA. The Agency has not yet decided
whether to modify its existing policy
with respect to listing RCRA-related
sites.
Since current EPA policy does not
preclude the listing of RCRA related
sites that are regulated units. EPA wHl
apply the current policy in deciding
whether to use ( 300.66(b)(4) to add such
sites to the NPL If EPA alters this policy
after it considers comments received on
the April 10.1985. Federal Register
discussion of options for a deferred
listing policy for RCRA related sites, any
such new policy could be applied to
sites listed pursuant to ft 300.66(b)(4).
V. Commenta on the Lack of Explicit
Standards and Procedures for Health
AdvisorlM
Comment Many of the commenters
oppose the use of health advisories as a
basis for adding sites to the NPL The
commenters requested clarification of
(1) the criteria for determining whether a
health advisory should be issued: (2) the
health advisory issuance process
including opportunities for public review
and comment: and (3) which office
within HHS would be involved in
issuing public health advisories. The
commenters were concerned that the
lack of criteria for issuing health
advisories would give EPA unbounded
discretion to avoid using the MRS.
Response: EPA has consulted with
ATSDR of HHS on this comment and
believes, based on Ita advice from
ATSDR. that the wide variety of
considerations which, of necessity, must
be taken into account in deciding
whether to isaue a public health
advisory precludes the development of
specific criteria. Instead. ATSDR bases
its issuance of public health advisories
on a case-by-case application of best
medical judgment In response to these
comments, however, the Agency has
limited the applicability of § 300.66(b)(4)
to situations in which the public health
advisory recommends disassociation of
individuals from the release.
To date, there have been over 200
health assessments conducted by
ATSDR at Superfund sites. Out of these
health assessments only 39 have
resulted in the issuances of public health
advisories. Of the 39 public health
advisories issued, very few recommend
dissociation of an individual from the
release. This illustrates that the
potential number of sites qualifying
under the first criterion of S 300.68(b)(4)
is small.
In response to the comment
concerning the opportunities for public
review and comment on the public
health advisory. EPA wants to clarify
that the public will be given the
opportunity to comment on each specific
public health advisory when the site-is
proposed to be added to the NPL The
sampling data gathered by EPA or other
lead agencies upon which the issuance
of a public health advisory may be .
based, will be available to the public.
In response to the comment that EPA
clarify which office within HHS would
be involved in issuing a public health
advisory. EPA has added language to
{ 300.86(b)(4) saying that ATSDR will be
the agency within HHS responsible for
issuing the public health advisories.
VI. Comments on tin Lack of Guideline*
for Determining What ReUasea Poee a-
Significant Threat
C0/nm«7tThe Agency received
several comments requesting EPA to
clarify the meaning of the phrase
"significant threat" to public health.
Specifically, they requested clarification
of the language to specify (lj the factors
to be considered In evaluating whether a
threat is significant: (2) the role
quantitative assessment plays in
determining whether a threat is
significant and (3) the procedures for
determining whether a significant threat
exists. One commenter suggested that
the threshold be changed from
significant threat to "imminent and
substantial" threat
Response: Section 300.66(b)(4) gives
EPA the discretion to determine whether
a release for which ATSDR has issued a
public health advisory Is of sufficient
priority to be included on the NPL The
issuance of a public health advisory
does not by itself qualify a release for
inclusion on the NPL A threat may be
significant for purposes of ATSDR to
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Federal Register / Vol. 50, No. 179 / Monday. September 16. 1965 / Ruleg and Regulations 37627
issue a public health advisory, but not
for purposes of the response programs
under CERCLA. Until the Agency has
had more experience with situations
which may be candidates for listing
pursuant to S 300.W(bH4). it is not
possible to indicate all the situations in
which EPA will decide that a threat is
significant for purposes of § 300.66(b)(4).
In general however. EPA intends to
apply 8 300.66(b)(4)(2) only in situations
where the release meets the threshold
required for taking a removal action.
In response to the comment regarding
the role of quantitative assessment. EPA
does not intend to use quantitative risk
assessemnts to evaluate sites Tor
possible application of ( 300.66(b)(4).
The Agency believes the quantitative
risk assessment is not necessary to list
sites on the NPL nor would adequate
data be available for a quantitative
assessment at the time of listing.
Additional data may be collected during
the investigatory stage of work
conducted at the site, and in some cases.
the Agency may perform a quantitative
risk assessment prior to selection of the
remedy.
EPA does not agree that S 300.66(b)(4)
should apply only where EPA makes a
finding that there is an imminent and
substantial threat. Where the three
criteria are met. EPA has the authority
to list a site on the NPL and to take
remedial actions. As is discussed
earlier. EPA does not believe that many
sites will meet the three criteria of
§ 300.64{b)(4).
VII. Extension of the Listing Mechanism
Beyond Public Health Concerns
Comment: Several commenters
expressed approval of the additional
listing criteria but suggested that EPA
extend the listing mechanism beyond
strictly public health concerns to
embrace environmental threats as well.
They did not want to limit EPA's
authority to list on the NPL pursuant to
§ 300.o6(b)(4) situations where HHS
issues a public health advisory. One
commenter proposed that i 300.66(b)(4)
be expanded to enable the Agency to
include on the NPL any releae that poses
"a significant threat" to .a sensitive
ecosystem or the human food chain." On
the other hand. EPA received several
comments suggesting that this new
listing method be limited to releases at
which health, not welfare or the
environment is threatened, since the
additional listing criteria focuses on
public health advisories.
Response: EPA intends that the MRS
remain the primary mechanism for
listing sites on the NPL The MRS
considers environmental factors such as
sensitive ecosystems. The Agency sees
no need to expand i 300.66(b)(4) to
include sensitive ecosystems and food
chain exposure, and these issues are
unrelated to this rulemakmg. The
Agency is examining whether the MRS
should include additional provisions for
food chain exposure, but has not
decided what changes, if any. are
appropriate.
VIII. Other Comments
Comment: EPA received several
comments requesting that they clarify
whether EPA may act only when a
public health advisory has been issued
or whether EPA may make an
independent finding of threat to public
health.
Response: S 300.66(b)(4) has been
changed to clarify that in order for the
additional listing criteria to be applied.
ATSDR must have issued a public
health advisory which recommends
dissociation of individuals from the
release. In addition. EPA must make a
determination that the release is a
significant threat to public health and
that taking a remedial action is more
cost-effective than a removal action.
Comment: Several commenters argued
that this additional listing mechanism
should be applied only to hazardous
waste sites. They asserted that Fund
resteces should not be used to respond
to sites not involved in hazardous waste
releases such as asbestos and pesticide
sites because it would be diverting
resources away from the primary
purpose of CERCLA—the cleanup of
abandoned or inactive waste sites.
Response: CERCLA does not limit
response to hazardous waste sites, and
the Agency does not believe that it
would be appropriate to so limit
i 300.66[b)(4). ATSDR may issue public
health advisories with respect to other
releases, and the threats posed may be
significant and warrant national
response. If a commenter believes that a
particular release that is proposed for
listing on the NPL would not merit a
fund-financed response because of
other, more urgent CERCLA priorities.
these concerns should be raised as
comments on the proposed listing. As
noted earlier. EPA in general, intends to
limit the use of S 300.86(b)(4) to
categories of sites that are most
appropriately addressed under
CERCLA.
Comment: Several commenters stated
that inclusion of sites on the NPL brings
into play the more expensive and time
consuming remedial investigation/
feasibility study (RI/FS) process. This
could create delays and needless
expense at the sites that are listed
pursuant to § 300.66(b)(4).
Response: Whenever the Agency lists
a release on the NPL under
§ 300.66(b)(4). it may. as it may for any
other release listed on the NPL
undertake whatever response actions
are appropriate for the release, removal
as well as remedial. The Agency is Free
to undertake removal actions in
response to the release while it
considers the appropriate remedial
measure. To the extent the removal
action would eliminate the need for
further response actions, the site would
not meet the criteria established by
S 300.66(b](4). In planning remedial
actions, the Agency may use "operable
units." An operable unit is a discrete
response measure that is consistent with
a permanent remedy, but is not the
permanent remedy in and of itself. This
concept entails the practice of phasing
remedial action at sites that present
complex cleanup problems. For
example, it is often appropriate first to
conduct a surface cleanup of a site, and
then, after additional analysis of more
complex hydrogeological factors, to
select and implement remedial measures
addressing ground-water contamination.
Comment: Several commenters stated
that States have their own hazardous
waste laws and an capable of
responding to a small but dangerous
release that does not warrant national
prioritization.
Response: While some Slates may
have adequate resources and authority
to respond to sites listed under
§ 300.66(b)(4). not all States have
adequate laws or resources to cover
these situations. In addition. State laws
vary. Thus. EPA does not wish to rely
solely on the States to take remedial
action at sites that meet the criteria of
§ 300.66(b)(4) and thus listing of these
sites is appropriate for all States.
Comment: One commenter claimed
that few benefits, if any, would be
derived from the adoption of this
proposed rule, and on the other hand, it
will have adverse impacts on persons
associated with listed sites. NPL listing
may. for example, effectively "down-
zone" property, decrease property value.
prohibit development, require disclosure
in auditors' statements, etc.
Response: The purpose of the NPL
which has been discussed at length in
earlier Federal Register notices (e.g.. 50
FR14118. April. 10.1985). is to identify
sites that warrant further investigation
and possible remedial action. Listing
does not require any action for any
private party, nor does it impose any
liability on any party for the cost of
cleanup at the sites. It is possible that
EPA may conclude that it is not
desirable to conduct response action at
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37628 Federal Register I Vol. 50. No. 179 / Monday. September 16. 1985 / Rules and Regulations
some sites on the NPL because of more
pressing needs at other sites.
Comment- Several commenters urged
that EPA and ATSDR be responsive to
input and recoramendatlonTfrom the
State. In particular, a commeoter
wanted to know if health advisories
issued by State Departments of Health
will have the same impact as ATSDR'*
public health advisories.
Response: Stales will have an
opportunity to comment on each release
when it is pfteposed to be added to UM
NPL EPA will consider all comments
received from States during the
comment period.
The Agency believes that in order to
assure national consistency in
implementing 1300.06(b)(4), public
health advisories issued by State
Departments of Health cannot be used.
in lieu of public health advisories issued
by ATSDR. to invoke the 1300.66(b)(4}
listing mechanism. States can. however,
recommend to ATSDR they they issue a
public health advisory.
IX. Summary of Supporting Analyses
A. Classification Under E.0.12291
Regulations must be classified as
major or nonma'jor to satisfy the
rulemaking protocol established by
Executive Order 12291. E.0.12291
establishes the following criteria for a
regulation to qualify as a major rule:
1. An annual effect on the economy of
$100 million or more:
2. A major increase in costs or prices
for consumers, individual industries.
Federal Slate, or local government
agencies or geographic regions: or
3. Significant adverse effects on
competition, employment investment
productivity, innovation, or on the
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
Section 300.06(b)(4) of the NO* is a
nonmajor rule because it would have no
significant incremental economic effects.
Placing sites on the NPL does not
impose any costs directly. The proposed
listing of sites on the NFL does not in
itself require any action of any private
party, nor does it determine the liability
of any party for the cost ofcleanup at
the site. As a consequence, it is hard to
predict impacts on any group. A site's
inclusion on the NPL could increase the
likelihood that advene impacts to
responsible parties (in the form of
cleanup costs) will occur, but EPA
cannot identify the potentially affected
businesses at this time nor estimate a
number of small businesses that might
be affected. This regulation was
submitted to OMB for review under
Executive Order 12291.
B. Regulatory Flexibility Act
In accordance with the Regulatory
Flexibility Act of 1980, Agencies must
evaluate the effects el a regulation on
"small entities." That Act recognizes
three types of such entities:
1. Small businesses (specified by
Small Business Administration
regulations):
2. Small organizations (Independently
owned, nondominant in their field,
nonprofit); and
3. Small governmental jurisdictions
(serving communities with fewer than
5.000 people).
If the rule is likely to have a
"significant impact on e substantial
number of small entities." the Act
requires that a Regulatory Flexibility
Analysis be performed. The Agency
does expect that certain industries and
firms within industries that have caused
a proportionately high percentage oL>
waste site problems could be
significantly affected by CERCLA
actions. However. EPA does not expect
the impacts from the listing of sites
under this section to have a significant
economic impact on a substantial
number of small businesses.
C. Paperwork Reduction Act
Today's final rule on 8 300.60(b)(4)
does not impose any regulatory burden
on parties outside of EPA. including any
reporting or information collection
retirements.
List of Subjects in 40 CFR Part 300
Air pollution control. Chemicals.
Hazardous materials. Hazardous
substances. Intergovernmental relations.
National resources. Occupational safety
and health. Oil pollution. Reporting and
record-keeping requirements. Superfund.
waste treatment and disposal Water
pollution control Water supply.
Dated: Augwl 14.1986.
LM M. TfamM.
Administrator.
For the reason set forth in the
preamble. Part 300. Sabpart), Chapter I
of Title 40. Code of Federal Regulations
is amended as follows:
PART 300-NATtONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
1. The authority citation for Part 300
continues to read as follows;
Authority: Sec. 109 Pub. L 96-S10.84 StaL
2764.4241AC. 9609: See. 311(c)(2). Pub. L 83-
509 as amende*}. BO StaL 869,33 US.G
UZl(c)(2h E.0.12316.46 FR 42237: E.0.11735.
38 FR 21243.
Subpart F—Hazardous) Sub*t*nc«
2. In 40 CFR Part 300. { 300.66 la _
amended by revising paragraph (b) to
read as follows:
1300.60 Sits •valuation phase and
naoonel priorities tot detetmbteflOfV
(b) Methods for Establishing Priorities.
As soon as practicable, an Inspection
will be undertaken to assess the nature
and extent of the release and to assist In
determining its priority for Fund-
financed response.
(1H3) [Reserved]
(4) In addition to those release whose
HRS scores qualify them for the NPL.
EPA may include on the NPL any other
release if (i) the Agency for Toxic
Substances and Disease Registry of
Health and Human Services has issued
a public health advisory which
recommends dissociation of Individuals
from the release: (il) the EPA determines
that the release poses a significant
threat to public health: and (lit) EPA
anticipates that it will be more cost-
effective to use Its remedial authority
than to use removal authority to respond
to the release.
• • • • •
[FR Doc. 85-21138 Filed 9-13-65: 8:45 «m|
SILUMQ coot mo 10 •
» U.S. Government Printing Office : 19«5 - 461-21J/34SS2
-------
Monday
September 16, 1985
Part III
Environmental
Protection Agency
40 CFR Part 300
Amendment to National Oil and
Hazardous Substances Contingency Plan:
National Priorities List; Final Rule
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37630
Federal Register / Vol. 5Q. Xo. 179 / Monday. September 16. IMS / Ru|es and Reflations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[SWH-FRL 2853-16)
Amendment to National Oil and
Hazardous Substanctt Contlngancy
Plan: National Priorities Uat
AOINCV: Environmenal Protection
Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency ("EPA") is amending the
National Oil and Hazardous Substances
Contingency Plan ("NCP"). which was
promulgated on July 16,1982. pursuant
to section 105 of the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
("CERCLA") and Executive Order 12316.
This amendment revises the National
Priorities List ("NPL"). which initially
was promulgated as Appendix B of the
NCP on September 8.1983. by adding
the Lansdowne Radiation site located in
Lansdowne. Pennsylvania to the final
NPL CERCLA requires that the NCP
include a list of national priorities
among the known releases or threatened
releases of hazardous substances,
pollutants, and contaminants throughout
the United States, and that the list be
revised at least annually. The NPL
constitutes this list and meets those
requirements. The Lansdowne site is
being added to the NPL because the site
meets the eligibility requirements of the
NPL. EPA has rndnded on- the NPL
releases and threatened releases of
designated hazardous substances as
well as "pollutants or contaminants"
which may present an imminent ai"1
substantial danger to the public health
or welfare, fociuioa of the Lansdownc
site on the NPL nukes this site eligible
for Fund-financed remedial actions as
specified in i 300.68(a) of the NCP.
DATE: The effective date for this
amendment to the NCP shall be October
16.1985.'
FOR FURTHER INFORMATION CONTACT:
Trudi Fancher. Hazardous Site Control
Division. Office of Emergency and
Remedial Response (WH-548EJ. U.S.
Environmental Protection Agency. 401 M
Street SW., Washington. D.C. 20460.
'CERCLA. aection 305 provide! for • legislative
veto of regulation! promulgated under CERCLA.
Although INS v. Chadha. 462 U S. 919.103 S Ct.
2764 (1983). can the validity of the hgiilative veto
into queition. EPA hai trammilted a copy of thl«
regulation to the Secretary of tKe Senate and the
Clerk of the Home of RepretentaHvei. IT any action
by Congreit calli the effective date of thu
regulation into question, the Agency will publish a
notice of clarification in the Federal Register.
Phone (800) 424-6346 (or 382-3000 in the
Washington. D C..-metropolitan area).
SUPPLEMENTARY INFORMATION:
Table of Contents.
I Background of the NPL
II Background of the Lansdowne Radiation
Site. Lansdowne. Pennsylvania
HI. Addition of the Lansdowne Radiation
Site. Lansdowne. Pennsylvania to the
NPL
IV. Regulatory Impact Analysis
V Regulatory Flexibility Act Analysis
I. Background of the NPL
Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980.42 U.S.C. sections 9601-0657
("CERCLA or the Act"), and Executive
Order 12318 (46 FR 42237. August 20.
1981). the Environmental Protection
Agency ("EPA" or "the Agency")
promulgated the revised National
Contingency Plan ("NCP"J. 40 CFR Part
300. on July 18.1982 (47 FR 31180). Those
amendments to the NCP implemented
responsibilities and authorities created
by CERCLA to respond to releases and
threatened releases of hazardous
substances, pollutants, and
contaminants.
Section 105(8)(A) of CERCLA requires
that the NCP include criteria fa-
determining priorities among rntfffltpt 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 action involves cleanup or
other actions that are taken in response
to releases or threats of releases on a
short-term or temporary basis (CERCLA
section 101(23)). Remedial action tends
to be long-term hi nature and involves
respooa* actions which are consistent
with a permanent remedy for a release
(CERCLA section 101(24)).
Section 105(8)(B) of CERCLA requires
that these criteria be used to prepare a
list of national priorities among the
known releases of threatened releases
throughout the United States, and that to
the extent practicable, at least 400 sites
be designated individually on the
National Priorities List (NPL). Section
105(8)(B) also requires that the list of
priorities be revised at least annually.
EPA has included on the NPL releases
and threatened releases of designated
hazardous substances as well as
"pollutants or contaminants" which may
present an imminent and substantial
danger to the public health or welfare
CERCLA requires that the NPL be
included as part of the NCP. An Initial
NPL of 408 sites was promulgated on
September 8.1983. (48 FR 40658). The
NPL has been amended several times
since then. On May 8.1984. EPA
amended the NCP by adding four sites
in San Gabriel. California, to the NPL.
On September 21.1984. EPA further
amended the NCP by adding 128 sites to
the NPL (49 FR 37070). and deferred f:n*l
rulemakmg on four sites. The second
proposed update was published in the
Federal Register on October IS. 1984 (49
FR 40320). The second update proposed
the addition of 244 sites, two of which
were promulgated in the Federal
Register on February 14.1985 (50 FR
6320). In addition, the third update
proposed 28 sites on Apnl 10.1985 (50
FR 14115). Today's final rulemaking
action adds to the NPL the Lansdowne
Radiation site. Lansdowne.
Pennsylvania, which was proposed on
April 10.1985 (50 FR 14115). This action
Is taken pursuant to { 300.66(,b)(4) of the
NCP which is promulgated in a separate
notice in today's Federal Register.
Additional discussion on the purpose
and development of the NPL and on
generic issues relating to the HRS-ara
included in the preambles to the NPL
promulgated on September & 1983 (48
FR 40658). and amended on September
0.1984 (49 FR 37070). Section 300.68(a)
of the NCP reserves Fund-financed
remedial action for sites on the NPL
Inclusion of a site on the NPL is not
necessary for other types of response
actions such as removal actions or
enforcement action's.-Moreover. a site
need not be on the NPL to be the subject
of a private party cost recovery action
pursuant to section 107(a)(4)(B) of
CERCLA.
The principal criteria used by the
Agency for determining site eligibility
for inclusion on the NPL are included in
the Hazard Ranking System (HRS)
which EPA promulgated as Appendix A
of the NCP (47 FR 31219. July 16.1S82).
The HRS total score used for the NPL is
designed to take into account a standard
set of factors related to risks from
migration of substances through
ground water, surface water, and air. At
present, sites whose scores are 28.50 or
above are eligible for the NPL.
Section-300.e6(b)(4) of the NCP has
been amended to allow some sites that
do not score 28.50 or greater to be added
to the NPL. These sites may qualify for
the NPL if: (l) The Agency for Toxic
Substances and Disease Registry of the
U.S. Department of Health and Human
Services (ATSDR) has issued a health
advisory which recommends
dissociation of individuals from the
release; (2) the Agency determines that
the release poses a significant threat to
public health; and (3) EPA anticipates
that It will be more cost-effective to use
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Federal Register / Vol. 50. No. 179 / Monday. September 16. 1985 / Rules and Regulations
37631
remedial authority than if EPA uses its
removal authority to respond to the
release. The Agency has determined
that the Lansdowne site meets these
three criteria as described in Section II
below.
II. Background of the Lansdowne
Radiation Site. Lansdowne.
Pennsylvania
The Lansdowne Radiation site located
in Lansdowne. Pennsylvania, was
included in the proposed nilemakmg for
Update *3 of the NPL (SO FR14115.
April 10.1985). The Lansdowne site
consists of a residential duplex structure
situated on a 0.5 acre lot in a residential
area. The basement of the residence at
105 E. Stratford Avenue was used from
1924-1944 by a chemistry/physics
professor to manufacture radium
sources for medical radiation therapy. In
mid-1983. EPA and the Pennsylvania
Department of Environmental
Resources. Office of Radiation Programs
identified the Lansdowne site as
suitable for inspection. Since that time.
several radiological studies of the site
have been completed.
The first of these studies was
conducted in June of 1984 by EPA and
State of Pennsylvania Department of
Environmental Resources (PADER).
Results revealed levels of gamma
radiation ten times above the level to
which the general population is
exposed, and levels of radon daughters
one hundred times higher than
background levels.
In September. 1984. EPA and the
Federal Emergency Management .
Agency, as part of a CERCLA-funded
immediate removal, temporarily
relocated the two residents living in the
structure. EPA Region III recognized that
a permanent solution would far exceed
the six month. SI million limit on
immediate removal, and requested a
time extension for relocation pursuant to
Part300.85(d)[3)oftheNCP.
In the Fall of 1984. the Argonne
Ndtional Laboratory conducted a survey
of the structure to determine levels of
radon gas and gamma radiation. Data
revealed that all interior measurements
of radon daughters exceeded the EPA
recommended action level of 0.02
Working Levels (WL). In addition, most
interior measurements of gamma
radiation exceeded the EPA remedial
action guideline of 20 microroentgens/
hour above background.
ATSDR reviewed the results of the
two above mentioned studies, and on
March 5.1985 issued a health advisory
warning that environmental
measurements of radon daughters and
gamma radiation inside the duplex
dwelling indicated exposure levels in
excess of those ATSDR considered safe
for human habitation. The advisory
recommended dissociation of exposed
individuals from the structure.
Inhalation of radon gas and its decay
products exposes the lungs to alpha
radiation, thereby increasing the
chances of developing lung cancer. Both
radon and its decay products readily
adhere to participate matter, and can be
entrained in dust when disturbed.
increasing the potential for ingestion.
particularly by children. Moreover, the
site poses a potential threat of release to
the surrounding community which
would be particularly severe if a fire
occurred. EPA has installed a sprinkler
system in the house to temporarily
reduce the threat of fire, but believes
this is an acceptable solution only for
the short term.
In December of 1984. the Argoane
Laboratory collected soil samples from
the property at 105-107 E. Stratford
Avenue. Results of this sampling
revealed that radioactive material has
migrated beyond the property boundary.
Samples were also collected from the
off-site sewer. Preliminary data
indicated the presence of radioactive
materials in the sanitary sewer beneath
E. Stratford Avenue.
EPA considers the risks posed by this
site to be significant. EPA has also
determined pursuant to 8 300.66 (b)(4)
that a remedial approach to this
situation will provide the lowest cost
alternative which effectively mitigates
and minimizes damage to. and provides
adequate protection of. public health.
EPA views the complete removal of the
house from the surrounding residential
community as the only appropriate way
to permanently ameliorate this
significant health hazard.
HI. Addition of the Lansdowne
Radiation Site. Lansdowne.
Pennsylvania to the NPL
The action being taken today will add
the Lansdowne Radiation site in
Lansdowne. Pennsylvania to the NPL
EPA received comments from five
parties regarding Lansdowne during the
30-day comment period which ended
May 10.1985. EPA has reviewed the
comments addressed below and has
determined that no new information has
come to the Agency's attention during
the comment period that would change
EPA's decision to include this site on the
NPL.
Several commenters objected to EPA's
listing a site on the NPL using a
procedure which they perceived as
having not yet been promulgated.
The Agency has promulgated an
amendment to i 300.B8(b)(4) of the NCP
which provides EPA with a new
mechanism for including releases on trip
NPL irrespective of their HRS scores.
when specific criteria are met (see
Section II of the § 300 66(b](4) preamble
published elsewhere in today s Federal
Register) Sites may be added to the NPl.
based on this amendment if. as is true at
Lansdowne. a small number of people
are or will be exposed to hazardous
substances through one of several routes
of exposure.
One commenter concluded that no
immediate threat to public health exists
at the site.
EPA disagrees with the commenter's
assessment of the public health hazards
associated with the site. A detailed
explanation of the public health
concerns associated with the site is
provided in Section II of this preamble.
One commenter agrees with EPA's
decision to relocate the occupants of the
home, and believes that the security
measures (sprinkler system, alarm.
fence) are adequate to mitigate any
immediate threat until EPA ha*
considered public comment onthe
February 12.1985 proposed amendments
to the NCP. - i
EPA has considered comments
received regarding the February 12,1986
proposed NCP amendments and has
promulgated I 3O0.66(bK4) of the NCP in
a separate notice of today's Federal
Register. EPA sees no reason to delay
permanently remedying this public
health threat.
One commenter stated that the cost
estimate for remedial action at
Landsdowne is unjustifiably high.
EPA's preliminary cost estimate for
remedial action at the site is
approximately S3.5 million. This cost
estimate includes dismantling and
packing the structure, transport to an
acceptable disposal facility, disposal
costs, momtonng. and financial
reimbursement to the owners of the
house. EPA views the complete removal
of the house from this residential area'as
the only appropriate way to
permanently ameliorate this significant
health hazard, and believes the costs are
not excessive.
One commenter suggested that the
cleanup of contaminated residences is
an inappropriate use of CERCLA. The
commenter stated that CERCLA is
primarily an inactive waste site cleanup
program. The commenter felt that by
diverting its focus away from hazardous
waste site cleanup. EPA would not only
divert scarce CERCLA management and
legal resources, but it could also put an
intolerable drain on Fund resources.
EPA believes that neither CERCLA
nor the Hazardous Ranking System
limits response to hazardous waste
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37632 Federal Register / Vol. 50. No. 179 / Monday. September 16. 1985 / Rules and Regulations
sites, and it would be inappropriate to
so limit § 300.66(b)(4). ATSDR may issut
advisories with respect to other
releases, and the threats posed may be
significant and warrant national
response. EPA does not expect that the
amendment to § 300.66(b)(4) of the NCP
will result in a substantial re-direction
of CERCLA resources. In particular, the
Agency does not foresee using
substantial portions of the CERCLA
Trust Fund to clean up private
residences. Few site are expected to be
added to the NPL pursuant to
§ 300.66(b)(4). and not all sites listed
pursuant to | 300.66fb)(4) will be
residences. Bat where, as is the case of
the Landsdowne Radiation site, releases
at residences threaten both inhabitants
and the surrounding community, the
Agency believes it appropriate to
consider them candidate* for fund-
financed remedial action. As the
commenter notes. CERCLA's authority is
very broad and can extend to
residences.
One commenter compared the
situation at Landsdowne to that of the
approximately 733.000 asbestos-
contaminated buildings in the United
States, and stated that responding to
this analogous situation could dwarf the
program for hazardous waste sites. The
commenter asserted that listing the
Landsdowne site would be inconsistent
with the following statement in EPA's
CERCLA 301(a)(l)(c) study: "EPA's
current policy is that the Agency will
not respond to air releases within
buildings. However, if EPA were to
make a policy change to address such
indoor releases, this would significantly
affect the number of sites to which
Superfund responds."
As previously stated. EPA does not
expect that the amendment to
S 300.66(b)(4) will result in a substantial
re-direction of CERCLA Trust Fund
monies from hazardous wastes sites to
private residences. In addition, the
quotation from the study was taken out
of context. The sentences were
contained in a paragraph which
discussed asbestos inside schools and
other buildings. It did not address
situations in which indoor releases
present threats or potential threats to
the ambient atmosphere, as in the usa
of Landsdowne.
One commenter stated that Congress
intended the Supernind petrochemical
feedstock tax structure to reflect some
relationship between "front-end"
chemicals taxed and their fate of ending
up at waste sites. The commenter
further added "that Congress had no
radiation-contaminated residence nexus
in mind when designing the tax."
As discussed previously, the Agency
believes it has the authority to respond
to sites at which releases of radiation
present a threat to public health and the
environment unless those releases are
expressly excluded by the statutory
language. The Landsdowne site does not
fit within any of the statutory
exclusions.
Several commenters resubmitted
comments regarding amendments to
S 300.66(b)(4) of the NCP as they would
apply to the Landsdowne site. The
comments are summarized below, and
responses an provided in the preamble
to the promulgation of 1300.66(b)(4) of
the NCP.
• The commenters opposed the
procedure used to list the Lansdowne
site. The commenters believed that the
use of a health advisory as the basis for
listing a site is premature and
inappropriate because the term health
advisory has not been defined nor do
any criteria for the issuance of health
advisories exist. The commenters felt
that this would lead to 9 300.66(b)(4)
being used to address any of a number
of sites beyond those where a
significant health risk to a small number
of individuals exists.
• Although the commenter supports
EPA's efforts to address a small number
of seriously threatened individuals, the
commenter felt that EPA already
possesses statutory authority to respond
to imminent hazards under section 106
of CERCLA.
• The commenter stated that the term
"HHS health advisory" requires
clarification. The commenter further
stated that neither the proposed
regulations nor the preamble defines the
term, nor do they provide any guidance
as to what constitutes a "significant"
threat to public health.
• The commenter suggested that the
NCP regulations should specify which
office of HHS is charged with issuing
health advisories for the purpose of
adding sites to the NPL
IV. Regulatory Impact
The addition of this site to the final
rulemaking of the NPL does not meet the
Executive Order 12991 definition of the
term "major rule."
The purpose of the NPL is primarily to
serve as an informational tool for use by
EPA in identifying sites that appear to
present a significant risk to public health
or the environment. The initial
identification of a site on the NPL is
intended primarily to guide EPA in
determining which sites warrant further
Investigation designed to assess the
nature and extent of the public health
and environmental risks associated with
the site and to determine what response
action, if any. may be appropriate.
Inclusion of a site on the NPL dues not
establish that EPA necessarily will
undertake response actions. Moreover.
listing does not require any action of
any person, nor does it determine the
liability of any person for the cost of
cleanup at the site.
The information collected to support
selecting a site for the NPL is not
sufficient in itself to determine the
appropriate remedy for a particular site.
EPA generally relies on further, more
detailed studies conducted at the site to
determine what response, if any. is
appropriate. Decisions on the type and
extent of action to be taken at this site
will be made on the basis of such
studies and in accordance with the
criteria contained in Subpart F of the
NCP.
A full assessment of the cost of
remedial action at the Lansdowne site
has not been completed, but preliminary
cost estimates are approximately S3 J
million. Thus, the possible remedial
action will not cause an annual effect on
the economy of $100 million or more. It
is not expected that remedial action will
cause a major increase in costs or
prices, nor will it have significant
adverse effects on competition,
employment investment or any other
criteria of Executive Order 12291.
Rather, beneficial effects are anticipated
from«ny actions taken to reduce
exposures, from radon daughters and
gamma radiation.
V. Regulatory Flexibility Act Analysis
After reviewing the criteria for
significant economic impact on
substantial numbers of small entities as
defined by the Regulatory Flexibility
Act. EPA has determined that listing
does not require any action of any
private party for the cost of cleanup at
the site. Currently. EPA and the State of
Pennsylvania expect to fund remedial
activities at the site. It is unlikely that
any EPA remedial activities at this site
would significantly affect a substantial
number of small business entities.
List of Subjects in 40 CFR Part 300
Air pollution control. Chemicals.
Hazardous materials. Intergovernmental
relations, Natural resources. Oil
pollution. Reporting and Recordkeeping
requirements. Superfund. Waste
treatment and disposal. Water pollution
control. Water supply.
-------
Federal Register / Vol. 50. No. 179 / Monday. September 16. 1985 / Rules and Regulations 37633
D.iled- August 14.1985.
Lee M. Thomas.
\t/r»ini!>traior.
PART 300-IAMENOEDj
I The authority citation for Part 300
continues to read as follows:
Aulhorily: Sec. 105 Pub. L 96-51U 94 Sldi
J764. 42 U S.C. 9605. Sec. 311(c](2). Pub L 92-
500 us amended. 86 stat 865. 33 U S C.
I3:i(c||2|. E.O.12316. 46 FR 42237 EO 11735.
38 FR 21243.
Appendix B—[Amended!
2. The National Priorities List, which
is Appendix B of the National Oil and
Hazardous Substances Pollution
Contingency Plan, is hereby amended to
add the following site as the last item in
Group 9 of ihe non-Federal portion of
the NPL
Appendix B—National Priorities List
Croup EPA
9 Reg.
SUM
&M Nimt'
C.IV'
county
ReiDORM tutu1
03 PA
Sito
Sum' OMiontMd lop pnomy MM
v -vohmuiy or rwgouud rnponM
R - FMWU and SUM RnponM
E FMCII md SUM •ntoreimim
0' Acuon» to M otunwwa
[FR Doc. 85-21139 Filed 9-13-85. 8.45 urn)
BILLING COM SUO-SO-M
-------
Wednesday
September 18, 1985
Part II
Environmental
Agency
40 CFR Part 300
Amendment to National Oil and
Hazardous Substances Contingency Plan;
the National Priorities List; Proposed
Rule ...
-------
37950 Federal Register / Vol. 50. No. 181 / Wednesday. September 18. 1985 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
(SWH-FRL 2874-1]
Amendment to National Oil and
Hazardous Substances Contingency
Plan; the National Priorities List
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency ("EPA") is proposing the fourth
update to the National Priorities Ust
("NPL"). This update contains 38 sites,
including one re-proposed site. The NPL
is Appendix B to the National Oil and
Hazardous Substances Contingency
Plan ("NCF'J, which EPA promulgated
pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 ("CERCLA") and Executive
Order 12316. CERCLA requires that the
NPL be revised at least annually, and
today's notice proposes the fourth such
revision.
These sites are being proposed
because they meet the eligibility
requirements of the NPL EPA has
included on the NPL releases and
threatened releases of designated
hazardous substances, as well as
"pollutants or contaminants" which may.
present an imminent and substantial * '
danger to the public health or welfare.
This notice provides the public with an
opportunity to comment on the listing of
these 38 sites on the NPL
DATES: Comments may be submitted oa
or before November 18.1985.
ADDRESSES: Comment* may be nailed
to Russel H. Wyer, Director. Hazardous •.
Site Control Division {Attn: IMPL StaffJ,'JT
Office of Emergency and Remedial • '•' *
Response (WH-548E), Environmental •
Protection Agency. 401 M Street, SW.,
Washington, D.C. 20460. The
Headquarters public docket for the
fourth update to the NPL will contain:
Hazard Ranking System (HRS) score
sheets for each proposed site and each
Federal facility site listed in Section IV
of this notice: a Documentation Record
for each site describing the information
used to compute the scores: and a list of
document references. The Headquarters
public docket is located in EPA
Headquarters, Waterside Mall sub-
basement. 401 M St., SW.. Washington,
D.C. 20460, and is available for viewing
by appointment only from 9:00 a.m to
4:00 p.m., Monday through Friday
excluding holidays. Requests for copies
of the documents from the Headquarters
public docket should be directed to the
EPA Headquarters docket office. The
HRS score sheets and the
Documentation Record for each site m a
particular EPA Region will be available
for viewing in that Regional Office when
this notice is published. These Regional
dockets will also contain documents
with the background data EPA relied
upon in calculating or evaluating the
HRS scores. Copies of these background
documents may be viewed in the
appropriate Regional Office and copies
may be obtained from the Region. A
third category of documents with some
relevance to the scoring of each site also
may be viewed and copied by
arrangement with the appropriate EPA
Regional Office. An informal-written
request, rather than a foimal repeat.
should be the ordinary procedore for
obtaining copies of any of thaw
documents. Requests for HRS score
sheets and Documentation Records
should be directed to the appropriate • -
Regional Office docket (see addresse»--
below). Requests for background
documents should be directed-to the*
appropriate Regional Superfund
office. __ • —
Copies of comments submittsdte -• .-
headquvtats during the 60-day pefcDc
comment period may be viewcilonTy in
the Headquarters docket during the
comment period. A complete set of
Gayle Alston, Region IV. U.S. EPA
Library. Room G-6. 345 Courtland
Street. NE., Atlanta, GA 30365, 404/
881-4216
Lou Tilley, Region V. U.S. EPA Library.
Room 1420.230 South Dearborn
Street. Chicago. IL 60604. 312/353-2022
Martha McKee, Region VI. InterFirst II
,£ldg.. 1201 Elm Street, Dallas. TX
75270. 214/767-9809
Connie McKenzie. Region VII, U.S. EPA
Library, 726 Minnesota Avenue.
Kansas City. KS 66101.913/236-2828
Dolores Eddy. Region VIII, U.S. EPA
Library, i960 Lincoln Street. Denver,
CO 80295. 303/844-2560
jean Circiello, Region IX. U.S. EPA
Library. 6th Floor. 215 Fremont Street.
San Francisco. CA 94105.415/974-
8076
. )oan McNamee. Region X, U.S. EPA,
llth Floor. 1200 6th Avenue, Seattle,
WA 98101. 206/442-4903
. FOR FURTHER INFORMATION CONTACT:
•Jane Metcalfe, Hazardous Site Control
: Division. Office of Emergency and
Remedial Response (WH-548E).
- -Environmental Protection Agency, 40TM
.- .Street. SW.. Washington. D.C. 20460, ,
- .Phone (800) 424-9346 (or 382-3000 in the
^/Washington, D.C.. metropolitan area).*
> SUPPLEMENTARY INFORMATION:
•Table of Contents:
I introduction
n Purpose of the NPL
for viewing inthe Regional OBo»*-: »
dacbetappraxfanately one weck~-
foDowtag the dose of the formajR >
comment .period. Comments reeielvec
.
after thedpae of comment period wfi :l Introduction
r* ™ mmmm
-.
TV-'-K%ibillty
-V -' Caetenu of the Proposed Fourth NPL
Update
VI Regulatory Impact Analysis
Regulatory Flexibility Act Analysis
1,40 CFR Part
31180). Those
Office docketflh is?" Pursuant to section 105 of the
basis. An informal "^-Comprehensive Environmental •
rather than a Jannai_ ^Response. Compensation, and Liability
.,.-_-,__._wbe the oidinawv.:rr7i'S=™iAct of 1980.42 U.S.C 9601-fl657 '
procedure fen- obtaining copievWflkes^^^ f'CERCLA" or "the Act") and Executive
commeirtsVfVaEbesses for the ~-=H SLEa^d"112318 (46 FR 42237. August 20.
Headquarters and Regional Office" ^£~~3981). the Environmental Protection
dockets are: -' =• ^Agency ("EPA" or "the Agency")
Denise Sines. Headquarters. *KBKS=&Eta!!!a*M' *e "SSJ
CERCLA Docket Office. «•— '• ^.^Contmaencv Plan f'NCP
Mall. Subbasement, 401
i Wnfthingtflni PTT 7(mni> outamoo -—.-.. •» —
-•*"" ~iespaiaibilitie8 and authorities created
Pe« Nelunn Rpoinn i IT
-------
Federal Register / Vol. so. No. 161 / Wednesday. September M. 1J85 / Propeeed Rules 37951
Removal action involves cleanup or
other actions that are taken in response
to emergency conditions or on a short-
term or temporary basis (CERCLA
section 101(23)]. Remedial action tends
to be long-term m nature and involves
response actions which are consistent
v\ith a permanent remedy for a release
(CERCLA section 101(24)) Criteria for
determining priorities are included m
the Hazard Ranking System ("MRS").
which EPA promulgated as Appendix A
of the NCR (47 FR 31219, July 16.1982).
Section 105(8)(B) of CERCLA requires
that the statutory criteria be used to
prepare a list of national priorities •
among the known releases or threatened
' releases throughout the United States.
and that to the extent practicable, at
least 400 sites be designated
individually. CERCLA requires that this
National Priorities List ("NPL") be
included as part of the NCR Tcday, the
Agency is proposing the addition of 38
sites to the NPL This brings the number
of proposed sites to 309 in addition to
the 541 that have been promulgated.
EPA ts proposing to include on the
NPL sites at which there are or have
been releases or threatened releases of
hazardous substances, or of "pollutant*
or contaminants." The discussion below
may refer to "releases or threatened
releases" simply as "releases."
"facilities." or "sites."
II. Purpose of the NPL
The primary purpose of the NPL is
stated in the legislative history of
CERCLA (Report of the Committee on
Environment and Public Works. Senate
Report No. 96-648.88th Cong.. 2
remedial actions. Inclusion of a facflit£e'f ji?te
on the list does not in itself reflecfa'jndgmenl
of the activities of its owner or operator, ft v
does not require those pevnns towidertale '
any action, nor does it aasigB.liabitoy to any
person. Subsequent go*eimugrt acbonja the
form of remedial actions «r«nmrcaBeBt
actions will be necemoqrj& order lo-doeo*
and these actions will be attended by all <
appropriate procedural .safeguards.
The purpose of the NPL, therefore, u
primarily to serve as an informational
tool for use by EPA in identifying rites,
that appear to present a significant risk •
to public hearth or the environment The
initial identification of a site for the NPL
is intended primarily to guide EPA in .
determining which sites warrant further
investigation, to assess the nature and
extent of the public health and —
environmental risks associated-with the
site, and to determine what CERCLA- -
financed remedial acn'on(s). if any. may
be appropriate. Inclusion of a site on the
NPL does not establish that EPA •
necessarily will undertake remedial
actions. Moreover, listing does not
require any action of any private party,
nor does it determine the liability of any
party for the cost of cleanup at the site.
In addition, a site need not be on the ,-
NPL to be the subject of CERCLA-
financed removal actions or of actions
brought pursuant to sections 106 or
107(a)(4)(B) of CERCLA.
In addition, although the HRS scores
used to place sites on the NPL may be
helpful to the Agency in determining
priorities for cleanup and other response
activities among sites on the NPL, EPA
does not rely on (he scores as the sole
means of determining such priorities, as
discussed below. The information
collected to develop HRS scores is not
sufficient in itself to determine the
appropriate remedy for a particular site.
EPA relies on further, more detailed
studies to determine what response, if
any. is appropriate. Them studies will *
take into acooint fee extent and
magnitude of contaminants 1n the ' '
environment, the risk to affected
populations and ennrmmmt, the cost
to correct problems «t the siter and the '
response Bottom that have been taken <
by potentially responsible partiee-or "•'
others. Derinom en (be 1ype anfl extent
of action to be taken •« fliese sites are >
made in accordance wtti the criteria- -r
contained in Subpart F of the NCR. After
conducting .meiBaddr&onai •todies.^ "
EPA may conclude that It is not •-.-••:•-
desirable to conduct response acfibn'at
some sftes-oB theJCPLfeecmne ef mere'1
pressing -needs ^t vmerrta*. Gfren dm"
(united vesvmn avatlaMe in tin •*'•
Fu«d«8ta«ieaed'uHder CERCLA; 'fie * -
Agency oust carefuHyibaianoe fttf1"'1^
relative roefe teicspenwat me- ' -•'"'• 8
num«roo8jit^Hta««tudied. Alee, ftifrf°
possible' Uwt EPA -will cenclutle after' '-*'
further Mafyeis mat no-action it needed
Btasttefeacmse-taesftedoeeftot .....
present a aignifieant threat te-pufotie -•'
health. wBh*are..or*h»environinent. ' -
El. NPL Update Process and Sckedula !
Pursuant to section 105{8]fB) of - ' .*
CERCLA. «U.SX.9805(8)(fl), EPA 4s -
required to eatabiiaa, as part of the NCP,
a pBOHrjriffltofiriles. ThetkJPLIutfilhUi-:
tliat obligation. lie-purpose °of 6mr .- ••' -
notice is to •propose mcadditiearto.the~J
hundred and thirty-three sites were •:
proposed on September 6.1983 as NPL
Update #1. Four of these sites were
promulgated on May 8,1984 (48 FR
19480) and 128 sites, including five sites
deferred from the September 8.1983
rulemaking. were promulgated on
September 21.1984 (49 FR 37030).
On October 15.1984 (49 FR 40320). 244
sites were proposed as NPL Update #2.
Two of these 244 sites were placed on
the final NPL on February 14.1985 (50
FR 6320) and 242 remain proposed. In
Update #3. twenty-six sites were
proposed on April 10,1985 for inclusion
on the NPL One of these sites was
recently added to the NPL bringing the
number of final NPL sites to 541.
In addition to these periodic updates.
EPA believes it may be desirable in rare
instances to propose or promulgate
separately individual sites on the NPL
because of the apparent need for
expedited remedial action. This
occmredln the case of the proposing
listing of Times Beach. Missouri (48 FR
9311. March 4.1983). the promulgation of
four San Garhdel Valley. California,
sites (49 FR 19480, May 8.1984^ the
promulgau'on-of two New Jersey radium
sites (50 FR 6320, February 14.1985), and
the promulgation of the Lansdowne
RadTaGon site inXandsdowne.,
PfinasyJvaniaJ
A»«wth the establishment of me
initial NPL and nbwqBent revisions.
States- have the primary responsibility
forcefectijig and scoring sites ftat are
candidates and «ubmitting Hie candidate
sttas to the EPAlRegjaoal Offices. States
may aha tfeaigp^jf a single site as .the
CERCLA reqoireatbat the NPL be-: '..
revised at least cace per year.'- . U'O'«T.
Accordingly. EPA published the first',: •:
NPL,tm September & 1988 '(«FR 48838).
containtbgaQB sites, £Rfthas.pmpondi:
Sta.te priority jute. For each proposed
NPL update, EPA. informs the £tates of;
tfce c|bslag,.de.tefl lot submission of. I,;
candidate sites lo EPA. This proposed .
update is &e thlcd within mm year anii
conGnues.EPA's plan to increase iba
frequency .of updating «f the NPL Ike •
EPA Begional Offices then conduct a .
quaTQy cantroLieariew of the State's
candidate sites. Alter conducting-this
review, (he EPA Regional Offices »ubmft
candidate sites to EPA Headquarters.
The Regions may include candidate sites
in addition to those submitted by States.
In jeviewmg these, submissions. EPA
Headquarters conducts further •quality
assurance audit*-to-ensum accuracy and
consistency among the various EPA and
State offices participating in the scoring.
EPA-reoentiy promulgated en
amendment to-section 30D.66(b)(4) of the
NCP .allowing certain sites with HRS *
scores 'below t&50 to be eligible for the
NPUTheee sMes may qualify for the
WPt 3faH -of the following occur •
-------
37952 Federal Register /. Vol. 50. No..181 / Wednesday. September 18. 1985 / Proponed Rules
• The Agency for Toxic Substances
and Disease Registery of the U.S.
Department of Health and Human
Services (ATSDR) has issued a health
advisory which recommends
dissociation of individuals from the
release.
• The Agency 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.
This Federal Register notice lists sites
not currently on the NPL that the
Agency is proposing to add to the NPL
These proposed additions are listed
immediately following this preamble.
Public Comment Period
EPA requests public comment on
these 38 proposed sites. Comments on
the proposed sites will be accepted for
60 days following publication of this
notice in the Federal Register. EPA is
also soliciting comments on three
Federal facilities that have HRS scores
of 28.50 or higher and that may be added
to the NPL in the future. The following
section of this preamble identifies these,
sites and discusses EPA's Federal
facility approach. See the
"ADDRESSES" portion of this notice for
information on where to obtain
documents relating to the scoring of the
38 non-Federal and three Federal sites.
After considering the relevant comments
received during the comment period and
determining the final score for each site.
the Agency will add to the NPL all
proposed sites that meet EPA's criteria
for listing. In past NPL rulemakings, EPA
has considered comments received after
the official close of the comment period.
Because the Agency has now increased
the schedule of rulernaking to three NPL
updates per year. EPA may no longer '
have the opportunity to consider late
comments. EPA may add the three
Federal facility sites without a further
comment period, contingent upon the
outcome of proposed changes to the
NCP (50 FR 5862. February^,-1985).
This is discussed in greater detail in the
following section.
FV. Eligibility
CERCLA restricts EPA's authority to
respond to certain categories of releases
and expressly excludes some
substances from the definition of
release. In addition, as a matter of
policy. EPA may choose not to use
CERCLA to respond to certain types of
releases because other authorities can
be used to achieve cleanup of these
releases. Preambles to previous NPL
ruleroakings have discussed examples of
these policies. See, e.g., 48 FR 40858
(September B. 1983): 49 FR 37074
(September 21,1984); and 49 FR 40320
(October 15,1984). Generally, this
proposed update continues these past
eligibility policies.
NPL eligibility policies of particular
relevance to this proposed update are
discussed'below, and include the RCRA,
Federal facilities and the mining waste
site policies.
RCRA-Related Sites
The Hazardous and Solid Waste
Amendments of 1984 expanded the
Agency's authority to require corrective
measures under the Resource
Conservation and Recovery Act
(RCRA). The Agency intends to use thfe
new RCRA authorities, where practical,
to effect cleanup. In the preamble to
Update #3 (50 FR 14115, April 10.1985).
the Agency discussed a concept for a
revised policy for listing RCRA-related
sites. Specifically, EPA suggested
deferring the listing of certain categories
of RCRA-related sites that scored 28.50
or above until the Agency determines
that RCRA measures an not likely to
succeed due to factors such as: (1) The
inability or unwillingness of the owner/
operator to pay for such action: (2) the
inadequacies of the financial
responsibility guarantees to pay for such
costs; or (3) Agency or State.priorities
for addressing the sites under RCRA.
This suggested deferred listing policy
would be applicable only to sites with
releases subject to RCRA regulatory or
enforcement authorities.
As stated in the preamble to proposed
NPL Update #3.. the Agency intends to
apply any revised RCRA-related site •
listing policy Jo RCRA-related-aites that
an currently proposed or promulgated
on the NPL, and, in appropriate cases.
delete sites from die NPL For example,
such sites could be .removed from the
proposed or final NPL if the Agency •
determines mat (1) AH necessary
corrective measures are likely to be
completed under RCRA authorities and
(2) CERCLA Fund-financed activities.
such as remedial investigation/
feasibility studies, remedial design or
remedial action, or CERCLA
enforcement action have not been
initiated. If such a policy wen applied
to" currently proposed and promulgated
sites on the NPL'and it is .determined
that such, sites should be removed from
the proposed or final NPL, these sites
could be relisted if the Agency later
determines that RCRA corrective
measures'at these sites are not likely to
succeed. -~~
EPA presented this information in
more detail in Ihe. preamble to Update
#3 and requested comment on the
suggested RCRA listing policy. Because
the Agency is still receiving and
evaluating comments on this suggested
RCRA listing policy and has not yet
adopted a final policy, RCRA-related
sites will be considered for listing on the
basis of the current RCRA listing policy
(See 49 FR 37070. September 21, 1984).
EPA will use the expanded RCRA
permitting authorities and RCRA
enforcement authorities, and. if
necessary, appropriate CERCLA
authorities, for cleaning up sites.
Under the current RCRA listing policy,
EPA has considered eligible for listing
those RCRA facilities where a
significant portion of the release
appeared to come from a "non-regulated
land disposal unit" of the facility. Non-
regulated land disposal units are defined
as portions of the facility that ceased
receiving hazardous waste prior to
January 28. 1883, the effective date of
EPA's permitting standards for land
disposal (47 FR 32339. July 28, 1982).
Under the current policy, regulated land
disposal units of RCRA facilities
generally would not be included on:,the
NPL except where the facility had been
abandoned or lacked sufficient
resources and RCRA corrective action
could not be enforced. ' '
The Agency proposed four RCRA-
related sites for Update #3 on the basis
of the current RCRA listing policy. Nine
RCRA-related sites with HRS scores of
28.50 or above -were submitted for
Update #4. We have applied our current
RCRA listing policy to these sites and
have included them on the proposed list
These sites are:
• Interstate Lead Co. (ILCO), Leeds, —
Alabama
• Martin Marietta (Denver
Aerospace), Waterton. Colorado
• Firestone Industrial Products Co.,
Noblesville, Indiana
• PrestoUte Battery Division,
Vi
ncennes
• John Deere (Dubuque Works).
Dubuque, Iowa
• Hooker [Montague Plant),
Montague, Michigan
• Kysor Industrial Corp., Cadillac.
Michigan
• Monroe Auto Equipment Co.,
Cozad, Nebraska •
• Matlack, Inc., Woolwich Township.
New Jersey
• Of the nine RCRA-related sites listed
above," eight are nonregulated units. One
site, Interstate Lead Company in Leeds,
Alabamar is a regulated unit which is
currently under Chapter 11 bankruptcy
and therefore may-lack sufficient
resources for cleanup. The listing of this
site is consistent with- our existing
RCRA
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Federal Eegister / Vsl. SO. No. 181 J Wednesday. September 18. 1OT5 / Proposed Rules 3*883
preamble to the Federal Register notice
announcing the promulgation of NPL
Update *1 (49 FR 37070. September 21.
1984).
Federal Facility Releases
CERCLA section lll(e)(3] prohibits
use of the Trust Fund for remedial
actions at Federally-owned facilities
and § 300.66(e)(2) of the NCP prevents
including Federal facilities on the NPL.
The Agency has approached this issue
in a number of different ways. Prior to
proposed NPL Update #2 (49 FR 40320,
October 15.1984). EPA did not list any
sites on the NPL where the release
resulted solely from a Federal facility.
regardless of whether contamination
remained on-site er migrated off-site.
However, based OB public comments
received from previant NPL
announcements. EPA proposed 36
Federal facilities far NPL Update #2. Aa
discussed in the preamble to Update #2,
EPA will promalgiHe the 36 Federal
facilities only if the NCP is revised to
permit the listing of Federal facilities on
the NPL.
On February 12.1985. EPA proposed
amendments to § 300.66[e)(2) of the NCP
and requested public comments on
whether to list Federal facilities on the
NPL/In Update *3(50 FR 14115. April
10,1985), the Agency identified six new
sites in the preamble to the Federal
Register notice that met the criteria for
proposal EPA requested comments on
the scoring of these sites pending
resolution of the NCP amendments. <
Because the amendments to
§ 300.66(e)t2) of the NCP have not yet
been promulgated. EPA is continuing the
procedure of naming those Federal
facilities that meet the criteria for
proposal io the preamble to the Federal
Register notice.
For Update #4, the Agency baa
applied the HRS to Federal facilities and
has determined that the foUowrag
Federal facilities would quatifcfor
proposed listing:
04
04
tu
WA
Starame
\
Nival ArEngneenng
" - - - - Kaunas)
Mr St
CRy or 001019
Utefwit.
22?
The Agency is requesting comments
on the scoring of these sites and may
promulgate them without another
comment period if the Agency
determines that listing FederaLi
is appropriate.
Mining Wei
fcifl
BBCllBB
Agency hofae&pMtunUwyxiiscwsion
wim DQ4 «d tk«SMe«f Utefc
. _ _ ^
Pndecal£itfaB:BnBnt.fF). This _'>•.. ',
category inchriea ettee where the United
-------
37954 Federal Register / Vol. 50, No. 181 / Wednesday, September 18, 1985 / Proposed Rules
Stales has filed a civil complaint
[including cost recovery actions) or
issued an administrative order under
CERCLA or RCRA. It also includes sites
where a Federal court has mandated
some form of response action following
a judicial proceeding. All sites at which
EPA has obligated funds for
enforcement-lead remedial
investigations and feasibility studies are
also included in this category.
A number of sites on the NPL are the •
subject of legal investigations or have
been formally referred to the
Department of Justice for possible
enforcement action. EPA's policy is not
to ralease information concerning a
possible enforcement action until a
lawsuit has been filed. Accordingly,
sites subject to pending Federal action
are not included in this category, but are
included under "Category To Be
Determined."
State Enforcement (S). This category
includes sites where a State has filed a
civil complaint or issued an
administrative order under CERCLA or
RCRA. It also includes sites at which a
State court has mandated some form of
response action following a judicial
proceeding. Sites where a State has
obligated funds for enforcement-lead
remedial investigations and feasibility
studies are also included in this
category.
It is assumed that State policy
precludes the release of information
concerning possible enforcement actions
until such action has been formally
taken. Accordingly, sites subject to
possible State .legal action are not
included in this category, but are
included under "Category To Be *
Determined."
Voluntary or Negotiated Response
(V). This category includes sites where „
private parties have started or ;
completed response actions pursuant to'
settlement agreements, consent decrees,
or consent orders to whk&EPA or the
State is a party. Usually, the response
actions result from a Federal or State
enforcement action. This category '. '
includes privately-financed remedial
planning, removal actions,-initial-
remedial measures, and/or remedial
actions.
Category To Be Determined (D). This
category includes all sites not listed in
any other category. A wide range of
activities may be in progress at sites in
this category. EPA or a State may be
evaluating the type of response action to
undertake, or a response action may be
determined but funds not yet obligated.
Sites where a Federal-or State
enforcement case may be under
authorities other than CERCLA or RCRA
are also included in this category.
Additionally included in this category
are sites where responsible parties may
be undertaking cleanup actions that are
not covered by a consent decree.
consent order, or administrative order.
Cleanup Status Codes
EPA has decided to indicate the status
of Fund-financed or private party
cleanup activities underway or
completed at proposed and final NPL
sites. Fund-financed response activities
which are coded include: significant
removal actions, initial remedial
measures, source control remedial
actions, and off-site remedial actions.
The status of cleanup activities
conducted by responsible parties under
a consent decree, court order, .or an
administrative order also is coded, as
are similar cleanup activities taken
independently of EPA and/or the State.
Remedial planning activities or
engineering studies do not receive a
cleanup status code.
Many sites listed on the NPL are
cleaned up in stages or "operable units."
For purposes of cleanup status coding,
an operable unit is a discrete action
taken as part of the entire site cleanup
that significantly decreases or
eliminates a release, threat of .release, or
pathway of exposure. One-or more
operable units may be necessary to
complete the cleanup rf a hazardous
waste site. Operable unite may include
significant removal actions taken to
stabilize deteriorating site conditions or.
provide-alternative water supplies,
initial remedial measures, and remedial
actions. A sfasjgbrremoval action
(constructing, fences or berms-'or .
lowering free-board) that does not •
eliminate a significant release) threat of •
release, or pathway of exposure is not •
considered an operable unit for.
purposes of cleanup status coding.
The following cleanup status codes •
(and definitions)' an used to designate
' the status of cleanup activities at'
'Proposed and final sites on the NPL -
Only one code is used to denote the
status of actual cleanup activity at each
site since the codes are mutually
exclusive. • . "
• Implementation Activities An
Underway for One or Mote Operable
Units (I}. Field work is. in progress atthe
site for Implementation of one or more -
removal or remedial operable units, but
no operable units are completed
Implementation Activities An
Completed for One or Man (But'Not
All) Operable Units. Implementation
Activities May be Underway foe-
Additional Operable Units (O): Field '
work has been-completed for-one or
mere operable units, but additional site
cleanup actions are necessary.
Implementation Activities An
Completed for All Operable Units (C).
All actions agreed upon for remedial
action at the site have been completed,
and performance monitoring has
commenced. Further site activities could
occur if EPA considers such activities
•necessary.
VI. Regulatory Impact Analysis
The costs of cleanup actions that may
be taken at sites are not directly
attributable to listing on the NPL, as
explained below. Therefore, the Agency
has determined that this rulemaking is
not a "major" regulation under
Executive Order 12291. The EPA has
conducted a preliminary analysis of the
economic implications of today's
proposal to add new sites. The EPA -
believes that the kinds of.economic
effects associated with this revision are
generally similar to those effects
identified in the regulatory impact
analysis (RIA) prepared in 1082 for the
revisions to the NCP pursuant to section
105 of CERCLA (47 FR 31180, July 1£
1982) and the economic analysis •?- -
prepared for the recently proposed^.
amendments to the NCP (50 PR 5881
February 12,1985). The Agency believes
the anticipated economic effects related
to proposing the addition of 38 sites to
the NPL can be characterized in terms of
the conclusions of the earlier RIA and
the most recent economic analysis. .
Costa
The EPA has determined that this
proposed rulemaking is not a "major"
regulation under Executive Order 12291
because inclusion of a site on the NPL
does not itself impose any costs. It does
not establish that EPA wUl necessarily
undertake remedial action,' nor does it
require any action by a private 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.
'Nonetheless, it is useful to consider the
costs associated with responding to all
sites included in a proposed rulemaking.
This action was submitted to the Office
of Management and Budget (OMB) for
review.
The major events that follow the
proposed listing of a site on the NPL are
a responsible party search and a
remedial investigation/feasibility study
(RI/FS) which determines whether
remedial-actions will be undertaken at a
site. Design and construction of the
selected remedial alternative follow
completion of the RI/FS, and operation
and maintenance (O&M) activities may
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Federal Register / Vol. 50. No. 181 / Wednesday. September 18. 1985 / Proposed Rules
continue after construction has been
completed.
Cost associated with responsible
party searches are initially borne b'y
EPA. Responsible parties may bear
some or all the costs of the RI/FS.
design and construction, and O&M. or
the costs may be shared by EPA and the
States on a 90%.10% basis (5096:50% in
the case of State-owned sites).
Additionally, States assume all costs for
O&M activities after the first year at
sites involving Fund-financed remedial
actions.
Rough estimates of the average per-
site and total costs associated with each
of the above activities are presented
below. At this time EPA is unable to
predict what portions of the total costs
will be borne by reponsible parties,
since the distribution of costs depends
on the extent of voluntary and
negotiated response and the success of
cost recovery actions where such
actions are brought.
Con category
Rl/FS
(ratal remedBl metwe* (IRM) it 10% of
Net present value of oTM'«~I!L!IL7_.7_I™""~
Mineral
$800.000
440.000
7JOO.OOO
80.000
3.770.000
1 1905 us _______
•Assume* cosToi O&M over 30 vetr*. S400.000 tor (ht
fra yeer and 10% ctacoum rat* »*«"«< n* me
Source "Ertent at me Hanrdoug flilem Problem tnd
Costs to States associated with
today's proposed amendment arise from
the required State cost-share of: (1) 10
percent of remedial implementation
(remedial action and IRM) and first year
O&M costs at privately-owned sites: and
(2) 50 percent of the remedial planning:
(RI/FS and remedial design), remedial '
implementation and first year O&M
costs at State or locally-owned Bites..,./-?
States will assume all the coat for O&M?-
after the first year JIaing.the"
assumptions developed in the 1982 RIA>
for the NCP, EPA hasaasnmed thaf 00
percent of the 38 non-Federal site* -
proposed to be added to the NP1 in this
amendment will be privately-owned and
10 percent will be State or locally-
owned. Therefore., using the budget
projections presented above, the cost to
States of undertaking Federal remedial •
actions at all 38 sites would be $172
million, of which $130 million is
attributable to the State O&M cost.
The act of listing a hazardous waste
site on the Final NPL does not itself
cause firms responsible for the site to
bear costs. Nonetheless, a listing may
induce firms to clean up the sites
voluntarily, or it may act as a potential
trigger for subsequent enforcement or
cost recovery actions. Such actions may
impose costs on firms, but the decisions
to take such actions are discretionary
and made on a case-by-case basis.
Consequently, precise estimates of these
effects cannot be made. EPA does not
believe that every site will be cleaned
up by a responsible party. EPA cannot
project at this time which firms or
industry sectors will bear specific
portions of response costs, but the
Agency considers such factors as: the
volume and nature of the wastes at the
site: the parties' ability to pay: and other
factors when deciding whether and how
to proceed against potentially
responsible parties.
Economy-wide effects of this
proposed amendment are aggregations-
of effects on firms and State and local
governments. Although effects could be
felt by some individual firms and States,
the total impact of this revision on
output, prices, and emploment is
expected to be negligible at Ihe national
level, as was the case in the 1982 R1A.
Benefits
The benefits associated with today's
proposed amendment to list additional"
sites are increased health and - -'
environmental protection as a result-of
increased public awareness of potential
hazards. In addition to the potential for
more Federally-financed remedial ""
actions, this proposed expansion of the •.
NFL could accelerate privately-financed.
voluntary cleanup efforts to a void * "
potential adverse publicity, private •>•• - -
lawsuits, and/or. Federal or State" "'"• :
enforcement actions. . -,-w'rS^*
As a result of tile-additional NPL-"1-'"
remedies, then will be lower humaa;"^ ''
exposure to high risk chemicals, and
"higher quality surface water, ffminS-*"**.
water, soil, and air. The magnitude-of or <..
these benefits is expected to be * " *
significant although difficult'to estimate
in advance of completing the RI/ESat • -
these particular sites. ' "r"u
-------
37956 Federal Register / VoL 5Q. No, 181 / Wednesday. September 18L 1985 / Proposed Rules
Dated: September 5.1985.
|. Winston Porter.
•\ssistant Administrator. Office of Solid
Wnsie and Emergency Response.
PART 300—[AMENDED]
It is proposed to amend Appendix B of
40 CFR P;irt 300 by ddding 38 sites to Ihe
National Priorities List. In addition, it is
proposed to amend the format of
Appendix B of 40 CFR Part 300 by
adding the columns "NPL Rank" and
"Cleanup Status". The sites would
appear in the list of proposed non-
Federal sites as follows:
NATIONAL PRIORITIES LIST PROPOSED UPDATE 4 SITES
NPL ' EPA i -
tank BG Slate
i Site name
Crty/county
Response
category t
stauaei
Group 2
0» NE
• Monroe Aulo Equprnent Co -
Cozad.
D
Group 3
05 iOH
07 llA
OS 'IL .
I
_j Ctmei Corp
1 Lawrence Todtt Firm
-iHOOLandM .. .
Hinmbal
Camanche .. . .
Antiocn
0 .
0
s
08
OS
OS
07
%
CO . .
MN
IN....
IA
PA 1
PA
G
Mann Uanana. Darmr. Aan>
-pace.
Freeway Sanitary Landfill
Cdumous Old Mine** LodHl
ft.
AY McDonald Ina Inc
ROD* 940 Dun. Dun*
CtDRecyc-ne __
•oup 5
Mtatenn
Bim«te '
CokMBw ... ... .. .
FUhuifm
Pocono Summit . . ,
Faster Tannstip
ca
p
o
i _
0. _____
D ..
-
1
t
Group 6
AL
interstate Lead Co (ILCO) —
1 08
1 05
UT
WL
Sliver Creek-Taingj . .
Nagen Farm... ._ __
Leads . ...
D.- ..... _.
Group?
— .
Pwkfty
Sloughton
.-1
n
S
Group*
OS
IN .
WesJOfclB BHMy OHflMn. «^_.
Vraenr-M..
n
Group ft
03 ' PA
03 ' PA
03 ' DE 1 Halby Chen
Group 11
-i
CO
OS I IN
MIR. . I Yarn* VMNT (toad Cm*
07 IA ; Shaw AMM Dump
02 NY ' Warwick Landfill .
05 t IN J TrWSUB PMrq
OS I UN East Mn« demotion
Noblesville ,
cnaitasdty
Wao-B*.
Columbus . .
EaMBffMTownst-p-
W. .
D .
S
# v=vommary or negowM response: R-FeoM on* Slate napo-iv F-Feder* I
D=Acuons to be detamwieii ^^ .
9-l-iiiiiBleiiieHUiBuii aethrlry eiOOMiif. one-or more operable unrta. O-ons or me
M underwiy C-.-nplementation to**, eomp-Hed'lut eToperatle unte.
[FR Doc. 85-22222, Filed 9-17-85; 8:45 am]
BILLING COOE.8MO-80-M
-------
-------
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Wednesday
November 20, 1985
Part II
Environmental
Protection Agency
40 CFR Part 300
National Oil and Hazardous Substances
Pollution Contingency Plan; Final Rule
-------
47912 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
IFR-2892-61
National Oil and Hazardous
Substances Pollution Contingency
Plan
AGENCY: En\ ironmental Protection
Agency.
ACTION: Final rule.
SUMMARY: Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA) and Executive
Order (E.G.) 12316. the Environmental
Protection Agency (EPA) is revising the
National Oil and Hazardous Substances
Pollution Contingency Plan (NCP). This
revision of the NCP reflects experience
gained since the NCP was last revised
and considers extensive comments
received on the proposed changes. The
purpose of the revisions is to streamline
the response mechanisms: to ensure
prompt, cost-effective response; to
respond to issues raised in litigation;
and to clarify responsibilities and
authorities contained in the NCP.
CERCLA provides that actions taken in
response to releases of hazardous
substances shall be in accordance with
the NCP. Section 311 of the Clean Water
Act (CWA) provides that actions lakes
to remove oil discharges shall, ta die
greatest extent possible, be in
accordance with the NCP.
In addition. BPA is establishing a
policy concerning the extent to which
• response actions taken pursuant to
CERCLA will be consistent with other
pertinent Federal and State
environmental and public health
requirements.
DfcTn: The effective date for the revised
National Contingency Plan shall be
February 1& 1988.
CERCLA section SOB provides for a
legislative veto of regulations
promulgated under CERCLA. Although
INS v. Chadha. 483 US. 919.103 S. Ct
2764 (1983). casts doabt on the validity
of the legislative veto, EPA has
transmitted a copy of this regulation to
the Secretary of the Senate and the
Clerk of the House of Representatives. If
any action by Congress calls the
effective date of this regulation into
question. EPA will publiska notice of
clarification in the Federal P. -.Jer
ADDRESSES: The public docket for the
NCP is located in the Subbasement. U.S.
Environmental Protection Agency. 401M
Street. SW.. Washington. DC 20460. and
IH available for viewing from 9:00 a.m. to
4:00 pan. Monday through Friday.
excluding holidays, by appointment
only. For appointments, contact the
public docket at (202) 382-3046.
FOR FURTHER INFORMATION CONTACT
Stephen M. Smith. Office of Emergency
and Remedial Response (WH-548D).
U.S. Environmental Protection Agency.
401M Street. S.W.. Washington. D.C.
20460. (202) 382-2200.
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
I. Introduction
U. Changes from Proposed to Final Rule
III. Revisions to Subpart F
A. Section 300.88—Remedial Action;
Compliance with Other Laws
B. Section 300.68—Other Revisions
C. Section 300.65—Removals
D. Section 300.68—Site Evatution Phase
and NPL Determination
E. Section 300.67—Community Relations
F. Section 300.71—Other tarty Response*
G. Other Subpart F Sections
IV. Revisions to Other Subparts
V. Summary of Supporting Analyses
A. Economic Impacts of Proposed NCP
Revisions
E Classification Under E.0.12991
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
VL List of Subjects in 40 CFR Part 300
LlntraductioB
Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980. Pub. L 96-510 (CERCLA or
the Act) and Executive Order (H.O.)
12316. the Environmental Protection
Agency (EPA) on February 12.1985.
proposed revisions to the National Oil
and Hazardous Substances Pollution
Contingency Plan (NCP or the Plan) (SO
FR 5882). The February 12.1985.
preamble discussed in detail the nature
and purpose of the proposed revisions.
which included EPA's proposed policy
on the extent to which CERCLA
response actions should be consistent
with other Federal or State
environmental or public health
requirements. EPA received 72 letters
totaling more than 1.000 pages of
comments on the proposed revisions.
Today, EPA is promulgating final
revisions to the NCP. EPA is also
establishing its policy concerning the •
extent to which response actions taken
pursuant to CERCLA will comply with
the requirements of other environmental
laws. This policy. "CERCLA Compliance
with Other Environmental Statutes" (the
Compliance Policy), can be found as an
appendix to this preamble.
In preparing the revisions to the Pun.
EPA has carefully considered all of the
public comments submitted on the
proposed revisions and is making some
modifications in response to those
comments. Major policy issues raised by-
commenters are addressed in this
preamble. Additionally, a summary of
all comments and EPA's response to
each is included in the Response to
Comments Documents, which is a
separate document that may be found in
the public docket for this rulemaking.
Thn relemaking does not address the
criteria for listing releases on the NPL
under NCP 9 300.66(b)(4). A separate
rulemaking (50 FR 37624. September 16.
1985) has already made Final the
changes that were initially proposed in
the February 12.1985. proposed rule.
In revising the NCP. EPA's primary
concerns are twofold. First. EPA is
making needed clarifications.
modifications, and streamlining in
program operations that EPA has
identified during its past three years of
experience. Second. EPA is
implementing an agreement reached in
die settlement of a lawsuit brought by
the Environmental Defense Fund (EOF)
and the State of New Jersey. (EOF v.
EPA. No. 82-2234. D.C. Cir.. Feb. 1.1984).
The terms of the settlement agreement
an summarized in the preamble to the
proposed rule at 50 FR 5862.
Section II of this preamble
summarizes those changes made to the
February 12 proposed rule. Section III «•'
the preamble discusses the revisions
Subpart F of the NCP. which was the
focoa of extensive public comment.
Section 300.68 of Subpart F, particularly
the proposal to attain or exceed
applicable or relevant and appropriate
Federal requirements during response
actions, was the subject of intense
public interest, and is. therefore.
discussed first in Section III. Section III
is organized in the following order:
A. Section 300.68—Remedial Action:
Compliance with Other Laws.
E Section 300.68—Other Revisions.
C Section 300.65—Removals.
D, Section 300.68—Site Evaluation Phase
and NPL Determination.
E. Section 300.67—Community
Relations.
P. Section 300.71—Other Party
Responses, and
G. Other Subpart F Sections.
Section IV addresses comments that
are related to the changes proposed for
Subparts A-E. G. and H. Section V
presents supporting analyses. Finally. !:
Section VI provides a list of subjects
addressed by this nilemaking.
D. Chances From Proposed to Final Rule
This section summarizes the chon-
that have been made to the propose.
rule, excluding the correction of
-------
Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47913
•vpographical errors, misspellings, and
her minor editorial changes. A copy of
.e Final rule indicating all changes from
ie proposed rule has been placed in the
jocket for this rulemaking and is
available for public inspection. The
following summary is organized in the
same order as the NCP itself.
Subpart A—Introduction
Section 300.3. In paragraph (a)(l), a
phrase concerning application of the
NCP to oil discharges was added to
make the language in paragraphs (a)(l)
and (a)(2) consistent.
Section 300.5. The United States
Department of Agriculture and its
abbreviation USDA were added to the
list of abbreviations in paragraph (5)(a).
Section 3OO.6. The definitions of two
terms, "applicable requirements" and
"relevant and appropriate requirements"
were added to this section. These
definitions an discussed in section OL
A of this preamble. Changes were also
made to the definition of "First Federal
Official" These changes are described
in section IV of this preamble. EPA has
made a conforming change in the
definition of "Remedial Project
Manager" (RPM) to extend the RPVfs
authority to include remedial and other
isponse activities. This change was
cassitated by a modification of the
jope of removals.
Finally, the definition of "remove" or
"removal" has been amended to include
actions that may be necessary to
monitor, assess, and evaluate the
release or threat of release of hazardous
substances, the disposal of removed
material or the taking of such other
actions as may be necessary to prevent
minimize, or mitigate damage to the
public health or welfare or Die
environment
Subpart B—Responsibility
Section 300.22. In paragraph (d)(l). the
text "threat to the public health or
welfare because of a discharge of oil
from any offshore or onshore facility; or
(2) That there may be an imminent and
substantial" was accidentally deleted
from the proposed rule. This language is
reinstated in the final rule.
Section 300.23. A phrase has been
added in paragraph (b)(2) in the
discussion of the Department of
Commerce. The phrase describes the
National Oceanic and Atmospheric
Administration's expertise concerning
predicting the movement and dispersion
of oil and hazardous substances through
•ectory modeling and information on
sensitivity of coastal zones to oil
jcharges and hazardous substances
One commenter recommended that
the next to last sentence of § 300.23(b](3)
be revised to clarify that the Navy may
assist the on-scene coordinator (OSC),
regardless of whether government or
commercial equipment is being used in a
response. The proposed language
implies that Navy services and
equipment are available only when
commercial equipment is not available.
EPA agrees with the recommendation.
The intent of the language was to
indicate clearly that Navy equipment
would be available for use only when
commercial equipment is not available.
It was not >ntended to limit the
availability of services or advice from
the Navy Superintendent of Salvage to
cases where Navy equipment is being
used. This advice or assistance is
available to the OSC. regardless of
whether commercial or government
equipment is being used. The deletion of
the phrase "these services" should
eliminate any confusion. Two
commenters noted that text In
9 300.23(b)(7) describing the jurisdiction
of the Bureau of Indian Affairs and the
heading of the Territorial Affairs was
dropped. The omissions were
unintentional. One commenter also
suggested adding to the list of bureaus
the phrase. "Bureau of Reclamation:
operation and maintenance of water
projects in the west: engineering and
hydrology; and reservoirs." EPA concurs
with the comments and has amended
the NCP accordingly. Paragraph (b)(9),.
which discusses the Department of
Labor (DOL). has been revised to add
text describing the authority of the
Occupational Health and Safety
Administration (OSHA) over and
responsibility for worker health and
safety.
Paragraph (b)(10). concerning the
Department of Transportation (DOT)
provision of expertise, has been
amended to reflect the addition of the
Research and Special Programs
Administration (RSPA) to the National
Response Team (NRT). See section IV of
this preamble. Paragraph (b)(12) has
been revised to reflect the policy that
EPA may enter into a contract or
cooperative agreement with a State for
removal as well as ren.jdial actions. See
section III.C of this preamble. Paragraph
(d)(2) has been amended to indicate that
the authority for permanent relocation
of threatened individuals not otherwise
provided for has been redelegated from
the Federal Emergency Management
Administration to EPA.
Finally, the text in paragraph (e)
describing the relationship between the
Federal Coordinating Officers and OSC/
RPM during a disaster has been
changed. See section IV of this
preamble.
Section 300.24. The sentence. "A State
agency that acts pursuant to such
agreements is referred to as lead
agency." has been added in paragraph
(d), which discusses contracts and
cooperative agreements between EPA
and States. See section HI.G of this
preamble.
Section 300.25. Section 300.25 required
a technical change. Section
300.25(d)(2)(i) has been changed to
include reference to i 300.68 because
appropriate response actions under
preauthorized claims include remedial
as well as removal actions.
Subpart C—Organization
Section 300.31. Figures 2 and 3 have
been revised. Figure 2 has been
amended to list the Northern Mariana
Islands. American Samoa, and the Trust
Territory of the Pacific Islands, in EPA
Region DC Figure 3 has been amended to
list Guam, the Northern Mariana
Islands, American Samoa, and the Trust
Territory of the Pacific Islands in the
14th Coast Guard District and to list the
Virgin Islands and Puerto Rico in the 7th
Coast Guard District. See section IV of
this preamble.
Section 300.32. A phrase concerning
separate standing regional response
teams (RRTs) for Alaska and the
Caribbean has been added in paragraph
(b). The phrase "ensure preparedness"
in paragraph fb)(8)(x) has been changed
to "encourage preparedness activities"
for the reasons described in section IV
of this preamble. Paragraph (d). which
refers to the Scientific Support
Coordinator, has been deleted because
it duplicates information contained in
§ 300.34(d) and 1300.43(b). See section
IV of this preamble.
Section 300.33. In paragraph (b) (1). a
technical change has been made that
stipulates that the first Federal official
should consult with the OSC before
initiating any necessary action. This
change is necessary because of an
amendment to the definition of the "First
Federal Official." See section IV of this
preamble. Paragraph (b) (2) has been
amended to require the OSC/RPM to
conduct data gathering concerning the
"identification" of potentially
responsible parties instead of
concerning the "existence" of
potentially responsible parties. See
section IV of this preamble. In order to
conform with 9 300.52(d) and 9 300.63(c).
the word "advise" has been changed to
"notify" in paragraph (b)(9).
Finally, the sentence. "The RPM will
also review responses implemented
pursuant to preauthorizntion in order for
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47914 Federal fregtster / Vol. 50, No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
EPA to determine that the responses are
consistent with preauthorization in
cases where claims are filed for
leimbursement." has been added to
§ 300 33(bi;i4)(m) to clarify the RPM's
responsibilities. See section IV of this
Section 30034. In paragraph (d). a
reference has been made to the National
Strike Force (NSF) Dive Team on the
Allan. ic Coast. In paragraph (d)ll). a
description of the NSF Dive Team
capability hds been added to paragraph
(H)( 1) because it is a resource available
to all OSCs requiring diving advice or
support for response activities. In
H Jdition. the description of the N'ational
Strike Foicc role and capabilities in
paragraph (aR!) has been revised. All
these changes are discussed in section
IV of this preamble.
In paragraph (d). the description of the
Scieniinc Support Coordinator (SSC)
has been changed by adding the
sentence. "The SSC will also provide
scientific support for the development of
regional ami local contingency plans."
Paragraph (f)(2) has been changed to
authorize the OSC/RPM to activate the
RRT and to clarify the ability of an RRT
to request replacement of the OSC/RPM
during a response. Paragraph (f)(4)(iv)
has been cnanged to clarify the RRT's
ability to request ihe replacement of the
OSC/RPM.
In paragraph (f)(6), the requirements
for deactwa"ng an RRT have been
changed by ropldcing the requirement
that both El'A and the Coast Guard
agree to the duactivation with the
statement that the RRT can be
deactivated "when the incident-specific
RRT chairman determines that the OCS/
RPM no longer requires RRT
assistance." These changes are also
discussed in section IV of this preamble.
Section 300.38. For consistency with
similar language in 5 300.38(d) covering
ihe RRC. § 300.36(b) is being amended to
add a reference 10 personnel provided
for the National Response Center (NRC).
This reference to personnel was in the
1980 version of the NCPbul was
inadvertently deleted In Ihe 1982
amendments.
In paragraph (d). the text
"coordinating response. Each regional
plan will specify the location of was
.nudvertentl} deleted from the proposed
rule. This language is reinstated in the
final rule.
Section 30037. Paragraph (b)(2) has
been revised to reflect that the Strike
Teams and commercial salvors are other
.esources that could be consulted on
marine salvage matters. See section IV
of this preamble.
Subpart D—Plans
Section 300.41. Reference to regional
and local contingency plans for Alaska
and the Caribbean have been added to
paragraph (a). See section IV of this
preamble.
Section 300.42. Paragraph (a) has beer
revised to refer to separate regional
contingency plans for Alaska and the
Caribbean area. New language has been
added which refers to a coordination
between State and Federal local plans.
See section IV of this preamble.
Section 300.43. Language has been
added in paragraph (a), reinforcing and
emphasizing RRT involvement in
Federal local contingency plans as
mentioned in the NCP in S 300.43(b) and
§ 300.32(c). See section IV of this
preamble.
Subpart E—Operational Response
Phases for Oil Removal
Section 300.51. Language has been
modified in paragraph (b) concerning
notification of an oil discharge. Similar
changes have been made to § 300.63 for
notification of releases of hazardous
substances. See section 1II.G of this
preamble for a discussion of these
changes.
Section 300.52. Paragraph (b) has been
clarified by requiring the OSC to
"identify" potentially responsible
parties rather than to "determine the
existence of potentially responsible
parties. See section IV of thrif preamble.
Section 300.55. The language of
paragraph [b) (1) has been revised to
include as a category of incident the
situation where a minor discharge is
discovered, but no removal action is
required. See section IV of this
preamble.
Section 300.58. The phrase "including
timely action" has been deleted from the
description of funding of discharge
removal actions in paragraph (a). Tnis
phrase was inadvertently included in
the proposed rule.
Subpart F—Hazardous Substance
Response
Numerous changes in Subpart F have
been made from the proposed rule to the
final rule. Two types of changes have
been made throughout the subpar*. First
EPA in this subpa*t has substituted
"shall" or "shall, as appropriate" for the
word "should" to clarify whether
requirements are mandatory, regardless
of the circumstances. EPA will consider
making similar revisions to other
subparts in a future rulemaking. Second,
to clarify the requirements concerning
the compliance of CERCLA responses
with the requirements of other laws.
EPA has altered two key phrases that
are used in several places in Subpurl F:
(1) "Applicable or relevant and
appropriate requirements" and (2)
"other Federal criteria, advisories, and
guidances and State standards." In the
proposed rule, these were referred to as
"applicable or relevant requirements"
and "other requirements, advisories, and
guidance to be considered." The
meaning of these phrases is discussed in
section 1II.A of this preamble. These two
types of changes are not discussed
further m this summary of changes.
Section 300.61. Paragraph (d] has been
amended to require the lead agency, as
practicable, to monitor the action of
third parties preauthonzed under
9 300.2S(d). See section I1I.G of this
preamble. See also the change to
§300.33(b)(14)(.ii).
Section 300.82. Paragraph (a)(l) has
been amended to include a statement
that a State agency acting under a
Superfund State contract or cooperative
agreement is referred to as the lead
agency. Paragraph (a 1(2) has been
amended to require States to enter into
such contracts or agreements if they
intend to use expenses incurred at sites
to fulfill part of their cost-sharing
obligations. This change will ensure that
expenses are consistent with the NCP
and other regulations, fully auditable. •
and acceptable to EPA. Paragraph (b)
has been revised to clanfy that agencies
in addition to EPA may provide
assistance to States under a contract or
cooperative agreement. The changes to
paragraphs (a) and (b) are discussed in
section III.G of this preamble.
Editorial changes have been made to
S300.62(d) to clarify the procedures for •
State cost-sharing and to paragraph (e)
to require a State to submit
"accounting" of response costs prior to
remedial "action," (instead of
"estimate" of response costs prior to
remedial "investigation activity"]. And
finally, 5300.62(0 has been revised to
specify that it is the "Federal" lead
agency that shall consult with the
affected State or States.
Section 300.83. Section 300 63(b) has
been amended to clarify the reporting
requirements for releases of hazardous
substances when direct reporting to the
NRC is not practicable. The paragraph
has been amended to state in such cases
"reports may be made to the Coast
Guard or EPA predesignated OSC for
the geographic ana where the release
occurs. . . . If it is not possible to
notify the NRC or predesignated OSC
Immediately, reports may be made
immediately to the nearest Coast Guard
unit, provided that the releaser notifies
the NRC as soon as possible." These
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Federal Register / Vol. 50. No. 224 / vvednn-day, November 20. 1985 / Rules ar,d i\egu auoiia 47915
changes are discussed in section ffl.G of
this preamble.
In paragraph (c) the phrase "OSC or
lead agency" has been changed to
"ORC" »n make it clear that the NRC
will notify the OSC and that the OSC
has the responsibility for notifying the
Goverror
Section 300.84. In { 300.M(a) "OSC"
was changed to "lead agency" to reflect
NCP requirements.
Paragraph (a](2) was amended to
reflect the possibility that the lead
agency may base preliminary
assessments on sources other than the
Department of Health and Human
Services (e.g.. State public health
agencies) for the evaluation of the threat
to public health. This change is
discusspd in section III.G of this
preamble.
Paragraph (d) was amended to
reference § 300.74(b), which delineates
appropriate actions for trustees of
natural resources.
Section 300.65. In 9 300 65(b)(2)(vii).
the phrase "and enforcement" was
deleted because the availability of State
or Federal enforcement mechanisms Is
not a factor that must be considered in
determining the appropriateness of a
removal action pursuant to $300.65. The
word "similar" was deleted from
§300.65fb)(2)(viii) to allow situations or
factors that pooe threats to public health
or welfare or the environment to be
considered regardless of whether they
are similar to the threat being evaluated
for the appropriateness of a removal
action.
"Or other" was added to J300.65(c)(6)
to reflect the fact that highly
contaminated soils may need to be
removed from non-drainage areas to
reduce the spread of contamination. See
section III.C of this preamble.
In S300.65(d), "may" was changed to
"will" to require a lead agency to
request FEMA to conduct a temporary
relocation or evacuation when
necessary to protect public health or
welfare. In 9300.65(e), the language "the
OSC should coordinate* withthe RPM to
ensure" was changed to "the lead
agency shall ensure" to reflect changes
made by EPA to the scope and definition
of removals. See section m.C. Section
300.65(f] was revised to reflect changes
in the terminology concerning CERCLA
compliance with other laws and the
definition of the terms "applicable
requirements" and "relevant and
appropriate requirements" in 8 300.8.
See section I1I.C.
Section 300.65(g) was amended to add
"and other legal requirements" to
indicate that there may be other legal
requirements beyond Federal or State
permits or authorizations when
disposing of wastes off-site during a
removal action.
Section 300.65 WHS also changed by
the addition of new paragraphs (h) and
(i) concerning the compliance of removal
actin-s pursuant to CERCLA section 106
and of other private party responses
with the requirements of 'he section for
purposes of cost recovery under
CERCLA section 107.
Section 300.68. Section 300.66(b)(4)
has been amended in a recent separate
rulemaking (50 FR 37624. September 18.
1985). The new language of §300.66(b)(4)
is different from the language proposed
on February 12,1985.
The following sentence has been
added to §300.68(c)(2) to clarify that
limited response activities at Federal
facilities are eligible for Fund-financing:
"Except as provided by CERCLA section
infe)(3), Federal facilities listed on the
NPL are not eligible for Fund-financed
remedial actions other than action*
specified in CERCLA section lll(c)."
This addition is discussed in eection
IIl.D of the preamble.
In |30066fc)(6) the title "Ranking of
Releases" has been deleted to make the
paragranh consistent with other
paragraphs, which do not have titles.
Several changes have been made in
§ 300.86(c)(7). The phrase "at that time"
has been deleted from paragraphs (i),
(ii). and (iii); the phrase "or ,,
recategorization on" has been added:
the phrase "making this determination"
has replaced "deleting sites." and
consultation with the State has been
required under paragraphs (ii) and (iii).
These changes are discussed in section
III.D of the preamble.
Section 300.67. The requirements for
developing a formal community
relations plan under § 300.67(b) have
been amended to require a plan to be
developed and implemented if the
removal action extends or is expected to
extend over 45 days. The phrase
"develop and" was deleted from
9 300.87(c) to clarify that a responsible
party may be permitted to implement
but not to develop a community
reibaons plan. These changes are
discussed in section III.E of this
preamble.
In addition, in 8 300.87(a) the phrase
"A formal community relations plan
must be developed and implemented"
was replaced by the phrase "The lead
agency shall develop and implement a
formal community relations plan." and
the phrase "as a general rule" in
8 300.67(d) was replaced by the phrase
"in most circumstances."
Section 300.PS. Section 5 300.68(a)(l)
has been ame^d to specify that Fund-
financed remedial actions, "excluding
remedial planning artivitrjo pursuant to
CERCLA section 104(b)." may be taken
?n!y 4t NF1 sites. See discussion in
section III E of this preamble.
In § 300.68(8)13). "public health or
environmental" was deleted as the type
of permits that are not required for
Fund-financed remedial action or
remedial action taken pursuant to
CERCLA section 108. The phrase "and
other legal requirements" was added to
the end of the paragraph. See section
III A.
The phraje "initiation of a" replaced
the term "undertaking" in the reference
to Fund-finar'-.ed remedial action in
i 300.6n(b)(2).
Section 30088(d). ".nnerable Unit."
and 8 300.68fe). 'Remedial
Investigation/Feasibility Study." are
being moved to precede 8 300.68(c),
"Scoping c i Response Actions." to
cl»rify the order in which the scoping of
response actions occurs in the Remedial
Irivpstiijatioi/Feasibiluy Study (RI/FS)
proems Accordingly, the paragraphs
have been redesignated as follows:
Section 300.68fc) Opernble Unit.
§ 30068Mi Remedial Investigation/
Fe£Sib:'..t> .S.uriy. and « 30n.fifl(e)
Srooing of Response Ac'-.ons during the
Remedial Investigation.
Ser.tion 3W 68(e)(ll !8 30068(c)(U in
the proposed rule) was changed to state
that the initial scr-oms of response
actions "may serve as the basis for
further supportira funding requests for a
remedial mvesf.gation or feasibility
study." The previous language implied
that '.he scoping would in all cases serve
as the basis for requesting funds for a
remedial investigation or feasibility
study. For "nine sites, however, a
removal action mav b" the only
response needed: tre change allows for
this possibility. A phrase was also
added to 9 300.68fe)(l) to state that
"Initial analysis shall, as appropriate.
also provide a preliminary
determination of the extent to which
Federal environmental and public health
requirements are applicable or relevant
and appropriate to the specific site, and
the extent to which other Federal
criteria, advisories, aid guidances and
State standards are to be used in
develrpmg the remedy." The phrase
clarifies that the applicability or
relevance and appropriateness of other
requirements should be considered from
the initial stages of a remedial action.
S?e *£--;on I1I.A of this preamble.
In I 300.6R{e)(2)(iii) the terms "and
transport" and "and opoortunities" were
added for clarification. See section Ifl.A.
Section .mB8(e)(2)(v) was added as
another factor tc be considered in
determining the appropriate resoonse
fiction, and the subsequent p mmrapnb
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Federal Register / Vol. "iQ. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
i-r-- .iGpr<>pr'.jidK . °n>imbered. The
"i •• -if : :nofi«iiV)(vl.s J8
i -..-.s (..-IT."-,' i"-i potential ground
.• i «*r use 'e g. she aupropriate ground
\i'pr cl''to'vs. and guidances
ind Stale standdfds are to be considered in
ileveliiomg the remedy.
Sec section III.A.
The following language was deleted
from § 300.tt8H(2)(xin) (formerly
§ 30068(eJ(2|fxij): "and criteria and Ihe
extent to which (here are applicable or
relevant standards for the storage.
treatment, or disposal of materials of the
lype present at the rplease." See section
III.A. "(A|nd/or food chain
contamination" Mas added to
§ 300.6fl(e)(2)(xiv). AHHed to the
beginning of $ 300.88(e)(2)(xvi) was "for
Fund-financed responses" in reference
io the availability of other response and
en'->rcement mechanisms to respond lo-
th P release. See section III.A. The
beginning of § 300.68(f) has been
changed to read: "To the extent that it is
both possible and appropriate, at least
one remedial alternative shall be
developed as part of the feasibility
study (FS) in each of the following
categories:." This change is discussed in
section III.B of this preamble. The
phrase "including those in paragraph
ifl(i«) of (his section" has been added to
§ 300.68(f)(2). and the last sentence of
proposed paragraph (f)(2) baa been
deleted.
EPA proposed in 9 3(XX6f4gj(l) of the
ML*3 that m the initial screening of
alternatives:
An alternative that far exceed* the costs of
other alternatives evaluated and that does
not provide substantially greater public
health or environmental protection, or
technical reliability shall usually be excluded
from further cons-deration unless there 13 no
ctf-er remedy that meets applicable or
ie!r >nnt on--, c-pnropnate Federal public
hea:':1! or envirjr.mentol requirewenu.
(Emphasis added.)
In making this proposal. EPA did not
intend to suggest, as one commenter put
it. that an alternative that meets or
exceeds relevant or applicable Federal
requirements may not provide
substantially greater public health or
r- vi.onme.ital protection than an
alternative that does not meet those
requirements. Rather. EPA belie-, "s that
compliance with applicable or relevant
' and appropriate requirements is
npcessary to provide adequate
protection of human health and the
environment. Accordingly, the language
emphasized above has been dele'pd and
the following has been added:
For purposps of this paragraph, an alternative
that meets or exceeds applicable or relevant
and appropriate Federal public health or
environmental requirements provides
substantially greater protection than do
alternative thai do not meet such
requirements.
"(W)aste biodegradation" was added
to the list of technologies in
9 300.68(h)(2)(v). the appropriateness of
which shall be considered in evaluating
remedial alternatives. See section III.A.
Numerous changes were made to
9 300.68(1)—Selection of Remedy, which
are discussed in section UI.A of this
preamble. The wording of 9 300.68(i)(l)
was revised by adding the phrase
"Except as provided in 9 3fln.a8(i)(5)"
before the statement that the remedy
selected will attain or exceed applicable-
or relevant and appropriate Federal
reauirements. In addition, the fallowing
phrase was deleted from the name
paragraph because it wa«.redundant
and thus potentially confusing: "In
making this determination, the lead .
agency will consider the extent to which
the Federal standard(s) are applicable
or relevant to the specific circumstances
at the site."
In 9 300.68{i)(4). iiueferring to the use
of other Federal criteria, advisories, and
guidances and State standards, the
phrase "will be considered and may be
used in developing alternative*, with
adjustments for site-specific
circumstances" was inserted to replace
the phrase "shall be used, with
appropriate adjustment in determining
the appropriate action." The revision is
intended to clarify the role of such
criteria, advisories, guidances, and
standa-Js in selecting remedial
alternatives.
Section 300.68(i)(5) was reorganized
so that the five exceptions to attaining
applicable or relevant and appropriate
requirements are numbered as
9300.68(i)(5)(i) through (v). instead of
9 300.66(1). 9 300.68(ii)(A) through (C).
and 9 300.68(iii). In the Fund-balancing
exception of 9 .10O68(i](5)(ii) [formerly
9 300.68(iH5)(ii)(Al). the phrase "for all
of the alternatives that attain or exceed
annlicable or relevant and aooropnate
Federal requirements" was added to
clarify that the Fund-financing pxception
iray "nly be invoked when ^i
alternative that attains aop'irablp or
relevant «r..i appropriate rpcmrements
passes the Fund-balancing test. The use
of trie exception was further specified
by adding the following sentences:
In the even) of Fund-balancing, the lead
agency shall select the alternative which
most closely approaches the level of
protection provided by applicable or relevant
and appropnate Federal requirements.
considering the specific Fund-balanced sum
of money available for the facility under
consideration.
The phrase "at the specific site m
question from an engineering
perspective" was added to the technical
impracticality exception at
9 M0.68(i)(5)(iii) (formerly
9 300.(W(i)(5)(ii)(B}). The following
requirement was also added:
[T]he lead agency shall select the alternative
that ii reasonable to implement from an
engineering perspective and that most closely
approaches the level of protection provided
by applicable or relevant and appropriate
Federal public health and environmental
requirements.
To the exception for unacceptable
environmental impacts at
9 300.68(i)(5)(iv) (formerly * -
9 30Q,68{iM*Hli)(C)). the following
analogous requirement was added:
[T]he lead agency shall select the alternative
that most closely approaches the level of
protection provided by applicable or relevant
and appropriate Federal public health or
environmental requirements, without
resulting in significant advene environmental
impacts.
Similar language concerning the lead
agency selection of an alternative was
also added to 9 300.6B(i){5)(v) (formerly
5300.68
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Federal Renter / Vol.' 50. No. 224 / Wt-dhesday. November 20. 1985 / Rules and Regulations 4?917
decision documents must explain and
document the reasons."
In § 300 6fi|k)(l). which deals with the
adequacy of site sampling plans, the
phrase "will be adequate" was changed
to "will generally be adequate if the
plan includes the following elements."
Section 300.68(k)U)(v) was added. The
language :s a< follows: "Such other
elements as may be required by the
RPM and the appropriate EPA Regional
or Headquarters quality assurance
office on a site-by-site basis." In
§300 68(k)(2), the phrase "Remedial
Project Manager with a coordination
signature f-om the Quality Assurance
Officer" replaces "appropriate EPA
Regional or Headquarters quality
assurance office" in referring to who
must review and approve the quality
assurance site sampling plan. See
section III.A.
Section 300.68(1) is new and was
added to clarify the circumstances under
which a private party response pursuant
to administrative action under section
106 of CERCLA or pursuant to a claim
under section lll(a)(2) of CERCLA and
$ 300.25(d) of the NCP will be
considered consistent with the NCP. The
new paragraph is discussed in sections
III B and III.F of this preamble. See also
section III.C.
Section 300.89. In addition to minor
editorial changes in paragraphs (a) and
(b). § 300.69 has been revised to ensure
that Federal resources are available for
timeiy responses by amending
paragraph (d) to allow interagency
agreements to address advance
allocation of Fund monies and other
funding procedures. See section II1.F.
Section 300 V. Section 300.70(a) has
been revised to state that the lead
agency may consider the lista of
response methods "before selecting the
response action." The paragraph
previously stated that the lead agency
may consider the lilts "in taking
response action."
Section 300.71. To clarify the
requirements for responses pursuant to
CERCLA section 108. actions involving
preauthorization under i 300.25, and
other private responses, the following
changes have been made to 8'300.71(a):
• Paragraphs (a)(l), (3). and (4) have
been deleted:
• The words "In addition." have been
deleted from the beginning of
$ 300.71(a)(2), which has been
^numbered § 300.71(a)(l): and
• Paragraph (5) has been: renumbered
as paragraph (2): revised to reflect the
deletion of § 300.71(a)(3): and revised to
reflect (together with new paragraph j3)J
changes in }S 300.65 and 300.68 defining
consistency with the NCP.
These changes arc discussed in section
III F of this preamble. See also sections
III.B and III.C.
Section 300.71(aH5)(ii)(C) has been
renumbered § 300.71(a)(2l(iiJ(C) and
revised to refer to selecting "a cost-
effective response" rather than selecting
"the cost-effective response." See
section III.A of this preamble. Section
300.71(a)(2)(ii)(D) adds as a criterion for
consistency with the NCP that an
opportunity be provided for public
comment concerning the selection of a
remedial action.
Paragraph (c) of this section has been
revised in two ways. First, the second
sentence has been reworded to refer to
"proposed response actions" rather than
"responsible party proposals." Second.
as discussed in section III.F of this
preamble, the technical expertise that
organizations must demonstrate to be
certified under this paragraph have been
clarified by a revision to § 300.71(c)(l).
Subpart G—Trustees for Natural
Resources
Section 300.72. In response to a
commenter. EPA has revised S 300.72 so
that the designation of natural resource
trustees includes designation for the
purposes of the Clean Water Act.
Section 300.74. In response to several
comments. EPA is clarifying the roles
and responsibilities of EPA and the
States under this section. As described
in section IV of this preamble, new
parargraph (b] has been added and
proposed paragraph (b) has been
renumbered paragraph (c).
Subpart H—Use of Dispersants and
Other Chemicals
Section 300.84. Only one type of
change has been made to this section.
EPA has substituted "shall" or "shall, as
appropriate" for the word "should" in
paragraphs (a), (b). and (e) to clarify
whether requirements are mandatory.
regardless of the circumstances.
III. Revisions To Subpart F
A. Section 300.68—Remedial Activn:
Compliance with Other Laws
This section discusses EPA's policy to
uttam or exceed applicable or relevant
and appropriate Federal requirements
dunna remedial and removal actions.
Despite general support for responses
to hazardous substances releases, the
proper level of cleanup in specific
instances is often disputed. In particular,
the role of nther environmental laws in
determining the appropriate extent of
cleanup has been the subject of
controversy. In a settlement agreement
entered in Environmental Defence Fund
("EOF") et al. v. EPA. Nos. B2-2234 et al.
EPA agreed to promulgate a rule
"addressing the issue of whether
(CERCLA] response activities must
comply with other federal, state, or local
environmental laws."
As explained in the preamble to the
proposed NCP revisions (50 FR S861.
February 12.1985). EPA has determined
that the requirements of other Federal
environmental and public health laws.
while not legally applicable to CERCLA
response actions, will generally guide
EPA in determining the appropriate
extent of cleanup at CERCLA sites as a
matter of policy. These laws were
enacted with the goal of protecting
public health and the environment.
Regulations developed under these laws
have imposed requirements that EPA
and other Federal agencies deemed
necessary to protect public health and
the environment Because protection of
public health and the environment is
also the goal of CERCLA response
actions, other Federal environmental
and public health laws will normally
provide a baseline or floor for CERCLA
re^pnns-s. TV revised NCP and the
Appendix to the preamble containing
the policy concerning CERCLA
Compliance with Other Environmental
Statutes (the Compliance Policy).
therefore, provide, subject to five
enumerated exceptions, that a cost-
effective remedy will be selected from a
range of alternatives that attain or
exceed applicable or relevant and
appropriate requirements. State and
local environmental laws, while not
applicable or relevant and appropriate
to CERCLA response actions, will be
considered by EPA in selecting response
actions.
The proposed revisions to the NCP
provided that EPA would apply
"applicable or relevant" Federal
environmental standards. This final rule
retains the same approach, with some
clarifications. First. EPA has replaced
the term "standards" with
"requirements" in order to clarify that
all applicable and relevant statutory and
regulatory requirements will be applied.
regardless of whether they may be
classified as "standards." "criteria." or
anything else. Second. EPA has changed,;
the term "applicable or relevant
requirements" to "applicable or relevant
and appropriate requirements." Finally.
the definition of "applicable or relevant
and appropriate requirements" has been
modified as shown in $300.6. and as
discussed below. Discussion of CERCLA
compliance with oth« Federal
requirements is organized in the
following order
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47918 Federal Register / Vol. 50. No. 224 / Wednesday. Nove^er 20. VW5 / Ri:lcs *nd Regulation*
1. Identification and Implementation
of Applicable or Relevant and
Aopropnate Requirements
I Exceptions to Comoliance with
Applicable or Relevant *nJ Appropriate
Requirements
3 Rel 1'ionship of Complidnce Policy
»o Statutory Requirements for Cost-
Effectiveness
4 Relationship of Compliance Policy
to Specific Requirements of Other
Statutes
5. Compliance with State
Requirements
6. Other Sneufic Concerns with
Respect to the Compliance Policy
1. Identification and Implementation of
Applicable or Relevant and Appropriate
Requirements
Applicable Requirements. As defined
in 9 300.6, "applicable" requirements are
' those Federal requirements that would
be legally applicable to the response
action, if that action were not
undertaken pursuant to section 104 or
106. The definition makes clear that
Federal requirements will be considered
"applicable" even if they would not
directly apply m the State where the
•esponse takes place. For example.
many States have Federally authorized
programs under the Resource
Conservation and Recovery Act (RCRA)
and the Clean Water Act (CWA). In
such States, the Federal environmental
law does not directly apply; the State, in
order to obtain Federal authorization.
must comply-with Federal requirements.
In such instances, the lead agency will
consider Federal law to be "applicable"
under the NCR
The characteristics of CERCLA sites
are too varied and unpredictable for
EPA to specify, by regulation, which
Federal requirements are "applicable."
Such a determination necessarily will be
made on a case-by-case basis.
Therefore, an important part of the
remedial investigation/feasibility study
(RI/FS1 process will bo the utiliatton of
the list of potentially applicable at
relevant and appropriate requirements
contained in the Appendix to this
preamble. "Applicability" is to be
determined objectively: if. because of
the nature of the CERCLA site, the
requirement would apply but for the
implied repeal of other environmental
and public health requirements
contained in CERCLA. it is "applicable."
For example, the PCB Requirements.
which are listed In the appended policy
as potentially applicable or relevant and
appropriate requirements, would not be
applicable to an uncontrolled waste site
that did not involve the release of PCBs
and would be applicable or relevant and
apprnpnate to sites that do involve the
release of PCBs. Once i requirement ;s
Jetennined to be applicable, it will bo
applied m the same manner js it would
bt> applied otherwise.
EPA believes that it is generally
proper for CERCLA response actions to
comply with applicable Federal
requirements, just as persons in the
regulated community must comply with
those requirements. CERCLA requires
that responses adequately protect public
health and welfare and the environment.
Only after such protection is assured
through compliance with applicable or
relevant and appropriate requirements
is the cost-effectiveness analysis
conducted.
Relevant and Appropriate
Requirements. Under the February 12,
1985 proposed revisions. CERCLA
responses also would comply with
"relevant" requirements, which were
defined in the Aopendix to the preamble
as those requirements "designed to
apply to circumstances sufficiently
similar to those encountered at CERCLA
sites in which their application would be
appropriate at a specific site, although
not legally required." EPA has retained
this concept but has revised the
terminology and included the definition
in the body of the regulation. Section
300.6 now provides:
"Relevant and appropriate" requirements are
those Federal requirements that, while not
"applicable." are designed to apply to
problems sufficiently similar to those
encountered at CERCLA sites that their
application is appropriate. Requirements may
be relevant and appropriate if they would be
"applicable" but for jurisdictions! restrictions
associated with the requirement.
By adding the phrase "and appropriate." EPA
emphasizes that non-applicable requirements
will be used only when they are appropriate
to the CERCLA site.
For purposes of clarification. EPA
points out that relevant and appropriate
requirements are intended to have the
same weight and consideration as
applicable requirements.
The reason that the concept of
"relevant requirements" was added to
the concept of "applicable
requirements" was that it was
anticipated that jurisdictional
limitations of requirements developed
under other statutes might prevent
otherwise useful requirements from
being named as "applicable." EPA does
not believe that the definition of
"relevant" needs enumerated criteria
because, as discussed below, the
decision of what is relevant can only be
made on a site-by-<"te basis.
For example. RCRA requirements
could be relevant even with respect to
hazardous waste disposed of prior to
November 19. 1P«0. the effective date of
rPA •• RCRA Subtitle C reguldlicr-, !0
Cl'R I'd.ls 2bO-iL'5. The date on -.v.-.iJi
tru; w jsie was disposed or mjnaged is
not germane to the deteT.indtir;n
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Federal Re-^t^
-919
analyzing the characteristics of the site
and other problems associated with the
response. Again, as with the
determination of which requirements are
"applicable." the requirements listed in
the Appendix to this preamble will be
utilized in determining what is "relevant
.ind appiopnale " Although applicability
is dPtermmed obiectively. the
determination of what requirements are
relevant and appropriate is more
flexible This determination md} require
the r \trctse of the lead jgtncy's best
professional judgment. While these
listed requirements are expected to be
applicable or relevant and .ippropnate
in most situations to which they pertain.
the final derision will be made only on a
site-specific basis during the RI/FS
process.
Implementation. Many commenters
have obiected to the implementation of
applicable or relevant and appropriate
icquirements on the basis that they do
not represent the proper level of
cleanup. Specifically, commenters
thought that the use of these
requirements would result in remedies
that were either too stringent, too
lenient, or otherwise inappropriate. To
support the contention that the
attainment of other requirements would
be too stringent, commenters pointed
nut that the statutes under which other
requirements were promulgated were
directed at different objectives than
those to be served by CERCLA. EPA
rejects this criticism because if a
statutory objective is so different from
that of CERCLA as to render the uee of a
requirement inappropriate, as stated
previously, it will not be used. However,
all environmental statutes, including
CERCLA. were enacted with the same
basic goal in mind: the protection of
public health and the environment. EPA
emphasizes that the lead agency is
expected to consider the objectives of
other statutes and their variances. For
instance, objectives of other Federal
statutes relating to the intended use of
the affected natural resources may be
important in determining whether the
requirement is "relevant aad
appropriate."1 This principle may be
1 The intended use of • natural resource will not
alwava be determinative. For example, the Clean
Water Act (CWA). 33 U S.C. || 1251 et seq.
require* effluent limitation* based on the
application of the belt available technology
economically achievable, the quality of the
receiving iliewn 11 not a hclor in telling tuch
limitation* except to the extent that more eliingem
limitations are necessary to ensure compliance with
Slate water quality standard! The CWA waa
enanied for the purpose of reducing or eliminating
pollution of our nation's waters: Congress chose
technology-baaed limitations to meet that goal EPA
believe* that CERCLA response* should also be
consistent with that goal, therefore, when a
considered in determining the proper
remedy for contaminated ground
water—a prevalent concern at CERCLA
sites.
EPA has added paragraph (2)(xii) to
§ 300.68(e). "Scoping of Response
Actions During the Remedial
Investigation," (formerly $ 300.88(c)l. to
provide, in the scoping phase of the RI/
FS. for an assessment of the extent to
which Federal environmental
requirements are applicable or relevant
and appropriate to the specific site and
the extent to which other Federal
criteria, advisories, and guidance and
State standards should be considered in
developing the remedy. Moreover. EPA
has added a sentence to paragraph (1) of
$ 300.68(e) (formerly S 300.68(c)) to
provide that a preliminary
determination of what requirements are
applicable or relevant and appropriate
will be made in the scoping process. Of
course, this determination may need to
be revised on the basis of additional
information as the RI/FS process
continues. The determination of which
Federal requirements are "applicable or
relevant and appropriate," like the rest
of the remedy-selection process, will be
subject to public review and comment.
See § 300.87 on Community Relations.
Some conunenten questioned EPA's
legal authority to require response
actions to "exceed" the applicable or
relevant and appropriate requirements
of other statutes, charging thaUuch a
requirement is too stringent. EPA
believes it has such authority because
CERCLA directs EPA to. at a minimum.
include in the NCP the methods and
criteria for determining the appropriate
extent of cleanup. In some unusual
circumstances, statutory standards may.
due to site conditions, be inadequate to
address the extent of contamination at a
particular CERCLA site (e.g.. to reduce
risk to an acceptable level).
Furthermore, in some situations, a
response may be selected that exceeds
applicable or relevant and appropriate
requirements and that results in no
significant additional cost (e.g., some
cost-effective technologies remove all
hazardous substances from a site by
virtue of the design and operating
characteristics of the technology, even
though applicable or relevant and
appropriate requirements may allow
some contamination to remain). In these
cases. EPA prefers to retain the
authority to determine that a remedial
response should exceed requirements in
order to protect the public health. For
instance, contamination containing
tnhalomethanes' may be one
circumstance in which the lead agency
may choose to be more stringent than
the maximum contaminant level (MCL)
at a CERCLA site. The CERCLA site
would not be subject to the same
balancing constraints as the public
drinking water supply under the Safe
Drinking Water Act. and the lead
agency might want to achie\e a higher
level of cleanup than the
tnhalomethanes MCL
Some commenters stated that the
standards did not go far enough or were
too lenient for use at CERCLA sites
because engineering and technology-
based standards may be set without
regard to pollutant concentrations that
protect public health or welfare or the
environment.
The short answer to the charge that
requirements under other laws are too
lenient is that EPA may select a remedy
that exceeds applicable or relevant and
appropriate requirements. EPA
recognizes that technology-baaed
requirements of other statutes may be
set without specific reference in the
statutes to achieving contaminant or
pollutant levels that will protect public
health and welfare and the environment.
However, these statutes (such as the '
Clean Water Act) that prescribe
technology-based limitations are aimed
at protecting public health and welfare
and the environment. Congress
determined in enacting those statutes
that technology-based limitations were
the bast meens to that end.
Some commenters stated that
structure should be provided for
deciding which .eq Ji, ments are
applicable or relevant and appropriate.
and which requirements are to be
considered. Specifically, commenters
wanted to know how applicable and
relevant and appropriate requirements
would be identified and how they
would be used once they were so
identified.
Another commenter stated that.
ideally, any private party should be able
to apply the same decisionmaking
structure or process as the lead agency.
and to arrive at the same conclusion as
the lead agency regarding what
requirements are applicable or relevant
and appropriate. Another commenter
suggested that EPA should promulgate
with the rule a decisionmaking protocol
response involve* the discharge of pollutants from a
point source Into navigable waters within the
meaning of the Clean Water Act. technology-based
standards will be applied, regardless of the
intended use of (hose waters.
»Ther
xirni
ntaminant level (MO.) under
the Sale Drinking Water Act (SOWA) was
established for mhalomethaae* by balancing the
nsk of exposure to irlhelomethanes resulting from
chlonnation against the rink of ingestion of lets
chlorinated drinking watt:
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47920 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1965 / Rules and Regulations
for resolving any inconsistencies
between the requirements during the
determination of what requirements are
applicable or relevant and appropriate.
EPA reemphasizes that the
determination and implementation of
Applicable and relevant and appropriate
requirements will be made on a case-by-
rase basis, including those situations
where there are inconsistencies. The
NCP is a rule that presents the Federal
government's general plan or framework
for responding to hazardous substances
releases. The NCP is not intended to
provide complex and detailed site-
specific decisionmaking criteria. EPA
has developed guidance on the
feasibility study process and is
developing additional addenda to that
guidance to more fully detail the
information to be considered in
decisionmdKing.
EPA intends that the decisionmaking
process to be used at each site to
determine applicable or relevant and
appropriate requirements should be,
insofar as possible, straightforward
enough to lead private parties to select
remedies that protect public health and
the environment. Applicability is an
objective standard because it is based
on a finding that the Federal
requirements would be applicable but
for preemption by CERCLA. Relevance
and appropriateness, as discussed
previously, requires a more subjective
determination. The list of requirements
in the Appendix to this preamble
contains potentially applicable or
relevant and appropriate requirements.
EPA reiterates that early in the
scoping process of the RI/FS certain
site-specific factors will preliminarily
indicate which requirements from the
list are applicable or relevant and
appropriate. Furthermore, this
determination may be altered as
continuing investigation reveals more
information.
Another commenter requested a
detailed structure describing how risk
assessments would be used to select a
remedy for a site whan Federal
requirements are not applicable or
relevant and appropriate. From
experience with other sites, EPA
estimates that in moat cases, applicable
or relevant and appropriate
requirements will be available to guide
lead agency decisions (e.g.. RCRA
technology-based design and operating
standards). Where insufficient Federal
environmental or public health
standards exist to determine the
appropriate extent of remedy, the lead
agency will conduct a risk assessment
for that specific site. This nsk
assessment may be based on data from
advisories. Itate standards, or other
Federal requirements considered during
the feasibility study, or may require a
review of other scientific information
concerning the threat posed by the
substances in question. Chapter 5 of
EPA's "Guidance on Feasibility Studies
Under CERCLA" (April 1985) describes
EPA's approach to risk assessment.
Additional guidance on nsk assessment
is forthcoming. Specifically, the
additional guidance will provide advice
on how to conduct exposure assessment
and risk characterization at CERCLA
sites.
2. Exceptions to Compliance with
Applicable or Relevant and Appropriate
Requirements
Due to the unique nature of the
CERCLA program, there may be some
circumstances where the use of
applicable or relevant and appropriate
requirements is ill-suited. In
i 300.68(i)(5) of the NCR EPA is
providing five exceptions to the
Compliance Policy to accommodate
these circumstances.
Comments focused only on the Fund-
balancing and technical impracticaliry
exceptions. Regarding Fund-balancing,
section 104(c)(4) of CERCLA requires the
lead agency to balance the need for
protection of public health and welfare
and the environment at a site against
the need to use Fund monies for
responses at other sites. Therefore, there
may be circumstances where the lead
agency will determine that in light of
other demands on the Fund, it i» not
appropriate to expend monies necessary
to comply with applicable Federal
requirements.
A number of commenten have argued
that the Fund-balancing exception is too
broad because there would always be a
need for action at other sites. One
commenter stated that financial
concerns should not block the
achievement of applicable or relevant
standards. Nevertheless. CERCLA
section 104(c)(4) specifically provides
for the consideration of Fund-balancing
in selecting a remedy. EPA disagrees
that the exception is too broad, because
based on EPA's experience to date, the
exception has only been used once.
Accordingly, it is anticipated that the
exception will be invoked infrequently.
If it is invoked, the lead agency will
select a remedy that provides significant
protection of public health and welfare
and the environment, and that most
closely approaches the level of
protection assured by the "applicable or
relevant and appropriate" requirement
given the amount of Fund monies
available. See S 300.68(i)(6). The basis
for invoking the exception (and all other
exceptions) will be fully documented
and explained in the appropriate
decision documents.
Some commenters contended that tl
Fund-balancing considerations should
be extended to enforcement actions, m
part because industry is the indirect
source of monies for Fund-financed
cleanups. Although EPA believes that
enforcement actions should consider
both the cost and effectiveness of a
remedy, the Fund-balancing exception
by its terms can apply only to the
conservation of Fund money. The
Interim CERCLA Settlement Policy, 50
FR 5043. February 5.1985. discusses the
circumstances in which EPA will
consider using Fund monies as part of a
settlement.
The second exception to EPA's policy
on compliance with other laws applies
where it would be technically
impractical to implement the
"applicable" requirement. Some
commenters asked if cost would be a
consideration in the determination of
what is impractical.
This exception is intended to give
EPA flexibility to avoid situations where
the rigid imposition of requirements
under other laws would lead to absurd
or illogical results. The primary
consideration in determining whether a
particular alternative is practical is
whether the option is logical and
reliable in the long term. Cost may pU>
a role in making this determination. For
instance, in the example described m
the preamble to the proposed rule (see
SO FR 5086). the placement of a cap on a
steep slope was cited as being
technically feasible but impractical
because of long-term problems with
maintaining Jit, .ntegnty of the cap.
While long-term maintenance of the cap
would probably be feasible, it could
only be accomplished at inordinate cost.
and the remedy still would not be
reliable over the long run.
EPA emphasizes that the
determination of technical practicality is
not based on a cost/benefit analysis. To
emphasize that the determination of
impracticaliry is not dominated by cost
considerations. EPA is modifying
9 300.68(i)(5)(iii) of the rule to state:
Technical Impraetlcality: Where no
alternative that attains or exceeds applicable
or relevant and appropriate Federal public
health or environmental requirements is
technically practical to implement at the
specific site in question from an engineering
perspective, the lead agency shall select the
alternative that is reasonable to implement
from an engineering perspective and that
most closely approaches the level of
protection provided by applicable or rele
and appropriate Federal public health anc.
environmental requirements.
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and" Regulations 47921
In the preamble to the proposed rule.
EPA had described the three remaining
exceptions as follows:
• Interim Measures: If the selected
remedy is not the final remedy for the
site, it might be impractical or
inappropriate to apply other
environmental requirements. For
example, it might be appropriate to treat
contaminated drinking water at the tap
' as an interim measure, pending final
decisions on the appropriate extent of
cleanup in the contaminated aquifer
itself.
• Unacceptable Environmental
Impacts: In some cases, it might be
possible to meet applicable or relevant
and appropriate Federal requirements,
but compliance might result in
significant adverse environmental
impacts. This might be the case, for
example, when dredging contaminants
from the bottom of a body of water to
levels required by environmental
standards would result in more harm to
the ecosystem than an alternative
remedial response.
• For enforcement actions under
section 106 of CERCLA only, the
deciaionmaker could choose not to meet
an otherwise applicable or relevant
standard if the Fund is unavailable,
there is a strong public interest in
expedited cleanup, and the litigation
probably would not result in the desired
remedy. For example, this situation
could occur where the defendant lacks
sufficient resources to pay for a
complete remedy or where liability is in
question, the Fund is unavailable, and
the public interest is served by
expeditious cleanup. One situation
where the Fund is unavailable is where
the State does not have sufficient funds
to make the necessary State cost-share
match.
No major comments were received on
them three exceptions.
As stated in the preamble to the
proposed rule, based on its experience
to date. EPA believes that the
exceptions t« the oanplianoe with other
laws policy witi occur infrequently.
When an exception is invoked, the
decisionmaker will still select a remedy
that most closely approaches the level
of protection provided by the applicable
or relevant and appropriate requirement.
considering the circumstances which
prevented meeting the requirement.
Finally, the basis for not meeting the
requirement will be fully d
,7. Relationship of Compliance Policy to
Statutory Requirements for Cost-
Effectiveness
Many commenters charged that the
i umphance policy conflicts with
CERCLA section 105(7). which requires
that cost-effective remedies be applied
to each CERCLA remedial action site.
EPA agrees that the statute requires
selection of a cost-effective remedy for
each Fund-financed remedial action, but
believes that determining the
appropriate extent of response actions
through the attainment of applicable or
relevant and appropriate Federal
requirements is fully consistent with the
requirement to select a cost-effective
remedial response. CERCLA section
105(3) directs EPA to include in the NCR
among other requirements, the methods
and criteria for determining the
appropriate extent of removals.
remedies, and other measures
authorized by CERCLA. Section 105(7)
also directs EPA to include in the NCP
the /neons of assuring that remedial
action measures are cost-effective over
the period of potential exposure to the
hazardous substances or contaminated
materials.
The oommenters' concerns about
possible conflicts with cost-effective
remediation raise the issue of when a
cost-effectiveness of alternatives
analysis should be conducted. Some
commenten argued that a cost-
effectiveness of alternatives analysis
should be part of the process that the
lead agency would use to determine
which environmental requirements are
applicable or relevant and appropriate.
EPA disagrees. In promulgating
standards under other environmental
laws. EPA has generally imposed
requirements deemed necessary to
protect public health and welfare and
the environment. Where applicable or
relevant and appropriate, EPA believes
that those requirements must be met in
order to achieve an effective CERCLA
remedy. Only after the lead agency
determines, by the selection of
applicable or relevant and appropriate
requirements, that adequate protection
of public health and welfare and the
environment will be achieved, is it
appropriate to consider cost-
effectiveness.
Thus, the lead agency must develop
one or more alternatives that attain
applicable or relevant and appropriate
requirements. As necessary or
appropriate, the lead agency will also
examine alternatives that exceed those
applicable or relevant and appropriate
standards. Although alternatives that do
not meet the requirements may also be
examined, they are only developed for
possible use if one of the five
enumerated exceptions applies: such
alternatives have no bearing on the
selection of a cost-effective remedy
when the exceptions are not operable. •
The Administrator (or others
delegated this responsibility), after
considering site-specific factors-
including potential for further exposure.
reliability of technologies, and other
administrative concerns—will then
select an alternative that in his
judgment is the most cost-effective of
the alternatives presented.
Several oommentera recommended
that EPA not delete the "lowest cost
alternative" clause in the current NCP.
EPA is replacing the "lowest cost"
language because it believes that cost
should be taken into account as one of
several factors considered in the
selection of remedies. The language in
the current NCP could lead a
decisionmaker to erroneously select the
least cost, minimally adequate remedy.
despite the existence of more effective
remedies available at a reasonable.
incrementally greater cost.
The approach embodied in today's
rule is to select a cost-effective
alternative from a range of remedies
that protects the public health and
welfare and the environment. First, it is
clear that if all the remedies examined
are equally feasible, reliable, and
provide the same level of protection, the
lead agency will select the least
expensive remedy. Second, where all
factors are not equal, the lead agency
must evaluate the cost, level of
protection, and reliability of each
alternative. In evaluating the cost of
remedial alternatives, the lead agency
must consider not only immediate
capital costs, but also the costs of
operating and maintaining the remedy
for the period required to protect public
health and welfare and the environment.
For example, the lead agency might
select a treatment or destruction
technology with a higher capital cost
than long-term containment because
treatment or destruction might offer a
permanent solution to the problem. The
reliability of various alternatives will be
taken into account in the present worth
comparison of alternatives to the
maximum extent possible, including the
cost of such factors as the long-term
operation and maintenance and the
integrity of physical structures.
Finally, the lead agency would not
always select the most protective
option, regardless of cost. The lead
agency would instead consider costs.
technology, reliability, administrative
and other concerns, and their effects on
public health and welfare and the
environment This allows selection of an
alternative that is the most appropriate
for the specific site in question.
In revising the NCP. EPA does not
intend to lessen the role of cost or cost-
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47922 PAleraTfcegUter / Vol. 50. No. 224 / Wednesday.' November 20. 1985 / Rules and Regulations
effectiveness in selecting CERCLA
remedies, nor does EPA believe that the
promulgated language reduces the
importance of cost in the remedial
process. In fact, cost is the first factor
enumerated in 5 300.68(i)(2) for selecting
the apfiopnate extent of remedy.
Some commenters stated that EPA's
requirement of compliance with
applicable or relevant standards
conflicts with cost-effectiveness because
it would not balance risks and costs.
However, while CERCLA requires a
cost-effectiveness of alternatives
analysis that takes both risks and costs
into account. EPA believes that such an
analysis should weigh risks and costs
only with respect to remedies that
adequately protect public health and
welfare and the environment, except
where the costs are sufficiently great
that the Fund-balancing exception ft
invoked. Such an analysis is entirely
different from the risk/cost balancing
referred to by the commentera. The lead
agency must select a remedy that
adequately protects public health and
welfare and the environment, unless
Fund balancing comes into
consideration. Fund balancing will be
used only where the costs of
implementing a remedy that attains or
exceeds applicable or relevant and
apprcoriate requirements will be
disproportionately costly and Fund
monies could be used more productively
at another site where a response is
necessary. Furthermore, CERCLA's
legislative history indicates that
Congressional sponsors of CERCLA
dismissed the notion of a cost-benefit
test for the NCR (12B Cong. Rec. S18427
(1980).)
4. Relationship of Compliance Policy to
Specific Requirements of Other Statutes
Ground Water Contamination. EPA
regulates contaminated ground water
under two statutes: the Safe Drinking
Water Act (SOWA). 42 U.S.C. 300f et
seq.: and the Solid Waste Disposal Act
as amended by the Resource
Conservation and Recoveqr Act
(RCRA). EPA requested comments
concerning the application of the RCRA
ground water protection standards
(OWPS) to CERCLA actions. Many
commenters opposed such a provision
on the basis that the standards, when
treated as requirements, are too rigid
and do not result in a cost-effective
remedy. EPA appreciates the regulated
community's concern, but believes that
the concern is misplaced. The RCIA
(and SDWA) requirements may be
applied flexibly in a manner that is
appropriate for response actions at
CERCLA sites. EPA believes that a
discussion of EPA's ground water
contamination requirements illustrates
this point.
Under the SDWA. EPA requires that
any pollutants occurring in public
drinking water supplies be in
concentrations less than the maximum
contaminant levels (MCLs) established
by regulations in 40 CFR Part 141.
subpart B. EPA's regulations under the
SDWA also prohibit certain injections of
contaminants into aquifers, but these
restrictions specifically are not
applicable to CERCLA cleanups where
contaminated ground water has been
treated and is being reinjected into the
same formation from which it is drawn.
See 40 CFR 5Jl44.13(c), 144.14. and
144.23. Similarly, section 7010 of RCRA
prohibits the infection of hazardous
waste into ground water, except for
reinjection of treated ground water into
the aquifer from which it was
withdrawn, pursuant to a response
action under section 104 or 106 of
CERCLA.
EPA anticipates that requirements
promulgated under the SDWA will be
applicable or relevant and appropriate
to underground sources of drinking
water and potential sources of drinking
water. (While the SDWA does not apply
to private water supplies, it may,
nevertheless, be relevant to determining
levels of permissible contamination to
be established for such supplies.)
The contaminant levels specified in
the SDWA refer to concentrations to be
achieved at the point of use. By contrast
EPA's RCRA regulations require
attainment of concentration limits in the
ground water. 40 CFR {264.94. Under the
RCRA regulations, the concentration
limit may be set at the SDWA MCL or
at "background." • Alternatively, an
alternate concentration limit (ACL) may
be set at a level that EPA determines
will not pose a substantial present or
potential hazard to human health and
the environment. Under the RCRA
regulations, hazardous waste facilities
must monitor at the waste management
area boundary (the compliance point) to
determine whether concentration limits
are exceeded. If exceeded, corrective
action must be taken to prevent
hazardous constituents from exceeding
their concentration limits between the
compliance point and the downgradient
facility property boundary. 40 CFR
§264.100. The 1984 Hazardous and Solid
Waste Amendments to RCRA further
require that corrective action be
undertaken beyond the facility
boundary where necessary to protect
> The RCRA regulations did not adopt all the
SDWA MCU. When no MCL exult, the
concentration limit will be set at background or it
an ACL.
human health and the environment
unless the owner or operator of the
facility demonstrates that he is unable
to cbtain permission to undertake such
action. RCRA section 3004(v).
The ACL mechanism gives EPA
flexibility in developing a CERCLA
response. For instance, where the
aquifer is of concern as a source of
drinking water, the ACL could be set on
the basis of what would be safe to drink.
If the ACL were lower than the existing
concentration of contaminants) in the
aquifer, the lead agency could clean uo
the aquifer to that ACL Alternatively.
an ACL could be set on the basis of
exposure. If consumption of the ground
water would be restricted by the use of
institutional controls, or if the aquifer
were clearly unsuited for use as drinking
water, the ACL could be set without
regard to drinking water considerations.
or at a level that takes account of
controls at the point of use.
The above discussion illustrates how
RCRA requirements may be applied in a
flexible manner. However, even where
ground water will not be used for
drinking water, and no other
contamination routes exist that would
threaten human health or the
environment RCRA would still require
the establishment of an ACL and ground
water monitoring for all Appendix VIII
constituents. These requirements may
not be appropriate in some CERCLA
situations, and thus would not be
applied unless "applicable" (i.e.. a
RCRA facility was causing the ground
water contamination). EPA is
considering the advisability of revising
its RCRA regulations to determine the
necessity of establishing ACLs where
institutional controls are imposed.
The RCRA ground-water protection
standards are aimed at preventing
contamination of ground water from
discrete hazardous waste facilities, and
remedying any contamination that does
occur. The standards are not designed to
address the situation, encountered at
several current and potential CERCLA
sites, where there is area-wide ground
water contamination of either unknown
origin or resulting from numerous
intermingled sources. However, where
the contamination emanates, in whole or
hi part from a facility subfect to RCRA
regulations, EPA will apply those
regulations. In addition, subpart F
requirements may be relevant and
appropriate, even if not applicable, in
determining the appropriate level of
cleanup. EPA notes that the lead agency
may determine that some, but not all
RCRA requirements (or any other
Federal reouirements) are "relevant and
appropriate" to a partic'-hr situation. In
-------
ii situation where no facility is
identifiable, certain requirements, such
as monitoring at the hazardous waste
management boundary, would not be
applied.
If the RCRA subpart F requirements
are not applicable, or are not relevant
and app.opnatc for the area-wide
contamination at issue, the lead agency
may decide to implement a remedy on
an area-wide basis, using a risk
management approach, wiihout
necessarily setting concentration limits
or monitoring requirements with respect
to individual sources of contamination.
Such an approach is outlined in EPA's
"Guidance on Feasibility Studies under
CERCLA," available for inspection in
the docket to this rulemaking. In
implementing such an area-wide
remedy, the lead agency will adhere to
the principle of the RCRA ground-water
protection standards: concern for
contamination by all RCRA Appendix
VIII constituents for as long as they
remain hazardous.
EPA is considering whether
modification of RCRA regulations is
appropriate to take into account
situations involving area-wide
contamination.
RCRA Closure/Soil Contamination
Requirements. Contaminated soil is the
other major area of concern most
frequently encountered at CERCLA
sites. Some commenters on the proposed
NCP stated that there is insufficient
flexibility under the RCRA closure
regulations. 40 CFR Part 264. subpart G.
to fashion aporopriate CERCLA
remedies. EPA believes that a
combination of the relevant and
appropriate RCRA storage and disposal
closure regulations provides an
approach to CERCLA cleanup actions
that is both flexible and consistent with
RCRA.
The RCRA surface impoundment
closure rules. 40 CFR S 264.228 and
accompanying preamble, provide two
closure options. The first option, for
storage surface impoundments, requires
that all waste residues and
contaminated liners and subsoils be
removed or decontaminated. The second
option, for disposal surface
impoundments (where contaminated
materials remain after closure),
resembles the requirements for closure
as a landfill whereby a final cover is
placed over the unit and post-closure
requirements apply, such us
maintenance of the final cover, ground
water monitoring, and corrective action
if the ground-water protection standards
are violated. The significant regulatory
difference between storage and disposal
impoundments is that after closure the
disposal unit must be maintained and
monitored, corrective action taken if
needed, and a notice provided in the
deed and plat that the site was used for
hazardous waste, whereas for storage
units there are no maintenance,
monitoring, follow-up corrective action.
or notice requirements. That is. a
storage closure :s one where enough
removal and decontamination has
occurred that no further action is needed
to protect human health or the
environment.
An approach that is consistent with
the RCRA storage closure requirements
and provides flexibility to CERCLA
cleanup actions can best be
demonstrated through an example. At
the Crystal Chemical Company site in
Texas. EPA has tentatively determined
that off-site soil contaminated with
arsenic may be cleaned up to a 100 parts
per million (ppm) level, pending
verification monitoring. The 100 ppm
level has been determined by the
Agency for Toxic Substances and
Disease Registry (ATSDR) of the Center
for Disease Control. Department of
Health and Human Services; to be a safe
level based on direct ingestion of the
contaminated soil by a child. The
verification monitoring means that
ground water will be monitored to
confirm that the residuals in the soil will
not result in unsafe levels (i.e.. will not
exceed the drinking water standard for
arsenic. 0.05 ppm) in ground water.
The RCRA storage closure ..
requirements to "remove or
decontaminate" contaminated soils will
be relevant or appropriate in the Crystal
Chemical case as well as many other
CERCLA cleanup actions. Under RCRA.
cleanup to background levels certainly
satisfies this requirement. EPA believes.
however, that a site-specific limited risk-
assessment approach to determine
acceptable levels of removal makes
sense. Such an approach would take
into account (a) the storage versus
disposal dichotomy discussed above
(i.e., no further need for action after
storage closure to provide protection of
human health and the environment); and
(b) all the routes of exposure addressed
by the disposal closure and post-closure
can requirements (i.e.. direct contact.
wind dispersal, surface water, ground
water, and bioaccunrilation). Thus. »uch
an approach would need to minimize the
uncertainties associated with
contaminant fate and transport, and
focus primarily on the waste
characteristics themselves, in a manner
comparable to the RCRA delisting
process. This approach could base the
risk of exposure on water quality
standards (surface water) or health-
based limits, such as acceptable daily
"923
intakes (ADls), or public health
advisories issued by the ATSDR.
EPA notes here that corrective action
requirements under section 3004 of
RCRA will be developed in the near
future. At such lime. EPA will, for
purposes of compliance with the NCP,
determine uhelhpr ;t is more
appropriate to follow the corrective
action requirements than the closure
requirements to the extent those
requirements differ.
5. Compliance With State Requirements
Several commenters have taken issue
with EPA's decision that State
standards are only "to be considered."
and that State permits need not be
obtained for response actions taken
under sections 104 and 106 of CERCLA.
Some commenters have noted that State
standards may exceed Federal
standards because of local needs. The
comments emphasize that bprause many
State standards and permits are
developed under Federal auspices and
are specifically reviewed and approved
by EPA. EPA should in this rulemaking
presume that such State standards are
applicable or relevant and appropriate.
One commenter argued that additional
costs of complying with State standards
will be incurred during operation and
maintenance financed by States, so that
cost considerations do not justify
noncompliance with State standards.
EPA notes first, as a legal matter, that
CERCLA response actions are not
subject to State requirements for the
same reason that CERCLA responses
are not subject to Federal requirements.
In enacting CERCLA. Congress has
preempted those requirements with
respect to sections 104 and 106 response
actions.
Moreover. EPA disagrees with some
commenters' characterization of the
compliance policy The compliance
policy will not necessarily cause
noncompliance with State standards
State standards are to be considered in
developing a site-specific remedy.
"Consider" should not be interpreted to
mean "disregard." EPA may give
standards in the "to be considered"
category full force and effect. Moreover,
especially in a Fund-financed remedial
action, the views of a State will be
accorded great weight. If the lead
agency does not use pertinent State
standards, or substantially adjusts them,
it must document the basis for adjusting
or not using them.
Nonetheless. EPA believes the lead
agency should not be bound by stricter
State standards, nor should the Fund
necessarily bear the additional cost of
attaining stricter State standards. It
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47924 F«4ual Begister / VoL 50, No. 224 / Wednesday. November 20. IflBS / Rules and ttegulations
would be lawnae to oblige CERCLA
cleanups to conform to SB different and
posaibly conflicting Mis of Stite
standards: further, some States have not
hdsed standards oa protection of health
or the environment EPA wants the lead
jcuncy to have Ac ihncf»iih'ty to examine
:h» basis of Stale standards before
••DDK inn them ro CERGLA cleanups. The
fdi i 'hat EPA may have approved some
of ineaB standdrds is • relevant, because
under some statutes, such as RCRA.
RFA is obliged to approve State
standards that are more stringent than
those of EPA. This approval does not
signify an EPA determination that
attaining the standards is necessary to
protect public health and weKare and
the environment*
In Ksponse to *e comment that meet
of die additional coats of complying with
State standards wall dways be mcorred
during State-financed operation and.
mamtenanceiQ&M), EPA-disavees.
Long-term operation and maintenance
costs may be less tban the construction
operation and
COSI
maintenance is not exclusively financed
by State*, an fact, the time period of
Federal famting er quality standouts uiinpt<*u i.nilpr the
f '.-1- V.' i IT AL! are an excrplinn Th«ie »MI-' i.ds
ire ?rde-Hll'( enforceable 8tirl will be dcpumi whore
u.iiiiicdble or wtevupt ind •ppr.ipnmp
generally be used. EPA believes it is an
entirely different matter to presume that
State standards are applicable or
relevant and appropriate. To the extent
that commenters are asking EPA to
grant such a presumption to their
standards, EPA respectfully declines.
EPA emphasizes that it is not
prohibiting the enactment of State
standards regarding hazardous
substances releases. EPA is merely
saying that it will not necessarily spend
Fund monies for a remedy that will
attain State standards when they
exceed Federal requirements.
Commenters had several suggestions
with regacd to permits. EPA cannot
exempt privately financed cleanups not
taken pursuant to CERCLA section 106
from permitting requirements. EPA does
not believe that private responses.
unlike <"»ctions 104 and 108 responses.
are exempt from compliance with State
(or other Federal) laws. Moreover, the
policy reasons for exempting responses
taken under sections 104 and 106 from
permitting requirements do not apply to
privately fui State or local agencies from
p«i >.i,ng iheir own enforcement actions
if they are aubstantive'y ntwutisfwd
with EPA section 106 actions. In such
cases, States may condition their
enforcement actions as they choose.
Some commenters contended that
there would not be a delay of response
actions as a result of State permitting
requirements because most States have
waiver provisions or emergency permits
to allow expeditious responses. It is
EPA's experience that it usually takes at
least 18 months to obtain a RCRA
permit. While it is true that remedial
actions require many months, if not
years, of remedial investigation.
feasibility studies, and remedial design
activities, a permit application cannot
be completed until all the necessary
data are collected. Therefore, the permit
process cannot begin until roughly two-
thirds of me RI/FS process is completed.
and this usually occurs around 9 to 12
months after the start of the CERCLA
planning process. EPA concludes that.
using these Figures, obtaining State
permits could take from 10 to 12 months
longer, and. in some cases, final
selection of the remedy would be
required prior to the initiation of the
permit process. Although some
permitting programs may not take that
long. EPA anticipates that most sites
will involve RCRA-type activities in
addition to other program activities. The
fact that some States may have
emergency provisions to speed up th,
permit process is not a uniform priacir
upon which to base national regulation.
One commenter said mat CERCLA
sites require die extensive scrutiny
provided in the permit process and that
without permits, there is no assurance
that proper treatment storage, or
disposal would be achieved. In
response. EPA notes that the RI/FS
process is comprehensive. The RI/FS
provides adequate assurance that for
remedial actions, proper treatment
storage, or disposal will be achieved.
Moreover, cooperative agreements and
Superfund State contracts for remedial
actions provide additional assurances in
this regard.
In response to the commenters who
requested clarification concerning
whether Slate and local requirements.
such as building ordinances or well-
drilling permits, would be considered
"public health or environmental
statutes." EPA wishes to clarify that the
intent of the section wns to exempt EPA
from the requirement of obtaining all ',
permits for on-site actions. This was
added to the amendments to exempt
EPA from the procedural and
adminMtmtive requirements of the
permitting process but not from
substantive compliance with the
environmental and public health
-------
concerns addressed by permits. Because
it may be difficult to distinguish
en\ ironmental and poWlc health
omcerns from the other procedural and
administrative concerns addressed by
pencils. 9 300 68(a)(3) is being changed
to s'ate that no permits. Federal or
Slat.' A .11 be required in carrying out
CF.RCLA sections 104 and 108 on-site
response actions. EPA expects that non-
er.virnnmenlal and construction permits
(e g.. buildma and cleLtricdl codes) will
in virtually all cases be secured by
Federal or State Remedial Design/
Remedial Action (RD/RA) contractors.
as well as private parties' contractors.
However. EPA will not allow such
permit requirements to thwart a
response action necessary for the
protection of public health and welfare
and the environment. As mentioned in
§ 300.68(a)(3). remedial actions involving
off-site storage, treatment, or disposal of
hazardous materials shall involve only
facilities operating wider appropriate
permits, authorizations, and other legal
requirements.
ft Other Specific Concerns with Respect
to the Compliance Policy
• Health Effects Assessments (HEAs)
were inadvertently omitted from the "to
be considered" category.
HEAa may be utilized in establishing
site-specific engineering design goals for
remedial actions involving hazardous •
substances found at CERCLA sites for
which applicable or relevant and
appropriate requirements are
insufficient. It is intended that where
Federal requirements that are applicable
or relevant and appropriate are
insufficient to determine the appropriate
extent of remedy, the HEA values •
should be given primary consideration.
For those substances for which HEA
values have not been developed, the use
of other toxicity values should then be
considered. (It should be noted that the
HEAs address public health effects and
do not necessarily address
environmental protection concerns.)
• One commenter stated that risk
assessments should be performed at all
CERCLA sites, not just those where 'he
selected alternative does not meet
applicable or relevant Federal
standards.
EPA disagrees with this comment.
Neither CERCLA nor sound public
ooiicy requires the lead agency to
conduct quantitative risk assessments at
ail CERCLA sites. The amount of time.
money, and other resources that such a
policy would demand is the single
largest rensnn against requiring
t .-.endive risk assessments at all sites.
Such a policy could significantly deplel-
the Fund. Furthermore, at a minimum, a
uud'.iunve or quantitative risk
assessment is conducted at every s.tp «s
a part of the evaluation of the "no action
alternative" developed during thp RI/FS
process Finally EPA notes that many
-nvironr.enta! requirements are b.ised
on n
-------
47928 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
to reduce or eliminate the potential for
hazardous substances or pollutants or
contaminants to be ingested are
appropriate.
• Another commenter stated that any
determination as to what, if any.
cleanup is required should take into
account naturally occurring effects (e g..
biodegradation. evaporation, sunlight.
soil geochemistry, oxidation, rainfall).
This commenter recommended adding a
new criterion addressing this issue.
EPA believes that § 300.68(e)(2)(iii).
formerly § 300.68(c)(2](iii), addresses
naturally occurring effects by requiring
consideration of the "environmental fate
(e.g.. ability to bioaccumulate.
persistence, mobility, etc.)-"
Nevertheless, as discussed previously.
the rule is being changed to read:
"environmental fate and transport (e.g..
ability and opportunities to
bioaccumulate. persistence, mobility.
etc.)."
• A few commenters suggested that
there are too few Federal statutory
standards to provide meaningful
guidance for specifying CERCLA
cleanup levels.
EPA believes that the requirements
listed in the Appendix to this preamble.
particularly the RCRA Subtitle C
requirements, will generally provide a
strong basis for selection of a remedy.
Of course, as EPA has repeatedly
emphasized, each CERCLA site must be
evaluated on its own merits and the
remedy tailored to the charactenstics of
the site. In addition, the lend agency will
not limit remedial alternatives to the
consideration of existing Federal
requirements. Instead. EPA intends to
consider Federal criteria, advisories.
and guidance and State standards in
developing remedies.
• Another commenter stated that
none of the exception provisions of
§ 300.661 i)(5) allows for downward
adiustment of these standjrds tu take
account of level of risk or exposure
factors.
EPA believes that the exception
provisions are not the proper place to
discuss the adjustment ot cleanup
standards for risk leveb or exposure -
factors. EPA intends to provide for
consideration of risk levels and
exposure factors in the determination of
how to use requirements that are
identified as applicable or relevant and
appropriate. Section 300.68(i)(4) stales
that applicable or relevant and
appropriate requirements, as well as
other Federal criteria, advisories, and
guidance and State standards "will be
considered and may be used in
developing alternates, with
iiiiiustmcnts for site-specific
Cirr.umstjnces." As mentioned
previously, forthcoming guidance will
address levels of risk or exposure
factors.
• Some commenters expressed the
belief that requiring compliance with
standards would be contrary to
statements made by EPA in its first
revisions to the NCP on March 12,1982.
and is not warranted by subsequent
EPA experience.
EPA disagrees. This rulemaking is. in
part, in response to experience EPA has
acquired since the NCP was first
promulgated. EPA has continually found
that other environmental requirements
provide the most appropriate level of
protection at CERCLA sites. Compliance
with applicable or relevant and
appropriate requirements has. to date.
aided in design of remedies that provide
adequate protection of public health and
welfare and the environment. For
example. EPA has used the MCLs
established under the SDWA to design
and set performance standards for
water treatment systems when drinking
water supplies are contaminated.
• Two commenters opposed a
revision that would give quality
assurance/site sampling plans a
presumption of adequacy if they contain
certain elements, on the grounds that the
revision could be interpreted improperly
to foreclose judicial review of sampling
methods and results. Another
commenter recommended that the
review of quality assurance/site
sampling plans be the responsibility of
the remedial protect manager.
EPA's intention in revising § 300.68(k)
was to state what elements would
normally be sufficient in a quality
assurance/site sampling plan. While
EPA does not intend to foreclose judicial
review of such plans, this regulation will
establish that plans containing the
elements specified in § 3GO.G8(k) .ire
generally sufficient. The word
"generally" has been added in
S 300.88(k) to make this point clear. It
will be up to the chc-llenger of a pidn to
show why these element;, were not
sufficient in the particular case jt issue.
• One commenter questioiurt whether
the "compliance status" of permitted off-
s!t» 'acilities would be taken into
account in the selection of off-site
facilities to receive wastes from
response actions. EPA's May 6.1985. off-
site policy memorandum. "Procedures
for Planning and Implementing Off-Site
Response Actions." addresses the
"compliance status" of permitted off-site
facilities. Under that policy, no CERCLA
hazardous substances will be taken off-
site to a RCRA facility if the EPA Region
determines that the facility has
significant RCRA violations or other
environmental conditions that affect the
satisfactory operation of the facility.
unless certain specific conditions
ensuring correction and compliance are
met. No hazardous substances may be
taken to a hazardous waste
management unit that is not in
compliance with RCRA regulations.
Therefore, in the selection of an
appropriate off-site facility, a judgment
will be made as to the overall
acceptability of the facility and the unit
to receive the substances. In making this
judgment, the Region will foll6w
specific, enumerated steps to gather and
evaluate information about the facility
and unit. In this manner, compliance
status will be considered. However EPA
wishes to make it clear that, although
the various types of RCRA violations
will be considered. EPA does not intend
the determination of whether the facility
is acceptable to be based solely on
whether the facility is a class I. class II.
or class 111 RCRA violator. For more
details, commenters may read the
previously referenced off-site policy.
To summarize the discussion of
CERCLA compliance with the
requirements of other environmental
laws. EPA remains committed to the
selection of remedies that attain or
exceed applicable or relevant and
appropriate Federal environmental and •
public health requirements. This policy
does not hinder site-by-site
consideration of all site characteristics.
Rather, attainment of these
requirements provides a baseline of
protection. Tu the extent that applicable
or relevant and appropriate Federal
public health and environmental
requirements and attendant guidance
provide flexibility, the lead agency may
tailor remedies to the soecific site
characteristics. Cost-effectiveness of
alternatives determinations should not
be hindered by attainment of applicable
or relevant and appropriate Federal
public health and environmental
requirements because the selected
reme J> must protect public health and
welfare and the environment, as well as
achie\d cost-effectiveness. Because
Federal environmental and public health
requirements, like CERCLA. are based
on protection of public health and
welfare and the environment, selection
of any remedy must both protect public
health and welfare and the environment
and be cost-effective. Satisfaction of
applicable or relevant and appropriate
Federal public health and environmental
requirements will be inherent in the
protection of public health and welfare
and the environment. Only very limited
circumstances will allow deviation fron
this policy, as detailed m § 300.68(0(5].
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Federal Register / Vol. 50. No. 224 / Wednesday \..v.-- nbt-r 20. 19.'. > / Rules and Regulations 4792?
1 S',r.':on 300.68—Other Revisions
I S> rvm.iinrier of this discussion in
••ci ii«.n II \ .i.ldrrsses issues concerning
". '-vl '.fl not dirpcily rt'l.ilcd to CFRCLA
. ' uli in. r u rh the rfi|i;i!PTients tit
' • • \ :nnmi>nl.il l 'iMal—fiitrnrtui ti->n One
•"T.. rili-i su-MpstPil dflclipq 'ir
in ...J.i« ihe limitation that Fund-
1 i:.inrcd rpmpilial actions CHO occur
H'iv at \PLMtcs (§ 300.bH|a|(1)) F.PA
id! nut propose to remove the restriction
• MI rc:>nrininq Fund-fiianced rprrvili.il
"...i,/ situs other th.iii those that
'i.i. t> '-fen placed on the \PL and is nut
r -RIII IPS 'Sat rcilnriinn in the fin-il
. nli- F.PA beueves that ire \PL is -in
,.,,iHr!\, pr J( ess for scl(--liP5 sites that
"•i -it priority jttention for possible
I iind-fmanced remedial action. EPA
>»'es no benefit m disturbing the existing
'"i in rd'jres.
A nuniber of persons have inquired
"mil the ripplicauilily of | J006CIJ) to
it-medial investigations ur feasibility
• ' 'ilu"> (RI/FSs) Some of these persons
h.ue suggvstPO 'hal il is improper for
EP \ to conilui.i these studies before a
HP hat been listed on the NPL. For the
• • isnns discussed below. EPA disagrees
" irh 'his VIPW and. in fHct, never
' .ii'.'-Ui'd iSat restricting Fund-financed
u-nipilMl rictinn 'n NPL sites would
iii;,1' ti< r 'medial investigations or
r.'db'hility studies. Contusion over this
i'--lit i-Mv have .msen bcc.iuse a
> MT [iron ul ihe remedial investigation
croress is included in Ihe section of the
Mil1 i:nniled "remedial action." U was
pljced in this section to give the reader
a complete understanding of the
investigation and action process. The
language of § 300.68(a| has been
modified to clarify that RI/FSs may be
performed at non-NPL sites.
RI/FSs are conducted pursuant to
F.PA s removal authority under
CERCLA. They may support removal
actions, enforcement actions, or
poirnti.il fund-financed remedial
action ike I ion 101(23) of CERCLA
defines "remove" or "removal" to
include "such actions as may be
necessary to monitor, assess, and
evaluate the release or threat of release.
. . ." The definition of "removal" also
includes "action taken under section
104(b) of this Act.. . ." Section 104(b)
authorizes EPA to perform a wide
variety of investigatory work and
itudies. RI/FSs clearly fall within those
definitions.
Generally. EPA does not perform RI/
FSs at sites until they have been
included on the NPL Sometimes.
however, these studies are performed at
sites that have been proposed !>ul have
not been promulgated at the lime the
study commnnr.PS. This (.,11 h-i'ippu fora
cumber of rpasons First. tho-.e M^iies
in.iy be DPI formed in orpparn'mn For a
possiblp removal or enforcement action
Sites neeil not be on the NPL to qualify
for removal or enforcement actions.
Si cuml. these studies may be p-'ifiimipd
p-i'p iralorv to a remedial action if rTA
In In-vcs pither (H) That .1 SUP proposed
for ihe NPL is likely to be promulgated
and that delay in commencing the
studies may create unnecessary risks to
public health or welfare or the
i-nviion.T.cnt: or (b) (hal a propnsprJ site
rr. >y \nwdidl action, if one .s takpn.
The \'PF listing process is not
undermined when .in RI/FS is
performed before thp site is lisipil The
ciitrna fur listing sites are" gem r^ily
obiecfive Moreover, EPA responds in
detail fo all comments on proposiui
listings before sitps are pronulgate-l
Thus, there -ire sufficient safegujuls 10
that poteniir.lly responsihip partii-s are
not pre|udi( ed'.
Section 30U.e8(c)—Operable U,.;t. As
noted above. §§ 300.G8lc) Srapn-.u ot
Response Actions. (d| Operable L':ut.
and (e| Remedial Investigation/
Feasibility Study (RI/FS) have h. -11
renumbered 513UO.G8(e). (c). aim i'!|.
respectively.
Section 300fl8(c) in this rulemaking
establishes, the concept of coiili:r.'iinj
response action? ;n "openible nuns."
One commentersupgest^il rppl.-'.ipg ihe
terms "source of [sic! conful >r>\ otf-
site" remedial 'ictiun with tn..- >.o n cpt of
operable unit. Recognizing that u.v.rable
units may include source control and
off-site actions, EPA believes these
terms are useful and therefore are
retained. EPA would like to clarity that
an operable unit may consist of any set
of actions performed over time (e.g..
consecutive operable units may include
a surface remedy followed by a ground
water contamination remedy) or any
actions that are concurrent but lorn ted
in different parts of a site (e.g.. two
operable units may be performed to
address different portions of a large.
c .implex ii-rfnce rpmiidv)
}— Remedial
lun'-ti'.vsfon/Fpasiiin'ity Study One
t ni.T objected to the deletion of
. :: : -•,[2l|ui| and (e)(H|v; .>f the
i-nyuln (ions, whirh retire
asttt- ,M! •>! ihe "pxoeniMicps rind
H.ipro.i. IIPS ud in similar sitii.iimns by
S'.'lc rind FV'ltr.i! I'.'eni ics nnd private
pdi lift I hosp prfr-iarnphs were. deleted
bci d'isp ul the di''fi"il'v in implementing
.1 1 '"••'iMriitivp .iss— nicnl of
riupro.irhps 'iscd |)\ ,:i;fi the expener.ces and
ippro.ichi's uspii in h.i/ardous
subs'j."-.es responses ,'e g.. "Modeling
Rprnpdial Actions at Uncontrolled
Hri/.irdou? Wd1-'' Sii"« ' [April t'185)!
I l.mubook tor Evaluating Rempdial
Action Technology Plans" (August
I'.Wfll.
Section yv> 6Rfe)—Scr>oi '>g of •
Response -\ciJMis dur:-rs requested (hut the roles and
ri'snonsiNhties of FPA and the Slates be
' '.infipd throi'ghout 'he \CP /n
.r-n.»i ,c :o these comments. F.PA is
• '.I .'.jj j new § •«nj 7i(bl (See ^ J0074
J'-iruss'on ) ft'is P-W paragrj^h
-'.n.ir.dnzcs the aprroprate act'ons that
be inkon with respect to natural
!r. Jiiilmon. to coordinate response
.ictinns pursuant to 'he NCP with EPA's
l>
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47928 Federal Register / Vol. 50. No. r.24 / Wednesday. November 20. 1985 / Rules and Regulations
>•- \ M,>;, at least one alternative fur off-
s<'e t'Cdtment or storage appwrs to be
unjust: fikd and contrary to the
r "efcrcnce fur on-site solutions and the
iricn- o' CF.RCLA section 101(24). which
(!-f'n°s TIM)••'.!itil action.
Section 30068(fl(l)(i) require* the
development ^f off-site titdimtnt or
rlisposril ohemdlives. ds appropriate. In
ufilrjr to mdke a comi..visun of
..''••-•„'.. •. f-nmar.-i 'ffi;i:ti\eiicss
PI v> i^e. »heie off silf alternatives
a."- i nsiiiered. it is necessary to
(on'O.rp inem to an en-site alte;:uitive.
In «omp cdscs. off-site disposal nr
•t-«rtment may not be fedSii:lr uud this
oiiernrilivp. may bp ehmindiud during the
screening of alternatives sta-je. The
feasibi'My study should appropriately
document this screening.
FP\ believes that the requirement to
>!rie
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 17929
from liability after implementation of
more innovative remedial approaches.
RPA views the "sharing of technology
by industry and other experts" as
consistent with innovation and
disagrees with the commenter that the
phrase should be deleted. With respect
to the commenter's last suggestion for
change. EPA reiterates its commitment
to encouraging innovative cleanup
approaches. However, special por-nil
exceptions are of doubtful legality, and
in any event, are not necessary for on-
site remedial actions conducted
pursuant to section 106 of CERCLA,
EPA agrees with the same
commenter'g assertion that permanent
solutions (e'.g., "destruction,
neutralization, or immobilization of
wastes") should be preferred over other
alternatives, "only to the extent that
they are more cost-effective than other
alternatives over the anticipated life of
the response." However, the use of
permanent solutions (in some cases.
those that exceed applicable or relevant
and appropriate requirements) may be
the most cost-effective response and
should be encouraged. Furthermore, the
language of J 300.6fl(g)(l) ensures that
excessively costly alternatives that do
not provide substantially greater public
health or environmental protection will
be eliminated during initial screening.
One commenter expressed concern
that each on-site treatment alternative
be tested on-site because site materials
may vary significantly from simulated
materials used in off-site testing. EPA
supports the practice of on-site testing
where appropriate and practicable.
Another commenter suggested that the
phrase "waste minimization or
destruction" be changed to read "waste
minimization, waste biodegradation or
destruction." EPA agrees that the phrase
"waste biodegradation" should be
added to the liat of potential alternative
technologies for purposes of clarity and
is amending S 300.60(h](2)(v)
accordingly.
Finally, one commenter argued that
the NCR through 1300.68(h)(2).
performs a technology-forcing function
inconsistent with the intent of CERCLA.
EPA maintains, however, that because
costs are required to be considered an
important criterion for selecting a
remedy from among available
alternatives (( 300.«8(g)(l)). the NCP
does not have a technology-forcing
effect. Instead, the provisions ensure
that when existing technologies are
available, they will be identified and
used if appropriate.
Section 300.88(1)—Response Actions
Pursuant to Section 106 of CERCLA/
Consistency with NCP. A new
paragraph. (1). has been added to
9 300.68 to clanfy the requirements for a
response action pursuant to section 106
or section 1llfa)(2) of CERCLA (the
Utter requiring preau'honzation
pursuant to 5 300.25) and to determine
consistency with the NCP for purposes
of cost recovery under section 107 of
CERCLA. This amendment is di-sruwd
in section I1I.F nf this preamble, which
addresses { 300.71.
C. Section 30065 Removals
This final rulemakmg eliminates the
distinction between immediate and
planned removals and establishes a
single standard for authorizing all
removals (except those taken pursuant
to CERCLA section 104(b)). eliminates
the Slate cost-sharing requirement for
all removals (except those at sites
owned by a State or political
subdivision at the time of disposal), and
makes other changes related to removal
actions.
Five commenters stated that the
elimination of the State cost-sharing
requirement and possibly resulting
reduced Stale participation in removals
would make it more difficult to ensure
that high priority sites are addressed
first and that the number and cost of
removals do not become excessive. EPA
believes that eliminating State cost
sharing for removals wiltnot reduce
State participation in removals or
adversely influence the selection of
removals. Since 1982. EPA policy has
been to require a coat share only at
planned removals or for immediate
removals at publicly owned facilities if a
remedial action is subsequently funded
at the site. Planned removals have
constituted a very small percentage of
the total removal actions over the life of
the program, with even fewer removals
at publicly owned sites awaiting
remedial action. Thus, the only
significant impact will result from the
relatively few initial remedial measures
(IRMs) for which the State will not share
the cost when they are undertaken as
removals. EPA has estimated the
economic impact of this change in the
economic impacts analysis (see section
V of this preamble). States will continue
to participate in the removal process
because of its importance to affected
State residents Furthermore, the
S 300.65(c) list of removal activities that
are generally appropriate indicates the
general scope of removal actions and
CERCLA section 104(c)(l) limits the
length and cost of removals (codified in
8 300.65(b)(3)). These provisions will
ensure that the scope of removal actions
is appropriate. EPA does not intend to
increase greatly the percentage nf Fund
monies devoted to removal actions; EPA
remains committed to the current
d (location of Fund monies to the
remedial program. The ^.hangos to
§ 300.65 are not anticipated to h u. my
major effects on the current level of
.pmedial actions.
One commenter supported the
consolidation of the removal categoiy,
in part because he be!.e\cd that under
the defir.non of "lead agency" and :he
terms of CCRCLA section I04(d)(l) a
Staie can undertake a removal action
upon Us own initiative and fi'e a claim
ibr reimbursement against the Fund.
This commenter apparently
misinterprets CERCLA and the NCP A
State or political subdivision can obtain
rundinjj for response actions only under
the terms of a Superfund State contract
or cooperative agreement with EPA In
light of the expanded activities to b°
performed as removal actions under
revised } 300.65(b), EPA will consider
entering into cooperative agreements
with States and political subdivisions to
undertake removal actions. EPA does
note, however, that neither a State nor a
political subdivision may obtain
reimbursement under j 300.2S(d) for
such response costs because CERCLA
section 11l(d)(2] authorizes
reimbursement of response costs
incurred by "any other person." w1- .h
means any person other than a Fedc 3!
or State government agency.
Two commenters urged EPA to clarify
§ 300.65(a)|2), which stales that wh»re
responsible parties are known, an effort
must be made "to have them perform the
necessary removal action" and whsie
responsible p^rt^s are unknown, an
effort should be made to locate them
and "have them perform the necessary
removal action." One commenter
recommended that EPA expand the
paragraph to state that the efforts to
identify responsible parties should not
delay actions necessary "to protect the
public health or prevent irreparable
damage to the environment." EPA does
not intend that the search for
responsible parties delay removal
actions to the detriment of public health.
welfare, or the environment. Because
the determination of how long to search
for responsible parties will depend on
an array of site-specific factors. EPA
believes that the proposed language.
which requires efforts to identify
responsible parties "to the extent
practicable considering the exigencies of
the circumstances," is appropriate.
Another commenter suggested
amending the paragraph to require
responsible parties, where available, to
act expeditiously and. if they do not. to
provide for immediate EPA and/or State
action. EPA proposed § 300.65[a)(2, to
encourage responsible parties *o
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47930 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 19H5 / Rules and Regulations
undertake removal actions. In certain
situations, however, formally requiring
responsible parties to conduct the
removal may be counterproductive. For
example, when there is a large number
of responsible parties, the process of
requiring removal actions may divert
scarce Furd resources needed to direct
a timely removal action and may require
more time than is appropriate to take
necessary action. In addition, existing
enforcement policy and guidance
establish procedures for response'
personnel to compel expeditious
responsible party response. Therefore.
EPA has declined to adopt the
suggestion.
Two commenters stated that the
proposed consolidation of the removal
category was inconsistent with
CERCLA. They claimed that CERCLA
requires an "imminent and substantial
threat" before a removal action is
justified, yet the proposed NCP
§300.65(b)(l) authorizes a removal when
there is "a threat to public health.
welfare or the environment." Another
commenter suggested that EPA revise
the paragraph to further restrict the
situations in which removal actions can
be performed.
CERCLA section 104(aMl) authorizes
Fond-financed response actions
whenever any hazardous substance is
released or there is a substantial threat
of such a release, or whenever there is a
release or substantial threat of release
into the environment of any pollutant or
contaminant which may present an
imminent and substantial danger to the
public health or welfare. This standard
is reflected in NCP § 300.61(a). The
ircminenl and substantial danger
limitation applies only to "pollutants
and contaminants" and not to hazardous
substances. Moreover, the limitation
does not define the scope of removal
actions. Section 101(23) of CERCLA
defines removal actions as whatever
actions are necessary to prevent
minimize, or mitigate public health or
environmental impacts tarn any release
or threat of release.lt is not the intent of
§ 3no.65(bl(l) of the NCP to modify
standards set forth in CERCLA section
I04(a)(l). but merely to allow EPA.
whenever a threal io public neatth or
welfare or the environment has been
identified, to determine whether the
threshold lor a .removal action is met by
examining the factors listed in
§ 300.65(b)(2J. Thus, the proposed
language of the paragraph is appropriate
and consistent with CERCLA.
Four cammenters were concerned that
removal actions may he used
incceasinsly as long-term or permanent
remedies "before investigation is
possible and analysis can be conducted
to assure cost-effectiveness." One
commenter specifically suggested
redefining removal actions to mean all
those actions required to stabilize a site.
in order to make the two terms, removal
and remedial, mutually exclusive.
EPA disagrees with these comments.
It is EPA's intent to conduct engineering
evaluations and/or cost analyses, as
appiopnate. as ptrt of removal actions.
especially in those cases where
adequate time is available. Although the
inclusion of IRMs in the removal
category may result in a modest
increase in the number and types of
activities now being implemented under
the removal authority, the listing in
§ 300.65{c) of types of removals
appropriate in certain situations and the
statutory limits on the length and r.ost of
removals will ensure that remcna = .re
limited, as required by the definition of
"removal" in CERCLA to those "actions
necessary to prevent, minimize, or
mitigate damage to the public health or
welfare or the env ironment" and are
generally not used as long-term
solutions. Also, redefining re.nci al
actions in the NCP to mean the
"stabilization" uf the threat posed by
the site would unnecessarily restrict
EPA from undertaking mure limited or
extensive actions wnere appropriate.
particularly at non-NPL bites. However.
because the removal of "highly
contaminated soils from non-diuinage
areas may stabilize a site and reduce
the spread of contamination. EP-\ has
inserted the words "or other" in
S 300.85(c)(6). which now reads:
"Removal of highly contaminated soils
from drainage or other areas—where
removal will reduce the spread of
contamination."
Corresponding to the changes made
by EPA to the scope and definite!) of
removals. § 300.95 (e) has been changed
This change requires the lead agency to
ensure an orderly transition from a
remo\ ol to a remedial response activity
rather than the OSC coordinating with
the RPM.
Section 300.65(b)(4) requires the lead
agency to determine at the "eartievt
possible time" whether any of the
exceptions to the SI million and six-
month limitations apply. One
commenter stated that this
determination should be delayed until a
removal action approaches these limits.
EPA believes that in those many
instances where a determination can be
made earlier, it will be desirable to do
so to ensure the efficient implementation
of a removal consistent with the
resources and time ultimately available.
F"ur c'>r.:.,.-:-t*prs made
concerning the factors that determine
the appropriateness of the removal
action |§ 300.65(b)(2)) and the list of Shu
t\pcs of removals that are. as a generjl
rule, appropriate in certain situations
(!) 30065(c)J One comi'icnter sugg^ieri
that Lost-effectiveness be ridded to
§ 300.G5(b)(2) as a factor that must be
considered in determining the need for u
response EPA agrees that cost i« often
an important factor fur 'Ji-tcrmii'.i',. u
appropriate method of lumoval. As
mentioned previously, it is EPA's intent
that the lead agency conduct
engineoung equations and/or cost
analyses, '.vliere appropriate and
possible, as part of removal actions.
especially in those cases where
adequate time is available Requiring
ousts to be considered in determining
whether a threal necessitates a re:no\ as
action, however, is neither des ru;'l? -or
authorized by CERCLA.
In response to several comments. EPA
would like to darifv that the list of
factors to be considered in de'eiruiLinH
the need for a removal (| 300.651 bH^'ij
-------
Federal Register / Vol. 50. No. 224 / Wednesday. i\V.c,.iher 20. 1985 / Rules and Regulations 47931
disposal should take place only in
permitted or interim status facilities.
Moreover, to the greatest extent
practicable considering the exigencies of
the circumstances, there should be no
.yn'fiCdnt -.lolalions or other conditions
th.it difect :he satisfactory operation of
the fjcil.lv. according to EPA's current
off-site dispos.il policy of May 8.1985.
I he lead agency, in order to be excepted
from the requirement to use acceptable
permitted facilities, must believe that
>^e immediacy of the threat makes it
imperative to remove the substances
•ind '.hat there is insufficient time to
determine the status of the permitted
labilities without endangering public
health or welfare or the environment. To
the extent possible, temporary solutions
should be evaluated by the lead dgency
prior to making a decision. A written
explanation must be provided by the
lead agency to be excepted. This change
.vill make the NCP consistent with the
guidance published May 6.1985.
entitled. "Procedures for Planning and
Implementing Off-Site Response
Actions."
Two new paragraphs, (h) and (i). have
been added to § 300 65. Section 300.65(h)
provides that removal actions pursuant
to section 106 of CERCLA are exempt
from certain requirements of § 300.65.
<:nd § 300.65(i) provides that other
private party responses not pursuant to
section 106 of CERCLA are also exempt
from certain requirements of § 300.65.
These amendments are discussed in
section I1I.F of this preamble, which
addresses § 300.71.
D Section 300.68—Site Evaluation
Phase andNPL Determination
Section 300.06 currently serves two
purposes. First, it establishes criteria to
determine the appropriate action when a
preliminary assessment (PA) of a site
indicates a need for further response, or
when the OSC and lead agency concur
that further response shodd follow an
immediate removal action. Second, it
outlines the process and criteria for
placing sites on the NFL
Comments pertaining to minor
proposed changes to this section are
discussed first. The major comments
and EPA responses on the amendments
promulgated in this rulemaking that
delete the prohibition against listing
Federal facilities on the NPL and
provide a formal mechanism for deleting
sites from the NPL are discussed in
subsequent paragraphs. Other related
comments and responses are contained
in the Response to Comments Document
available in the docket to this
rulemaking. The proposed expansion of
listing criteria in S 300.66(b)(4] has been
adopted in a separate final rule (50 FR
37624. September 16.1985).
State Top Priority Sites. EPA has
amended § 300.66(b)(3) to clarify that
States are allowed to place only one
priority site on the NPL over the life of
the NPt, (see CERCLA section 105[8)(B)).
One State commented that the
restriction is not supported by CERCLA
and suggested that States be allowed to
designate a new site upon completion of
remedial construction at the current top
priority site. Another commer.tcr
suggested that States should be allowed
to list one site annually, irrespective of
its Hazard Ranking System (HRS)
ranking. A third commenter stated that
"any site designated by the State should
satisfy the requirements which would
otherwise qualify a site for the NPL in
terms of presenting harm or threat of
harm to the environment. Thus, such a
site would have to achieve the same
score as any other site."
EPA disagrees with each of these
comments. CERCLA section insi8)|B)
specifies that the initial NPL should
consist of at least 400 sites and that the
States' designated top priority sites must
be included among the 100 highest
priority sites on the NPL to the »\tent
practicable. Of the initial 406 sites. 36
were States' top priority sites. The
statutory requirement is satisfied by
allowing each State to designate one top
priority.
EPA has decided to rely primarily on
the HRS criteria to identify sites for the
NPL This will ensure that the highest
priority releases are identified in an
objective, nationally consistent manner.
Sites considered for placement on the
NPL pursuant to § 300.86(b)(4) of the
NCP also will be evaluated on a
nationally consistent basis. If States
were permitted to designate a new
"highest priority" site upon completion
of remedial actions at their previous
priority site. EPA would be unable to
ensure that sites were listed on a
nationally consistent basis because
States' criteria for designating i-ority
sites will vary.
State priority sites would no:
necessarily qualify for the NPL by using
the HRS or the requirements of
9 300.66(b)(4) because States need not
designate top pnonty sites by using the
NCP criteria.
Federal Facilities. The response to the
proposed deletion of the prohibition
against listing Federal facilities on the
NPL was very positive. At least nine
commenters supported the inclusion of
Federal facilities on the NPL primarily
to emphasize and publicize the need for
cleanup at these sites. This proposal
was discussed previously at 49 FR 37074
(September 21.1984) and at 49 FR 40323
[October 15.1984).
There was a consensus among
commenters that the public should have
access to information on the status of
cleanups at Federal facilities. EPA had
requested comment on different ways of
advising the public of the status of
cleanups at Federal facilities (50 FR
5870). The options under consideration
were: listing Federal facilities on the
NPL periodic publishing of the list.
using the A-106 process under Executive
Order 12086; and publishing the list
independent of the NPL. In response. .',
several commenters stated that NPL *
listing would not. in itself, provide
sufficient information and that a
combination of alternatives for
information dissemination may be more
appropriate. In addition to the abo\ e-
•nentioned support for disseminating
information by listing Federal facil.t'cs •
on the NPL. suggestions included the
following:
• Pv.bluh releases solely from Federal
facilities in a separate section of the
NPL
• Publicize the progress at all Federal
facilities, including those not on ths
NPL at least annually in n document
available to the general public: and
• Publish a separate list of Federal
facilities and their HRS ratings.
Several commenters opposed listing
Federal sites on the NPL One
commenter suggested that Federal
departments and agencies develop and
establish their own priorities for dealing
with releases of hazardous wastes, with
executive oversight by EPA.
EPA recognizes the importance ci
advising the public of the status of
Federal government cleanup efforts.
Because the NPL is already m pLi.-.p and
widely known and understood. EPA
considers it the most effective means of
disseminating this information.
Therefore, it will periodically, not less
than annually, update a section of the
NPL that lists Federal facilities along
with their response category and
cleanup status codes. Also, narrative
summaries concerning each site will be
ivailable ss part of EPA's press bridling
m both proposed and final rulcmaxings
on NPL site listings. Because EPA
believes that Federal sites should be
evaluated and listed using the same
process as non-Federal sites, the same
critena that qualify non-Federal sites for
NPL listing will be used to qualify
Federal sites for inclusion on the
separate section of the NPL As is done
on the NPL sites will be grouped into
categories based on their HRS scores.
EPA also intends to delete or
recategorize Federal sites on the list
-------
/ Vol. 90, No. 224 / Wednesday. November 20. 1985 / Rales and Regulations
using a prsaeas; that parallel* the ane
used to delete or recategorize non-
Federal cite*.
Six comnenren expressed concern
thai the NCP doe* KM sake clear dut
Federal sites are sot eligible for Fad-
financed j
amending me NCP. in response. EPA u
amending S 308-86(c)(2l to state that as
mandated by CERCLA tectran HlfeXSJ.
Fund monies may not be used for
remedial octions at Federally owned
facilities. other than«cbons specified in
CERCLA seclMO lll(c).
Dcletuas {nan or ftecategomation on
the NPL Section 300.66(cM7) amends the
NCP by establishes criteria for deleting
sites from, or recategoruuag sites on, the
NPL A site may be deleted or
recategorized where no tut ther response
is appropriate, ki aaking this
determination. EPA wdJ consider
whether any of the following criteria has
been met
(i) EPA in consultation with the State
had determined that responsible or other
parties have implemented all
appropriate response actions required:
(n) All appropriate Fund-financed
response under CERCLA has been
implemented, and EPA. in consultation
with the State, has determined that no
further cleanup fay responsible parties is
appropriate, or
(i:i) Based on a remedial investigation.
EPA. in conjugation with the State, has
determined that the release poses no
significant threat to ptrbife hearth or die
environment, and. therefore, taking of
lemetfial measures m not appropriate.
The amendment rs iJeutiual to the
proposal except that, the phrase "m
consultation with the Stare" has been
added to the second and third cnteria.
and the phrase "at that time" has been
removed from each of the deletion or
recategorintion criteria. Comments
indicated that the latter phrase wn
confusing with respect to when EPA wiH
determine that no farther response is
appropriate. One conrmenter suggested
that the phrase be man specifically
defined so that criM* with which a
responsible pajty.SJMBt comply in order
to qualify to site* far deletion from or
recategonzation on the NPL will retrain
fixed when •abeequent changes to the
NCP occur. Before making a deletion or
recategonzatton decision. EPA will
make a determination that the remedy
cr decision that no remedy is necessary
is protective of public health, welfare.
and the environment consirll-'"nf?
em ironmental requirement. -A me., are
applicable or relevant and appropriate
••l the time of deletion or
bit-
300.66(cK81 make« clear fliaf
:-it have beer, deleted remain
eligible for further Fund-financed
remedial actions if future conditions
warrant such action.
The three alternative criteria for
deletion or recategonzanon were
developed to reflect different situations
in which it is necessary or desirable to
delete or recategorize sites on the NPL
because all necessary remedial actions
have been taken or because no remedial
actions are necessary.
The criteria and procedures for
deleting sites from the NPL were
outtined initially in a guidance
memorandum dated March 27.1984.
EPA solicited comments on the criteria
and procedures when EPA proposed the
second update to the NPL (48 FR 40322.
October 15. MM.) EPA agon solicited
coMRerrts when the NCP amendments
were proposed. {SO FR 5862. February 12
IMS.) Today's atmndment reflects
EPA's oonsTdenrtiop of all the comments
received on the cnteria for deletion of
sites from, or moategorintioa of sites
on. the NPL A number of commentem
addressed the procedures they believed
EPA should follow in deleting sites. EPA
has not yet decided what procedures
will be followed. EPA is stiH considering
the vost appropriate pmuess for review
and publication of deletion or
recategorization decisions. EPA may
decide simply to recategortBe in a
separate section of the NPL those sftes
that meet the criteria of 9 300.66(cH7)
rather than to nemove'then entirely from
the NPL.
Commentere sapported the inclusion
of criteria for determining when site
deletion is appropriate. They felt that
the deletion process m likely to aflow
EPA to show progress and to provide
finality to the remedial proopss.
One commenter suggested that
CERCLA section 105 protriWrs Fund-
finaMed remedial actions from being
conducted at sites that have been
deleted from the NPL. Nothing in
CERCLA BO restricts EPA's authority.
Suction 300.06(c)(8) makes clear that the
reculatory restriction does not apply to
these situations.
A uimmenter suggested that risk
assessments should provide the basis
for determining that "no significant
threat" remains. This decision will be
based on EPA's conclusion either that
all applicable or relevant and
appTirr-iate requirements ha\e been met
or that a risk assessment indicates that
public health and welfare and the
environment are adequately protected.
Those sites for which EPA has
determined that no response was
necessary will be considered for
deli-iicm or recategorization quickly after
the "no action" decision is made.
Oneconrnenter suggested that EPA
adopt additional deletion criteria surk
as: (1) listings that were based on
erroneous MRS scores: (2) State re-^..
for deletion of State-nominated -•:>•-..
unless EPA finds that the site poses a
significant nsk of harm to human hgjKi
or the environment: (3) sites for whtrh ;:
final court order or consent decree
reqarnng cleanup is in place, unless
there is serious doubt about wherrae* the
responsible party has adequate financial
resources: and (4) sites where the Sidtn
has prescribed action that either has
been completed or is "legally
enforceable." miess EPA determines
that the remedy would be inadequate
under the NCP.
In response to the concern that
cnteria should be provided for deletion
of erroneous listings. EPA provides an
adequate opportunity for the public to
comment on (he appropriateness of the
application of the HRS at the time of
proposed rnlemakrng for the NPL EPA
believes that these procedural
safeguards are sufficient to ensure the
appropriate application of the HRS at
specific sites and subaequent listing of
ebgiofe sites on the NPL. Generally. as
stated previously in NPL ralemafcings
(48 FR 40898. September 8.1983.49 FR
37070. September 31.1981). EPA does
not intend toreseore sites. Howeve-
some limited circumstances, where
Rl/FS shows an error was made. EPn
may resoore the site and if appropriate.
delete it from, or recategorize it on. the
NPL
States may request the deletion or
recategorication of State lop-priority
sites if the site meets one of the three
deletion or recategorization criteria
described in NCP § 300.68. Consistent
with EPA's responsibilities under
CERCLA and (he NCP. EPA will delete
or recategorize sites only where EPA
determines one of the criteria has been
met.
EPA does not intend to delete or
recategorize sites that are the subject of
consent agreements, court orders, or
State-negotiated court orders until EPA
has determined that the appropnate
remedy has been implemented and has
determined that no further response is
appropriate. EPA does not intend to
make o priori judgments with respect to
the likelihood that a remedy win be
implemented or that after
implementation, the remedy will satisfy
then applicable or relevant and
appropriate requirements.
Another cummenter stated that site
at which remedial action is in progr-
generally should not be deleted or
remedial action has been complete.
EPA agrees that deleting or
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Fadatai KaglBtar / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47933
recategoraing rites en the NFL should
not be dene until EPA has determined
that no further response re necessary.
This will meet the informational
objectives of the NPL and will help
ensure that appropriate remedial actions
are performed (see 49 FR 37075.
September 21.1984).
Two umneoten supported the
inclusion of § 300.68(c|fa| which allows
EPA to perform Fund-financed remedial
actions at sites that have been deleted.
One commenter felt that guidelines for
making these funds avadable would be
desirable. Two coraaneaten suggested
thai further Fund monies aaourd not be
made available for such a site until it
has been relisted on the NPL. EPA
believes that relisting may cans*
unnecessary delay. EPA nteada to make
funds available for responses at deleted
sites if EPA determines that conditions
at the site warrant additional action to
protect paMk health, welfare-, or Be
envirasneaL.
E. Section 300.87—CorrmmJfy
Relations.
This rulemaking adds a new section.
8 300.67. which requires, ceenmuoity
relations activities for aU removal and
remedial actions at NPL sites including
enforcement actions except fof short-
duration or urgent actions of less than 45
days.
Eight conunenters discussed the role
of community relations in enforcement
negotiations. Most of these commeatera
pointed to the importance of privacy and
confidentiality during the negotiation of
settlements and stated that public
involvement at such times could impair
the government's ability to secure
cleanups funded by private parties.
Conunenters also noted the need for
better guidance on when (he public
comment period should occur and
expressed concern tfcat the publicity
resulting from a conconent public
comment period and1 responsible party
negotiations cooM radon the likelihood
of a settlement One connnenter
suggested that the comment period
occur before iiegurlaaoiis so mat me
cufiuiKjnfi received conn* be taken into
consideration during negonatfona.
Another commenter stated that careful
consideration of when the public
comment period should occur is
necessary "to avoid compromising
enforcement negotiations through the
premature release of information." One
comnwnter called for deletion of the
language from the preamble which
stated that the lead agency may. in
ippropnaie circumstances, allow a
"limited number of representatives of
the public" to participate in "additional"
meetings with potentially responsible
parties Another commenter was
pieced that the NCP itself does not
mandate public participation in EPA
negotiations with private parties
because of the disruptive effect such
participation would have on the
settlement process. On the other hand.
one commenter urged EPA to revise
J 300.67 to allow the public to
participate in negotiations with
potentially responsible parties.
EPA has not changed the provisions
governing community relations in
enforcement negotiations. On March 22,
198S. EPA issued1 interim guidance
entitled; "Community Relations During
Enforcement Action*" This interim
guidance is Chapter 6. of th« handbook.
"Community Relations in Superfund."
The chapter's staled objective is to
"establish a structure that will allow
coBununication between the government
and the affected community in the
cowse of ditoceraettt acttora, while at
the same, tone acconaottating-
precautions that are accessary to
preserve- the ability of EPA to prosecute
those enforcement acton* on behalf of
the public."
EPA believes that public coBuaent oa
the remedial alteraatrve* mU hdp
rather than atader settlement However,
EPA decs recognize the confidential
nature of enforcement negotiations and
agrees that in SOSM circumstances
during enforcement actions* community
relations activities Bust be limited.
Chapter 6 of the above-mentioned
guidance outlines procedures to be
followed during and after the public
comment period at an enforcement site.
With regard to the comment about
"additional" meetings. Chapter 6 also
recognises that there may be occasions
where affected citizens may make
valuable contributions to an appropriate
site remedy through participation in
technical discassions with potentially
responsible parties and government
representatives. These discussions,
which would deal widi technical issues
and not questions of liability or other
issues mnrelated to the remedy, would
be conducted separately from, but
contemporaneously with, gove-imeat/
responsible party remedy negotiations.
EPA does not require ana\ is- not
suggesting that the public be allowed to
participate in the actual negotiation
sessions.
Some commenters suggested that the
2l»day public comment period on the
feasibility study should be extended to
45 days, either generally, or for
potentially responsible parties [PRP]
only because the 21-day comment period
is not long enough for a PRP to
undertake (he m-dcpth technicdl
analysis necessary to determine
whether to assume responsibility for site
remediation. EPA would like to point out
that a 21-day period is the numruum
number of days that must be allowed for
public comment on the feasibility study.
The period may be. and frequently is,
extended by the lead agency beyond the
21-day minimum.
Moreover, in many cases. PRPs will
have participated in developing or
comJuctuig the RI/FS. Thus, the public
comment period is not the first time the
PRPs are exposed to the information
necessary to make this determination.
At least two comments were received
in response to the proposed \ 300i67(b)
requirement that a community relations
plan be developed and implemented if a
removal action lasts ovei 45 days. A
commenter pointed out that it is unclear
what marks the beginning of a "removal
action," and it is, therefore, impossible
to tell whether it extends over 45 days.
Another comaertler pointed oat that the
length of a removal action, is difficult to
predict aad recommended thai the
requirement to prepare a community
relations plan apply only where actual
on-site activities an expected to extend1
beyond 46 days.
Section 30a65(b}(3) of the proposed
NCP generally requires that a removal
action be terminated "after SI million
has been nhByttal for the action or 6
months have elapsed- from the date of
initial response." The same criteria
currently used by EPA to determine the
date of initial response for purposes of
the six-month limitation will be used to
help determine whether a community
relations plan is required (i.e..
"Superfuid Removal Procedures.
Revision Number 2." August 20.1984). hi
response to the concern about the
difficulty of predicting when a removal
will end EPA is modifying | 300.67(b) to
state that: "if the removal action is
expected to extend or does extend over
45 days, a formal plan must be
developed and implemented."
Finally. EPA declines to adopt the
suggestion that the 45-day limit apply to
on-sile activities only. Citizens are often
interested in key activities that do aot
lake place on aile (e.g. off-site disposal).
Thus, community relations plans will be
required for removal actions if any
removal activity, not merely on-site
activities, is expected to extend over 45
days.
Three comoienlen discussed the
funding of community relations
activities. One commenter maintained
that development and implementation of
a community relations plan does not fall
within permissible uses of Fund monies.
A second commenter suggested that
responsible parlies be held financially
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47934 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
responsible for community relations
programs. Finally, the third commenter
recommended that funding be provided
for technical advisors to interested
citizens groups became of such
advisors' ability to present unbiased and
understandable technical information.
F.PA disagrees with the first
commenter's statement that Fund
monies cannot be used for development
and implementation of a community
relations plan. A program of community
involvement and information is a
necessary part of response and is.
therefore, fundable under the authority
of CERCLA section 111. With regard to
the second suggestion, EPA points out
that because responsible parties are
liable for response costs, they are
responsible for the costs of the
community relations component of .
response. Responsible parties may
participate in elements of EPA's
community relations program at a site.
However, the lead agency is responsible
for preparation of the site community
relations plan. Therefore, the words
"develop and" contained in 9 300.67(c)
have been deleted. Thus, the final rule
limits responsible parties to
implementation of appropriate parts of
the community relations plan, rather
than both development and
implementation.
In response to the third comment
concerning funding for technical
advisors. CERCLA provides no authority
for grants to community groups. EPA's
procurement limitations for Fund-
financed actions make funding for
technical advisors at EPA-lead sites
very difficult. If the affected State agrees
and circumstances allow, however, EPA
may make money available to the State
for contracting with technical advisors
under a cooperative agreement Such
decisions will be made on a site-by-site
basis.
F. Section 300.71—Other Party
Responses
Section 300.71 requires the lead
agency to approve in advance the
adequacy of a response by a responsible
party or other person when an action ia
undertaken in compttanca with an
administrative order or content decree
under CERCLA section 106 or when
reimbursement from the Fund is to be
sought under section 112 of CERCLA. (In
the latter case, advance approval ia
known as preauthorization. See
S 300.25(d).) Otherwise, government
approval of response actions is not
required. However. 9 300.71 does set out
the requirements that a private party or
Stale must meet for a response to be
"consistent |or not inconsistent] with the
NCP" to recover its costs from a
responsible party pursuant to CERCLA
section 107. and it addresses the
certification of individuals and
organizations to conduct site response
actions.
Numerous comments were received
on various paragraphs of proposed
§ 300.71. Many suggested that prior
approval by the lead agency should be
required for response actions by private
parties when recovery of costs will be
sought from a responsible party under
CERCLA section 107. One of these
commeniers suggested that, as part of a
prior approval process, private parties
should not be allowed to commence a
cleanup until it is clear that negotiations
with PRPs will not occur or will not
result in a settlement. Another of the
commenters recommended prior
approval for private responses at NPL
sites because of a concern that private
parties and government may take
independent responses at the same site
and both seek cost recovery under
CERCLA section 107.
EPA. however, behevea that prior
approval is unwarranted for response
actions for which no claim against the
Fund will be made and which are not
taken in response to an enforcement
action under CERCLA section 106. The
costs and delays of prior approval by
EPA of private party responses could
significantly reduce the number and
scope of those responses. Delaying
private party responses pending
negotiations between PRPa and the
government would not only reduce
incentives for other party responses, but
could also harm the enforcement
process by reducing incentives for PRPs
to settle with the government
expeditiously. In addition, based on past
experience. EPA believes that private
party and government responses for
which cost recovery is sought are
unlikely to overlap and. although such
situations may arise, they are better
addressed individually rather than by
revising the NCP. EPA believes that the
requirement that private party responses
comply with all applicable Federal.
State, and local requirements, including
permit requirements, aa appropriate, is
sufficient to deter poorly planned
cleanup proposals and minimize the
possibility of independent pri\ ate party
and government responses.
Two commentera disagreed with the
requirement that persons performing
response actions that are neither Fund-
financed nor pursuant to an enforcement
action are subject to applicable permit
requirements (8 300.71(a)(6)). EPA is
retaining this provision, however,
because private responses are not
legally exempt from these requirements.
Two commeniers questioned EPA's
authority to promulgate regulations
concerning the right of responsible
parties to bring cost recovery actions
against other responsible parties under
CERCLA section 107. These commenters
believed that the courts, not the NCP.
should resolve legal issues concerning
whether responsible parties have the
right to bring cost recovery actions
under CERCLA section 107.
EPA agrees that the courts will make
the ultimate determination of what
parties may sue under section 107 of
CERCLA. However, as a primary agency
charged with the implementation of
CERCLA. EPA has an interest in this
issue and believes that its interpretation
of the statute merits judicial deference.
Moreover, because section 107 of
CERCLA authorizes private cost
recovery only for actions that are
"consistent with" the NCF. EPA has an
obligation, as promulgator of the NCP, to
explain how private actions may be so
consistent. This obligation is
particularly important given the •
widespread confusion and conflicting
judicial interpretations of the issue. See
e.g., Walla v. Waste Resources Corp..
No. 84-3287 (6th Cir. May 6. 1985); Pinole
Point Properties, Inc. v. Bethlehem Steel
Corp.. 596 F. Supp. 293 (N.D. Cal. 1984);
Bulk Distribution Centers. Inc. v.
Monsanto Co.. 589 F. Supp. 1437.1442-'
(S.D. Fla. 1984); Jones v. Inmont Corp.,
584 F. Supp. 1425.1428 [S.D. Ohio 1984):
City of Philadelphia v. Stepan Chemical
Co.. 544 F. Supp. 1135 (E.D. Pa. 1982).
In this rule. EPA makes it absolutely
clear that no Federal approval of any
kind is a prerequisite to a cost recovery
under section 107 (except of course for
government responses pursuant to
section 104 of CERCLA or private
responses taken pursuant to section 106
of CERCLA or for responses for which
claims will be presented to the Fund for
reimbursement pursuant to section 112
of CERCLA]. In addition. EPA has
modified 9 300.71 to specify in detail
what private parties must do in order to
act consistently with the NCP.
One commenter suggested that further
clarification was needed in
8 300.71(a)(2) (proposed as
9 300.71(a)(5)). This provision
establishes the standards for
consistency with the NCP for purposes
of cost recovery for responses other
than those specified in the preceding
discussion. The commenter found this
approach to be confusing because
99 300.65 and 300.68 are written In terms
of a Fund-financed action under lead
agency direction.
In order to clarify the requirements
responses pursuant to section 106 of
-------
Federal &.<*: s*e? /
.-...•. .....
and Regu'ationa 47335
CERCLA. action* involving
^authorization under f 300.25. ami
(her private responses EM has made
several amendments to (he NCR
language proposed in February 1985.
Two new paragraphs arc being
incorporated into {30085 to clarify that
certain requirements of § 300 65 are
germane onJy to Fund-financed removal
actior.s and ate not applicable to
removal actions taken pursuant to
section 106 of CERCLA or to other
response actions. Specifically, removals
pursuant to section 106 of CERCLA and
other nnn-Fund-fmaneed response
actions are not sublet to the following
requirements: .
1. SI nulliba/fr month limitations:
2. Consideration of availability of
other appropriate Federal. State, or
enforcement response mechanisms: and
3. Requirement to locate responsible
parties and encourage responsible
parties to undertake the response action.
To be consistent with the NCP for-
purposes of cost recovery under section
107 of CERCLA. afl odier requirements
and criteria outlined in § 300.65 shaR be
met. where appropriate. Although EPA
has net required that pmrare parries try
and locate- respemrbie parties and
s encourage them to undertake the
espouse. EPA believes that such action
*iH be helpful if the private party
contemplates attempting-to recover
respOMe emts from the responsible
parlies. EPA has al*o revised
§ 300.7l(a)(3) to make it clear thai no
lead agency role is required for private
party coat recovery under section 107 of
CERCLA.
Section 300,71 is beiag amended to
clarify that U refers only to response
actions that are not pursuant to section
108 of CERCLA or actions EH watch
reimbursement claims, wil) be presented
to the Fund. Section 38&M has been
amended to include language on
remedial responses taken pursuant to
section 108 of CERCLA and actions
involving preauthoruatUini
§ 300 25. tor which a claim te the Fund
will be nuide.
The most important factor of any
response action is the ultimate level of
cleanup to be achieved at a site. For
remedial actions, the moat important
factors that contribate to the final
selection of a remedy are the scoping of
response actions, the development of
alternatives, and the detailed analysis of
alternatives during the RI/FS. To be
consistent with the NCP for the purpose
if cost recovery under section 107 of
CERCLA. non-Fund-financed responses
must, as appropriate, address the full
range of alternatives outlined in
§ 3(X).S8(f). as-wet! as comply with all
other previsions of J 5 300 68'p) through
(i). Such responses also must provide an
opportunity for appropriate public
comment. This public involvement must
be consistent with { 300 67(d) unless
compliance with the legally applicable
or relevant and appropriate State and
local requirements identified in
§ 360.71(a)(4) provide a substantially
equivalent opportunity for public
involvement in the choice of remedy.
Finally, such responses must also
comply with ail otherwise applicable or
relevant and appropriate Federal. State.
and local requirements.
Responses pursuant to section 106 of
CERCLA and other private responses
are not subject to the Fund balancing
requirements of 5 300.68(i).
Several commenters songht further
specification of the standards for
certification of organizations under
§ 300 71 (c). This paragraph requires, hi
part, that an organization fl) have the
"engineering, scientific, or other
technical expertise necessary to
evaluate the appropriate extent of
remedy, oversee the design of remedial
actions, and/or implement those
acitons:" and (2) meet the standards for
preauthonzanott under § 300.25(d),
whtdr requires, m part "technical and
other caBabiFities to respond safely and
effectively to releases of hazardous
substances, or pollutants or
contaminants." hi an effort to cfa'riry the
sectionea certification. 5 30D.7l(c)(l) is
being; amended to state' that the
organization requesting certification:
(H]as engineenngi scientific, or other
technical expertise necessary to assist or
conduct Mte response by carrying out any or
all of the function* fated in pacagraph (b) of
this section.
EPA believes tha-t further specifications
for certification are not appropriate for
inclusion in the NCP because the
necessary expertise for the various
functions outlined in § 30B.71{b) may
vary from case to case. EPA does.
however, recognize that appropriate
guidelines for certification must be
developed, and EPA plans to develop
specific guidance on the certification
program.
Two commenters suggested that the
time within which the Administrator
will respond to a certification request
(5 3«m{cK3)) be reduced. EPA feels
that 180 days is an appropriate time
period given tfee content of certification
requests and the scope of review.
Some coaimenters opposed
§ 300.71(d). concerning releases from
liability, on the grounds that it was
unnecessary or too broad. The
paragraph is intended to clarify that
implementation of response measures
does not in itself release parties from
liability. Under EPA's Interim CERCLA
Settlement Policy, however, releases
from liability may be granted by EPA as
part of the settlement negotiation
process, which lip's three broad
approd..hi>s for reconciling the concerns
of EPA anc of potentially responsible
pat lies regarding releases from Liability.
(See 50 FR 5043. February 5. IMS.)
A commenter expressed cancein
about the conflict of interest involved
when a potentially responsible party.
who may have to pey for the costs of a
remedial action, develop* or helps to
develop an RI/FS for the site. EPA
believes that it provides adequate
oversight in these circumstances to-
ensure that the RI/FS is conducted
properly.
A number of technical changes to
S 300.71 suggested by various
commenters have been adopted by EPA.
In 9 300.ri(aH2)(ii](C) (formerly
§ 300.71(a)(5Hiil(Q). "the cost-effective
response" has been changed te "a cost-
effective response" to be consistent with
§ 300.66(i). hi S SOO.nfc), "responsible
party proposals" has been changed to
"proposed response actions" to make it
clear that response actions by uaitles.
other than just responsible parties, are
cont-mplated.
G. Other Subpert F Sections
Section 300.81—Cemraf. One
commenter suggejted that J 300.6l(b)
exceeds the authority of CERCLA. This
commenter believes that the Federal
government's authority to terminate a
private party response exists only under
CERCLA section 106. and then only if
the private party response may present
an imminent and TObsrantial danger.
The corrrmenter's interpretation of
CERCLA is too narrow. The authority to
terminate private responses is a
necessary component of the President's
authority to undertake response actions
under CERCLA section l
-------
undertake a differing activity in order to
abate an imminent and substantial
endangerment to public health or
welfare or the environment.
Section 300 61(d) has been amended
!o provide that:
The lead agency shall, as practicable, provide
«ur\eillance oier actions taken by
responsible parties lo ensure thai a response
is carJiiried consistent with this Plan. The
le^d .ujuncy also, as practicable, shall
munlor the actions of third parties
pre-iuthonzed under J 30025{d)
One commenter recommended that
the phrase "should, as practicable" be
replaced with "shall" because the
commenter could foresee no
circumstance where it would be proper
for the lead agency to forego any
surveillance of actions by responsible
parties. In response to this comment, the
language of the paragraph has been
changed from "should, as practicable
to "shall, as practicable" to emphasize
that surveillance will take place
whenever practicable and to the degree
practicable. In addition. EPA has
amended the paragraph to clarify the
lead agency's responsibility to monitor
the actions of third parties conducting
responses preauthorized under
§ 300.25|d). See also the change to
§ 300.33(b)(14)(iii).
Section 300.bl(e)(l) states that subpert
F "does not establish any preconditions
'to enforcement action by either Federal
or State governments to compel
response actions by responsible
parties." One commenter.was concerned
that this provision might limit a private
party's right to prompt judicial review of
an enforcement order, and another
commenter stated that the paragraph
violates CERCLA section 108. which
requires enforcement actions to be
consistent with the NCP to the extent
practicable. Both concerns are
• misplaced. This provision is not
intended to have any effect on judicial
review of enforcement actions. (EPA
notes, however, that most courts have
upheld EPA's portion that CERCLA
administrative orders are not subject to
r __>_»>ml«uf 1 fta nrirrinrv
no
preenforcementreview.) Its primary
purpose is to enphasize that
enforcement actions are not limited to
NPL sites and that the Federal
government does not have a mandatory
duty to take enforcement actions (i.e., ni
one has an entitlement to an
enforcement action). See also the
discussion of S 300.68(a) in section ffl.B
of this preamble.
Section 300.82 State Role. Six
commenters addressed changes in
§ 300.62. which outlines the procedures
and requirements for State participation
in response actions. One commenter
beliaved that there should be a
mechanism whereby the States can be
reimbursed for costs expended on an
NPL site before the execution of a
cooperative agreement. EPA already
allows cooperative agreements to
provide that Stale expenditures for
remedial planning costs incurred before
the remedial action has been initiated
may be counted «s an advance towards
the required future cost share and has
issued guidance concerning this
procedure. EPA. however, as a general
rule will not reimburse States for costs
incurred before a cooperative agreement
has been executed because EPA
ordinarily cannot determine whether
such costs were incurred for activities
conducted in accordance with the NCP.
Another commenter noted that the
proposed NCP does nofmclude a
mechanism for State lead at Fund-
financed removals at non-NPL sites and
suggested that cooperative agreements
could allow for State lead at Fund-
financed removals. The commenter is
correct that EPA has not used
cooperative agreements for Fund-
financed removals at non-NPL sites.
EPA's primary objective has been to
establish a mechanism for remedial
actions at NPL sites because of the
volume and cost of such activities and.
second, to establish a mechanism for
cooperative agreements with States to
oversee remedial planning by
potentially responsible parties. EPA's
next objective, in light of the expanded
activities to be performed as removal
actions under revised S 300.65(b), is to
consider the advisability of entering into
cooperative agreements with States and
political subdivisions for removal
actions at NPL and non-NPL sites. Given
the fact that CERCLA section lll(a)(2)
limits the reimbursement of response
costs from the Fund to persons other
than Federal. State, and political
subdivisions, cooperative agreements
appear to be a viable option for funding
State and political subdivision response
activities.
A commenter suggested that
S 300.62(a)(2) be revised to provide that
Superfund Slate contracts and
cooperative agreements should apply to
all sites, not just Fund-financed sites.
Cooperative agreements and Superfund
State contracts serve as the funding
documents for Fund-financed response
activities. There is no reason to enter
into either a cooperative agreement or
Superfund State contract when Fund
monies are not being used by States.
Another commenter suggested that the
same paragraph should be clarified to
provide that even in situations where
the response is not Fund-financed, the
State is acting as the lead agency for
purposes of CERCLA section 107 cost
recovery. EPA did not make this change.
States involved in hazardous waste
management may take a variety of
actions under their authority, and the..
authorities may vary widely from Slate
to State. Designating the State as lead
agency under the NCP in such situations
would not further clarify roles and
responsibilities because CERCLA
section 107(a|(4)(A) already allows a
Slate to recover costs of removal or
remedial action not inconsistent with
the NCP. However. EPA is considering
the development of joint EPA/State
agreements to clarify roles and
responsibilities of the State and EPA for
response actions at NPL sites. See also
the discussion in S 300.71(a). which
delineates requirements for State
response actions to be considered not
inconsistent with the NCP.
The discussion of 9300.62 in the
preamble to the proposed rule [50 FR
5879) indicated that a cooperative
agreement or Superfund State contract
is needed for an advance match.
However, the proposed regulatory
language was silent on this point. To
correct this, the following sentence is
being added to the end of I 300.82(a)(2): '
"[if] a State intends to use expenses
incurred as part or all of its cost-sharing
obligations under section 104(c)(3) of
CERCLA. it must enter into a resp'
agreement to this effect"
This change will ensure that expenses
are consistent with the NCP and other
applicable regulations, fully auditable.
and acceptable to EPA.
The preamble to the February 12.1985,
proposed rule noted that Federal
agencies other than EPA have authority
to enter into contracts and cooperative
agreements with Stales^™d Btatedthat
the "prior omission of the USCG. FEMA
and HHS which have such authority
from this subsection was an oversight
(50 FR 5879). Although the proposed
revisions to i S 300.62 (a) and (c)
referred to the "Federal Government.
rather than EPA alone, there was still no
recognition that other agencies will
provide assistance to States pursuant to
contracts and cooperative agreements.
To correct this. § 300.82(b) is being
revised to read:
EPA will provide assistance from the Fund.
and other Federal agencies will provide
assistance under their existing authority, to
States pursuant to a contract or cooperative
agreement. The cooperative agreement can
authorize Statet to undertake most acuons
specified in this auboart. However, certain
authorities are reserved for the Federal IP-
aaency.
A State that enters into such an
agreement is a lead agency unde.
rule but only as to those activities
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47937
authorized in the agreement. Therefore.
references in subpart F to lead agency
mean a Slate agency only if a
cooperative agreement or contract
specifically authorizes the Slate to cany
out particular activities.
A commenter noted that the proposed
definition of "lead agency" addresses
(he situation where a State is acting as
the lead agency pursuant to a Superfund
State contract or cooperative agreement
executed under CERCLA section
I04(d)(l), but does not address the
instance where a State is conducting
activities that are not Fund-financed
The commenter suggested redrafting the .
definition to enable a State to act as a
lead agency "when it is carrying out
non-Fund-financed actions at any site."
EPA does not agree with the comment.
For responses undertaken pursuant to
the NCP. Stales may only act as lead
agency pursuant to a contract or
cooperative agreement executed under
authonty of section 104(d)(l) of
CERCLA. There is no lead agency with
respect to non-Fund-financed response
actions, other than those carried out
pursuant to section 106 of CERCLA.
Section 300.24{c) of the NCP encourages
States ta use State authorities to compel
potentially responsible party responses
or to undertake such responses
themselves that are not eligible for
Federal funding.
Section 300.63—Discovery or
Notification. A commenter suggested
that the on-scene coordinator (OSC]
should be allowed to contact the State
Regional Response Team (RRT)
representative instead of the governor
as stated in } 300.63(c). The language of
this paragraph is based on CERCLA
section 103(a}. 1 he term "governor"
includes the governor's designee. Thus,
if a* governor designates the RRT
representative as his or her designee for
purposes of receiving these reports, the
State RRT representative can be
contacted directly.
One commenter suggested that
§ J00.63(b) be revised to allow reporting
to "the Coast Guard or the EPA
designated OSC for the geographic area
where the release occurs, or to the
nearest Coast Guard Unit" if direct
reporting to the NRC is not practicable.
In response. EPA has modified the
language originally proposed for
§ 300.63(b) slightly. The first
modification is in the language covering
reports to the OSC. The language
originally proposed authorized reports
!o ". . . the predesignated OSC at the
nearest USCG or EPA office." OSCs arp
located at each of the ten EPA regional
offices and al 48 Coast Guard manre
safety urn's throughout the country, ili^
revised language clearly indicates that.
to meet the reporting requirements, the
report would have to be specifically
made to (he office where the appropriate
OSC is located. Locations of OSCs can
be obtained from regional contingency
plans.
The second revision is the addition of
provisions for reporting of releases to
the nearest Coast Guard unit under
limited circumstances. This method of
reporting, which has been authorized in
the Coast Guard regulations for
reporting discharges under the FWPCA
since 1975 (33 CFR {153.203). will be
allowed only in those situations where it
is not possible to report directly to the
NRC or OSC. EPA believes that the use
of this provision would be limited to
releases involving vessels at sea or
offshore platforms with no telephone
access. These persons would normally
report by radio to a Coast Guard station
that maintains a radio watch. To ensure
that the CERCLA reporting requirements
are met. releasers who report to the
Coast Guard units under this provision
must subsequently notify the NRC as
soon as possible. It is important to note
that reports to locations other than the
NRC are authorized only when direct
reporting to the NRC is not practicable.
Because the NRC maintains toll-free
telephone numbers-reachable from
anywhere in the country,* reporting to
the predesignated OSC or the nearest
Coast Guard unit should be very limited.
To clarify the procedures for the OSCs
to relay reports to the NRC. EPA
emphasizes that it is not intended that
OSCs must relay such reports by
telephone to the NRC. EPA and the
Coast Guard are working to develop
procedures for prompt transfer of
reports to the NRC to minimize the
burden on both the OSC and the NRC
Duty Officer.
Section 300.64—Preliminary
Assessment for Removal Actions.
Several commenters requested
clarification of the process of
coordination and consultation between
EPA and natural resource trustees, and
among EPA. States, third parties, and
other Federal agencies involved in
response actions. The commenters
requested that the roles and
responsibilities of EPA and the States be
clarified throughout the NCP. In
response to these comments, EPA is
revising § 300.64(d) to read:
(d) If it is determined during the assessment
that natural resources have been, or are
likely to be. damaged, the OSC or lead
agency shall, where possible, ensure that the
trustpes of the affected natural resources are
notified in nrrler that the trustees may initiate
appropriate actions as identified in
3 300.74(b). Whet-* practicable, the OSC shall
consult with trustees in making such
determinations.
Section 3G0.74(b) has been added to
summarize appropriate actions that may
be taken with respect to natural
resource damages.
EPA has added the following language
to the end of \300.64fa)(2), "or other
sources (e g.. State public health
agencies)." This additional language
allows the OSC or lead agency to use
information generated by other sources
regarding threats to public health in
order to evaluate the threat to public
health from a release or threat of a
release. For example, the lead agency
should evaluate any public health
information available to aid in removal
actions.
Section 300.69—Documentation and
Cost Recovery. One commenter
addressed an issue raised by proposed
changes to i 300.69, which establishes
the requirements for documents that
support responses under the NCP and
provide the basis for cost recovery. This
commenter requested that i 300.69 also
provide that when agencies delegated
the rfuthc.ity tc .ake a response under
CERCLA have no other existing
authority or funds for taking response
actions. Fund monies should be
allocated in advance to allow these
agencies to take the necessary response.
In response to this concern. EPA is
revising 9 300.69(d) to read:
(d) Actions undertaken by the participating
agencies in response shall be carried out
under existing programs and authorities
when available. This plan intends that
Federal agencies will make resources
available, expend funds, or participate in
responses to releases under their existing
authority. Interagency agreements may be
signed when necessary to ensure that the
Federal resources will be available for a
timely response lo a release. The ultimate
decision as to the appropriateness of
expended funds rests with the agency that is
held accountable for such expenditures.
Under the revised language, interagency
agreements can address methods of
ensuring Federal resources are available
in Addition to reimbursement, such as
advance funding. This flexibility will
help ensure that Federal resources are
available for timely responses.
IV. Revisions lo Other Subparts
In addition to the revisions to NCP
subpart F addressed in section HI. the
following revisions were addressed by
public comments. The comments and
EPA responses are presented below by
NCP suboart.
Subpart A—Introduction
Section 300.3—Scope
One commenter suggested b'oa Vmng
the scope "f §300.3 to make • • more
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47938
Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
"consistent with CERCLA section 105"
in order to clarify that then is "no
liability to the United States
Government or a State or any other
person for response costs unless the
costs incurred were consistent with the
NCP." The commenter also stated that
S 300.3(a)(2) should include a reference
to the fact that only those releases that
"pose substantial danger to the public
health or the environment" are
actionable under the Plan. EPA believes
that the § 300.3(b)(l) fulfills the intent of
CERCLA section 105 by including
provision for the division and
specification of responsibilities for
response actions among the State, local.
and Federal governments and by
delineating the role of private entities.
Furthermore. CERCLA section 105(4)
states that EPA will specify for whom
the Plan is in effect. The NCP specifies
in the particular section to whom the
section is applicable. In response to the
second comment. CERCLA section
I04(a)(l) clearly authorizes responses to
all releases of hazardous substances
whether or not "substantial danger" is
posed. The items listed in CERCLA
section 105 establish the minimum
criteria for promulgating the NCR it is
not an exclusive list. EPA concludes that
the change suggested by the commenter
is not warranted.
Section 300.4—Application
One commenter proposed expanding
this section to note that compliance with
the "procedures and standards" of the
NCP is a prerequisite to cost recovery
under CERCLA section 107. CERCLA
section 107ta)ll-4) specifies that
responsible parties shall be liable fon
(A) all costs of removal or remedial
action incurred by the United States
Government or a State not inconsistent
with the national contingency plan;
(B) any other necessary costs of
response incurred by any other person
consistent with the national contingency
plan: and
(C) damages for inhvy to. destruction
of. or loss of natural isaouicoH, including
the reasonable costs of assessing such
injury, destruction, or baa resulting from
such a release.
Consistency with the NCP for
purposes of cost recovery is explained
in 5300.71. In regard to the reference by
the commenter to "procedures and
standards" listed In CERCLA section
105. EPA believes that the commenter
did not dearly interpret the intent of the
section, which is to establish a list of the
minimum components of the NCP. The
requirements for cost-effectiveness and
cost recovery are described in other
sections of the NCP.
Section 300.6—Definitions
One commenter requested that the
phrase "provision of alternative water
supply" be defined to go beyond
provision of short-term, emergency
water supplies to include, for example.
extension of new water lines. The
commenter stated that this definition
would help to ensure that contaminated
water supplies can be quickly replaced.
without the need for a remedial RI/FS.
EPA believes that defining the phrase
would unduly restrict the range of the
possible responses to water supply
threats, and points out that alternative
water supplies may be provided as part
of either removal or remedial actions.
Several examples of alternative water
supplies that may be provided as
removal or remedial actions are
described in §300.70(c)(2). Removal
actions may be taken without the
preparation of a full cost-effectiveness
evaluation.
One commenter suggested deleting the
sentence in the definition of "feasibility
study" that states that the RI and FS are
performed concurrently and in an
interdependent fashion. The commenter
predicted "chaos and losses" if these
activities are not performed
sequentially. The commenter also
suggested that conforming changes be
made to EPA's RI and FS guidance
documents. EPA declines to adopt the
commenter's suggestion. In some
complex-situations, as the site becomes
better characterized during the RL it
may become necessary to reassess the
initial response alternative and include
new ones. Assessment of new
alternatives may, in him. require
collection of additional data during the
RI. Concurrent RI and FS development
thus leads to more rapid and more
thorough assessment of the actions
necessary at complicated sites. The
level of data collection and analysis
necessary in the RI depends on the level
of information needed to adequately
characterize the site for alternatives
assessment for support of the
enforcement of cost recovery
proceedings, and for public health
evaluations. These assessments and
proceedings must be coordinated in a
manner that varies with the complexity
of each site and the particular remedial
alternatives relevant to the site problem.
Concurrent RI/FS development allows
the RI data collection effort to focus on
the information needs of the remedial
designs being analyzed, thus conserving
limited Superfund resources and
enhancing the speed of cleanup. Each
proposed definition clearly indicates
that while the RI and FS will be initiated
concurrently, some RI activities will be
concluded well in advance of the
completion of the FS. This has occurrpd
in most complex Superfund
investigations. It will be more often
necessary in the future as the authority
for selecting the remedy is redelegated
to the Regional Administrators in order
to facilitate raprd cleanups at the
remaining sites. (The commenter made
the same suggestion for the definition of
"remedial investigation" in this section.
EPA's response is the same.)
One commenter suggested that the
following sentence be added'to the
definition of "Federally permitted
release." "A 'release' is 'Federally
permitted' within the meaning of any of
the preceding subsections regardless of
whether the permit is issued by a
Federal. State, or local authority." EPA
does not concur with the comment.
CERCLA defines "Federally permitted
release" in section 101(10). Section
101(10) identifies a number of Federal
environmental statutes, many, but not
all of which authorize States to issue
permits to achieve the goals of those
statutes. For example, according to
section 101(10)(A) of CERCLA. a
Federally permitted release includes
"discharges in compliance with a permit
under y*tic.i 402 - f the Federal Water
Pollution Control Act" Section 402
permits may be issued by either EPA or.
a State; in either case, discharges in
compliance with the permit are
considered "Federally permitted
releases."
Thus. CERCLA section 101(10)
considers certain discharges regulated
by State-issued permits to be "Federally
permitted releases." To the extent the
commenter intends that those releases
regulated by State or local permits that
are not associated with the statutes
identified in section 101(10) be
"Federally permitted releases," EPA
considers the suggestion to represent an
unwarranted expansion of the statutory
language.
One commenter believed that the
proposed definition of "first Federal
official" should be modified in several
respects:
• Whether the clause "with
i>sp-n-ibiiity under this Plan" modifies
"first representative" or "Federal
agency" should be clarified.
• The definition should specify that
the Federal official responding at a
Federal facility is the first qualified
Federal employee to the scene, and not
merely the closest Federal employee to
the scene.
• The need for the -first Federal
official" to be qualified to protect pubu
health and welfare and the environmer.
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Federal Register ,< vot. au. no. ^
-.., lt.^.o / Rules and Regulations 4
at releases not occurring at Federal
facilities should be clarified
• The definition should be clarified to
avoid any argument that a State with
jurisdiction over a site under a multi-site
cooperative agieement must await the
arrival of a "first Federal official."
EPA generally agrees that the above
points should be clarified and has made
several changes to accommodate the
suggestions. The new language is as
follows:
First Federal official means the first Federal
representative of 3 participating agency of
the National Response Team to arrive at (he
scene of a discharge or a release. This official
coordinates activities unaer this Plan and
may initiate, in consultation with the OSC.
jny necessary actions until the arrival of the
pred-jsignated OSC A State with primary
jurisdiction over a site covered by a
cooperative agreement will act in the stead of
the First Federal Official for any incident at
the site
EPA has addressed the concerns that
the official be "qualified" by having
h-'m/her act in consultation with the
OSC because such qualifications could
not be stipulated for diverse other
Federal agency personnel who might
also appear on the scene.
One commenter noted that the term
'>m*ial response" is critical in
calculating time limits for removal
actions under NCP 8 300.65(b)(3) and in
the exemption from having to develop a
community relations plan under
§ 300.6;;b). The commenter advocated
defining the term by specifying an event
01 events that mark the commencement
of a response. EPA does not concur that
the term "initial response" needs to be
defined in § 300.9. but agrees that
guidance should be provided for
determining the referenced time limits.
EPA has already provided such
guidance. Activities signifying the
official commencement and termination
of removal actions are defined in
Agency guidance entitled, Superfund
Removal Procedures (Revision Number
2. August 20. :384) as follow*
The six-month time period comoMBoes on the
day on-site removal action actually begins,
excluding time spent doing [CBRCLA section]
I04(b) investigation, monitoring surveys, or
other information collection prior to the
approval of a removal and excluding time
spent procuring a contractor or conducting
any off-site planning activities after approval
of the removal action.
One commenter noted that the term
"State" Is not defined in 8 300.6 of the
NCP. and suggested that it be defined in
a manner that clarifies whether it
includes political subdivisions. EPA
' does not concur with this comment The
term "Slate" is defined in CERCLA
sect'on 101(27). In addition. CERCLA
indicates when both a State and its
subdivisions are covered by a particular
provision of the statute. (See. for
example. CERCLA section 104(d).)
Subpart B—Responsibility
Section 300.22—Coordination Among
and oy Federal Agencies
One commenter suggested that the
preamble to the NCP note that the
existing DOI/DOT memorandum of
understanding (MOU) which deals with
responses involving facilities on the
Outer Continental Shelf addressed in
S 300.22(fl is under revision, and that
any changes that affect response actions
under the NCP should be reflected in
future NCP amendments. EPA agrees
that the existing MOU may lead to some
confusion over the scope of response
activities and responsibilities of DOI
and DOT during response to a discharge
on the Outer Continental Shelf. The
MOU is presently under revision, and
any changes affecting response actions
under the NCP will be incorporated in
future amendments to the NCP.
Section 300.23—Other Assistance by
Federal Agencies
One commenter advised that
S 300.23(b)(8). as proposed, might create
a conflict of interest by requiring the
Department of Justice to represent both •
the Federal Government acting to
enforce CERCLA and a Federal agency
as a potentially liable party. The
comment does not raise any technical
issue concerning the merits of the NCP.
but rather, raises a generic legal issue
concerning the proper role of the Justice
Department in such cases. That role is
more particularly set forth in 28 U.S.C.
Section 516. which provides in the
pertinent part that "the conduct of
litigation in which the United States, an
agency, or officer thereof is e party. . .
is reserved to cCScers of the Department
of Justice under the direction of the
Attorney General." This statutory duty,
which is premised upon the President's
Article U authority, does not amount to
a conflict of interest merely because the
Department of Justice represents EPA in
enforcing CERCLA and/or an agency
named in a counterclaim against the
United States in a CERCLA action. In
particular, it is important to note that the
Justice Department is not in such cases,
specifically enforcing CERCLA on
behalf of EPA against a Federal agency.
There is no inherent conflict in such
cases. Rather, as in many cases, the
Department is both prosecuting its
claims and defending against others in
the course of litigation. Moreover, to the
extent the Department has any
perceived conflict of interest, nothing in
the law requires that EPA •„-- Jh? Federal
agency obtain separate legal
representation.
This issue was conclusively resolved
in Nevada v. United States. 103 S. Ct
2906 (1983). In that case, the Attorney
General represented the Government's
position even though the Department of
Interior had programmatic interests in
both an Indian Tribe's reserved water
rights, as well as the opposing interests
of a reclamation project seeking water
rights for the irrigation of land (Id. at
2923). The Court recognized that there
were potentially conflicting interests
involved but went on to state that:
It Is simply unrealistic to suggest that the
Government may not perform Its obligation
... in litigation when Congress has obliged it
to represent other Interests as well. In this
regard, the Government cannot follow the
fastidious standards of a private fiduciary,
who would breach his duties solely by
representing potentially conflicting interests
without the beneficiary's consent (Id. at
2917).
The Court also agreed with the trial
court that the Government attorneys
were not chargeable with an
impermissible conflict of purpose or
interest and that:
[T)he District Court's finding reflects the
nature of a democratic government that is
charged with more than one responsibility; it
does not describe conduct that would deprive
the United States of the authority to conduct
litigation on behalf of advene interests (Id.
at 2922 n. 13 (emphasis aoded)).
Indeed, barring the Department of
Justice from representing either the
interests of EPA or another Federal
agency on grounds of conflict of interest
would itself raist, se-L .a Constitutional
questions. Accordingly, the comment
that proposed I 300.23(b)(81 creates an
impermissible conflict of interest is ill-
founded as a matter of law.
One commenter suggested that the v
descriptions of Federal agency
assistance
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47940 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rutes and Regulations
Disastei Relief Act of 1974 (42 U.S.C.
5121 et seq ] adequately describes the
purpose of the FCO. Section 303 of that
Act defines the role of the FCO during a
mHior disaster. The proposed change
d'so addresses ihe concern of whethei
the FCO would assume the
responsibilities of the OSC or RPM
during a declared dis.ixiur. The FCO is
.ippomtcd by FENiA to coordinate
Ke'lLTjl ui nuty as it m.iy lelule to a
disaster or emergency declaration of the
President. The activities being
performed by the OSC/RPM may or may
nut he within I HP scope of this disaster
declaration. In either case, the OSC/
RPM would cunlinue to curry out his
responsibilities under the NCP. but
would coordinate his activities with the
FCO to ensure consistency with other
I rdcral diopter assistance activities.
SCLUUII JIM 24—State and Local
Particioation
EPA has proposed amending this
section to clarify State use of the titles
"OCS" and "RPM" and to add language
concerning the roles of State and local
governments in protecting the public
health and welfare during initial
responses. In response to the proposal, a
commenter requested clarification of
S 30O24{d). which states, in part. that.
"In the case of a State as lead agency.
the State shall carry out the same
responsibilities delineated for OSCs/
KPMs in this Plan (except coordinating
and directing Federal agency response
actions)." The commenter suggested that
it should be made clear that "exercise of
these responsibilities by a State is in
lieu of rather than ia concert with an
OSC or RPM."
EPA does not concur with this
comment. In the case of a State as lead
agency, there will still be a Federal
OSC/RPM for the response: and. thus,
State action* cannot be in lieu of the
OSC/RPM. but must be in concert with
the cognizant OSC/RPM. The definition
of "lead agency" (| SOU) and
4 300 24(d) provides that States which
enter into contractor cooperative
agreements pursuant to section 104(c)(3)
and (d) of CERCLA or section
311(c)(2)(H) of the Clean Water Act
(CWA). may function as "lead agency"
and. in (hat capacity, shall carry out the
same responsibilities and authorities as
a Federal OSC/RPM (except
coordinating and directing Federal
agency response actions). The
cummenler urges that this exception
should not pertain to Federal agencies
that are responding in the capacity as
responsible parties under CERCLA
section 107. rather than as an NRT
agency.
CF.RCLA provides that Federal
agr-m IPS are subject to the Act and may
hdve liability under section 107(a) to
States that incur cleanup costs not
inconsistent with the NCP (See
CF.RCLA section 107(g|.) Nothing in the
Art. Executive Order 12316. or this Plan.
huwpver, makes Federal agencies
subordinate to States in the course of
conducting removal actions at a site.
particularly a site owned or operated by
a Federal agency. EPA believes that it is
inappropriate for States to coordinate
among Federal agencies responding to a
rcleHse or to direct the activities of any
particular Federal agency. Accordingly.
EPA does not concur with the comment.
Section 300.25—-Nongovernmental
Puiticipation
One commenter requested a new
paragraph to identify a team, including
States, to decide whether a third party
response should be preauthorized for
Fund financing. EPA is committed to
coordinating with the States: however.
the decision on adequacy of the
response should remain with the lead
agency because reimbursement will
come entirely from the Fund. Response
claims regulations will identify how
coordination with States will take place
and the procedure(s) for
preauthorization.
One commenter.states.that I 300.25(d)
concerning preauthorization cannot be
used or understood until CERCLA
section 112 response claims procedures
are promulgated. EPA is in the process
of developing response claims
regulations. However. EPA has been
considering request* for
preauthorization on a case-by-case
basis.
One commenter requested a list of
factors in { 300.25(d)(3) identifying what
factors EPA will consider in deciding
which reimbursement requests will
receive priority. Specific considerations
for developing priorities among claim
requests will be included in the response
claims procedures.
One commenter wants ft 300.25(d) (3)
or (4) to be changed to state that
preauthorization does obligate the Fund.
Current | 300.25(d)(4) has been written
to state that preauthorization does not
obligate the Fund because 'obligation'
moans that the money can never be used
for other purposes; therefore, no change
is required. By preauthorizing a claim.
F.PA makes a commitment that if
response actions are taken in
accordance with the Plan as submitted.
and costs are reasonable and necessary.
reimbursement up to the maximum
amount of money established by the .
prpHulhonzulion will be paid from the
Fjnd. subject to available
.ipproprialions.
Suhpart C—Organization
Section 300.32—Planning and
Cnurdi nation
One commrntcr requested that EPA
expand this section to allow the use of
Clean Water Act (CWA) section 311(k)
jnd CERCLA Trust Fund monies to
fm.inre the development of resources l»
assist during spills. These resources
would include "technical assistance.
materials and personnel avail.ihle for
support operations, and inventory of
specific mate-rials, such as booms.
nbsorhants. or computer models of
dispersion patterns." The commenler
also suggested revising the section to
include a discussion of training to assist
in the maintenance of spill contingency
plans.
EPA does not concur with these
recommendations. The use of the two
Federal Funds to provide resources up-
front is a matter for the applicable Fund
managers. Both Funds are used to
finance response activities on an
incident-specific basis; authority to use
funds for the purchase and staging of
equipment ia dependent on the
particular statute. The CWA does not
authorize the use of section 311(k] fu.
for up-front costs; CERCLA has limitt
provisions in section 111 for providing
up-front costs for equipping Federal
response teams. In must areas of the
country, adequate resources are
available, either commercially or
through the Coast Guard Strike Teams.
Regional and local contingency plans
should inuuie formation on the
availability of resources, either
governmental or private, that could be
called on during a response. The subject
of training is already adequately
addressed in II 300J2(a)(7)(vi).
(b)(8)(x). (c)(l). and (c)(2).
One comnenter requested revisions to
the NCP. particularly I 300.32(b). to
reflect the establishment of separate
RRTs in Alaska and the Caribbean.
Another commenter also proposed to
make reference to a separate RRT
covering Hawaii and the Pacific Islands.
F.PA concurs with adding reference to
the separate standing RRTs in Alaska
and Caribbean: however. EPA does not
concur with the recommendation to :
establish a separate RRT for Hawaii and
the Pacific Islands. The NRT believes
that the recommendations of the RRTs
should be the primary factor in decidinr
whether to establish a separate star
RRT. The Region II and Region X Rl
have indicated the desire to have the
Caribbean and Alaska function as
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separate staadhajfiKYi because of *en
geographical sepUBtea from the
region* affioes wiMiIhe Alandvd
Federal regions. The Regan iX ART.
comaag Haoan and thePacific Wannlii
has considered the issue of «8toMish*qg
a separate fiHT for the Pacific and has
deaded •that the Pacific Oceanic area
should continue to be pest of the Begun
IX RRT. although a sub-RRT would be
('-inhlishfid in Hawaii to coordinate
••randing RRT activities in ihe Pacific.
Thus, the third sentence of 5 3B0.32fb)
now reads: "1t]he standing team
jurisdiction will correspond with the
Standard Federal Regions, except For
Alaska and the Caribbean area which
will also have standing RRTs."
One comrnenter recuninieiiued that
ihe^wrdiiiguf 1 »M2ft)^Iu) shcnM
be changed to 'Stale tiiai RRTs
"encourage"1 preparedness, no* "vaem~
preparedness, because RRT training
exemM nay ••awe aa -a medunam to
facilitate papaednras activittea, tat
wiH aoieasarc preparedness. SPA
conouis aaah das mgBjeatJan aad a
revising § MLSI(M(6)(x)aoca*diRg(y.
While the MtTs aeon1 *» take an zctfe«
«*L_ :_ - _««__»_ f ••«••—•«»
TOBj B BEBBUTBJ ^•BRBBS IBT JESpBBSe
prepanaBaeas MBBBI aheir wspeiliiie
rngiaai, it is beyond their capacity to
"ensure preparedness." «speeiaSy at 4he
State aari Jecal level lie revised
wording does nat modify the MTT«
active role m eacawnging preparedness
activities at all levels of government
through traiaing exera&rs. hut dees not
force die RRT a to take exlraortiiaar>
steps to guarantee preparedness.
One friHiHiifBlyr ntrTTtnnn*ndwi thai
the cnteoa addntssed in 8 3OU2(bJ(7J
for forwarding issue? to Jae-NRT be
clarified as to whether the entire RRT
must agree to forward an issue Jo the
NRT. and to add examples of
discretionary actions of the RRT. EPA
does not CUILLUI win Ins
recommenduliuiiB of the commenter. The
existing languageIn paragraph (b)(7)
adequately describes those situations
where it wocrld be appropriate for the
RRT to request NOT advice, ft TB not
necessary for the RRT as a whole to
agree wrth tfte forwarding oi an issue to
rite NRT. evaectariy because one -of the
sitBalfcms addressed b> the poragTRph in
disagreements thaJ^caonot beTesolved
at the regnant JeveL With regamh to
list oat some -examples osed
nde-chd not affect the assignment of
OSC responsibilities. As radicated in
paragraphs fa) and (b}(8) of this section.
DOO acts as predesignated OSC only
for releases of hazardous substances.
pollutants, or contaminants from its
vessels and facilities. DOO is still
responsible for acting to remove any oil
discharges, as rs any other Federal
agency whose vessel or facility is the
sourre of an oil dncnonre. but the
Federal OSC (i.e, E?A or USCG) will '
pio\:de advice and assistance to DOD
«(ll) sets
a dangerous precedent. The comnienter
stated that contractors should not be
relieved of the responsibility br
protecting their workers. Although £PA
agrees with the commenter's concerns.
the commenter has apparently
misinterpreted the intent of tins
subsection. AlthooBti OSCs mutt remain
cogmzant of !he occupational safety and
health ac^ivifes at the response scene
and monitor contractor actions, the
OSCs are directlv rejpons'ble nnly for
the'-r own staff The h=: of OSC/P.PM
responsibihties la § 300^t(b) acts as a
cror-s-referpn?e to other ser.ftons of tne
NCP where the OSC/RPM has oeen
given certain specific responsibilities In
this case. § 300.38 provides the details of
'he role of the OSC/ RPM in worker
health and safety. As indicated in
paragraph (a) of that section, each
government agency and private
employer is directly responsible for the
heairh and safety of its own employees:
thus, contractors are not relieved of
their responsibility to protect their
employees. In fact, paroa'-aph c~\ e~'uai
section reqnirps contractors
Fund-financed response act'or-
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47942 Federal Register / Vol. 50, No. 224 / Wednesday. November 20. 19M / Rule* and Regulations
comply with all OSHA requirements and
with any health and safety program of
the lead agency. As was indicated in the
preamble on page 5877. "the Federal
government is not assuming
responsibility for individual workers."
A commenter stated that the role of
the RPM in Fund-finHiiced cleanups
under State lend as described in
4 300.33(b)(l4)(ii) is too broad. EPA
disagrees with the romim-nt. Although
both CERCLA and the NCP clearly
emphasize the importance of the States'
role in Fund-financed cleanups, the
language proposed in § 300.33(b|(14)(ii)
supports the oversight role required of
RPA in State-lead cleanups by the terms
uf its cooperative agreements. Such
agreements presume substantial Federal
involvement in accordance with the
Federal Grant and Cooperative
Agreement Act of 1977, 31 U.S.C. 0301-
6308 and its implementing regulations
(40 CFR 30).
RPA disagrees with those commenters
who believe thnt the authority of the
RPM is too brodd. In fact, the
responsibiliiy of the RPM to oversee and
make decisions when third parties
undertake cleanups needs to be
clarified. This clarification is (diking in
the current NCP: for example.
] 300.25(d) does not specify how
monitoring will take place, and 9i 300.33
and 300.81 overlook monitoring actions
under claims against the Fund.
Accordingly. 3 J00.33(b|(14)(iu) h«s been
revised to read:
The RPM shrill pariicipdir m nil
dccuionniHking processes nncussary to
ensure cotnplijm.o with this PUn and the
uooperjtlvi! .igrecnont between EPA and the
Shite. The RPM will also review responses
implemented pursuant lo prraniiMii/.jtion in
order for EPA to determine (hat responses are
< onsislcnt with prcauthorualion in cases
where claims ore filed for reimbursement.
EPA made a ter.hnic.il ch.inge to
8 300.33. A comment on the definition of
"First Federal Official" in 9300.6
resulted in a modification of the
definition, which in turn requires a
change in 9 300.33(b)(l). This change
stipulates that the First Federal Official
should consult with the 06C before
initiating any necessary actions.
Section 300.34—Special Forms and
Teams
A commente.r recommended that
9 300.34(.i) be revised to reflect the
existence of the Coast Guard Dive Tram
as part of the Nulional Strike Forrj1
(NSF) and the rule of tlir NSF in snip
salvage. The commonlci recommended
retaining I lit: reference to s.ilvage
i:uudbilitv th.it was proposed for
•li'liition Le< .iT-.f. jlihough UUI) is the
pnin.iry Fuduuil ;if<<'"< y >vilh marini!
salvage expertise, its assistance is
contingent on defense operational
commitments. Thus, the NSF maintains
limited capability in the area of ship
salvage. EPA agrees to add a description
of the NSF Dive Team capability
because it is a resource available to all
OSCs requiring diving advice or support
for response activities. With regards lo
salvage expertise, revisions are being
nude lo 9 3no.j7(b) to reflect the NSF'3
ability to provide advice to OSCs on
ship salvage matters.
One commenter recommended a
revision of 99 300.34(0(2) and (f)(4)(iv)
to authorize the OSC lo activate the
RRT and a clarification of the ability of
un RRT to request replacement of the
OSC/RPM during a response. EPA
concurs with the revision recommended
by the commenter. In practice, the OSC
requests activation of the RRT for
assistance, and thia should be
recognized in the Plan. The proposed
change reflects the fact that the RRT
may provide recommendations to the
appropriate lead agency, but the lead
agency has the final authority for
replacing the OSC/RPM. The new
language of paragraph (f)(2) is as
follows: "(t|he RRT may be activated
during any pollution emergency by a
request from the OSC/RPM. or from any
RRT representative, to the chairman of
the Team.. . ."
The new language of paragraph (f|(4)(iv)
is as follows: "|i|f the circumstances
warrant, make recommendations to the
regional or district head of the agency
providing the OSC/RPM that a different
OSC/RPM should be designated . . ."
One commenter recommended that
the criteria in 9 300.34(0(8) for
deactivating an RRT be revised to delete
the requirement that both EPA and the
Coast Guard agree to the deactivation.
because they may not both be involved
in the incident-specific activation.
Another commenter requested that tho
State government representative be
included in the deactivation process.
EPA concurs with the comment
concerning deletion of the requirement
that both EPA and the Coast Guard
agree to the deactivation. but does not
concur with the comment that the Stale
also be included. With the creation of
the Incident-specific RRT. there will be
situations where either the EPA or the
Coast Guard may not be involved in the
RRT activation, especially thosn
involving inland remedial sites. Thus, it
is unnecessary to have both agpncics
concur before deactivntion can occur.
Whichever agency is acting as chuirm.in
of the incident-specific RRT should
decide when the RRT has completed its
business
States have a r->lu on the RRT equtil to
that of thp other Federal ;ij>cnc.ic8. there
is no need fur them to p:irlicip:ili* in ihu
deuulivHtion. jusl as (here is no need for
the other Fcdrrnl jgencies on the RRT lo
participate. IF there is sonic situation
where an RRT member belie. .••> i h 11 the
RRT has been deactivated prcm.iturely.
any member, including the Slate
representative, can ask for the RRT In
be reactivated under the provisions of
9 30n 14(0(2).
One commenter remarked on
proposed 9 300.34(g)(4). which stales
that the NRT may be activated as an
emergency response lu.mi by the rei|tiest
of un NRT member. The commenlcr
suggested amending the provision to
require that the member consider the
other three criteria for activation, that is.
whether the release or discharge (i)
exceeds the region's response
capability. (2) transects regional
boundaries, or (3) involves significant
population threat or national policy
issues, substantial amounts of propnrty.
or substantial threats to natural
resources. EPA does not concur with
this comment. While NRT members
have, in general, taken the three sl.-ited
criteria into consideration in culling for
NRT activation, the fourth option is
included so that NRT members nan call
for NRT activation in situations thai
may not fit these criteria precisely. A
similar option is available to an RRT
member for RRT activation.
Section .100.35—Multi-Regional
Responses
A commenter suggested that the term
RPM not be added in the last two
sentences of 9 300J5(b). which
authorizes the RRT or NRT to designate
the RPM when other parties cannot
iiRrne. Because the lead agcnr.y
designates any RPM for a remedial site.
the commenter felt that there should
never be dispute about the appointment
of the RPM. EPA declines to adopt the
commenler's suggestion to delete the
reference. EPA agrees that there should
be no dispute about the appointment of
the RPM. However, this reference is
designed to provide guidance on those
rare occasions in which a dispute is
possibln; for instance, in a removal
which involves multiple jurisdictions, or
where a removal action is undertaken
liy one -money, while the lung-term
thn'iil is nddrrsfti'd hy anollu.-r.
-------
••o
/ Rules and Regulations 47M3
••(.Ttion 300.37—Special Considerations
A conrmenter recommended that the
• Terence in § 300.37(b)(2) to DOD being
he only source of technical assistance
fnr marine salvage activities bf deleted
!>; c n 30039—Public Information
One comirenter objected to the
mijuirerT'cnt for clearance of statements
or news releases about incidents
TV.oking Federal facilities wiih the lead
titii-ncy Although we com ur with the
corr.menter's concerns. EPA does not
helieve that the section needs to be
revised. This section relates to OSC/
RPM coordination of public information
Rt an mc'.dent not involving a Federal
'ciulirv At a response involving a
fydjral facility as the source of a
il.SLharge or release, as specified in
- ,oo.l.Tb!(8). the OSC/RPM would play
j much different role. In such rases, the
responsible ag»ncy would coordinate
responses to such incidents in
.rcnrdjncewith the NCR although the
OSC a toad agency still retains some
"•nnitor.rig and oversight respinsibility.
Subpart D—Plans
Sccfior. 300 41—Regional and Lncal
P\i.i
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47OU
Fe-H-al Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
Section 300 52 Phase II—Preliminary
.^sessment and Initiation of Action
A commenter recommended that the
Inns-uaqe in § 300.52(b)(3) relating to
uJentil,cation of potentially responsible
parties during the preliminary
assessment be revised because the
pxistmg language does not specifically
require the identification of responsible
part-es F.PA agrees with the comment.
and (ins revised the language to
explicitly state that the OSC shall
"[(identify potentially responsible
parties."
Section 300 55—General Pattern of
Response
One commenter recommended that
3 300.55(b|(l), describing the general
patterns of a response, be revised to
include an incident where a minor
discharge is discovered but no removal
action is required. This type of incident
is not presently covered. EPA agrees
with the revision proposed by the
commenter The existing language
Hescrhes five categories of incidents,
but excludes the one described by the
commenter The revision proposed will
correct this deficiency. It should be
noted when a case is closed for the
purposes of response actions under the
NCP. However, this closing in no way
affects any potential liability for other
civil or cnminal penalties under the
FWPCA that may result because of the
discharge.
Suhpcrt G—Trustees for Natural
Resources
EPA received 13 comments on the
propospd amendments to §§ 300.72-
30074 of the NCP. The proposed
amendments included no major changes
to §§ 300.72 and 300.74 of the current
NCP. The proposal would have
simplified and consolidated the
references of CERCLA sections
lll(h)(l). lll(b). and 107(f). which were
included in S 300.73 of the NCP. into a
single general reference to CERCLA
provisions for State trustees. EPA will
address all issue* raised by commentera
on the topic of trustees for natural
resources in the promulgation of the
natural resource claims procedures
regulations.
One commenter suggested that the
status of CERCLA section 301 (c) damage
assessment regulations be described in
the NCP The Department of the Interior
is developing the section 301(c)
regulations under deadlines imposed by
the U S. District Court in New Jersey v.
Ruckelshaus. Civ. Action No. 1668
(D V |. December 12.1984). The court-
nrci'red deadline for final promulgation
of T\ pe B" assessment regulations is
April 1986: for 'Type A" assessment
regulations. August 1986.
In response to several commenters
who urged EPA to clarify the roles and
responsibilities of both EPA and the
States with respect to response actions.
EPA is introducing a new § 300.74(b)
that specifies the appropriate actions
available to trustees under CERCLA.
The new paragraph reads:
(b) The trustee may. upon notification, take
the Following actions as appropriate:'
(1) request that the lead agency issue an
administrative order or pursue judicial relief
against parties responsible for the release as
authorized by CERCLA section 108:
(2) request that the lead agency remove or
arrange for the removal or provide for
remedial action with respect to any
hazardous substance from a contaminated
medium as authorized by CERCLA section
104:
(3) initiate actions against responsible
parties under CERCLA section 107(a); or
(4) pursue a claim against the Fund for
injury, destruction or loss of a natural
resource as authorized by CERCLA section
111. (When this option is selected, a plan for
restoration, rehabilitation or replacement or
acquisition of equivalent natural resources
must be adopted, pursuant to section lll(i) of
CERCLA.)
The original S 300.74(b) becomes
S 300.74(c). This addition provides
clarification of trustee roles and
responsibilities, as well as a necessary
linkage to the natural resource damage
claims procedures regulations. When a
lead agency evaluates whether a
removal action should be taken, the
criteria in § 300.6S(b)(2) and
S 300.6B(e)(2) (proposed as
S 300.68(c)[2J) will be considered.
Subpart H—Use of Dispersants and
Other Chemicals
On July 18.1984. EPA promulgated a
final rule (see 49 FR 29192 et seq.)
revising Subpart H of the NCP. which
deals with dispersants and other
substances that may be used in
responding to oil spills. The revisions
specified testing and data requirements
for inclusion of a dispersant surface
collecting agent, or biological additive
on the NCP Product Schedule. Products
that appear on this schedule may be
authorized for use on oil d'scharges.
The piopoaed revisions to Subpart H
would revise the designation of the
Scientific Support Coordinator for
inland areas, provide for preauthorized
use of dispersants and other chemicals,
and clarify the authorization and
consultation process for using
dispersants. surface collecting agents.
burning agents, or biological additives
on oil discharges. The proposal would
add language to 40 CFR 300.84(a) and (b)
that suggests the on-scene coordinator
(OSC) consult, as practicable, with other
Federal agencies before using produ
listed on the NCP Product Schedule.
Two commenters discussed Subpart
H. One commenter indicated general
satisfaction with OSC coordination of
decisions whether to use a product
listed on the NCP Product Schedule. In
order to expedite the decisions.
however, this commenter recommended
that required concurrence and
consultation at the State and Federal
levels be pursued through designated
representatives. This commenter also
recommended that, when practicable.
consultations be limited to Federal
agencies represented on the NRT and
RRTs.
EPA agrees with both of the
recommendations made by this
commenter. EPA believes that
consultations undertaken by the OSC
would proceed more efficiently if the
consultations were pursued through
State and Federal designated
representatives and if. when practicable.
they were limited to Federal agencies
represented in the NRT and RRTs.
However. EPA feels that these
recommendations should be
implemented as guidance rather than as
changes to the NCP.
Another commenter addressed th-
Subpart H authorization of burning
agents (see 40 CFR 300.48(c)).
particularly the authority of the OSC to
use burning agents without a Slate's
concurrence in emergency situations
endangering human life. Although this
section is not affected by the proposed
revisions to Subpart H. the commenter
stated that in such situations a State
official should approve the use of
burning agents "in accordance with
established procedures."
EPA disagrees with this comment. In
situations where the OSC decides it is
necessary to use burning agents to
prevent or substantially reduce a hazard
to human life, it is not realistic or
practicable to require the approval of a
State official. Subpart H requires the
OSC to inform the appropriate State
official of the use of a burning agent in
an emergency situation as soon as
possible, and obtain State concurrence
for the continued use once the threat to
human life has subsided.
V. Summary of Supporting Analyses
A. Economic Impacts of NCP Revisions
The incremental economic effect of
each of the revisions is defined as the
economic changes that may result*
the revision compared to the curri
Superfund program without the revi.,._...
Some of the revisions merely affirm
-------
Federal Register / Vol. 50. Mo. 224 / Wednesday. Xo\tn!>:r 20. 19tt5 / Rules and Regulations 47945
current practice under the Superfund
program and are being proposed as
changes to the NCP for the purposes of
consistency These revisions are thus
considered no* to result in economic
cfiVcts when compared to the current
NCP
There are three ma'or revisions to the
N'CP They are as follows:
• Ehnvnate planned removals and
initial lemedial measures (IRMs) as
distinct response categories. Revise the
provisions to establish one category of
removal action to be accomplished in
response to a threat to public health or
welfare or the environment;
• Add explicit requirements for
community relations programs and
public comment at Fund-financed and
enforcement responses:
• Explicitly require use of existing
Federal public health and environmental
requirements, where applicable or
,'pvelant and appropriate, in selecting
the appropriate remedy.
The anticipated effects and the revisions
are listed below:
1. In the July 13,1982 NCP. SS 300.65
and 300.67 authorize two categories of
removal action: immediate and planned.
Section 300.68 authorizes IRMs to be
taken as a part of a remedial action. The
criteria for taking IRMs are similar to
those for planned removals, except that
IRMs must be cost-effective. Both
planned removals and IRMs require
State cost-sharing. The revisions
eliminate planned removal and IRM
categories and expand the category of
removals and modify the standard for
taking action.
The anticipated effects of this revision
are as follows:
State costs will be reduced as a result
of the elimination of State cost-sharing
for planned removals or IRMa. with a
corresponding increase in demand on
the Fund. With 38 projected planned
removals and 32 projected IRMs
expected to be reclaaaifled as removals
over a 6-year period, cost savings to
States will be about $18 million
(undiscounted FY88 dollars). Increased
demand of $18 million on the Fund will
have a minimal impact in reducing funds
available for remedial respqnse(s). On
the other hand, these changes will help
reduce health and environmental risks
of exposure to hazardous substances
and possibly reduce the longer-term
costs because of quicker response.
2. In the July 18.1982 NCP.
§ 300.61(c)(3) states that, to the extent
practicable, response personnel should
be sensitive to local community
concerns in accordance with applicable
guidance.
The revisions define major Supeiiund
community relations program
requirements and require a public
comment period on draft feasibility
studies.
The anticipated effects are minor. The
additional requirement may increase
response costs slightly, particularly
administrative costs to EPA and local
governments, with a corresponding
increase in costs to responsible parties
Greater public involvement may
expedite the response process in some
cases, thereby offsetting any costs
caused by delays.
3. In the July 16.1982 NCP. use of
existing EPA or other Federal standards
is not explicitly discussed.
The revisions explicitly require the
use of existing Federal public health and
environmental requirements in selecting
the appropriate remedy, where such
requirements are applicable or relevant
and appropriate, with limited
exceptions. Risk assessments are
required where no requirements are
applicable or relevant. Under current
operating procedures, EPA is generally
attaining such requirements because it
believes they generally define adequate
protection of public health and the
environment. Therefore, requiring
attainment of existing federal public
health and environmental requirements
will not cause major cost increases.
The magnitude of these effects can be
estimated only as site-specific
information becomes available.
B. Classification Under E.0.12291
Regulations must be classified as
major or nonmajor to satisfy the
rulemak'ing protocol established by
Executive Order 12291. E.0.12291
establishes the following criteria for a
regulation »o qualify as a major rule:
1. An annual effect on the economy of
S100 million or more:
2. A major inc-ease in costs or prices
for consumers; individual industries;
Federal. State, or local goverurent
pgencies or geographic regions: or
3 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 or export
markets.
TKe NCP revisions are a nonmajor
rule because they would have no
significant incremental economic effects.
In a:cordance with Executive Order
1Z291. no regulatory impact analysis
was required.
This regulation was submitted to
OMB for review under Executive Order
12291
C Regulatory Flexibility Ac!
in. accordance with the Prsuh'ory
Flexibility Ac! of 1980. Agencies must
e.\dli'ate the effects of a regulation on
'sr"5il entities." That Act recognizes
three types of such entities:
1 Small businesses [specified by
Small Business Administration
regulations);
2 Small organizations (independent^
owned, nondommant m their field.
nonprofit): and
3. Small governmental jurisdictions
(serving communities with fewer than
5.000 people).
If the rule is likely to have a
"significant impact on a substantial
number of small entities." the Act
requires that a Regulatory Flexibility
Analysis be performed. EPA certifies
that the NCP revisions w:ll not have a
significant impact on a substantial
number of small entities. To the extent
that impacts on small enti'ies occur.
they are likely to be positive.
Small businesses and small
organizations will generally be directly
affected only by the changes that
address enforcement actions. These
changes in the NCP generally codify
existing enforcement policies (e g..
proposed changes to require
enforcement responses to comply with
applicable or relevant and appropriate
Federally enforceable environmental
requirements): and. therefore, modifying
the NCP will not impose any additional
burden on small entities subject to
enforcement actions. Although requiring
community relations plans (CRPs) at
most enforcement responses will
increase responsible party costs, these
costs are small (averaging S6.000)
relative to response costs and may save
costs by expediting the response
process. Moreover, it is a matter of EPA
discretion whether to proceed with
enforcement actions against small
entities that may be significantly
affected by such actions. Therefore.
there are no necessary adverse impacts
on small businesses and organizations
directly associated with the NCP.
The changes may affect some small _
governmental jurisdictions, but most of
The effects are likely to be positive For
example, the change to mandate CRPs
may reduce the burden on small
government jurisdictions by providing
an efficient vehicle for the local
government involvement.
D. Paperwork Reduction Act
Today's rule does not impose any
regulatory burden on parties othe- 'han
Federal agencies, including any
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47948 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
reporting or information collection
requirements.
VI. Lists af Subjects in 4»CFR Part 300
Air pollution control, chemicals.
hazardous materials, hazardous
substances, intergovernmental relations.
natural resources, occupational safety
and health. oH pollution, reputing and
recordkeep:ng requirements. Superfund.
waste treatment and disposal, water
pollution control, water supply.
Dated October 10.1985.
LeeMThoMB.
At/ministrator.
United States Environmental Protection
Agency
Office of Solid Waste and Emergency
Response
Washington. 0 C. 20460
October i 1985.
aOQuIH
Mi
Subject: CERCLA Compliance With
Other Environmental Statutes.
From: J. Winston Porter. Assistant
Administrator.
To: Regional Administrator. Regions I-
X.
This memorandum seta forth the
Environmental Protection Agency (EPA)
policy oa the applicability of the
standards, criteria, advisories, aad
guidance of other State and Federal
environmental and public health
statutes to actions taken pursuant to
sections 104 and 106 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA). This policy
addresses considerations for op-site and
off-site actions taken under CERCLA.
L Discussion
The National Oil and Hazardous
Substances Pollution Contingency Pran
(NCP) establishes the process for
determining appropriate removal and/or
remedial actions at Superfund sites. In
the course of this procam EPA will give
primary consideration toft* selection of
those response action* As* an effective
in preventing or. where prevention is not
practicable, minimizing me release of
hazardous substances so that they do
not migrate to cause substantial danger
to present or future public health.
welfare, or the environment. As a
general rule, thia can be accompli
by pursuing remedies: that attain or
exceed the requirements of applicable or
relevant and aopraoriate Federal public
health or environmental laws- However.
became of unique cireumstancps at
particular sites, there nay be
alternatives that do not meet the
standards of other laws, but thdt still
provide protection of public health and
welfare, and the environment.
Although response actions that
prevent hazardous substances frcin
migrating into the environment are seen
as the most effective under CERCLA.
actions which minimize migration must
also be considered since CERCLA
primarily addresses inadequate past
disposal practices and resulting unique
site conduicns. At certain sites, it may
be technically unpractical,
environmentally unacceptable, or
excessively costly to implement a
response action that prevents migration
or restores the site to its original,
uncontaminated condition.
II. Policy
Section 104 of CERCLA requires that
off-site remedial actions, storage.
destruction treatment or secure
disposition, be in compliance with
subtitle C of the Resource Conservation
and Recovery Act (RCRA). CERCLA is
silent, however, concerning the
requirements of other laws with regard
toad other response actions taken
pursuant to sections 104 and 108.
As a general rule, the Agency's policy
is to attain or exceed applicable or
relevant and appropriate Federal
environmental and public health
requirements in CERCLA response
actions unless one of the specifically
enumerated situations is present. Where
such a situation is present and a
requirement is not followed, the Agency
must document and explain the reasons
in the decision documents. Other
Federal criteria, advisories, guidance.
and State standards also wiU be*
considered and may be used in
developing remedial alternatives, with
adjustments for site specific
circumstances. If EPA does not use. or
uses and adjusts any pertinent
standards in- this category. EPA will
fully document the reasons why in the
decision documents.
A. On-site Response Actions
(1) For removal actions. EPA's policy
is to pursue actions that will meet
applicable or relevant and appropriate
requirements of other Federal
environmental and public health laws to
the maximum extent practicable,
considering the exigencies of the
situation.
(2) Fot remedial actions. EPA's policy
is to pursue remedies that attain or
exceed applicable or relevant and
appropriate requirements of other
Federal public health and environmental
laws, unless the specific circumstances
identified below exist.
CERCLA procedural and
administrative requirements will be
modified to provide safeguards similar
to those provided under other laws.
Application for ar.d receipt of permits is
not required for on-site response actions
taken under the Fund-financed or
enforcement authorities of CERCLA.
B. Off-Site Response Actions
CERCLA removal and remedial
activities that involve the removal of
hazardous substances from a CERCLA
site to off-site facilities for proper
storage, treatment or disposal must be in
compliance with all applicable or
relevant and appropriate requirements
of Federal environmental and public
health laws.
Off-site facilities that are used for
storage, treatment, or disposal of
Superfund wastes must have all
appropriate permits or authorizations.
If the facility or process that is being
considered for receipt of the Snperfund
wastes has not been permitted or
authorized, the State or responsible
party wiH be required to obtain all
appropriate permits. Furthermore, as
stated in the Agency's off-site poHcy
memorandum. "Procedures for Planning
and Implementing Off-Site Response
Actions." May 6.1985. barring an
exeption in that memorandum, no
CERCLA hazardous substances shall be
taken off-site to a RCRA facility if the
receiving Region's Administrator
determines that the facility has
significant RCRA violations or ether
environmental conditions that affect the
satisfactory operation of the facility. A
State's responsibility for obtaining any
appropriate Federal. State or local
permits (e.g.. RCRA. TSCA. NPDES. UlC.
Clean Air, etc.) will be specified in a
contract or cooperative agreement with
the State as part of its assurances
required under section KM(c) of
CERCLA.
III. Other Laws or Guidance That May
Be Used To Determine the Appropriate
Extent of Response Actions
Federal and State environmental and
public health requirements, criteria.
guidance and advisories faU into two
categories:
• Federal requirements that are
poterJally applicable or relevant and
appropriate,
• Other Federal criteria, advisories.
guidance, and State standards to be
considered
An initial list of both categories is
attached.
-------
. \ Applicable or Relevant and
Appropriate Federal Requirements
"Applicable" requirements are those
federal requirements that would be
legdlly applicable, whether directly, or
p« incorporated by a federally
dulhonrnd Slate program, if the
response actions were not undertaken
pursuant to CERCLA section 104 or 106.
' Relevant and Aopropnate"
requirements arp those Federal
rpquiremenls that, while not
"explicable." are designed to apply to
problems sufficiently similar to those
encountered at CERCLA sites that their
Hppiication is appropriate. Requirements
m;o»al facilities.
applicable or relevant and appropriate
requirements;
(e) A no action alternative.
2 Selection of Remedy
The decisiurmake- will consider jil of
the alternatives arrayed in the
feasibility study aid will give primary
consideration to remedies that attain or
exceed applicable or relevant and
appropriate Federal public health and
environmental requirements. Where the
selected remedv involves an EPA
standard, criterion, or advisory, the
decisionmaker will ensure appropriate
coordination with affected EPA
programs.
In appropriate cases, the
decisionmaker may select a remedial
action that includes both on- and off-site
components.
The decisionmaker may select an
alternative that does not attain
applicable or relevant requirements in
one of the five, following circumstances:
(a) Interim Remedy—When the
selected alternative is not the final
remedy and will become part of a more
comprehensive remedy, the lead agency
may select fn interim remedy:
(a) "und-raiunang—FoT Fund-
financed responses only, the need for
protection of public health, welfare and
the environment at the facility under
consideration for all of the alternatives
that attain or exceed applicable or
relevant and appropriate Federal
requirements is. considering the amount
of money available IP the Fund.
outweighed bv the need for action at
other sites that may present a threat to
public health or welfare or the
en\ ironment. In the event of Fund
balancing, the lead agency shall select
the alternative which most closely
approaches the level of protection
provided by applicable or relevant and
appropriate Federal requirements.
considering the specific Fund-balanced
sum of money available for the
immediate facility. Fund-balancing is
not a consideration in determining the
appropriate extent of remedy when the
response will he performed by a
->o cr'ially responsible party;
(c) Technical Impracticality— Where
no alternative that attains or exceeds
applicable or relevant and appropriate
Federal public health and environmental
requirements is technically practical to
implement, the lead agency shall select
the alternative 'hat most closelv
approaches the level of protection
provided bv the applicable or relevant
and appropriate requirements, and
which is reasonable to implement f-om
an rrgmenpng perspective:
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47948 Federal Register / Vol. 50. No. ^i\ ( \\>
-I).
mil
(dl Unacceptable
Impacts—Where all the alternatives
th.it attain or exceed Federal public
'-"f.1-^ ami environmental requirements,
:t ;.nc!emented. will result to significant
^averse environmental impacts, the lead
*l*.nrv shall select the alternative that
most closely approaches the lex el oi
protection prov.'led by applicable ir
rc'-'vant and approprate requirements.
without resulting in significant adverse
environmental impact's, or
[e| Overriding Public Interest Related
to Enforcement—Where the remedy is
to be earned out pursuant to CERCLA
section 106. (he Fund is unavailable,
there is a siren; public interest in
expedited cleanup, and the litigation
probably would not result in the desired
remedy, the lead agency will select the
alternative that most closely approaches
applicable or relevant and appropriate
Federal public health and environmental
statutes in light of the need to invoke the
exception.
Where one of these situations is
present ths decrsionmaker may select
an alternative which does not attain or
exceed applicable or relevant and
appropriate Federal public health or
environmental requirements, yet still
provides protection of the public health
and welfare and the environment. The
basis for not meeting the requirements
must be fully documented and explained
in the«--ropnate decision documents.
The Agency anticipates that most final
CERCLA remedial actions will attain or
exceed applicable r- relevant and
ap?r??riate public health or
environmental requirements.
Other Federal criteria, advisories.
guidance, and State standards also will
be considered and may be used in
developing remedial alternatives, with
aparoonate adjustments for site specific
circumstances. If WA does not use. or
uses and adjusts any {..'rtiner'.
stanccrds in this category. ETA will
f-jlly document the reasons why in the
decision documents.
For Fund-financed actions, where
State s'.andarcfs are pert of the coe*-
efferti-je remedy, the Fund will pay to .
attain those standards. When the ennt-
effective remedy does not Include those
State standard*, the State any pay the
difference in at'ain them.
3. Adm.nis'rative and Procedural
Aspects
The fo(low:nc motlinV.>tions will be
made to !*i« Sunerfund community
relations program to ensure that it
piovides a similar level of public
involvement to that provided by the
pemittm« "osr.ams of n.'her
environmental laws:
« A fo<:f sh-M An •! lie '>!ci:.Jr:l
wilh »he public nulio: .1 -J ^ i>ib'iilv
study which is provided »o the p'loiic 2
weeks before the l-week public
comment pencd. The t'jct trent will
clearly summarize the feasibility study
response dlterr.ahves and other issues.
inrludmq whir.h alternatives attain or
exceed federal public health and
environmental requirements. For these
alternatives that do not attain
applicable or relevant and appropriate
requirements of other public health and
environmental laws, the fact sheet shall
identify how they do not attain the
requirements and explain how they
nonetheless meet the goals of CERCLA.
The public notice should include a
timetable in which a decision will be
reached, any tentative determinations
which the Agency has made, the
location where relevant documents can
be obtained, identification of community
involvement opportunities, the name of
an Agency contact, and other
appropriate information.
• A public notice and updated fact
sheet should be prepared upon (1)
Agency selection of the final response
action and (2) completion of the final
engineering design. Prior to selecting the
final engineering design, the Agency
may hold a public meeting to inform the
public of the design alt?-natives and to
solicit comments.
• If a remedy is identified that is
materially different from.those proposed
during the feasibili'y study public
comment period, a new 3-week public
comment period may be r?auired prior
to amending the Record of Decision,
taking into consideration the features of
the alternatives addressed in the public
comment period.
The CERCLA enforcement community
retailors program will also be modified
to provide for an enhanced public
participation program for both consent
decrees and administrative orders. This
program will be substantially equivalent
to the revised program for Fund-
financed actions Furthermcre. conser..
decrees and administrative orders will
incorporate administrative requirements
(i.e. recordkeeping and monitoring)
similar to those mandated by other
environmental programs.
V. Applicability of Policy
This policy applies to two situations:
• A site-speofic F3 has not yet been
initiated: the FS must fully comply with
this poliry.
• The TS h-is bc«er. initiated, bd? tha
remedy has not yet been splected. the
requirements of :his nolicy shjll bs
incorporated into *e FS and Record of
Decision |.J.OO) as pract:c»Sle.
: !'• • ;.. ii. ', rj.i^«s not apply to
•- • o bi'f.M r-ibniQry 12. H85. ih- li.
•' .ji.jpT-il ,1 this polity.
if } 01. l-iave nny questions or
. plejsc contact James
Lounsbury Director. Policy Analysis
Stdif [202 J82-2182J or Stephen M. Smith
of hus'dil (202 382-2200).
Potentially Applicable or Relevant and
Appropriate Requirements
I. EPA s Office of Solid Waste
administers, inter alia, the Resource
Consei vation and Recovery Act of tt.'fi
os amended (Pub. L 94-580. 90 Stat S.5.
42 US.C. 6901 et seq.). Potentially
applicable or relevant requirements
pursuant to that Act are:
a. Open Dump Criteria— Pursuant to
RCRA Subtitle D criteria for
classification of solid waste disposal
facilities (40 CFR Part 257).
Note.— Only relevant to nonfiazarrfous
wastes.
b. In most situations Superfund
wastes will be handled in accordance
with RCRA Subtitle C requirements
governing standards for owners and
operators of hazardous waste treatment.
storage, and disposal facilities: 40 CFR
Part 264, for permitted facilities, and 40
CFR Part <«j5. kr inte.im status
facilities.
• Ground Water Protection (40 CFR
204.90-264.109).
• Ground Water Monitoring (40 CFR
265.90-265.94).
• Closure and Post Closure (40 CFR
264.110-264 120. 265.110-265.112;.
• Containers (40 CFR 264.170-264.178,
265.170-285.177).
• Tanks (40 CFR 264.190-264.20a
265.190-265.199).
• Surface Impoundments (40 CFR
2A4.220-2A4 249, 265.220-265.230).
• Waste Piles (40 CFR 264.250-
264.264. 26S.C50-235.258).
• La.-.d Tr-atment (40 CFR 264 270-
:B4.299. 265.270-265.282).
• Landfills (40 CFR 264.300-264.339.
CS5 300-^6.1.3:3).
• Incir.pr.Hor9 (40 CFR 264.340-
264.999. 26Ti.340-2H5.369).
• Diuxin-containing Wastes (30 FR
1978). I.iCidudS the final rale for the
listing ~.f dioxm containing waste.
?.. E?-\ 's Office of Water o
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Kegista, / Vol. 50. No. 224 / Wednesday. November 20. 1985 / R.»P,
47949
Contaminant Le vela (for
" srnrces of drinking water exposure).
.40CFR141.11--41.1B).
• Underground Injection Control
Ipgulatior.s. (40 CFR Parts 144.145.146.
and 147).
!' Clean Water Act as amended (Pub.
L P2-500. 86 StaL 816. 33 U.S.C. 1751 et.
sen.}
• Requirements established pursuant
to sections .101. 302.303 (including State
•\.jter quality standards), 308. .T07.
.'•nrliu. '-g Feaeral prptrratment
vnmrenents for discharge into a
nrbticly owned treatment works), and
•103 of the Clean Water Act. (40 CFR
Parts 131. 400-469).
c. Marine Protection. Research, and
Sanctuaries Act (33 U.S.C. 1*01).
• Innnpration at sea requirements.
(40 CF« Parts 220-225. 227.228. See also
•«0 CFR 125 120-125.124).
3. EPA § Offioe of Pesticides and Toxic
Substances
To
-------
State Implementation Plans and
Delegated Programs Under Clean Air
Act.
• AH other State requirements, not
delegated through EPA authority
• Approved State NPDES programs
under the Clean Water Act.
• Approved State UIC programs
under the Safe Drinking Water Act.
Note: Many other Stale and local
requirements could be pertinent.
Forthcoming guidance will include a
more comprehensive list.
3. USEPA RCRA Guidance Documents
• Draft Alternate Concentration
Limits (ACL) Guidance.
A. EPA's RCRA Design Guidelines
1. Surface Impoundments. Liners
Systems. Final Cover and Freeboard
Control.
2. Waste Pile Design—Liner Systems.
3. Land Treatment Units.
4. Landfill Design—Liner Systems and
Final Cover.
B. Permitting Guidance Manuals
1. Permit Applicant's Guidance
Manual for Hazardous Waste Land
Treatment. Storage, and Disposal
Facilities.
2. Permit Writer's Guidance Manual
for Hazardous Waste Land Treatment.
Storage, and Disposal Facilities.
3. Permit Writer's Guidance Manual
for Subpart F.
4. Permit Applicant's Guidance
Manual for the General Facility
Standards.
5. Waste Analysis Plan Guidance
Manual.
6. Permit Writer's Guidance Manual
for Hazardous Waste Tanks.
7. Model Permit Application for
Existing Incinerators.
8. Guidance Manual for Evaluating
Permit Applications for the Operation of
Hazardous Waste Incinerator Units.
9. A guide for Preparing RCRA Permit
Applications for Existing Storage
Facilities.
10. Guidance Manual on Closure and
Post-Closure Interim Status Standards.
C. Technical Resource Documents
(TRDs)
(1) Evaluating Cover Systems for Solid
and Hazardous Waste.
(2) Hydrologic Simulation of Solid
Waste Disposal Sites.
(3) Landfill and Surface Impoundment
Performance Evaluation.
(4) Lining of Water Impoundment and
Disposal Facilities.
(5) Management of Hazardous Waste
Leachate.
(6) Guide to the Disposal of
Chemically Stabilized and Solidified
Waste.
(7) Closure of Hazardous Waste
Surface Impoundments.
(8) Hazardous Waste Land Treatment.
(9) Soil Properties. Classification, and
Hydraulic Conductivity Testing.
0. Test Methods for Evaluating Solid
Waste
(1] Solid Waste Leaching Procedure
(Manual.
(2) Methods for the Prediction of
Leachate Plume Migration and Mixing.
(3) Hydrologic Evaluation of Landfill
Performance (HELP) Model Hydrologic
Simulation on Solid Waste Disposal
Sites.
(4) Procedures for Modeling Flow
Through Clay Liners to Determine
Required Liner Thickness.
(5) Test Methods for Evaluating Solid
Wastes.
(6) A Method for Determining the
Compatibility of Hazardous Wastes.
(7) Guidance Manual on Hazardous
Waste Compatibility.
4. USEPA Office of Water Guidance
Documents
A. Pretreatment Guidance Documents
(1) 304(g) Guidance Document Revised
Pretreatment Guidelines (3 Volumes)
B. Water Quality Guidance Documents
(1) Ecological Evaluation of Proposed
Discharge of Dredged Material into
Ocean Waters (1977) '
(2) Technical Support Manual:
Waterbody Surveys and Assessments
for Conducting Use Attainability
Analyses (1983)
(3) Water-Related Environmental Fate
of 129 Priority Pollutants (1979)
(4) Water Quality Standards
Handbook (1983)
(5) Technical Support Document for
Water Quality-based Toxics Control.
C. NPDES Guidance Documents
(1) NPDES Best Management Practices
Guidance Manual (June 1981)
(2) Case studies on toxicity reduction
evaluation (May 1983).
D. Ground Water/UIC Guidance
Document
(1) Designation of a USDW
(2) Elements of Aquifer Identification
(3) Interim guidance for public
participation
(4) Definition of major facilities
(5) Corrective action requirements
(6) Requirements applicable to walla
injecting into, through or above an
aquifer which has been exempted
pursuant to (148.104(b)(4).
(7) Guidance for UIC implementation
on Indian lands.
5. USEPA Afc/jua/s from the Office of
Research and Development
(1) EW 846 methods-laboratory
analytic methods.
(2) Lab protocols developed pursuant
to Clean Water Act § 304(h).
For the reasons set forth in the
preamble. Part 300. Chapter 1 of Title 40.
Code of Federal Regulations, is
amended as follows:
1. The authority citation for Part 300
continues to read as follows:
Authority: Sec. 105. Pub. L. 96-510.94 Stdt.
2764.42 U S C 9605 and sec. 311(c)(:|. Pub L
92-500 as amended. 86 Stat. 665. 33 U.S.C.
1321[c)(2): E 0 12318. *8 FR 42237 (August JO.
1981): E.0.11735. 38 FR 212W (August 1971)
2. Subparts A through G and §300 ft4
of Subpart H of Pan 300 are revised to
read as lollows:
PART 300-NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
Subpart A—Introduction
Sec
300.1 Purpose and obiectives.
300.2 Authority.
300.3 Scopp.
300.4 Application.
300.5 Abbreviations.
300.6 Definitions.
Subpart B—Responsibility
300 21 Duties of President delegated to
Federal agencies.
300.22 Coordination among and by Federal
agencies.
300.23 Other assistance by Federal
agencies.
300.24 State and local participation.
300.25 Nongovernment participation.
Subpart C-Organlzation
300.31 Organizational concepts.
300.32 Planning and coordination.
300.33 Response operations.
300 34 Special forces and teams.
30035 Multi-regional responses.
300.36 Communications.
300.37 Special considerations.
300.38 Worker health and safety.
300.29 Public information.
300.40 OSC reports.
Subpart O—Plans)
300.41 Regional and local plans.
300.4;. Regional contingency plans.
300.43 Local contingency plans.
Subpart E-Operattonal RnpanM Phases
300.51 Phase I—Discovery and notification
300.52 Phase U-Preliminary assessment
and initiation of action.
300.53 Phase in—Containment.
countenneaaure*. cleanup, and disposal.
300.54 Phase IV—Documentation and cost
recovery.
300.55 General pattern of response.
300.56. (Reserved).
-------
1°°- ' Rules and Regulations 47161
PC
00 57 Waterfowl conservation.
.10 SB Funding.
jbpart F—Maardous Subctsne*
Response
.1)0 61 CiwaL
"'("•2 Sl.nt role
IIHI 63 Discovery dnd notification
;i«"; >4 Pri.'iimindry assessment for removal
dciiuns"
iiillhS Removals.
«Ki6B Siic puliidtion phase dnd V.itmnal
"•i..-ides List determination
.100 67 Community relations.
>OOB8 Remedial action.
.iOOG9 Documentation and cost recovery
100 "0 Methods of remedying releases.
jno 71 Other parry responses.
Subpert G—Trustees for Natural Resources
100 72 Designation of Federal trustees.
300 73 State trustees.
.100 74 Responsibilities of trustees.
Subpart H—Us* of Olapereants and Other
Chemicals
• • • V •
300.84 Authorization of use.
• » • » •
Subpart A—introduction
§ 300.1 Purpose and objectives.
The purpose of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP or Plan) is to
ffectuate the response powers and
esponsibilities created by the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA) and the
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47952 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
Coastal waters, for the purposes of
classifying the size of discharges, means
the waters of the coastal zone except for
the Great Lakes and specified ports and
harbors on inland rivers.
Coastal zone, as defined for the
purpose of this Plan, means all U.S.
waters subject to the tide. U.S. waters of
the Great Lakes, specified ports and
harbors on the inland rivers, waters of
the contiguous zone, other waters of the
high seas subject to this Plan, and the
land surface or land substrata, ground
waters, and ambient ap proximal to
those waters. The term coastal zone
delineates an area of Federal
responsibility for response action.
Precise boundaries are determined by
EPA/USCG agreements and identified
in Federal regional contingency plans.
Contiguous zore means the zone of
thp high seas, established by the United
States under Article 24 of the
Convention on the Territorial Sea and
Contiguous Zone, which is contiguous to
the territorial sea and which extends
nine miles seaward from the outer limit
of the territorial sea.
Discharge, as defined by section
311(a)(2) the of CWA. includes, but is
not limited to. any spilling, leaking.
pumping, pounng, emitting, emptying, or
dumping of oil. For purposes of this Plan.
discharge shall also mean substantial
threat of discharge.
Drinking water supply, as defined by
section 101(7) of CERCLA. means any
raw or finished water source that is or
may be used by a public water system
(as defined in the Safe Drinking Water
Act) or as drinking water by one or more
individuals.
Environment, as defined by section
101(8) of CERCLA. means the navigable
waters, the waters of the contiguous
zone, and the ocean waters of which the
natural resources are under the
exclusive management authority of the
United States under the Magnuaon
Fishery Conservation and Management
Act: and any other surface water,
ground water, drinking water supply.
land surface and subsurface strata, or
ambient air within die United States or
under the jurisdiction of the United
States.
Facility, as defined by section 101(9)
of CERCLA. means any building.
structure, installation, equipment pipe
or pipeline (including any pipe into a
sewer or publicly owned treatment
works), well. pit. pond laptop
impoundment, ditch, landi.i!. storage
rontainer. motor vehicle, rolling stock.
or aircraft, or any site or area where a
hazaHous substance has been
depos-ted. stored, disposed of. or placed.
or otherwise come to be located: but
does not include any consumer product
in consumer use or any vessel.
Feasibility study is a process
undertaken by the lead agency (or
responsible party if the responsible
party will be developing a cleanup
proposal) for developing, evaluating,
and selecting remedial actions which
emphasizes data analysis. The
feasibility study is generally performed
concurrently and in an interdependent
fashion with the remedial investigation.
In certain situations, the lead agency
may require potentially responsible
parties to conclude initial phases of the
remedial investigation prior to initiation
of the feasibility study. The feasibility
study process uses data gathered during
the remedial investigation. These data
are used to define the obiectives of the
response action and to broadly develop
remedial action alternatives. Next, an
initial screening of these alternatives is
required to reduce the number of
alternatives to a workable number.
Finally, the feasibility study involves a
detailed analysis of a limited number of
alternatives which remain after the
initial screening stage. The factors that
are considered in screening and
analyzing the alternatives are public
health, economics, engineering
practicality, environmental impacts, and
institutional issues.
Federally permitted release, as
defined by section 101(10) of CERCLA.
means discharges in compliance with a
permit under section 402 of the Federal
Water Pollution Control Act; discharges
resulting from circumstances identified
and reviewed and made part of the
public record with respect to a permit
issued or modified under section 402 of
the Federal Water Pollution Control Act
and subject to a condition of such
permit: continuous or anticipated
intermittent discharges from a point
source, identified in a permit or permit
application under section 402 of the
Federal Water Pollution Control Act
which are caused by events occurring
within the scope of relevant operating or
treatment systems: discharges in
compliance with a legally enforceable
permit under section 404 of the Federal
Water Pollution Control Act: releases in
compliance with a legally enforceable
final permit issued pursuant to sections
3005 (a) through (d) of the Solid Waste
Disposal Act from a hazardous waste
treatment, storage, or disposal facility
when such permit specifically identifies
the hazardous substances and makes
such substances subject to a standard of
practice, control procedure or bioassay
limitation or condition, or other control
on the hazardous substances in such
releases: any release in compliance with
a legally enforceable permit issued . •
under section 102 or section 103 of the
Marine Protection. Research, and
Sanctuaries Act of 1972: any injectu
fluids authorized under Federal
underground injection control programs
or State programs submitted for Federal
approval (and not disapproved by the
Administrator of EPA) pursuant to Part
C of the Safe Drinking Water Act: any
emission into the air subject to a permit
or control regulation under section 111.
section 112. Title 1 Part C. Title 1 Part D.
or State implementation plans submitted
in accordance with section 110 of the
Clean Air Act (and not disapproved by
the Administrator of EPA], including any
schedule or waiver granted.
promulgated, or approved under these
sections: any injection of fluids or other
materials authorized under applicable
State law for the purpose of stimulating
or treating wells for the production of
crude oil. natural gas, or water, for the
purpose of secondary, tertiary, or other
enhanced recovery of crude oil or
natural gas. or which are brought to the
surface in conjunction with the
production of crude oil or natural gas
and which are reinjected: the
introduction of any pollutant into a
publicly owned treatment works when
such pollutant is specified in and in
compliance with applicable
pretreatment standards of section 3<*--'
or (c) of the CWA and enforceable
requirements in a pretreatment proj>. .
submitted by a State or municipality for
Federal approval under section 402 of
such Act: and any release of source.
special nuclear, or by-product material.
as those terms are defined in the Atomic
Energy Act of 1954. in compliance with a
legally enforceable license, permit.
regulation, or order issued pursuant to
the Atomic Energy Act of 1954.
First Federal official means the first
Federal representative of a participating
agency of the National Response Team
to arrive at the scene of a discharge or a
release. This official coordinates
activities under this Plan and may
initiate, in consultation with the OSC.
any necessary actions until the arrival
of the predesignated OSC. A State with
primary jurisdiction over a site covered
by a cooperative agreement will act in
the stead of the First Federal official for
any incident at the site.
Fund or Trust Fund means the
Hazardous Substance Response Trust;
Fund established by section 221 of
CERCLA.
Ground water, as defined by section
101(12) of CERCLA. means water in a
saturated zone or stratum beneath the
surface of land or water.
Hazardous substance, as define
section 101(14) of CERCLA. means: any
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Federal RagUter / Vol. 50. No. 224 / Wednesday. November 20. 1965 / Rules and Regulations 47J5J
substance designated pursuant to
section 311(b)[2)(A) of the CWA: any
element, compound, mixture, solution, or
substance designated pursuant to
section 102 of CERCLA; any hazardous
waste having the characteristics
identified under or listed pursuant to
section 3001 of the Solid Waste Disposal
Act (but not including any waste the
regulation of which under the Solid
Waste Disposal Act has been suspended
by Act of Congress): any toxic pollutant
listed under section 307(a) of the CWA:
any hazardous air pollutant listed under
section 112 of the Clean Air Act; and
any imminently hazardous chemical
substance or mixture with respect to
which the Administrator has taken
action pursuant to section 7 of the Toxic
Substances Control Act. The term does
not include petroleum, including crude
oil or any fraction thereof, which is not
otherwise specifically listed or
designated as a hazardous substance in
the first sentence of this paragraph, and
the term does not include natural gas,
natural gas liquids, liquified natural gas
or synthetic gas usable for fuel (or
mixtures of natural gas and such
synthetic gas).
Inland waters, for the purposes of
classifying the size of discharges, means
those waters of the U.S. in the inland
zone, waters of the Great Lakes, and
specified ports and harbors on inland
rivers.
Inland zone means the environment
inland of the coastal zone excluding the
Great Lakes and specified ports and
harbors of inland rivers. The term inland
zone delineates the area of Federal
responsibility for response action.
Precise boundaries an determined by
EPA/USCG agreement and identified In
Federal regional contingency plans.
Lead agency means the Federal
agency (or State agency operating
pursuant to a contract or cooperative
agreement executed pursuant to section
104(d)(l) of CERCLA) that has primary
responsibility for coordinating response
action under this Plan. A Federal lead
agency is the agency that provides the
OSC or RPM as specified elsewhere in
this Plan. In the case of a State as lead
agency, the State shall carry out the
same responsibilities delineated for
OSCs/RPMs in this Plan (except
coordinating and directing Federal
agency response actions).
Management of migration means
actions that are taken to minimize and
mitigate the migration of hazardous
substances or pollutants or
contaminants and the effects of such
migration. Management of migration
actions may be appropriate where the
hazardous substances or pollutants or
contaminants are no longer at or near
the area where they were originally
located or situations where a source
cannot be adequately identified or
characterized. Measures may include.
but are not limited to, provision of
alternative water supplies, management
of a plume of contamination, or
treatment of a drinking water aquifer
Natural resources, as defined by
section 101(16) of CERCLA. means land.
fish, wildlife, biota, air. water, ground
water, drinking water supplies, and
other such resources belonging to.
managed by. held in trust by.
appertaining to. or otherwise controlled
by the United Slates (including die
resources of fishery conservation zones
established by the Magnuson Fishery
Conservation and Management Act),
any State or local government, or any
foreign government.
Offshore facility, as defined by
section 101(17) of CERCLA and section
3i:(a](ll) of the CWA. means any
facility of any kind located in. on. or
under any oJ the navigable waters of the
U.S. and any facility of any kind which
is subject to the jurisdiction of the U.S.
and is located in, on. or under any other
waters, other than a vessel or a public
vessel.
Oil. as defined by section 311(a)(l) of
the CWA. means oil of any kind or in
any form, including, but not limited to.
petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than
dredged spoil.
Oil pollution fund means the fund
established by section 311(k) of the
CWA.
On-Scene Coordinator (OSC) means
the Federal official predesignated by the
EPA or USCG to coordinate and direct
Federal responses under Subpart E and
removals under Subpart F of this Plan:
or the OOO official designated to
coordinate and direct the removal
actions from releases of hazardous
substances, pollutants, or contaminants
from DOD vessels and facilities.
Onshore facility, (a) as defined by
section 101(18) of CERCLA. means any
facility (including, but not limited to.
motor vehicles and rolling stock) of any
kind located in, on, or under iny land or
non-navigcbu waters within the United
States; and (b) as defined by section
3ll(a)(10) of the CWA. means any
facility (including, but not limited to,
motor vehicles and rolling stock) of any
kind located in, on, or under any land
within the United States other than
submerged land.
Operable Unit is a discrete part of the
entire response action that decreases a
release, threat of release, or pathway of
exposure.
Person, as defined by section 101(21)
of CERCLA. means an individual, firm.
corporation, association, partnership.
consortium, joint venture, commercial
entity. U.S. government. State.
municipality, commission, political
subdivision of a State, or any interstate
body.
Plan means the National Oil and
Hazardous Substances Pollution
Contingency Plan published under
section 311(c) of the CWA and revispd
pursuant to section 105 of CERCLA.
Pollutant or contaminant, as defined
by section 104(a)(2) of CERCLA. shall
include, but not be limited to. any
element, substance, compound, or
mixture, including disease causing
agents, which after release into the
environment and upon exposure.
ingestion. inhalation, or assimilation
into any organism, either directly from
the environment or indirectly by
ingesting through food chains, will or
may reasonably be anticipated to cause
death, disease, behavioral
abnormalities, cancer, genetic mutation,
physiological malfunctions (including
malfunctions in reproduction), or
physical deformation in such organisms
or their offspring. The term does not
include petroleum, including crude oil
and any fraction thereof which is not
otherwise specifically listed or
designated as a hazardous substance
under section 101(14) (A) through (F) of
CERCLA. nor does it include natural
gas. liquified natural gas. or synthetic
gas of pipeline quality (or mixtures of
natural gas and synthetic gas). For
purposes of Subpart F of this Plan, the
term pollutant or contaminant means
any pollutant or contaminant which ma>
present an imminent and substantial
danger to public health or welfare.
Release, as defined by section 101(22)
of CERCLA, means any spilling, leaking.
pumping, pouring, emitting, emptying,
discharging, injection, escaping.
leaching, dumping, or disposing into the
environment, but excludes: any release
which results in exposure to persons
solely within a workplace, with respect
to a claim which such persons may
assert against the employer of suv.h
persons; emissions from the engine
exhaust of a motor vehicle, rolling stock.
aircraft, vessel, or pipeline pumping
station engine; release of source.
byproduct or special nuclear material ,
from a nuclear incident, as those terms
are defined in the Atomic Energy Act of
1954. if such release is subject to
requirements with respect to financial
protection established by the Nuclear
Regulatory Commission under section
170 of such act. or. for the purpose of
section 104 of CERCLA or any other
response action, any release of source,
byproduct, or special nuclear material
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47954 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
rinm any processing site designated
.,nder section 122(a)(l) or 302(a) of the
Uranium Mill Tailings Radiation Control
Act of 1978: and the normal application
»f fertilizer For the purpose of this Plan,
•Vase also means substantial threat of
Relevant and apprvpnate
• i;uirements are those Federal
,Lquirements that, while not
applicable." are designed to apply to
ji^blnms sufficiently similar to those
; ".:-h the ceguirement.
''"ttnedial investigation is a process
undertaken by the lead agency (or
• 'sponsible party if the responsible
p.irty will be developing a cleanup
proposal) which emphasizes data
..c Election jnd site characterization. The
-pmedial investigation is generally
performed concurrently and in an
,independent fashion with the
feasibility study. However, in certain
situations, the lead agency may require
poteutially responsible parties to
conclude initial phases of the remedial
investigation pnor to initiation of the
feasibility study. A remedial
•nvestigation ia undertaken to determine
the nature and extent of the problem
presented by the release. This includes
sampling and monitoring, as necessary,
and includes the gathering of sufficient
information to determine the necessity
for and proposed extent of remedial
action. Part of the remedial investigation
involves assessing whether the threat
can be mitigated or minimized by
controlling the source of the
contamination at or near the area where
the hazardous substances or pollutants
or contaminants were originally located
(source control remedial actions) or
whether additional actions will be
necessary because the hazardous
substances or pollutants or
contaminants have migrated from the
area of their original location
(management of migration).
Remedial Project Manager (RPM)
means the Federal official designated by
EPA (or the USCG for vessels) to •
coordinate, monitor, or direct remedial
or other response activities under
Subpart F of this Plan: or the Federal
official DOD designates to coordinate
and direct Federal remedial or other
response actions resulting from releases
of hazardous substances, pollutants, or
contaminants from DOD facilities or
vessels.
Remedy or remedial action, as
defined by section 101(24) of CERCLA,
means those actions consistent with
permanent remedy taken instead of. or
in addition to. removal action in the
event of a release or threatened release
of a hazardous substance into the
environment, to prevent or minimize the
release of hazardous substances so that
they do not migrate to cause substantial
danger to present or future public health
or welfare or the environment. The term
includes, but is not limited to, such
actions at the location of the release as
storage, confinement, pen refer
protection uiug dikes, trenches or
ditches, clay cover, neutralization.
cleanup of released hazardous
substances or contaminated materials,
recycling or reuse, diversion.
destruction, segregation of reactive
wastes, dredging or excavations, repair
or replacement of leaking containers,
collection of leachate and runoff, on-site
treatment or incineration, provision of
alternative water supplies, and any
monitoring reasonably required to
assure that such actions protect the
public health and welfare and the
environment The term includes the
costs of permanent relocation of
residents and businesses and
community facilities where the President
determines that, alone or in combination
with other measures, snch relocation is
more cost-effective than and
environmentally preferable to the •
transportation, storage, treatment.
destruction, or secured disposition off-
site of such hazardous substances, or
may otherwise be necessary to* protect
the public health or welfare-. The term
does not include off-site transport of
hazardous substances or contaminated
materials unless the President
determines that such actions: are more
cost-effective than other remedial
actions; will create new capacity to
manage in compliance with Subtitle C of
the Solid Waste Disposal Act
hazardous substances in addition to
those located at the affected facility; or
are necessary to protect public health or
welfare or the environment from a
present or potential risk which may be
created by further exposure to the
continued presence of such substances
or materials.
Remove or removal, as defined by
section 311(a)(8] of the CWA. refers to
removal of oil or hazardous substances
from the water and .horehnea or the
taking of such other actions as may be
necessary to minimize or mitigate
damage to the public health, welfare, or
the environment. As defined by section
101(23) of CERCLA. remove or removal
means the cleanup or removal of
released hazardous substances from the
environment; such actions as may be
necessary to monitor, assess, and
evaluate the release or threat of release
of hazardous substances; the disposal of
removal material or the taking of vich
other actions as may be necessary to
prevent, minimize, or mitigate damage to
the public health or welfare or the
environment which may otherwise
result from such release or threat of
release. The term includes, in addition.
without being limited to. security fencing
or other measures to limit access,
provision of alternative water supplies.
tenioorary "-.acuation and housing of
threatened individuals not otherwise
provided for. action taken under section
104(b) of CERCLA. and any emergency
assistance which may be provided
under the Disaster Relief Act of 1974.
Respond or response, as defined by
section 101(25) of CtRCLA, means
remove, removal, remedy, or remedial
action.
Site Quality Assurance and Sampling
Plat is a written document, associated
with site sampling activities, which.
presents in specific terms, the
organization (when applicable).
objectives, functional activities, and
specific quality assurance (QA) and
quality control (QC) activities designed
to achieve the data quality goals of •
specific ptoject(a) or continuing
operation^ The QA Project Plan is.
prepared for each specific project or
continuing operation (or group of similar
projects of continuing operations). The
QA Project Plan will be prepared by the
responsible program office, regional
office, laboratory, contractor, redpient
of an assistance agreement or other
organization.
Size classes of discharges refers to
the following size classes of oil
discharges which are provided a*
guidance to the OSC and sen* as the
criteria for the actions delineated in
Subpart E. They an not meant to imply
associated degrees of haiard to public
health or welfare, nor en they a
measure of environmental damage. Any
oil discharge that poaei a substantial
threat to the public health or welfare or
results in critical public concern shall be
classified as a major discharge
regardless of the following quantitative
measures:
(a) Minor discharge means a
discharge to the inland waters of less
then 1.000 gallons of oil or a discharge to
the coastal water* of less than 10.000
• gallons of oil.
(b) Medium discharge means a
discharge of 1.000 to 10,000 gallons of oil
to the inland waters or a discharge of
10.000 to 100,000 gallons of oft to the
coastal waters.
(c) Ma jar discharge means a
discharge of more than 10,000 gallons of
oil to the inland waters or more than
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r 20. 1985 / Rules and Regulations 47955
100.000 gallons of oil to the coastal
iters.
;ize classes of releases refers to the
lowing size classifications which are
ovided as guidance to the OSC for
meeting pollution reporting requirements
ir Subpsr' C The final determination of
the appropriate classification of a
release will be made by the OSC based
un consideration of the particular
release (e g.. size, location, impact, etc.).
(a) Minor release means a release of a
quantity of hazardous substance(s).
pollulant(s), or contammant(s) that
poses minimal threat to public health or
welfare or the environment.
[b) Medium release means all releases
not meeting the criteria for classification
as a minor or major release.
(c) Major release means a release of
any quantity of hazardous substance(s)?
pollutant(s), or contaminant(s) that
poses a substantial threat to public
health or welfare or the environment or
results in significant public concern.
Source control remedial action means
measures that are intended to contain
the hazardous substances or pollutants
or contaminants where they are located
or eliminate potential contamination by
transporting the hazardous substances
or pollutants or contaminants to a new
location. Source control remedial
•:tions may be appropriate if a
bstantial concentration or amount of
.dzardous substances or pollutants or
contaminants remains at or near the
area where they are originally located
and inadequate barriers exist to retard
migration of hazardous substances or
pollutants or contaminants into the
environment. Source control remedial
actions may not be appropriate if most
hazardous substances or pollutants or
contaminants have migrated from the
area where originally located or if the
lead agency determines that the
hazardous substances or pollutants or
contaminants are adequately contained.
Specified ports and harbors means
those port and harbor areas on inland
rivers, and land areas immediately
adjacent to those waters, whtn the
USCG acts as predesignated co-scene
coordinator. Precise locations ara
determined by EPA/USCG regional
agreements and identified in Federal
regional contingency plans.
Trustee means any Federal natural
resources management agency
designated in Subpart G of this Plan.
and any State agency which may pursue
claims for damages under section 107(f)
of CERCLA.
United States, when used in relation
' section 311(a)(5) of the CWA, refers
the States, the District of Columbia.
ie Commonwealth of Puerto Rico.
Guam. American Samoa, the Virgin
Islands, and the Trust Territory of the
Pacific Islands. United States, when
used in relation to section 101(27) of
CERCLA. and State include the several
States of the United States, the District
of Columbia, the Commonwealth of
Puerto Rico. Guam. Amsncan Samoa.
the United States Virgin Islands, the
Commonwealth of the Northern
Marianas, and any other territory or
possession over which the U.S. has
jurisdiction.
Volunteer means any individual
accepted to perform services by a
Federal agency which has authority to
accept volunteer services (examples: see
16 U.S.C. 742f(c)). A volunteer is subject
to the provisions of the authorizing
statute, and § 300.25.
Subpart B— Responsibility
§300.21 Dunes of President delegated to
In Executive Order 11735 and
Executive Order 12316. the President
delegated certain functions and
responsibilities vested to him by the
CWA and CERCLA. respectively.
Responsibilities so delegated shall be
responsibilities of Federal agencies
under this Plan unless:
(a) Responsibility is redelegated
pursuant to section 8(f) of Executive
Order 12318: or
(b) Executive Order 11735 or
Executive Order 12316 is amended' or
revoked.
§ 300.22 Coordination among and by
(a) Federal agencies should
coordinate their planning and response
activities through the mechanisms
described in Subpart C of this Plan and
other means as may be appropriate.
(b) Federal agencies should
coordinate planning and response action
with affected State and local
government and private entities.
(c) Federal agencies with facilities or
other resources which may be useful in
a Federal response situation should
make those facilities or resources
available consistent with agency
capabilities and authorities.
(d) When the Administrator of EPA or
the Secretary of the Department in
which the Coast Guard is operating
determines:
(1) That there is an imminent and
substantial threat to the public health or
welfare because of a discharge of oil
from any offshore or onshore facility: or
(2) That there may be an imminent
and substantial endangerment to the
public health or welfare or the
environment because of a release or
threatened release of a hazardous
substance from a facility: he/she may
request the Attorney General to secure
the relief necessary to abate the threat.
The action described here is in addition
to any actions taken by a State or local
government for the same purpose.
(e) In accordance with section 311(d)
of the CWA. whenever a mat me
disaster in or upon the navigable waters
of the United Stales has created a
substantial threat of a pollution hazard
to the public health or welfare because
of a discharge or an imminent t!;s<.h :rgp
from a vessel of large quantities of oil or
hazardous substances designated
pursuant to section 311(b](2)(A) of the
CWA. the United States may-
Ill Coordinate and direct all public
and private efforts to abate the threat:
and
(2) Summarily remove and. if
necessary, destroy the vessel by
whatever means are available without
regard to any provisions of law
governing the employment of personnel
or the expenditure of appropriated
funds. The au'>"ity for these actions
has been delegated under Executive
Order 11735 to the Administrator of EPA
and the Secretary of the Department in
which the Coast Guard is operating.
respectively, for the waters for which
each designates the OSC under this
Plan.
(f) Response actions to remove
discharges originating from the Outer
Continental Shelf Lands Act operations
shall be in accordance with this Plan.
(g) Where appropnate, discharges of
radioactive materials shall be handled
pursuant to the appropnate Federal
radiological plan. For purposes of this
Plan, the Federal Radiological
Emergency Response Plan (49 FR 35896.
September 12.1984) is the appropriate
response plan.
§300.23 Otter assistance by Federal
agencies.
(a) Each of the Federal agencies listed
in paragraph (b) of this section has
duties established by statute, executive
order, or Presidential directive which
may be relevant to Federal response
action following or in prevention of a
discharge of oil or a release of a
hazardous substance, pollutant, or
contaminant. These duties may also be
relevant to the rehabilitation.
restoration, end replacement of
damaged c* lost natural resources.
Federal regional contingency plans
should call ucon agencies to carry out
these duties in a coordinated manner.
(b) The following Federal agencies
may be called upon by an OSC/RPM
during the planning or implementation
of a response to provide assistance in
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47956 Fedaral Regiatsr / VoL 50. No. 224 / Wednesday, November 20. 1985 / Rules aad Regulations
their respective areas of expertise as
indicated below, consistent with agency
capabilities and legal authorities:
(11 The Department of Agriculture
(L'SDA) provides expertise in managing
agricultural, forest and wilderness
areas. The Soil Conservation Service
can provide to the OSC/RFM
predictions of the effects of pollutants
on soil and their movements over and
through soil
(2| The Department of Commerce
(DOC), through NOAA. provides
scientific expertise on living marine
resources for which it is responsible and
their habitats, including endangered
species and marine mammals:
coordinates scientific support for
responses and contingency planning ia
coastal and marine areas, including
assessments of the hazards that may be
involved, predictions of movement and
dispersion of discharged oil and
released hazardous substances through
trajectory modeling, and information on
the sensitivity of coastal environments
to oil discharges: and provides
information on, actual and predicted
meteorological, hydrologic. ice, and
oceanographic conditions for marine.
coastal, and inland waters: and
furnishes charts and maps, including
tide and circulation Information for
coastal and territorial waters and for the
Great Lakes.
(3) The Department of Defense (DOD).
consistent with its operational
requirements, may provide assistance to
other Federal agencies on request. The
United States Army Corps of Engineers
has specialized equipment and
personnel for maintaining navigation
channels, for removing navigation
obstructions, for accomplishing
structural repairs, and for performing
maintenance to hydropower electric
generating equipment The Corps can
'also provide design services, perform
construction, and provide contract
writing and contract administration
services for other Federal agencies. The
United States fthvy (USN). as a result of
its mission and Fob. L 80-513 (Salvage
Act), is the Fedimi agency most
knowledgeable and experienced in ship
salvage, shipboard damage control, and
diving. The USN has an extensive array
of specialized equipment and personnel
available for use in these areas aa well
as specialized containment, collection.
and removal equipment specifically
designed for salvage-related and open
sea pollution incidents. Also, upon
request of the OSC locally deployed
L'SN oi! spill equipment may be
provided. This equipment is available on
a rpimburseable basis to Federal
agencies upon request when commercial
equipment is not available. As described
elsewhere in the Plan. DOD officials
serve as OSCs for removal actions and
as RPMs for remedial actions resulting
from releases of hazardous substances,
pollutants, or contaminants from DOD
vessels and facilities,
(4) The Department of Energy (DOE)
provides advice to the OSC/RPM when
assistance is required in identifying the
source and extent of radioactive
releases, and in the removal and
disposal of radioactive contamination.
(5) The Department of Health and
Human Services (HHS} i» responsible
for providing assistance on all matters
related to die assessment of health
hazards at a response, and protection of
both response workers' and the public's
health.
(6) The Federal Emergency
Management Agency (FEMA) will
provide advice and assistance to the
OSC/RPM on coordinating civil
emergency planning and mitigation
efforts with other Executive agencies.
State and local governments, and the
private sector. In the event of a major
disaster declaration or emergency
determination by the President at a
hazardous materials response site.
FEMA will coordinate aft disaster or
emergency actions with the OSC/RPM.
(7) The Department of the Interior
(DO!) should be contacted through
Regional Environmental Officers (REO),
who are the designated members of
RRTs. Department land managers have
jurisdiction over the National Park
System. National Wildlife Refuges and
Fish Hatcheries, the public lands, and
certain water projects in western States.
In addition, bureaus and offices have
relevant expertise as follows: Fish and
Wildlife Service: fish and wildlife,
including endangered and threatened
species, migratory birds, certain marine
mammals: habitats, resource
contaminants: and laboratory research
facilities. Geological Survey: geology,
hydrology (ground water and surface).
and natural hazards. Bureau of Land
Management minerals, soils, vegetation.
wildlife, habitat archaeology.
wilderness: hazardous materials; etc.
Minerals Management Service: manned
facilities for Outer Continental Shelf
(OCS) oversight. Bureau of Mines:
analysis and identification of inorganic
hazardous substances. Office of Surface
Mining: coal mine wastes, land
reclamation. National Part Service:
biological and general natural resources
expert personnel at Park units. Bureau
of Reclamation: operation and
maintenance of water projects in the
West: engineering and hydrology: and
reservoirs. Bureau of Indian Affairs:
coordination of activities affecting
Indian lands. Office of Territorial
Affairs: assistance in implementing
NCP in American Samoa. Guam, the
Trust Territory of the Pacific islands.
and the Virgin Islands.
(8) The Department of Justice (DO|)
can provide expert advice on
complicated legal questions arising from
discharge or releases and Federal
agency responses. In addition, the DOf
represents the Federal government.
including its agencies, hi litigation.
(9) The Department of Labor (DOL).
through the Occupational Safety and
Health Administration (OSHA), will
provide the OSC/RPM with advice.
guidance, and assistance regarding
hazards to persons involved in removal
or control of oil discharges and
hazardous substance releases, and in
the precautions necessary to prevent
hazards to meir health and safety.
OSHA and the States operating OSHA-
approved State plans have the
responsibility for assuring employee
safety and hearth at response activities
under this Plan, hi cooperation with EPA
and the NRT. OSHA has established a.
policy for handling occupational safety
and health problems which may arise.
This policy specifies mat on request
OSHA wiH provide technical assists*"
to EPA, any other lead agency, or >'
contractor. Technical assistance n.
include review of site safety plans.
review of site work practices, assistance
with exposure monitoring, and help with
other questions that arise about
compliance with OSHA standards.
OSHA is also ready to respond to
inspection requests from EPA or another
lead agency, and will act if there are
accidents or employee complaints about
unsafe or unhealthnil work conditions at
response activities under this Plan, as it
does in other industries. OSHA reserves
the right to take other actions necessary
to assure that employees are properly
protected at such response activities.
Any questions about occupational
safety and health at response sites
should be referred to the OSHA
Regional Office.
(10) The Department of
Transportation (DOT) provides
expertise on all modes of transporting
oil and hazardous substances. Through
the USCC. DOT offers expertise in
domestic/internatiamal fields of port
safety and security, maritime law
enforcement, ship navigation and
construction, and the manning,
operation, and safety of vessels and
marine facilities. The USCG also
maintains continuously manned
facilities which can be used for
command, control, and surveillance of
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EagUter / Vol. 50. N(X 224 / WeAeaday. Noyember 20. 1985 / Rules and RegufaHons 47957
oil discharge* and hazardous substance
releatct ceenrring ia ikt coastal inne.
The USCC provitepndesigHated
OSCa for the coastal MD& Throogh the
Research and Special Programs
Administration ERSPAL DOT offers
expertise in the requirements for
packaging, handling, end transporting
regulated hazardous materials.
(11) The Department of State (DOS)
will lead in tie development of joint
international contingency plane. It will
also help to coordinate aa international
respona* whea discharges or releases
crom international boundaries or
involve fonign Bag vessels.
Additionally, thia Department will
coordinate requests for assistance from
foreign government* and US. proposals
for coaductiag research at incidents that
occur in wa tan of other countries.
(121 The Enwosunenlal Protection
Agency (EPAJ provides expertise on
environmental effects of oil discharges
or releases of hazardous substances,
pollutants, or contaminants and
environmental pollution control
techniques. EPA provides predesignated
OSCa for the inland zone and RPMs for
all remedial actions, unless otherwise
agreed. EPA also will generally provide
the SSC for responses in inland areas.
EPA may enter into a contract or
cooperative agreement with the
appropriate State in order to implement
a response action.
(c) In addition to their general
responsibilities under paragraph (a) of
this section. Federal agencies should:
(1) Make necessary information
available to the NOT. RRTs. and OSCa/
RPMs.
(2) Inform the NOT and RRTs
(consistent with national security
considerations) of changes in the
availability of res jurces that would
affect the operations of the Plan.
(3) Provide representatives, as
necessary, to the NOT and RRTs and
assist RRTs and OSCs in formulating
Federal regional and Federal local
contingency plans.
(d) All Federal agencies an
responsible for reporting releases of
hazardous substance* and discharges of
oil from facilities or vessels which an
under their jurisdiction or central in
accordance with sections 104(a) and (b)
and 101(24) of CERCLA. subiect to the
following:
(1) HHS is delegated all authorities
under section 104(b) of CERCLA relating
to a determination that illness, disease.
or complaints thereof may be
attributable to exposure to a hazardous
substance, pollutant, or contaminant. (In
addition, section 104(i) of CERCLA calls
upon HHS to: establish appropriate
disease/exposure registries: conduct
approoriate testing for exposed
individuals; develop, maintain, and
provide information on health effects of
tone substances; and maintain a bat of
areas restricted or dosed because of
toxic substance contamination.)
(2) FEMA is delegated the authorities
vested in the President by section 104(a)
of CERCLA to the extent they require
permanent relocation of residents,
businesses, and community facilities or
temporary evacuation and housing of
threatened individuals not otherwise
provided for. Authority under section
101(21) of CERCLA to the extent that a
determination by the President that
"permanent relocation of residents and
businesses and community facilities" is
included within the terms "remedy" and
"remedial action" as defined in section
101(24) of CERCLA. has been
redelegated to the Environmental
Protection Agency.
(3) DOD is delegated all authority of
sections 104(a) and (b) of CERCLA with
respect to releases from DOD facilities
or vessels, including vessels owned or
bareboat chartered and operated.
(e) If the situation ia beyond the
capability of State and local
governments and the statutory authority
of Federal agencies, the President may.
under the Disaster Relief Act of 1974, act
upon a request by the governor and
declare a major disaster or emergency
and appoint a Federal Coordinating
Officer (FCO) to coordinate all Federal
disaster assistance activities. In such
cases, the OSC/RPM would continue to
carry out his/her responsibilities under
the NCP. but would coordinate his/her
activities with the FCO to ensure
consistency with other Federal disaster
assistance activities.
§30024 Strteaml local participation.
(a) Each State governor is requested
to assign an office or agency to
represent the State on the appropriate
RRT. Local governments are invited to
participate in activities on the
appropriate RRT as may be provided by
State law or arranged by the State's
representative. The State's
representative may participate fully in
all facets of activities of the appropriate
RRT and is encouraged to designate the
element of the State government that
will direct State supervised response
operations.
(b) State and local government
agencies are encouraged to include
contingency planning for responses.
consistent with this Plan and Regional
Contingency Plans, in all emergency and
disaster planning.
(c) States are encouraged to use State
authorities to compel potentially
responsible parties to undertake
response actions; or to themselves
undertake response actions which are
not eligible for Federal funding.
(d) States may enter into contracts or
cooperative agreements pursuant to
section lMfc)(3) and (d) of CERCLA or
section 311(cH2)(H) of the CWA. as
appropriate, to undertake actions
authorized under Subparts E and F of
this Plan. Requirements for entering into
these agreements are included in
§ 300.58 and | 300.62 of this Plan. A
State agency that acts pursuant to such
agreements is referred to as lead
agency. While the terms "On-Scene
Coordinator." "OSC." "Remedial Project
Manager." and "RPM" are reserved for
Federal ofGcials for the purposes of this
Plan, a State agency may choose to use
these titles for ita response personnel
without such use connoting the
definitions, responsibilities, and
authorities for these titles for Federal
officials' under this Plan. In the case of a
State a» lead agency, the State shall
carry out the same responsibilities
delineated for OSCs/RPMs in this Plan
(except coordinating and directing
Federal agency response actions).
(e) Since State -~nd local public safety
organizations would normally be the
first government representatives at the
scene of a discharge or release, they
would be expected to initiate public
safety measures necessary to protect
public health and welfare, and are
responsible for directing evamations
pursuant to existing State/local
procedures.
9 300.25 Nongovernment participation.
(a) Industry groups, academic
organizations, and others are
encouraged to commit resources for
response operations. Specific
commitments should be listed in Federal
regional and Federal local contingency
plans.
(b) It is particularly important to use
the valuable technical and scientific
information generated by the
nongovernment local community along
with those from Federal and State
governments to assist the OSC/RPM in
dbvibing cleanup strategies where
effective standard techniques are
unavailable, and to ensure that pertinent
research will be undertaken to meet
national needs. The scientific support
coordinator (SSC) shall act as liaison
between the OSC/RPM and such
interested organizations.
(c) Federal local contingency plans
shall establish procedures to allow for
well-organized, worthwhile, and safe
use of volunteers. Local plans should
provide for the direction of volunteers
by the OSC or by other Federal. State, or
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47958 Federal Register / Vol. 50. No. 224 / Wednesday. November 28. MM / hriai and
local official* knowledgeable in
contingency operation* and capable of
providing leadership. Local plant also
should identify specific anas in which
volunteers can be used, such as beach
surveillance, logistical support and bird
and wildlife treatment Unless
specifically requested by the OSC.
volunteers generally should not be used
for physical removal or remedial
activities. If. in the judgment of the OSC
or an appropriate participating agency,
dangerous conditions exist; volunteers
shall be restricted from on-scene
operations.
(d)(l) If any person other than the
Federal government or a State or person
operating under contract or cooperative
agreement with the United States takes
response action and intends to seek
reimbursement from the Fund, such
actions, to be in conformity with this
Plan for purposes of section lll(a)(2) of
CERCLA. may only be reimbursed if
such person notifies the Administrator
of EPA or his/her designee prior to
taking such action and receives prior
approval to take such action.
(2) The process of prior approval of
Fund reimbursement requests is
preauthorization. Fund preauthorization
will be considered only for:
(i) Releases warranting a response
action pursuant to I 300.85 or 8 300.68;
((ii) CERCLA section 104(b) activities:
and
(iii) Remedial actions at National
Priorities List sites.
(3) All requests for preauthorization
will be reviewed to determine whether
the request should receive priority for
funding.
(4) Preauthorization does not obligate
the Fund. For purposes of payment of a
claim under CERCLA section 112. the
responsible Federal official must certify
that costs incurred were necessary and
consistent with the Fund
preauthorization.
(5) All persons requesting
preauthorization must demonstrate the
technical and other capabilities to
respond safely and effectively to
releases of hazardous substances, or
pollutants or contaminants.
Subpart C-Organtaaflon
{30131 Organizational concepts.
Three fundamental kinds of activities
are performed pursuant to the Plan:
planning ard coordination, operations at
the scene ot a discharge and/or release.
and communications. The organizational
elements created to perform these
activities are discussed below in the
context of their roles in these activities.
The organizational concepts of this Plan
are depicted in Figure 1. The standard
Federal Regional boundaries are shown
in Figure 2. and the U.S. Coast Guard
District boundaries are shown in Figure
3.
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20.1985 / Rules and Regulations 47959
Figure 1
NATIONAL CONTINGENCY PLAN CONCEPTS
300.32 NRT D°° I ™ \ \ °°T
300.36 N
' ' ,
RC I 1 I
| EPA DOC 1 USOA
PARTICIPATING
AGENCIES
| DOS DOJ | HHS
r-J r-1- - , I
| OOL 1 | DOE | FEMA |
>^\
300.32 RRT \X"
300.36 RRC
<
^— ^ 1
300.34 feggy (ON SCENE FORCES)
V J \^^^^m ^ ^^^^/
^—*S
, — 1 — , . , | .
/ OTHER \ / S£vL\ / STATE \
SRESOURCES/ WSScEa? \RESOURCEy
300.25
300.23
300.24
-------
I i.jure 2
STANDARD REGIONAL BOUNDARIES
TEN REGIONS
I
I
o
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s.
I
B-
NMI: Noilhcin Milieu* UtonU
IIPI Tiutl I*irlloir Of lh« Paclllc Island!
(D
CA
Q>
a.-
**
i
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31
-------
Figure 3
U.S. COAST GUARD DISTRICTS
Pacific Area
COMPACAREA
Atlantic Area
COMLANTAREA
oisrmcr
•osrow
"7^\ "V
\ALAtKAl \ ^«S»^ I
^. 1\ ^^^ /
l7lfTOISTItltJ V I
.' U
oisr«icr
o.c.
ois r«icr
PORTSMOUTH
O
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1
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1
1
1
I
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1
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01
I
er
NMI: NaiUMrn M.n.n. Itl.ndt
ITPI Iiu.l Krrlloiy ol Ih* P.clllc Illindi
O)
g.
-------
47962 Federal Register / Vol. 50. No. 224 / WecL-
J 300.32 Planning and coordination.
(a) National planning and
coordination is accomplished through
the National Response Team (NRT).
(1) The NRT consists of
representatives from the agencies
named in § 300 23. Each agency shall
designate a member to the team and
sufficient alternates to ensure
representation, as agency resources
permit. Other agencies may request
membership on the NRT by forwarding
such requests to the chairman of the
NRT.
(2) Except for periods of activation
because of a response action, the
representative of EPA shall be the
chairman and the representative of
USCG shall be the vice chairman of the
NRT. The vice chairman shall maintain
records of NRT activities along with
national, regional, and local plans for
response actions. When the NRT is
activated for response actions, the
chairman shall be the EPA or USCG
representative, based on whether the
discharge or release occurs in the inland
zone or coastal zone, unless otherwise
agreed upon by the chairman and vice
chairman.
(3) While the NRT desires to achieve a
consensus on all matters brought before
it, certain matters may prove
unresolvable by this means. In such
cases, each department or agency
serving as a participating agency on the
NRT may be accorded one vote in NRT
proceedings.
(4) The NRT may establish such by-
laws and committees as it deems
appropriate to further the purposes for
which ir is established.
(5) When the NRT is not activated for
a response action, it shall serve as a
standing committee to evaluate methods
of responding to discharges or releases.
to recommend needed changes in the
response organization, and to
recommend revisions to this Plan.
(6) The NRT may consider and make
recommendations to appropriate
aa/ncies on the training, equipping, and
protection of response teams and
necessary research, development
demonstration, and evaluation to
improve response capabilities.
(71 ni-;c» planning and preparedness
responsibilities of the NRT include:
(i) Maintaining national readiness to
respond to a major discharge of oil or
release of a hazardous substance or
pollutant or contaminant which is
beyond regional capabilities;
(ii) Monitoring incoming reports from
all RRTs and activating when necessary;
(iii) Reviewing regional responses to
oil discharges and hazardous substance
releases, including an evaluation of
equipment readiness and coordination
among responsible public agencies and
private organizations:
(iv) Developing procedures to ensure
the coordination of Federal. State, and
local governments and private response
to oil discharges and releases of
hazardous substances, pollutants, or
contaminants;
(v) Monitoring response-related
research and development, testing, and
evaluation activities of NRT agencies to
enhance coordination and avoid
duplication of effort: and
(vi) Momtonng response training to
encourage coordination of available
resources between agencies with
responsibilities under this Plan.
(8) The NRT may consider matters
referred to it for advice or resolution by
an RRT.
(b) The RRT provides the appropriate
regional mechanism for planning and
preparedness activities before a
response action is taken and for
coordination and advice during such
response actions. The two principal
components of the RRT mechanism are
a standing team, which consists of
designated representatives from each
participating Federal agency. State
governments, and local governments fas
agreed upon by the States), and
incident-specific teams where
participation will relate to the technical
nature of the incident and its geographic
location. The standing team jurisdiction
will correspond with the standard
Federal Regions, except for Alaska and
the Caribbean area which will also have
standing RRTs. The role of the standing
RRT will include communications.
planning, coordination, training;.
evaluation, preparedness, and other
such matters on a Region-wide basis.
The incident-specific team jurisdiction
will relate to the operational
requirements of discharge or release
response. Appropriate levels of
activation, including participation by
State and local governments, shall be
determined by the designated RRT
chairman for the incident.
(1) Except when the RRT is activated
for a removal incident, the
representatives of EPA and USCG shall
act as co-chairmen. When the RRT is
activated for response actions, the
chairman shall be the EPA or USCG
representative, based on whether the
discharge or release occurs in the inland
zone or coastal zone, unless otherwise
agreed upon by the co-chairmen.
(2) Each participating agency should
i*f.v Tiaf • one member and at least one
alternate member to the RRT. Agencies
whose regional subdivisions do not
correspond to the standard Federal
Regions may designate additional
representatives to the stanr'-ng RRT to
ensure appropriate coverage of the
standard Federal Region. Participating
States may also designate one member
and at least one alternate member to the
Team. All agencies and States may also
provide addi'ional representatives as
observers to meetings of the RRT.
(3) RRT members should designate
representatives from their agencies to
work with OSCs in developing Federal
local contmsency plans, providing for
the use of agency resources, and in
responding to discharges and releases
[see § 300 43).
(4] Federal regional and Federal local
plans should adequately prov.Je the
OSC with assistance from the Federal
agencies commensurate with agencies'
resources, capabilities, and
responsibilities within the region. During
a response action, the members of the
RRT should seek to mak£ available the
rpsourcea of their agencies to «he OSC
*s specified in the Federal regional and
Federal local contingency plans.
(5) Affected States are encouraged to
participate actively in ail RRT activities
[see § 300.24(a)J, to designate
representatives to work with the RRT
and OSCs in developing Federal
regional and Federal local plans, to plan
for and make available State resources.
and to serve as the rontact point for
coordination of response with local
government agencies whether or not
represented on the RRT.
(6) The standing RRT will serve to
recommend changes in the regional
response organization as needed, to
revise the regional plan as needed, and
to evaluate the preparedness of (he
agencies and the effectiveness of local
plans for the Federal response to
discharges and releases. TSe RRT
should:
(i) Conduct ad\ nice planning for use
of dispersants. surface collection agents.
burning agents, biological additives, or
other chemical agents in accordance
with §300.84(e) of this Plan.
(u) Make continuing review of
regional and local responses to
discharges or releases, considering
available legal remedies, equipment
readiness, and coordination among
responsible public agencies and private
organizations.
(in) Based on observations of
response operations, recommend
revisions of the National Contingency
Plan to the NRT.
(iv) Consider and recommend
necessary changes based on continuing
review of response actions in the region.
(v) Review OSC actions to help ensure
that Federal regional and Federal local
contingency plans are developed
satisfactorily. •
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FecW Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47963
(vi) Be prepared to respond to major
discharges or releases outside the
region.
(-.1:) Meet at least seraiannually to
review response actions carried out
durr.a the pre'.etiing period, and
considei chdi.ges in Federal regional
and Federal local contingency plans.
(VIM) Provide letter reports on their
activities to the NRT iwice a year, no
Idler than January 31 nnd July 31. At a
minimum, reports should summarize
recent activities, organizational changes.
operational concerns, and efforts to
improve State and local coordination.
(ix) Encourage the State and local
response community to improve their
preparedness for response.
(x) Conduct training exercises as
necessary to encourage preparedness
activities of the response community
within the region.
(7) Whenever there is insufficient
national policy guidance on a matter
before the RRT. a technical matter
requiring solution, a question concerning
interpretation of the Plan, or there is a
disagreement on discretionary actions
between RRT members that cannot be
resolved at the regional level, it may be
referred to the NRT for advice or
resolution.
in) The OSC is responsible for
developing any Federal local
contingency plans for the Federal
response in the area of the OSC's
responsibility. This may be
accomplished in cooperation with the
RRT and designated State and local
representatives [see i 300.43].
Boundaries for Federal local
contingency plans shall coincide with
those agreed upon between EPA. DOD.
and the USCG (subject to Executive
Order 12318) to determine OSC areas of
responsibility and should be clearly
indicated in the regional contingency
plan. Where practicable, consideration
should be given to jurisdictional
boundaries established by State and
local plans.
(1) The lead agency should provide
appropriate training lot its OSCs. RPMs,
and other response personnel to carry
out their responsibilities under this Plan.
(2) To the extent practicable. OSCs/
RPMs should ensure that persons
designated to act as their on-scene
representatives are adequately trained
and prepared to carry out actions under
this Plan.
§ 300.33 nsepofiee opefatloiis»
(a) EPA and USCG shall designate
OSCs/RPMs for all areas in each region.
provided, however, that DOD shall
designate OSCs/RPMs responsible for
taking all actions resulting from releases
of hazardous substances, pollutants, or
contaminants from DOD facilities and
vessels. DOD will be the removal
response authority with respect to
incidents involving DOD military
weapons and munitions. Removal
actions involving nuclear weapons
should be conducted in accordance with
the joint Department of Defense.
Department of Energy, and Federal
Emergency Management Agency
Agreement for Response to N '.par
Incidents and Nuclear Weapons
Significant Incidents of January 8.1981.
The USCG will furnish or provide OSCs
for oil discharges and for the immediate
removal of hazardous substances.
pollutants, or contaminants into or
threatening the coastal zone except that
the USCG will not provide
predesignated OSCs for discharges and
releases from hazardous waste
management facilities or in similarly
chronic incidents. EPA shall furnish or
provide OSCs for discharges and
releases into or threatening the inland
zone and shall furnish or provide RPMs
for Federally funded remedial actions
except as othe.-wl.se agreed. The USCG
will provide an initial response to
hazardous waste management facilities
within the coastal zone in accordance
with the DOT/EPA Instrument of
Redelegation (40 FR 83294). EPA will
also assume all remedial actions
resulting from removals initiated by the
USCG in the coastal zone except those
involving vessels. The USCCOSC shall
contact the cognizant EPA RPM as soon
as it is evident that a removal may
require a follow-up remedial action to
ensure that the required planning can be
initiated and an orderly transition to
EPA lead can occur.
(b) The OSC/RPM directs Federal
Fund-financed response efforts and
coordinates all other Federal efforts at
the scene of a discharge or release.
subject to Exective Order 12316. As part
of the planning and preparation for
response, the OSCs/RPMs shall be
predesignated by the regional or district
head of the lead agency.
(1) The first Federal official to arrive
at the scene of a discharge or release
should coordinate activities under this
Plan and is authorized to initiate, in
consultation with the OSC any
necessary actions normally carried out
by the OSC until the arrival of the
predesignated OSC. This official may
initiate Federal Fund-financed actions
only as authorized by the OSC or (if the
OSC is unavailable) the authorized
representative of the lead agency.
(2) The OSC/RPM shall, to the extent
practicable under the circumstances.
collect pertinent facts about the
discharge or release, such as iu source
and cause: the identification of
potentially responsible parties: the
nature, amount and location of
discharged or released materials: the
probable direction and time of travel of
discharged or released materials: the
pathways to human and environmental
exposure: potential impact on human
health, welfare, and safety and the
environment: the potential impact on
natural resources and property which
may be affected: priorities for protecting
human health, welfare, and the
environment: and appropriate cost
documentation.
(3) The OSC/RPM shall direct
response operations (see Subparts E and
F for descnptive details). The OSCs/
RPM's effort shall be coordinated with
other appropriate Federal, State, local.
and private response agencies. OSCs/
RPMs may designate capable persons
from Federal. State, or local agencies to
act as their on-scene representative.
State and local representatives.
however, are not authorized to take
actions under Subparts E and F that
involve expenditures of CWA'section
311(k) or CERCLA funds unless an
appropriate contract or cooperative
agreement has been established.
(4) The OSC (and when the RRT has
been activated for a remedial action, the
RPM) should consult regularly with the
RRT in carrying out this Plan and will
keep the RRT informed of activities
under this Plan.
(5) The OSC/RPM shall advise the
appropriate State agency (as agreed
upon with each State) as promptly as
possible of reported discharges and
releases.
(8) The OSC/RPM shall evaluate
incoming information and immediately
advise FEMA of potential major disaster
situations. In the event of a major
disaster or emergency, under the
Disaster Relief Act of 1974 (Pub. L. 93-
288). the OSC/RPM will coordinate any
response activities with the Federal
Coordinating Officer designated by the
President In addition, the OSC/RPM
should notify FEMA of situations
potentially requiring evacuation,
temporary housing, and permanent
relocation.
(7) In those instances where a
possible public health emergency exists.
the OSC/RPM should notify the HHS
representative to the RRT. Throughout
response actions, the OSC/RPM may
call upon the HHS representative for
assistance in determining public health
threats and for advice on worker health
and safety problems.
(8) All Federal agencies should plan
for emergencies and develop procedures
for dealing with oil discharges and
releases of hazardous substances.
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47964 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
pollutants, or contaminants from vessels
and facilities under their jurisdiction. All
Federal agencies, therefore, are
responsible for designating the office
that coordinates response to such
incidents in accordance with this Plan
and applicable Federal regulations and
guidelines. The OSC/RPM should
provide advice and assistance as
requested by Federal agencies for
incidents involving vessels or facilities
under their jurisdiction. At the request
of the Federal agency, or if. in the
opinion of the OSC (or in a remedial
action, the lead agency), the responsible
Federal agency does not act promptly or
take appropriate action to respond to a
discharge or release occurring on a
vessel or facility, including contiguous
lands under its jurisdiction, the OSC (or
in a remedial action, the lead agency)
designated to respond in the area where
the discharge or release occurs may
conduct appropriate response activities.
If this occurs, the OSC (or in a remedial
action, the lead agency) shall consult
with and coordinate all response
activities taken with the responsible
Federal agency. With respect to release
of hazardous substances, pollutants, or
contaminants from DOD faculties or
vessels. OOD designates the OSC/RPM.
(9) The OSC/RPM should notify the
affected land managing agency and
trustees of natural resources, as
promptly as possible, of releases and
discharges affecting Federal resources
under their jurisdiction. The OSC or
RPM should consult with and coordinate
all response activities with the affected
land managing agency or resource
trustee to the extent practicable.
(10) Where the OSC/RPM becomes
aware that a discharge or release may
adversely affect any endangered or
threatened species, or result in
destruction or adverse modification of
the habitat of such species, the OSC/
RPM should consult with the OOI or
OOC(NOAA).
(11) The OSC/RPM is responsible for
addressing worker health and safety
concerns at a response scene, in
accordance with 130088 of this PUn.
(12) The OSC shall nbmit pollutant
reports (POLREPs) to fe RRT and
appropriate agencies Mdgniflcant
developments occur during removal
actions.
(13) OSCs/RPMs should ensure that .
all appropriate public and private
interests are kept informed and that
their concerns are considered
throughout a response in accordance
with 1300.39 to the extent practicable.
(14) The RPM is the prime contact for
remedial actions being taken (or needed
to be taken) at sites on the proposed or
promulgated National Priorities List
(NPL). These actions include:
(i) Fund-Financed Cleanup/Federal
Lead—The RPM coordinates, directs.
and reviews the work of all EPA. State.
and local governments, the U.S. Army
Corps of Engineers, and all other
agencies and contractors to assure
compliance with this Plan. Based upon
the reports of these parties, the RPM
recommends action for decisions by
lead agency officials. The RPM's period
of responsibility begins prior to
initiation of the Remedial Investigation/
Feasibility Study (Rl/FS) [described in
8 300.68(d)| and continues through
design, construction, deletion of the site
from the NPL. and in some cases, the
CERCLA cost recovery activity. The
RPM should coordinate with the OSC to
ensure an orderly transition from OSC
response activities to remedial
activities.
(ii) Fund-Financed Cleanup/State
Lead—The RPM serves in an oversight
capacity during the planning, design.
and cleanup activities of a State-lead
remedial action, offering both technical
and programmatic guidance.
(hi) The RPM shall participate in all
decisionmaking processes necessary to
ensure compliance with this Plan and
the cooperative agreement between EPA
and the State. The RPM will also review
responses implemented pursuant to
preauthorization in order for EPA to
determine that the responses are
consistent with preauthorization in
cases where claims are filed for
reimbursement
(a) The National Strike Force (NSF)
consists of the Strike Teams established
by the USCG on the Atlantic. Pacific,
and Gulf coasts and a Dive Team
located on the Atlantic coast with
resources available to provide
assistance to the OSC/RPM.
(1) The Strike Teams can provide
communication support, advice, and
assistance for oil and hazardous
substances removal. These teams also
have knowledge of shipboard damage
control are equipped with specialized
containment and removal equipment.
and have rapid transportation available.
The NSF Dive Team has knowledge and
capability in diving, damage
assessment and
USCG through the NRC.
(b) Each USCG OSC manages
emergency task forces trained to
evaluate, monitor, and supervise
pollution responses. Additionally, they
have limited "initial aid" response
capability to deploy equipment prior to
the arrival of a cleanup contractor or
other response personnel.
(c)(l) The Environmental Response
Team (ERT) is established by EPA in
accordance with its disaster and
emergency responsibilities. The ERT
includes expertise in biology, chemistry,
hydrology, geology, and engineering.
(2) It can provide access to special
decontamination equipment for
chemical releases and advice to the
OSC/RPM in hazard evaluation; risk
assessment, multimedia sampling and
analysis program; on-site safety,
including development and
implementation plans: cleanup
techniques and priorities; water supply
decontamination and protection;
application of dispersants;
environmental assessment; degree of
cleanup required: and disposal of
contaminated material.
(3) The ERT also provides both
introductory and intermediate level
training courses to prepare response
personnel.
(4) OSC/RPM or RRT requests for
ERT support should be made to the EPA
representative on the RRT: the EPA
Headquarters. Director, Office of
Emergency and Remedial Response; or
the appropriate EPA regional emergency
coordinator.
(d) Scientific Support Coordinators
(SSCs) are available, at the request of
OSCs/RPMs. to assist with actual or
potential responses to discharges of oil
or releases of hazardous substances.
pollutants, or contaminants. The SSC
will also provide scientific support for
the development of regional and local
contingency plans. Generally. SSCs are
provided by NOAA in coastal and
marine areas, and by EPA in inland
regions.
(1) During a response, the SSC serves
under the direction of the OSC/RPM
and is responsible for providing
scientific support for operational
decisions and for coordinating on-scene
scientific activity. Depending on the
nature of the incident the SSC can be
expected to provide certain specialized
scientific ski Is and to work with
governmental agencies, universities.
community representatives, and
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47965
industry to compile Information that
would assist the OSC/RPM in assessing
the hazards and potential effects of
discharges and releases and in
developing response strategies.
(2) If requested by the OSC/RPM. the
SSC will serve as the principal liaison
for scientific information and will
facilitate communications to and from
the scientific community on response
issues. The SSC. in this role, will
attempt to reach a consensus on
scientific issues surrounding the
response but will also ensure that any
differing opinions within the community
are communicated to the OSC/RPM
(3) The SSC will assist the OSC/RPM
in responding to requests for assistance
from the State and Federal agencies
regarding scientific studies and
environmental assessments. Details on
access to scientific support shall be
included in regional contingency plans.
(e) The USCG Puoiic Information
Assist Team (PlAT) and the EPA Public
Affairs Assist Team (PAATJ are
available to assist OSCs/RPMs and
regional or district offices to meet the
demands for public information and
participation. Their use is encouraged
•ny time the OSC/RPM require* outside
public affairs support. Requests for
these teams may be made through the
NRC.
(f)[l) Tne RRT may be activated by
the chairman as an incident-specific
response team when a discharge or
release:
(i) Exceeds the response capability
. available to the OSC in the place where
it occurs;
(ii) Transects regional boundaries: or
(Hi) May puse a substantial threat to
the public health, welfare, or the
environment, or to regionally significant
amounts of property. Regional
contingency plans shall specify detailed
criteria for activation of RRTs.
(2) The RRT may be activated during
any pollution emergency by a request
from the OSC/RPM. or from any RRT
representative, to the chairman of the
Team. Requests tax RRT activation shall
later be confirmed In writing. Each
representative, or aa appropriate
alternate, should be notified
immediately when the RRT is activated.
(3} During prolonged removal or
remedial action, the RRT may not need
to be activated or may need to be
activated only in a limited sense, or
have available only those members of
the RRT who are directly affected or
who can provide direct response
assistance.
(4) When the RRT is activated for a
discharge or release, agency
representatives snail meet at the call of
the chairman and may:
(i) Monitor and evaluate reports from
the OSC/RPM. The RRT may advise the
OSC/RPM on the duration and extent of
Federal response and may recommend
to the OSC/RPM specific actions to
respond to the discharge or release;
(ii) Request other Federal. State, or
local governments, or private agencies
to provide resources under their existing
authorities to respond to a discharge or
release or to monitor response
operations:
(iii) Help the OSC/RPM prepare
information releases for the public and
for communication with the NRT;
(iv) If the circumstances warrant
make recommendations to the regional
or district head of the agency providing
the OSC/RPM that a different OSC/
RPM should be designated; and
(v) Submit Pollution Reports
(POLREPS) to the NRC as significant
developments occur.
(5) When the RRT is activated,
affected States may participate In all
RRT deliberations. State government
representatives participating m the RRT
have the same status as any Federal
member of the RRT.
(6) The RRT can be deactivated when
the incident-specific RRT chairman
determines that the OSC/RPM no longer
requires RRT assistance.
(g) The NRT should be activated as an
emergency response team:
(1) When an oil discharge or
hazardous substance release:
(A) Exceeds the response capability of
the regions in which it occurs:
(B) Transects regional boundaries; or
(C) Involves significant population
threat or national policy issues,
substantial amounts of property, or
substantial threats to natural resources:
or
(2) If requested by any NRT member.
(h) When activated for a response
action, the NRT shall meet at the call of
the chairman and may:
(1) Monitor and evaluate reports from
the OSC/RPM. The NRT may
recommend to the OSC/RPM, through
the RRT. actions to combat the
discharge or release;
(2) Request other Federal State, and
local governments, or private agencies,
to provide resources under their existing
authorities to combat a discharge or
release or to monitor response
operations: and
(3) Coordinate the supply of
equipment, personnel, or technical
advice to die affected region from other
regions or districts.
§30035 Muttl-feglonaJi
(a) If a discharge or release moves
from the area covered by one Federal.
local or Federal regional contingency
plan into another area, the authority for
removal or response actions should
likewise shift If a discharge or release
or substantial threat of discharge or
release affects areas covered by two or
more regional plans, the response
mechanisms of both may be activated.
In this case, removal or response actions
of all regions concerned shall be fully
coordinated as detailed in the regional
plans.
(b) There shall be only one OSC/RPM
at any time during the course of a
response operation. Should a discharge
or release affect two or more areas, the
EPA. DOD. and USCG. as appropriate.
shall give prime consideration to the
area vulnerable to the greatest threat.
The RRT shall designate the OSC/RPM
if EPA. DOD, and USCG members are
unable tofagree on the designation. The
NRT shall designate the OSC/RPM if
members of one RRT or two adjacent
RRTs are unable to agree on the
designation.
(c) Where the USCG has provided the
OSC for emergency response to a
release from hazardous waste
management facilities located in the
coastal zone, responsibility for response
action shall shift to EPA. in accordance
with EPA/USCG agreements.
{30&M Communications.
(a) The NRC is the national
communications center for activities
related to response actions. It is locatec
at USCG Headquarters in Washington
D.C The NRC receives and relays
notices of discharges or releases to the
appropriate OSC disseminates OSC/
RPM and RRT reports to the NRT when
appropriate, and provides facilities for
the NRT to use in coordinating a
national response action when required.
(b) The Commandant USCG. will
provide the necessary personnel.
communications, plotting facilities, and
equipment for the NRC.
(c) Notice of an oil discharge or
release of a hazardous substance in an
amount equal to or greater than the
reportable quantity must be made
immediately In accordance with 33 CFR
Part 153. Subpart B and 40 CFR Part 302.
respectively. Notification shall be made
to the NRC Duty Officer. HQ USCG,
Washington. D.C, telephone (800) 424-
8802 (or current local telephone
number). All notices of discharges or
releases received at the NRC shall be
relayed immediately by telephone to the
OSC or lead agency.
(d) The RRC provides facilities and
personnel for communications.
information storage, and other
requirements for coordinating response.
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47966 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
Each regional plan will specify the
location of the RRC.
§300.37 SpMWcemMenttont.
(a) Response Equipment—The Spill
Cleanup Inventory (SKIM) system ia
avnildble to help OSCs and RRTs and
private parties gam rapid information as
to (he location of response and support
equipment This inventory is accessible
through the NRC and USCC's OSCs. The
• memory irv 1'iJes private niid
commercial equipment, as well as
government resources. The RRTs and
OSCs shall ensure that data in the
s\ stem are current and accurate. The
USCG is responsible for maintaining
and updating the system with RRT and
OSC input.
(b) Marine salvage. (1) Marine
salvdge operations generally fall into
fixe categories: afloat salvage; offshore
salvage: river and harbor clearance:
cargo salvage, and rescue towing. Each
catpgory requires different knowledge
and specialized types of equipment. The
complexity of such operations may be
further compounded by local
environmental and geographic
conditions.
(2) The nature of marine salvage and
the conditions under which it occurs
combine to make such operations
imprecise, difficult, hazardous, and
expensive. Thus, responsible parties or
other persons attempting to perform
such operations without adequate
knowledge, equipment, and experience
could aggravate, rather than relieve, the
situation. OSCs with responsibility for
monitoring, evaluating, or supervising
these activities should request technical
assistance from DOD. the Strike Teams.
or commercial salvors as necessary to
ensure that proper actions are taken.
$300.38 Worker iMettt and safety.
(a) Requirements under the
Occupational Safety and Health Act of
1970 (29 U.S.C. 651 et seq.) (OSH Act)
and under the laws of States with plans
approved under section 18 of the OSH
Act [State OSH laws), as well as ojher
applicable safety and health
requirements, will be applied t»
response activities under this Mm.
These requirements are subject to
enforcement by the appropriate Federal
and Stale agencies. Federal O8HA
requirements include, among other
things, all OSHA General Industry (29
Cra Part 1910). Construction (29 CFR
Part 1926). Shipyard (29 CFR Part 1915).
and Longshoring (29 CFR Part 1918),
standards wherever they are relevant
as well as OSHA recordkeeping and
reporting regulations. Employers at
response actions under this Plan will
also be subject to the general duty
requirement of section 5(a)(l) of the
OSH Act (29 U.S.C. 654(a)(lj). No action
by the lead agency with respect to
response activities under this Plan
constitutes an exercise of statutory
authority within the meaning of section
4(b)(l) of the OSH Act. All
governmental agencies and private
employers are directly responsible for
the health and safety of their own
employees.
(b) Under a response action taken by
a responsible party, the responsible
party must assure that an occupational
health and safety program is made
available for the protection of workers
at the response site, and that workers
entering the response site are apprised
of the response site hazards and
provisions of the safety and health
program.
(c) Under a Federal Fund-financed
response, the lead agency must assure
that a program for occupational safety
and health is made available for the
protection of workers at the response
site, and that workers entering the
response site are apprised of the
response site hazards and provisions of
the safety and health program. Any
contract relating to a Federal Fund-
financed response action under this Plan
shall require the contractor at the
response site to comply with this
program and with any applicable
provision of the OSH Act and State
OSH laws as defined in 9 300.38(a)
§300.39 PuMc MonMUon. . ,
(a) When an incident occurs, it is
imperative to give the public prompt
accurate information on the nature of
the incident and the actions underway
to mitigate the damage. OSCs/RPMs
and community relations personnel
should ensure that all appropriate public
and private interests are kept informed
and that their concerns are considered
throughout a response. They should
coordinate with available public affairs/
community relations resources to carry
out this responsibility.
(b) An orr-scene news office may be
established to coordinate media
relations and to issue official Federal
information on an incident. Whenever
possible, it will be headed by a
represertpMve of the lead agency. The
OSC/RPM determines the location of
the on-scene news office, but every
effort should be made to locate it near
the scene of the incident. If a
participating agency believes public
interest warrants the issuance of
statements and an on-scene news office
has not been established, the affected
agency should recommend its
establishment. All Federal news
releases or statements by participating
agencies should be cleared through the
OSC/RPM.
§300.40 OSC reports,
(;i) Within 60 days after the
conclusion of a major discharge of oil. a
major hazardous substance, pollutant, or
contaminant release, or when requested
by the RRT. the EPA or USCG OSC shall
submit to the RRT a complete report on
the response operation and the actions
taken. The OSC shall at the same time
send a copy of the report to the NRT.
The RRT shall review the OSCs report
and prepare an endorsement to the NRT
for review. This shall be accomplished
within 30 days after the report has been
received.
(b) The OSC's report shall accurately
record the situation as it developed, the
actions taken, the resources committed.
and the problems encountered. The
OSC's recommendations are a source
for new procedures and policy.
[c| The format for the OSC's report
shall be as follows:
(1) Summary of Events—a
chronological narrative of all events.
including:
(i) The cause of discharge or release;
(ii) The initial situation:
. (in) Efforts to obtain response by
responsible parties;
(iv) The organization of the response.
including State participation;
(v) The resources committed;
(vi) The location of the hazardous
substance, pollutant or contaminant
release or oil discharge. For oil
discharges, indicate whether the
discharge was in connection with
activities regulated under the Outer
Continental Shelf Lands Act (OCSLA).
the Trans-Alaska Pipeline Authority
Act. or Oeepwater Port Act
(vii) Comments on whether the
discharge or release might have or
actually did affect natural resources;
(viii) Comments on Federal or State
damage assessment activities and
efforts to replace or restore damaged
natural resources:
(ix) Details of any threat abatement
action taken under CERCLA or under
section 311(c) or (d) of the CWA: and
(x) Public information/community
relations activities.
(2) Effectiveness of Removal
Actions—A candid and thorough
analysts of the effectiveness of removal
actions taken by:
(i) The responsible party:
(ii) State and local forces:
(iii) Federal agencies and special
forces; and
(iv) (If applicable) contractors, private
groups, and volunteers.
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 198S / Rules and Regulations 47967
(3) Problems Encountered—A list of
problems affecting response with
particular attention to problems of
intergovernmental coordination.
(4) Recommendations—OSC
recommendations, including at a
minimum:
(i) Means to prevent a recurrence of
the discharge or release:
(n) Improvement of response actions;
-illd
(in) Any recommended changes in the
National Contingency Plan or Federal
regional plan.
Subpart D—Plans
§ 300.41 Regional and local plant.
(a) In addition to the National
Contingency Plan (NCP), a Federal
regional plan shall be developed for
each standard Federal Region. Alaska.
and the Caribbean, and. where
practicable, a Federal local plan shall be
developed.
(b) These plans will be available for
inspection at EPA Regional Offices or
USCG district offices. Addresses and
telephone numbers for these offices may
be found in the United States
Government Manual [issued annually)
or in local telephone directories.
§300.42 Rational contingency plans.
(a) The RRTs. working with the States.
shall develop Federal regional plans for
each standard Federal region. Alaska.
and the Caribbean. The purpose of these
plans is coordination of a timely.
effective response by various Federal
agencies and other organizations to
discharges of oil and releases of
hazardous substances, pollutants and
contaminants in order to protect public
health, welfare, and the environment
Regional contingency plans should
include information on all useful
facilities and resources in the region,
from government, commercial.
academic, and other sources. To the
greatest extent possible, regional plans
will follow the format of the National
Contingency Plan, and should
coordinate with the Slate plans and the
Federal local plans as specified in
5 300.43.
(b) SSCs shall organize and
coordinate the contributions of
scientists of each region to the response
activities of the OSC/RPM and RRT to
the greatest extent possible. SSCs. with
advice from RRT members, shall also
develop the parts of the regional plan
that relates to scientific support.
(c) Regional plans shall contain lines
of demarcation between the inland and
coastal zones, as mutually agreed upon
by USCG and EPA.
§300.43 Local contingency plans.
(a) Each OSC. in consultation with the
RRT. should develop and maintain a
Federal local plan for response in his or
her area of responsibility, where
necessary and practicable In areas in
wh:th the USCG provides the OSC. such
plans shall be developed m all cases
The plan should provide for a well-
coordinated response that is integrated
and compatible with the pollution
response, fire, emergency, and disaster
plans of local, State, and other non-
Federal entities. The plan should
identify the probable locations of
discharges or releases: the available
resources >.o respond to multi-media
incidents, where such resources can be
obtained: waste disposal methods and
facilities consistent with local and State
plans developed under the Resource
Conservation and Recovery Act (42
U S.C. 6901 et seq.); and a local structure
for responding to discharges or releases.
(b) While the OSC is responsible for
developing Federal local plans, a
successful planning effort will depend
upon the full cooperation of all the
agencies' representatives and the
development of local capabilities to
respond to discharges or releases.
Particular attention should be given.
during the planning process, to
developing a multi-agency local
response team for coordinating on-scene
efforts. The RRT should ensure proper
liaison between the OSC and local
representatives. •'
Subpart E—Operational Response
Phases for Oil Removal
§300.51 Phase I—Discovery and
notification.
(a)[ A discharge of oil may be
discovered through:
(1) A report submitted by the person
in charge of the vessel or facility in
accordance with statutory requirements:
(2) Deliberate search by patrols: and
(3) Random or incidental observation
by government agencies or the public.
(b) All reports of discharges shall be
made to the NRC. If direct reporting to
the NRC is not practicable, reports may
be made to the Coast Guard or EPA
predesignated OSC for the geographic
area where the discharge occurs. All
such reports shall be promptly relayed
to the NRC. If it is not possible to notify
the NRC or predesignated OSC
immediately, reports may be made
immediately to the nearest Coast Guard
unit, provided that the discharger
notifies the NRC as soon as possible.
Federal regional and Federal local plans
shall provide for prompt reporting to the
NRC. RRC, and appropriate State
agency (as agreed upon with the Staie).
(c) Upon receipt of a notification of
discharge, the NRC shall promptly notify
the OSC. The OSC shall proceed with
the following phases as outlined in
Federal regional and Federal local
plans.
5 300.52 Phase II—Preliminary
assessment and Initiation of action.
(a) The OSC for a particular area is
responsible for promptly initiating
preliminary assessment
(b) The preliminary assessment shall
be conducted using available
information, supplemented where
necessary and possible by an on-scene
•nspection. The OSC shall undertake
actions to:
(1) Evaluate the magnitude and
severity of the discharge or threat to
public health, welfare, or the
environment:
• (2) Assess the feasibility of removal;
(3) Identify pptentially responsible
parties; and
(4) Ensure that authority exists for
undertaking additional response actions.
(c) The OSC. in consultation with
legal authorities when appropriate, shall
make a reasonable effort to have the
discharger voluntarily and promptly
perforr rent' vai afions. The OSC shall
ensure adequate surveillance ovec
whatever actions are initiated. If
effective actions are not being taken to
eliminate the threat, or if removal is not
being properly done, the OSC shall, to
the extent practicable under the
circumstances, so advise the responsible
party If the responsible party does not
take proper removal actions, or is
unknown, or is otherwise unavailable.
the OSC shall, pursuant to section
311(c)(l) of the CWA, determine
whether authority for a Federal
response exists, and. if so. take
appropriate response actions. Where
practicable, continuing efforts should be
made to encourage response by
responsible parties.
fd) The OSC should ensure that the
•i :>!ees of affected natural resources
are notified, in order that the trustees
may initiate appropriate actions when
natural resources have been or are
likely to be damaged (see Subpart G of
Part 3UOJ. Where practicable, the OSC
should consult with trustees in such
determinations.
§30053 Phase Ill-Containment,
counternisaauras, cleanup, and disposal.
(a) Defensive actions should begin as
soon as possible to prevent, minimize, or
mitigate threat to the public health or
welfare or the environment. Actions
may include: analyzing water samples to
determine the source and spread of the
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Federal RegUU. / VoL SA No. 224 / Wednesday. November 2g 1985 / Rules and Regulations
oil cool
^ — v - — —— q
measuring and sampling; source and
spread control or salvage operations;
placement of physical barriers to deter
the spread of the oil or to protect
endangered aperies; control of the water
discharged from upstream
impoundment and the use of chemicals
and other materials ia accordance with
Subpart H. to restrain the spread of the
oil and mitigate its effects.
(b) Appropriate actions should be
taken to recover the oil or mitigate its
effects. Of the numerous chemical or
physical methods that may be used, the
chosen methods should be the most
consistent with protecting the public
health and welfare and the environment
Sinking agents shall not be used.
(c) Oil and contaminated materials
recovered in cleanup operations shall be
disposed of in accordance with Federal
regional and Federal local contingency *
plans.
J 300.54 •ttkMlV-Ooaimentaltonend
(a) Documentation shall be collected
and maintained to support all actions
taken under the CWA and to form the
basis for cost recovery. In general.
documentation should be soffldent to
prove die source and circumstances of
the incident the responsible party or
parties, and impact and potential
impacts to the public health and welfare
and the environment. When appropriate,
documentation should also be collected
for scientific understanding of the
environment and for the research and
development of improved response
methods and technology. Damages to
. private citizens (including loss of
earnings) are not addressed by this Plan.
Evidentiary and cost documentation
procedures and requirements are
specified in the USCG Marine Safety
Manual (Commandant Instruction
M16000.3) and 33 CFR Part 153.
(b) OSCs shall submit OSC reports to
the RRT as required by { 300.40.
. (cj The OSCs shall ensure the
necessary collection and safeguarding of
information, samples, and reports. •
Samples and information must be
gathered expeditiously doing the
response to ensure an accurate record of
the impacts incurred Docanentation
materials shall be made available to the
trustees of affected natural resources.
(d) Information and reports obtained
by the EPA or USCG OSC shall be
transmitted to the appropriate offices
responsible for follow-up actions.
9300.55 General pattern of respenw.
(a) When the OSC receives a report of
a discharge.'actions normally should be
t. '»• 'i TI the following sequence:
(1) Immediately notify the RRT and
NRC when the reported discharge is an
actual or potential major discharge.
(2) Investigate the report to determine
pertinent information such as the threat
posed to public health or welfare or the
environment, the type and quantity of
polluting material and the source of the
discharge.
(3) Officially classify the size of the
discharge and determine the course of
action to be followed.
(4) Determine whether a discharger or
other person is properly carrying out
removal Removal is being done
properly when:
(i) The cleanup ia fully sufficient to
minimize or mitigate threat to the public
health, welfare, and the environment
(removal efforts are "improper" to the
extent that Federal efforts are necessary
to further minimize or mitigate those
• threats): and
(ii) The removal efforts ere in
accordance with applicable regulations
including this Plan.
(5) Determine whether a Slate or
political subdivision has the capability
to carry oat response actions and a
contract or cooperative agreement has
been established with the appropriate
fund administrator for this purpose.
(6) Notify the RRT (including the
affected State) and the trustees of
affected natural resources in accordance
with the applicable regional plan.
(b) The preliminary inquiry will
probably show that the situation falls
into one of the five classes. These
classes and the appropriate response to
each are outlined below:
(1) If the investigation shows that no
discharge occurred, or it shows a minor
discharge with no removal action
required, the case should be closed for
response purposes.
(2) If the investigation shows a minor
discharge with the responsible party
taking proper removal action, contact
should be established with the party.
The removal action should be monitored
to ensure continued proper action.
(3) If die investigation shows a minor
discharge with improper removal action
being taken, the following measures
shall be taken:
(i) An immediate effort should be
made to stop further pollution and
remove past and on-going
contamination.
(ii) The responsible party shall be
advised of what action will be
considered appropriate.
(iii) If the responsible party does not
properly respond, he shall be notified of
his potential liability for Federal
response performed under the CWA.
This liability includes all costs of
removal and may include the costs of
assessing and restoring damaged natural
resources and other actual or necessary
costs of a Federal response.
(iv) The OSC shall notify appropriate
State and local officials, keep the RRT
advised, and initiate phase III
operations as conditions warrant.
(v) Information shall be collected for
possible recovery of response costs in
accordance with i 300.54.
(4) When the investigation shows that
an actual or potential medium oil
discharge exists, the OSC shall follow
the same general procedures as for a
minor discharge. If appropriate, the OSC
shall recommend activation of the RRT.
(5) When the investigation shows an
actual or potential major oil discharge,
the OSC shall follow the same
procedures as for minor and medium
discharges.
5300.56 (Reeervwtl
930047 Waterfowl conservation.
The DOI representatives and State
liaison to the RRT shall arrange for the
coordination of professional and
volunteer groups permitted and trained
to participate in waterfowl dispersal.
collection, cleaning, rehabilitation, and
recovery activities (consistent with 16
U.S.C. 703-712 and applicable'State
laws) Pede-al regional and Federal
local PI&.IS wu« to die extent
practicable, identify organizations or
institutions that are permitted to
participate in such activities and
operate such facilities. Waterfowl
conservation activities will normally be
included in Phase III response actions
(S 300.53 of this subpart).
1300158 Funding
(a) If the person responsible for the
discharge does not act promptly or take
proper removal actions, or if the person
responsible for the discharge ia
unknown. Federal discharge removal
actions may begin under section
3ll(c)(l) of the CWA. The discharger, if
known, is liable for the costs of Federal
removal in accordance with section
311(f) of the CWA and other Federal
laws.
(b) Actions undertaken by the
participating agencies in response to
pollution shall be carried out under
er.'-ti. 3 programs and authorities when
available. This Plan intends that Federal
agencies will make resources available.
expend funds, or participate in response
to oil discharges under their existing
authority. Authority to expend resources
will be in accordance with agencies'
basic statutes and. if required, through
interagency agreements. Where the OSC
requests assistance from a Federal
agency, that agency may be reimbursed
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Federal Register / Vol. jq No. 224 / Wednesday. November 20. 1985 / Rules and Regulariona 47369
in accordance with the provisions of 33
CFR 153.407. Specific interagency
reirabunement agreements may be
signed when necessary to ensure that
the Federal resources will b« available
for a timely response to a discharge of
oil. The ultimate decisions as to the
appropriateness of expending funds
rests with the agency that is held
accountable for *Lch expenditures.
(c) The OSC shall exercise sufficient
control over removal operations to be
able to certify that reimbursement from
the following funds is appropriate:
(1) The oil pollution fund.
administered by the Commandant
USCG. has been established pursuant to
section 311(k) of the CWA. Regulations
governing the administration and use of
the fund are contained in 33 CFR Part
153.
(2) The fund authorized by the
Oeepwater Port Act is administered by
the Commandant USCG. Governing
regulations are contained in 33 CFR
Parts 136 and ISO.
(3] The fund authorized by the Outer
Continental Shelf Lands Act as
amended la administered by the
Commandant, USCG. Governing
regulations are contained in 33 CFR
Parts 136 and ISO.
(4) The fund authorized by the Trans-
Alaska Pipeline Authorization Act ia
administerea by a Board of Trustee*
under the purview of the Secretary of
the Interior. Governing regulations an
contained in 43 CFR Part 29.
(d) Response acticns other than
removal, such as scientific
investigations not in support of removal
actions or law enforcement shall be
provided by the agency with legal
responsibility for those specific actions.
(e) The funding of j response io a
discharge from a Federally operated or
supervised facility or veaael it the
responsibility of the operating or
supervising agency.
(f) The following agendas have funds
available for certain discharge removal
actions:
(1) EPA may provide funds to begin
timely discharge issuuiial actions when
the OSC ia an EPA representative.
(2} The USCG poflattaa control efforts
are funded under "operating expenses."
These funds are used ia accordance
with agency directives.
(3) The Department of Defense has
two specific sources of funds which may
be applicable to an orl discharge under
appropriate circumstances. (This does
not consider military resources which
might be made available under specific
conditions.)
(i) Funds required for removal of a
sunken vetsel or similar obstruction of
navigation an available co the Corps of
Engineers through Civil Works
Appropriations, Operations and
Maintenance, General
(ii) The U.S. Navy may conduct
salvage operations contingent on
defense operational commitments, when
funded by the requesting agency. Such
funding may be requested on a direct
cite basis.
f4) Pursuant to section 311{c)(2)(H) of
the CWA, the State or States affected by
a discharge of oil may act where
necessary to remove such discharge and
may. pursuant to 33 CFR Part 153. be
reimbursed from the pollution revolving
fund for the reasonable costs incurred in
such a removal.
(i) Removal by a State is necessary
within the meaning of section
3ll(c)(2)(H] of the CWA whan the OSC
determines that the owner or operator of
the vessel, onshore facility, or offshore
facility from which the discharge occurs
does not effect removal properly, or ia
unknown, and that:
(A) State action is required to
mit^mtefr or mitigate significant threat to
the public health or welfare which
Federal action cannot minimi*^ gg
mitigate, or
(B) Removal or partial removal can be
done by the State at a cost which ia last
than or not significantly greater than the
cost which would be incurred by the
Federal departments
(ii) State removal actions must be in
compliance with'this Pbu in order to
qualify for reimbursement
(Hi) State removal actions an
considered to be Phase in action*, under
the sfiioe definitions applicable to
Federal agencies.
(iv) Actions taken by local
governments in support of Federal
discharge removal operations an
considered to be actions of the State for
purposes of this section. Federal
regional and Federal local plant shall
show what funds and resources an
available from partidpating agendas
under various conditions and cost
arrangements. Interagency agreements
may be necessary to specify when
reimbursement it required.
{30061
(a) This subpart establishes methods
and criteria for determining the
appropriate extent of response
authorised by CERCLA:
(1) when there ia a release of e
hazardous substance or men la a
substantial threat of such a release into
the environment! or
(2) when then i* a release or
substantial threat of a release into the
environment of any pollutant or
contaminant which may present an
imminent and substantial danger to the
public health or welfare.
(b) Section 104{«)(i) of CERCLA
authorizes removal or remedial action
unless it is determined that such
removal or remedial action will be done
properly by the owner or operator of the
vessel or facility from which the release
or threat of release emanates, or by any
other responsible party. If appropriate
response actions are not being taken or
executed properly, including in a timely
manner, the lead agency may initiate
proper action, terminate any improper
actions and shall so advise any known
responsible party, and complete
response activities.
(c) In determining the need for and in
planning or undertaking Fund-financed
action, the lead agency shall, to the
extent practicable:
(1) Engage In prompt response.
(2) Encourage Slate participation in
response actions (see i 300.62).
(3) Conserve Fund monies by*
encouraging private party cleanup.
(4) Be sensitive to heal community
concerns (tee 130O67).
(5) Rely on established technology.
but alto consider alternative and
innovative technology when feasible
and cost-effective.
(6) Involve the RRT in both removal
and remedial response actions at
appropriate dedsfcmmaking stages.
(7) Encourage the involvement and
sharing of technology by industry and
other experts.
(8) Encourage the involvement of
organizations to coordinate responsible
parry actions Later site cleanup, and
provide technical advice to the public
Federal and State governments, and
industry.
(d) The lead agency shall, as
practicable, provide surveillance over
actions taken by responsible parties to
ensure Out a response is conducted
consistent with this Plan. The lead
agency also, at practicable, shall
monitor the actions of third parties
pnauthorized under i 300.23(d).
(e)(l) This subpart does not establish
any preconditions to enforcement action
by either the Federal or State
vemments to compel response actions
responsible parties.
(2) While some of this subpart la
oriented toward Federally funded
response actions, mi* subpart may be
used aa guidance concerning methods
and criteria for response actions by
other parties under other funding
mechanisms. Except at provided in
1300.71. nothing in this part limits the
rights of any person to seek recovery of
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4797D FederaJ Register / Vol. 50. No. 224 / Wednesday. November 20. 198S / Rules and Regulation
response costs from responsible parties
pursuant to CERCLA section 107.
(3) Activities by the Federal and State
governments in implementing this
subpart are discretionary governmental
functions. This subpart does not create
in any private party a right to Federal
response or enforcement action. This
subpart does not create any duty of the
Federal government to take any
response action at any particular time
$300.62 State rolt.
(a)(l) Stales are encouraged to
undertake actions authorized under this
subpart. Section 104(d)(l] of CERCLA
authorizes the Federal government to
enter into contracts or cooperative
agreements with the State to take Fund-
financed response actions authorized
under CERCLA. when the Federal
government determines that the State
has the capability to undertake such
actions. A State agency acting under
such an agreement is referred to as the
lead agency.
(2) Cooperative agreements or State
Superfund contracts are unnecessary for
response actions that are not Fund-
financed, including any State or other
party actions. Coordination with EPA or
USCC is encouraged in such situations.
however. If a State intends to use
expenses incurrea as part or all of its
coat-sharing obligations under section
104(c)(3) of CERCLA. it must enter into a
response agreement to this effect.
(b) EPA will provide assistance from
the Fund and other Federal agencies will
provide assistance under their existing
authority to Statea pursuant to a
contract or cooperative agreement. The
cooperative agreement can authorize
States to undertake most actions
specified in this subpart. However.
certain authorities are reserved for the
Federal lead agency.
(c) Contracts and cooperative
agreements between the State(s) and
Federal government for Fund-financed
remedial action are subject to section
I04(c)(3) of CERCLA. Such agreements
are not a precondition to access,
information gathering, investigations,
studies, or liability pursuant to sections
106 and 107 of CERCLA.
(d) Prior to remedial action at defined
in section 101(24) of CERCLA. the State
must make a firm commitment through
either a new or amended cooperative
agreement or State contract to provide
it» required cost share for remedial
implementation by.
(1) Authorizing the reduction of a
State credit to cover its share of costs:
(2) Identifying currently available
funds earmarked for remedial
implementation: or
(3) Submitting a schedule with
milestones for obtaining necessary
funds during the period of remedial
implementation.
(e) State credits allowed under section
104(c)(3) of CERCLA must be
documented on a site-specific basis for
State out-of-pocket. non-Federal eligible
response costs between January 1.1978.
and December 11.1980. Prior to remedial
action at a site, the State must submit its
accounting of these costs as a part of the
cooperative agreement application, or as
a part of the EPA Slate agreement. State
credits will be applied against State cost
shares for Federally funded remedial
actions. A State cannot be reimbursed
from the Fund for credit in excess of its
matching share nor may the credit be
applied to any other site.
(f) Pursuant to section 104(c)(2) of
CERCLA. prior to determining any
appropriate remedial action, the Federal
lead agency shall consult with the
affected State or Statea.
(g) States are encouraged to
participate in all RRT planning and
response activities.
(h) State and local pablic safety
organizations are normally expected to
initiate public safety measures (e.g.,
actions to limit public access to a site)
and are responsible for directing
evacuations pursuant to existing State/
local procedures.
930043 Mscovaryornotttlcjdon.
(a) A release may be discovered
through:
(1) Notification in accordance with
sections 103 (a) or (c) of CERCLA:
(2) Investigation by government
authorities conducted in accordance
with section 104(e) of CERCLA or other
statutory authority;
(3) Notification of a release by a
Federal or State permit holder when
required by its permit;
(4) Inventory efforts or random or
incidental observation by government
agencies or the public
(S) Other sources.
(b) All reports of releases shall be
made to the NRG If direct reporting to
the NRC is not practicable, reports may
be made to the Coast Guard or EPA
predesignated OSC for the geographic
ana where the release occurs. All such
reports shall be promptly relayed to the
NRC If it is not possible to notify the
NRC or predesignated OSC
immediately, report! may be made
immediately to the nearest Coast Guard
unit provided that the release? notifies
the NRC as soon aa possible.
(c) Upon receipt of a notification of a
release, the NRC shall promptly notify
the appropriate OSC. The OSC shall
notify the Governor of the State affected
by the release.
(d)(l) When the OSC is notified of a
release which may require response
pursuant to 5 30085(b). a preliminary
assessment shall, as appropriate, be
promptly undertaken pursuant to
§300.64.
(2) When notification indicates that
action pursuant to § 300.65(b) is not
required, site evaluation shall, as
appropriate, be undertaken by the lead
agency pursuant to § 300.66
§ 300.64 Preliminary assessment lor
removal actions.
(a) A preliminary assessment of a
release or threat of a release identified
for possible CERCLA response pursuant
to 9 300.85 shall, as appropnate. be
undertaken by the lead agency as
promptly as possible. The lead agency
shall, as appropnate. base the
assessment on readily available
information. This assessment may
include but is not limited to:
(1) Identification of the source and
nature of the release or threat of release:
(2) Evaluation by HHS or by other
sources (e.g.. State public health
agencies) of the threat to public health:
(3) Evaluation of the magnitude of the
potential threat;
(4) Evaluation of factors necessary to *
make the determination of whether a
removal is necessary; and
(5) Determination if a non-Federal
parry is undertaking proper response
(b) A preliminary assessment of
releases or threats of releases from
hazardous waste management facilities
may include collection or review of data
such as site management practices.
information from generators.
photographs, analj i:_ if historical
photographs, literature searches, and
personal interviews conducted as
appropriate. In addition, a perimeter
(off-site) inspection may be necessary to
determine the potential for a release.
Finally, if more information is needed, a
site visit may be performed, if
conditions are such that it may be
performed safely.
(c) A preliminary assessment shall be
terminated when the OSC or lead
agency determines:
(;] There is no release or threat of
release;
(2) The source is neither a vessel nor a
facility;
(3) The release does not involve a
hazardous substance, nor a pollutant or
contaminant;
(4) The amount quantity, and
concentration released does not warrant
Federal response;
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Federal Register / Vol. 50. No. 224 / Wednesday, November 20. 1985 / Rules and Regulations 47971
(5) A party responsible for the release.
or any other person, is providing
appropriate response, and on-scene
monitoring by the government is not
required: or
(6) The assessment is completed.
(d) !f it is determined during the
assessment that natural resources have
been, or are likely to be. damaged, the
OSC or lead agency shall, where
possible, ensure that the trustees of the
affected natural resources are notified in
order that the trustees may initiate
appropriate actions as identified in
paragraph 300.74(b). Where practicable.
the OSC shall consult with trustees in
making such determinations.
(e) If the preliminary assessment
indicates that removal action under
§ 300.65 is not required, but that
remedial actions under 9 300.08 may be
necessary, the lead agency shall, as
appropriate, initiate site evaluation
pursuant to { 300.66.
§ 3oo.es
(a)(l) In determining the appropriate
extent of action to be taken at a given
release, the lead agency shall first
review the preliminary assessment and
the current site conditions to determine
if removal action IB appropriate.
(2) Where the responsible parties are
known, an effort initially shall be made.
to the extent practicable considering the
exigencies of the circumstances, to have
them perform the necessary removal
actions. Where responsible parties are
unknown, an effort initially shall be
made, to the extent practicable
considering the exigencies of the
circumstances, to locate them and have
them perform the necessary removal
action.
(3) This section does not apply to
removal actions taken pursuant to
section 104(b) of CERCLA. The criteria
for such actions are set forth in section
104(b).
(b)(l) At any release, regardless of
whether the site is included on the
National Priorities List whan the lead
agency determines that then is a threat
to public health or welfare or the
environment, based on the factors in
paragraph (b)(2) of this sectkm. the lead
agency may take any appropriate action
to abate, minimize, stabilize, mitigate, or
eliminate the release or threat of
release, or the threat resulting from that
release or threat of release.
(2) The following factors shall be
considered in determining the }
appropriateness of a removal action
pursuant to this subsection:
(i) Actual or potential exposure to
hazardous substances or pollutants or
contaminants by nearby populations.
animals, or food chain:
(ii) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems;
(iii) Hazardous substances or
pollutants or contaminants in drums.
barrels, tanks, or other bulk storage
containers, that may pose a threat of
release:
(iv) High levels of hazardous
substances or pollutants or
contaminants in soils largely at or near
the surface, that may migrate:
(v) Weather conditions that may
cause hazardous substances or
pollutants or contaminants to migrate or
be released:
(vi) Threat of Tire or explosion:
(vii) The availability of other
appropriate Federal or State response
mechanisms to respond to the release;
(viii) Other situations or factors which
may pose threats to public health or
welfare or the environment.
(3) Removal actions, other than those
authorized under section 104(b) of
CERCLA. shall be terminated after $1
million has been obligated for the action
or six months have elapsed from the
date of initial response, unless the lead
agency determines that
(i) there is an immediate risk to public
health or welfare or the environment:
(ii) continued response actions are
immediately required to prevent, limit.
or mitigate an emergency: and
(iii) such assistance will not otherwise
be provided on a timely basis.
(4) If the lead agency determines that
a removal action pursuant to this
subsection is appropriate, actions shall.
as appropriate, begin as soon as
possible to prevent, minimize, or
mitigate the threat to public health or
welfare or the environment. The lead
agency shall, at the earliest possible
time, also make any necessary
determinations contained in paragraph
(b)(3) of this section.
(c) The following removal actions are.
as a general rule, appropriate in the
following situations: however, this list
does not limit the lead agency from
taking any other actions deemed
necessary in response to any situation
or preclude the lead agency from
deferring response action to other
appropriate Federal or State
enforcement or response authorities:
(1) Fences, warning signs, or other
security or site control precautions—
where humans or animals have access
.to the release:
(2) Drainage controls (e.g., run-off or
run-on diversion)—where precipitation
or run-off from other sources (e.g..
flooding) may enter the release area
from other areas:
(3) Stabilization of berms. dikes, or
impoundments—where needed to
maintain the integrity of the structures:
(4) Capping of contaminated soils or
sludges—where needed to reduce
migration of hazardous substances or
pollutants or contaminants into soil.
ground water, or air
(5) Using chemicals and other
materials to retard the spread of the
release or to mitigate its effects—where
the use of such chemicals will reduce
the spread of the release;
(6) Removal of highly contaminated
soils from drainage or other areas—
where removal will reduce the spread of
contamination;
(7) Removal of drums, barrels, tanks.
or other bulk containers that contain or
may contain hazardous substances or
pollutants or contaminants—where it
will reduce the likelihood of spillage.
leakage, exposure to humans, animals or
food chain, or fire or explosion;
(8) Provision of alternative water
supply—where it will reduce the
likelihood of exposure of humans or
animals to contaminated water.
(d] Where necessary to protect public
health or welfare, the lead agency will
request that FEMA conduct a temporary
relocation or evacuation.
(e) If the lead agency determines that
the removal action will not fully address
the threat or potential threat posed by
the release and the release may require
remedial action, the lead agency shall
ensure an orderly transition from
removal to remedial response activities.
(f) Although Fund-financed removal
actions and removal actions pursuant to
CERCLA section 106 are not required to
comply with other Federal. State, and
local laws governing the removal
activity, including permit requirements.
such removal actions shall, to the
greatest extent practicable considering
the exigencies of the circumstances.
attain or exceed applicable or relevant
and appropriate Federal public health
and environmental requirements. Other
Federal criteria, advisories, and
guidance and State standards also shall.
as appropriate, be considered in
formulating the removal action.
(g) Fund-financed removal actions and
removal actions pursuant to section 106
of CERCLA involving the storage.
treatment or disposal of hazardous
substances or pollutants or
contaminants at off-site facilities shall
involve only off-site facilities that are
operating under appropriate Federal or
State permits or authorization and other
legal requirements.
(h) Removal actions pursuant to
section 108 of CERCLA are exempt from
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17972 Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1965 / Rules and Regulations
the following requirements of this
1 1 ) P irqr.iph 300.6o(a)(2) requirement
!u ;..c.t',- responsible parties and have
t'if"i an lertike ihe response.
I J| Paracr-iph 300 85(b)(2|(vii)
rr'iuirppienl to consider (he availability
ot other appropriate Federal or State
response and enforcement mechanisms
tu respond to ih2 ;c-l.\m:.
(3) S' .'ion 300.65(bilJ) requirement to
tcrmir.aie response lifter SI million has
been obligated or six mgnths have
elapsed from the date of the initial
response.
(i) Other private party responses not
pursuant tu section 106 of CERCLA are '
exempt from paragraphs (b)(2)(vii) and
(b)(3) of this section.
§30066 Site evaluation phase and
National Priorities Ust determination.
(a) The Site Evaluation Phase. (1) This
phase ot response includes activities
beginning with discovery of a release
and extends through the initial
evaluation (preliminary assessment and
site inspection— see J 300.64). The
purpose of the site evaluation phase is
to Further categorize the nature of any
releases and potential threats to public
health and welfare and the environment
and to collect data as required to
determine whether a site should be
included on the National Priorities List
(NPL). (See §i 300.66(b) and (c).)
(2) Pursuant to sections IM(b) and (e)
of CERCLA and other authorities, the
lead agency may undertake preliminary
assessments and site inspections to
gather appropriate information to
determine if a release warrants response
and. if so. its priority for response.
(3) For response actions that may be
taken pursuant to S 300.68. a preliminary
assessment consists of a review of
existing data and may include an off-site
reconnaissance. The purposes of such a
oreliminary assessment are:
(i) To eliminate from further
consideration those releases where
available data indicaU no threat or
potential threat to puttie health or the
environment exists:
(11) To determine if then is any
potential need for removal action:
(in) To establish priority for
scheduling a site inspection. '
(4) A site inspection consists of a
visual inspection of the site and
routinely includes collection of samples.
There are several major purposes for a
site inspection: 3
d) To determine which releases pose
no threat or potential threat to public
health and the environment:
(u) To determine if there is any
immediate threat to persons living or
working near the release:
(iii) To collect data, where
appropriate, to determine whether a site
where a release has occurred or may
occur should be included on the NPL.
(b) Methods for Establishing
Priorities. (1) Section 10S(8)(A) of
CERCLA requires the President to
include as part of the Plan criteria for
establishing priorities among releases
and potential releases. Three
mechanisms are set forth here for that
purpose: The Hazard Ranking System
(MRS): designation by the States of their
top priority releases: and determination
that a site poses a significant threat to
public health or welfare or the
environment as indicated in paragraph
(b)(4) of this section. These criteria will
be used to establish and amend the NPL
(see § 300.66(c)).
(2) The primary mechanism for
identifying releases for inclusion on the
NPL will be scores calculated by
applying the HRS (Appendix A).
(3) Each State may designate a release
as the State's highest priority release by
certifying in wnting. signed by the
Governor or the Governor's designee.
that the release presents the greatest
danger to public health or welfare or the
environment among known releases in
the State. Each State may designate one
top priority site over the life of the NPL
(4) In addition to those releases whose
HRS scores qualify them for the NPL,
EPA may include on the NPL any other
release if:
(i) The Agency for Toxic Substances
and Disease Registry of the Department
of Health and Human Services has
issued a public health advisory which
recommends dissociation of individuals
from the release:
(ii) EPA determines that the release
poses a significant threat to public
health: and
(iii) EPA anticipates that it will be
more cost-effective to use its remedial
authority than to use removal authority
to respond to the release.
(c) The National Priorities List. (1)
Section 105(8)(B) of CERCLA requires
the President to establish a list of at
least 400 releases and potential releases.
based upon the criteria developed
pursuant to section 105(8)(A) of the Act.
CERCLA also requires the States to
identify their priorities at least annually
and requires that each State's
designated top priority releases be
included among the one hundred (100)
highest priority releases, to the degree
practicable. The process for establishing
the NPL is set forth below.
(2) The NPL serves as a basis to guide
the allocation of Fund resources among
releases. Except as provided by
CERCLA section lll(e)(3). Federal
facilities listed on the NPL are not
eligible for Fund-financed remedial
actions other than actions specified in
CERCLA section lll(c). Only those
releases included on the NPL will be
considered eligible for Fund-financed
remedial action. Inclusion on the NPL is
not a precondition to liability pursuant
to Agency action under CERCLA section
106 or to action under CERCLA section
107, for recovery of non-Fund-financed
costs or Fund-financed costs other than
remedial construction costs.
(3) States that wish to submit
candidates for the NPL must use the
HRS (Appendix A of this Part) to score
the releases and furnish EPA with
appropriate documentation for the
scores.
(4) EPA will notify the States at least
thirty days prior to the deadline for
submitting candidate releases for the
NPL or any revisions.
(S) EPA will review the States' HRS
scoring documents and revise the
application of the hazard ranking
criteria when appropriate. EPA will add
any additional priority releases known
to the Agency after consultation with
the States. Taking into account the HRS
scores, the States' top priority releases.
and the criteria specified in
paragraph (b)(4) of this section. EPA will
compile the NPL
(6) Minor differences in HRS scores
among releases may not accurately
differentiate among threats represented
by the releases. Thus, releases having
similar scores may be presented in
groups on the NPL
(7) Sites may be deleted from or
recategorized on the NPL where no
further response is appropriate. In
making this determination. EPA will
consider whether any of the following
criteria has been met:
(i) EPA. in consultation with the Slate,
has determined that responsible or other
parties have implemented all
appropriate response actions required;
(ii) All appropriate Fund-financed
response under CERCLA has been
implemented, and EPA. in consultation
with the State, has determined that no
further cleanup by responsible parties is
appropriate; or
(iii) Based on a remedial investigation.
EPA. in consultation with the State, has
determined that the release poses no
significant threat to public health or the
environment and. therefore, taking of
remedial measures is not appropriate.
(8) All releases deleted from the NPL
are eligible for further Fund-financed
remedial actions should future
conditions warrant such action.
(9) EPA will submit the recommended
NPL to the NRT for review and
comment.
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47973
(10) EPA will revise and publish the
NPL at least annually.
§30167 Community relations.
(a) Tiie lead agency shall develop and
implement a formal community relations
plan for removal actions taken pursuant
to § 300 65 and for remedial action at
NPL sites, including enforcement
actions, except as provided for in
§ 300.67(b) Such plans must specify the
communications activities which will be
undertaken during the response and
shall include provision for a public
comment period on the alternatives
analysis undeitaken pursuant to
§ 300.68. The use of the RRT to assist
community relations activities shall be
considered in developing community
relations plans.
(b) In the case of actions taken
pursuant to { 300.85 or enforcement
action to compel response analogous to
8 300.65. or other short-term action
needed to abate a threat to public health
or welfare or the environment, a
spokesperson will be designated by the
lead agency. The spokesperson will
inform the community of actions taken.
respond to inquiries, and provide
information concerning the release. In
such cases, if the action is of short
duration, or if response is needed
immediately, a formal plan is not
necessary, nuwever. if the removal
action is expected to extend or does
extend beyond 45 days, a formal plan
must be developed ana implemented.
(c) For ail remedial actions pursuant
to CERCLA section 108 at NPL sites
including Fund-financed and
enforcement actions, a community
relations plan must be developed and
approved prior to initiation of field
activities and implemented during the
course of the action. In enforcement
actions, a responsible party may be
permitted with lead agency oversight to
implement appropriate parts of the
community relations plan.
(d) In remedial actions at NPL sites.
including Fund-fiRuced and
enforcement actions, feasibility studies
that outline alternative remedial
measures must be provided to the public
for review and comment for a period of
not less than 21 calendar days. Such
review and comment shall precede
selection of the remedial response.
Public meetingisj shall, in most
circumstances, oe held during the
comment period. The leaa agency may
also provide me public with an
opportunity to coriL-nent during the
development of the teasibility study.
(e) A document which summarizes the
major issues raised b> the public and
how tney are addressed must be
included in the decision document
approving the remedy.
(f) In enforcement actions in litigation
under CERCLA section 106. (he
community relations plan, including
provision for public review of any
feasibility study prepared for source
control or management of migration
measures, may be modified or adjusted
at the direction of the court of
jurisdiction or to accommodate the court
calendar.
(g) Where responsible parties agree to
implement the permanent site remedy
pursuant to an administrative order on
consent, the lead agency shall provide
public notice and a 30-day period for
public comment, including comment on
remedial measures. Where settlement is
embodied in a consent decree, public
notice and opportunity for public
comment shall be provided in
accordance with 28 CFR 50.7. A
document summarizing the major issues
raised by the public and how they are
addressed wiU be prepared.
§300.68 Remedial action.
(a) Introduction. (1) Remedial actions
are those responses to releases that are
consistent with permanent remedy to
prevent or minimize the release of
hazardous substances or pollutants or
contaminants so that they do not
migrate to cause substantial danger to
present or future pubjic health or
welfare or the environment [see
CERCLA section 101(24)]. Fund-financed
remedial action, excluding remedial
planning activities pursuant to CERCLA
section 104(b). may be taken only at
sites listed on the NPL
• (2) The Remedial Project Manager
(RPM) shall carry out responsibilities in
a remedial action as delineated in
9 300.33(b).
(3) Federal. State, and local permits
are not required for Fund-financed
remedial action or remedial actions
taken pursuant to Federal action under
section 108 of CERCLA. However.
remedial actions that involve storage,
treatment, or disposal of hazardous
substances or pollutants or
contaminants at off-site facilities shall
involve only such off-site facilities that
are operatir 3 under appiop.iate Federal
or State permits or authorization and
other legal requirements.
(b) State Involvement. (1) States are
encouraged to undertake Fund-financed
remedial response in accordance with
§ 300.82 of this Plan.
(2) Stales must meet the requirements
of CERCLA section 104(c)(3) prior to
initiation of a Fund-financed remedial
action.
(3) Planning activities associated with
remedial actions taken pursuant to
CERCLA section 104(b) shall not require
a State cost share unless the facility wa«
owned at the time of any disposal of
hazardous substances therein by the
State or a political subdivision thereof.
Such planning activities include, but arc
not limited to. remedial investigations.
feasibility studies, and design of the
proposed remedy. For sites owned by a
Slate or its political subdivision, cost
sharing commitment is required prior to
remedial action.
(c) Operable Unit. Response action
may be conducted in operable units.
Operable units may be conducted as
remedial and/or removal actions.
(1) Response actions may be
separated into operable units consistent
with achieving a permanent remedy.
These operable units may include
removal actions pursuant to § 300.65(b).
and/or remedial actions involving
source controls, and/or management of
migration.
(2) The RPM shall, as appropriate.
recommend whether or not operable
units should be implemented prior to „
selection of the appropriate final
remedial measure.
(3) Implementation of operable units
may begin before selection of an
appropriate final remedial action if such
measures are cost-effective and
consistent with a permanent remedy.
Compliance with 9 300.88(b) is a
prerequisite to implementing remedial
operable units.
(d) Remedial Investigation/Feasibility
Study (RI/FS). An RT/FS shall, as
appropriate, be undertaken by the lead
agency conducting the remedial action
to determine the nature and extent of
the threat presented by the release and
to evaluate proposed remedies. This
includes sampling, monitoring, and
exposure assessment, as necessary, and
includes the gathering of sufficient
information to determine the necessity
for and proposed extent of remedial
action. Part of the RI/FS may involve
assessing whether the Ihreat can be
prevented or minimized by controlling
the source of the contamination at or
near the area where the hazardous
substances were originally located
(source control measures) and/or
whether additional actions will be
necessary because the hazardous
substances have migrated from the area •
of or near their original location
(management of migration). Planning for
remedial action at these releases shall.
as appropriate, also assess the need for
removals. During the remedial
investigation, the original scoping of the
project may be modified based on the
factors in 8 300.68(e).
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47»74 Federal Renter / Vol. 50, No. 224 / Wednesday. November 20. 1985 / Rules and Regulations
(e) Scoping of Response Actions
during the Remedial Investigation. (1)
The lead agency, in cooperation with the
State(s). will examine available
information and determine, baaed on the
factors indicated in paragraph (e)(2) of
'.his section, the type of response that
may be needed to remedy the release.
This scoping will serve as a basis for
requesting funding for a necessary
removal action and may serve as the
basis for further supporting funding
requests for a remedial investigation or
feasibility srudy. Initial analysis shall
indicate the extent to which the release
or threat of releasn may pose a threat to
public health or welfare or the
environment, indicate the types of
removal measures and/or remedial
measures suitable to abate the threat.
and set priorities for implementation of
the measures. Initial analysis shall, as
appropriate, also provide a preliminary
determination of the extent to which
Federal environmental and public health
requirements are applicable or relevant
and appropriate to the specific site and
the extent to which other Federal
criteria, advisories, and guidance and
State standards are to be used in
developing the remedy.
(2) The following shall aa appropriate,
be assessed in determining whether and
what type of remedial and/or removal
actions will be considered:
(i) Population, environmental, and
welfare concerns at risk:
(ii) Routes of exposure:
(iii) Amount, concentration, hazardous
properties, environmental fate and
transport {e.g., ability and opportunities
to bioaccumulate. persistence, mobility,
etc.). and form of the substance(s)
present:
(iv) Hydrogeological factors (e.g.. soil
permeability, depth to saturated tone,
hydrologic gradients, proximity to a
drinking water aquifer, floodplains and
wetlands proximity):
(v) Current and potential ground
^ater use (e.g., the appropriate ground
water classes under the system
established in the EPA Ground-Water'
Protection Strategy):
(vi) Climate (rainfall, etc.):
(vii) The extent to which the source
can be adequately identified and
characterized:
(viii) Whether substances at the site
may be reused or recycled:
(ix) The likelihood of future releases if
the substances remain on-site;
(x) The extent to which natural or
man-made barriers currently contain the
substances and the adequacy of the
barriers;
;xi) The extent to which the
substances have migrated or are
expected to migrate from the area of
their original location, or new location if
relocated, and whether future migration
may pose a threat to public health
welfare or the environment:
(xii) The extent to which Federal
environmental and public health
requirements are applicable or relevant
and appropriate to the specific site, and
the extent to which other Federal
criteria, advisories, and guidance and
State standards are to be considered in
developing the remedy:
(xin) The extent to which
contamination levels exceed applicable
or relevant and appropriate Federal
requirements or other Federal criteria,
advisories, and guidance and State
standards:
(xiv) Contribution of the
contamination to an air. land, water,
and/or food chain contamination
problem:
(xv) Ability of responsible party to
implement and maintain the remedy
until the threat is permanently abated;
(xvi) For Fund-financed responses, the
availability of other appropriate Federal
or State response and enforcement
mechanisms to respond to the release;
and
(xvii) Other appropriate matters may
be considered.
(3) As a remedial investigation
progresses, the project may be modified
if the lead agency determines that
based on the factors in § 300.68(e)(2),
such modifications would be ,
appropriate. '
(f) Development of Alternatives. (1)
To the extent that it is both possible and
appropriate, at least one remedial
alternative shall be developed as part of
the feasibility study (FS) in each of the
following categories:
(i) Alternatives for treatment or
disposal at an off-site facility, as
appropriate;
(ii) Alternatives that attain applicable
or relevant and appropriate Federal
public health and environmental
requirements;
(iii) Aa appropriate, alternatives that
exceed applicable or relevant and
appropriate Federal public health and
environmental requirements:
(iv) As appropriate, alternatives that
do not attain applicable or relevant and
appropriate Federal public health and
environmental require.nenta but will
reduce the likelihood of present or future
threat from the hazardous substances
and that provide significant protection
to public health and welfare and the
environment. This must include an
alternative that closely approaches the
level of protection provided by the
applicable or relevant and appropriate
requirements:
(v) No action alternative.
(2) These alternatives, including those
in paragraph (f)(iv) of this section, shrill.
as appropriate, be developed based
upon the analysis conducted under
paragraphs (c). (d). and (e) of this
section. The alternatives shall, as
appropriate, consider and integrate
waste minimization, destruction, dtid
recycling.
(g) Initial Screening uf Alternatives.
The alternatives develoopd under
paragraph (f) of this section will be
subject to an initial screening to narrow
the list of potential remedial actions for
further detailed analysis. When an
alternative is eliminated in screening.
the rationale shall be documented in the
feasibility study. Three broad criteria
shall, as appropriate, be used in the
initial screening of alternatives:
(1) Cost. For each alternative, the cost
of implementing the remedial action
must be considered, including operation
and maintenance costs. An alternative
that far exceeds the coats of other
alternatives evaluated and that does not
provide substantially greater public
health or environmental protection or
technical reliability shall usually be
excluded from further consideration. For
purposes of this paragraph, an
alternative that meets or exceeds
applicable or relevant and appropriate*
Federal public health and environmental
requirements provides substantially
greater protection than do alternatives
that do not meet such requirements.
(2) Acceptable Engineering Practices.
Alternatives must be feasible for the
location and conditions of the release.
applicable to the problem, and represent
a reliable means of addressing the
problem.
(3) Effectiveness. Those alternatives
that do not effectively contribute to the
protection of public health and welfare
and the environment shall not be
considered further. If an alternative has
significant adverse effects, and very
limited environmental benefits, it shall
also be excluded from further
considei ation.
(h) Detailed Analysis of Alternatives.
(1) A more detailed evaluation will be
conducted of the limited number of
alternatives that remain after the initial
screening in § 300.6B(g).
(2) The detailed analysis of each
alternative shall, as appropriate.
include:
(i) Refinement and specification of
alternatives in detail, with emphasis on
use of established technology.
Innovative or advanced technology
shall, as appropriate, be evaluated as an
alternative to conventional technology:
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Federal Register / Vol. SO. No. 224
'•itions 47975
(ii) Detailed cost estimation, including
operation and maintenance cotU, and
distribution of costs over time:
(in) Evaluation in terms of engineering
implementation, reliability, and
constructability;
(i vj An assessment of the extent to
which the alternative is expected to
effectively prevent, mitigate, or
minimize threats to. and provide
adequate protection of public health and
welfare and the environment. This shall
include an evaluation of the extent to
which the alternative attains or exceeds
applicable or relevant and appropriate
Federal public health and environmental
requirements. Where the analysis
determines that Federal public health
and environmental requirements are not
applicable or relevant and appropriate.
the analysis shall, as appropriate.
evaluate the risks of the various
exposure levels projected or remaining
after implementation of the alternative
under consideration:
(v) An analysis of whether recycle/
reuse, waste minimization, waste
biodegradarion. or destruction or other
advanced, innovative, or alternative
technologies is appropriate to reliably
minimize present or future threats to
public health or welfare or the
environment;
(vi) An analysis of any advene
environmental impacts, methods for
mitigating these impacts, and costs of
mitigation.
(3) In performing the detailed analysis
of alternatives, it may be necessary to
gather additional data to complete the
analysis.
(i) Selection of Remedy. (1) The
appropriate extent of remedy shall be
determined by the lead agency's
selection of a cost-effective remedial
alternative that effectively mitigates and
minimizes threats to and provides
adequate protection of public health and
welfare and the environment. Except aa
provided in 9 300.88(i)(3). this will
require selection of a remedy that
attains or exceeds applicable or relevant
and appropriate Federal pablic health
and environmental requbetBenta that
have been identified for the specific site.
(2) In selecting the appropriate extent
of remedy from among the alternatives
that will achieve adequate protection of
public health and welfare and the
environment in accordance with
§ 300.88(i)(l). the lead agency will
consider cost, technology, reliability.
administrative and other concerns, and
their relevant effects on public health
and welfare and the environment.
(3) If there are no applicable or
relevant and appropriate Federal public
health or environmental requirements.
the lead agency will select that cost-
effective alternative that effectively
mitigates and minimizes threats to and
provides adequate protection of public
health and welfare and the environment,
considering cost, technology, and the
reliability of the remedy.
(4) Pertinent other Federal criteria.
advisories, and guidance and State
standards will be considered and may
be used in developing alternatives, with
adjustments for site-specific
circumstances.
(5) Notwithstanding § 300.68(i)(l), the
lead agency may select an alternative
that does not meet applicable or
relevant and appropriate Federal public
health or environmental requirements in
any of the following circumstances:
(i) The selected alternative is not the
final remedy and will become part of a
more comprehensive remedy:
(ii) Fund-Balancing: For Fund-
financed responses only, the need for
protection of public health and welfare
and the environment at the facility
under consideration for all of the
alternatives that attain or exceed
applicable or relevant and appropriate
Federal requirements is outweighed by
the need for action at other sites that
may present a threat to public health or
welfare or the environment, considering
the amount of money available in the
Fund. In the event of Fund-balancing.
the lead agency shall select the
alternative which most closely
approaches the level of protection
provided by applicable or relevant and
appropriate Federal requirements.
considering the specific Fund-balanced
sum of money available for the facility
under consideration. Fund-balancing is
not a consideration in determining the
appropriate extent of remedy when the
response will be performed or funded by
a responsible party,
(iii) Technical Intpracticality: Where
no alternative that attains or exceeds
applicable or relevant and appropriate
Federal public health and environmental
requirements ia technically practical to
implement at the specific site in
question from an engineering
perspective, the lead agency shall select
the a't«-native that is reasonable to
implement from an engineering
perspective and that most closely
•approaches the level of protection
provided by applicable or relevant and
appropriate Federal public health and
environmental requirements.
(iv) Unacceptable Environmental
Impacts: Where all the alternatives that
attain or exceed applicable or relevant
Federal public health and appropriate
environmental requirements will result
in significant advene environmental
Impacts if implemented, the lead agency
shall select the alternative that most
closely approaches the level of
protection provided by applicable or
relevant and appropriate Federal public
health and environmental requirements,
without resulting in significant adverse
environmental impacts.
(v) Where the remedy is to be carried
out pursuant to Federal action under
CERCLA section 106. the Fund is
unavailable, there is a strong public
interest in expedited cleanup, and the
litigation probably would not result in
the desired remedy, the lead agency
shall select the alternative that most
closely approaches the level of
protection provided by applicable or
relevant and appropriate Federal public
health and environmental requirements
in light of the strong public interest in
expedited cleanup.
(6)(i) If a factor under § 300.6B(i)(5) is
used in eliminating an alternative or in
scaling down the extent of remedy, it
mast be explained and documented in
the appropriate decision document.
(ii) Other Federal criteria, advisories.
and gu'dance and State standards will
be considered and may be used by the
lead agency in developing remedial
alternatives. If the lead agency does not
use or uses and adjimts any other
standards, the decision documents must
explain and document the reasons. The
rationale for not using such other
standards may include one or more of
the circumstances enumerated in
§ 300.6fl(i)(5).
(j) Appropriate Actions. The following
remedial actions are, as a general rule.
appropriate in the following situations:
however, this list does not limit the lead
agency from selecting any other actions
deemed necessary in response to any
situation:
(1) In response to contaminated
ground water—elimination or
containment of the contamination to
prevent further contamination,
treatment and/or removal of such
ground water to reduce or eliminate the
contamination, physical containment of
such ground water to reduce or
eliminate potential exposure to such
contamination, and/or restrictions on
use of the ground water to eliminate
potential exposure to the contamination;
(2) In response to contaminated
surface water—elimination or
containment of the contamination to
prevent further pollution, and/or
treatment of the contaminated water to
reduce or eliminate its hazard potential:
(3) In response to contaminated soil or
waste—actions to remove, treat or
contain the soil or waste to reduce or
eliminate the potential for hazardous
substances or pollutants or
contaminantn to contaminate other
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Vol. 50. N'o. 224 / Wednesday. November 20. 1985 / Rules ar.d Regulations
—^^^——^^^—^•^^^^^•••^•••^••••"••^^••••^^^™™^^^^^
media (ground water, surface water, or
air) and to reduce or eliminate the
-r'ential for such substances to be
inhaled, absorbed, or ingested:
(41 In resoonse to the threat of direct
co-tact with hazardous substances or
pollutants or contaminants—any of the
jrtirrn listed in 9 300.65(c) to reduce the
iikei:-ood of such contact or the seventy
of any effects from such contract.
(V) Remedial Site Samolmg. (1)
Sampling performed pursuant to Fund-
..-anr-a remedial ection must have a
written quality assurance/site sampling
plan. Sampling performed pursuant to
the written quality assurance/site
sampling plan will generally be
adequate if the plan includes the
following elements:
(i) A description of the objectives of
the sampling efforts with regard to both
the phase of the sampling and the
ultimate use of the data;
In) Sufficient specification of sampling
protocol and procedures;
iiii) Sufficient sampling to adequately
rkaractenze the source of the release.
likely transport pathways, and/or
potential receptor exposure;
(iv) Soecifications of the types.
locations, and frequency of samples
•aken. taking into account the unique
properties of the site, including the
appropriate hydrological. geological.
hydrogeological. physiographical. and
nVtsorologirai properties of the site:
and .
(v) Such other elements as may be
required by the RPM and the
?npropnate EPA Regional or
Headquarters quality assurance office
on a site-by-site basis.
(2) In Fund-financed actions or actions
under CERCLA section 108. the quality
assurdnce/site sampling plan must be
reviewed and approved by the Remedial
Protect Manager with a coordination
signarurz from the Qualify Assurance
' Officer.
(1) Resoonse Actions Pursuant to
Sections 106 and lll(a)(2) of CERCLA/
Consistency With NCP. When a person
other than the lead agency takes the
response action, dw wad agency shall
evaluate and approve the adequacy of
proposals submitted when the response
action: in taken pursuant to section 108
of CERCLA: or involves
preauthonzation pursuant to section
mfa)(2) of CERCLA or § 300.25 of this
PUn. When pvaluating these proposed
response actions and for the purpose of
determining consistency with this Plan
for cost recovery under section 107 of
CERCLA. the remedial investigation or
its equivalent must address the factors
outlined in paragraph te) of this section.
The full range of altpmatives outlined in
paragrpph (f) of this section must be
developed unless a specific, more
limited ranse of alternatives has been
negotiated with the lead ager.cy
pursuant to action under section 106 of
CERCLA or prsauthonzation.
$300.89 Documentation and cost
recovery.
(a) During all phases of response.
documentation shall be collected and
maintained to support all actions taken
under this Plan, and to form the basis for
cost recovery. In general, documentation
shall be sufficient to provide the source
and circumstances of the condition, the
identity of responsible parties, accurate
accounting of Federal or private party
costs incurred, and impacts and
potential impacts to the public health
and welfare and the environment.
Where applicable, documentation shall
state when the National Response
Center received notification of a release
of a reportable quantity and when Fund-
balancing has been used to limit the
Federal response.
(b) The information and reports
obtained by the lead agency for Fund-
financed response actions shall, as
appropriate, be transmitted to the RRT.
Copies can then be forwarded to the
NRT. members of the RRT. and others as
appropriate. In addition. OSCs shall
report as required by S 300.40 for all
major releases and all Fund-financed
removal actions taken.
(c) Information and documentation of
actual or potential natural resource
damages shall be made available to the
trustees of affected natural resources.
(d) Actions undertaken by the
participating agencies in response shall
be carried out under existing programs
and authorities when available. This
Plan intends that Federal agencies will
make resources available, expend funds.
or participate in responses to releases
undpr their existing authority.
Interagency agreements may be signed
when necessary to ensure that the
Federal resources will be available for a
timely response to a release. The
ultimate decision as to the
rests with the agency that is held
accountable for such expenditures.
§300.70 Method* of remedying r*toaae«.
(a) This section lists methods for
remedying releases that may be
considered by the lead agency before
selecting the response action. This list of
methods shall not be considered
inclusive of all possible methods of
remedying releases.
(b) Engineering Methods for On-Site
Arfions—(lid) Air emissions control—
The contrH of volatile gaseous
compounds shall, as appropriate.
address both lateral movements and
atmospheric emissions. Before gas
migration controls can be properly
installed, field measurements to
determine gas concentrations, pressurt
and soil permeabilities shall, as
appropriate, be used to establish
optimum design for control. In addition.
the types of hazardous substances
present, the depth to which they extend.
the nature of the gas and the subsurface
geology of the release area shall, if
possible, be determined. Typical
emission control techniques include the
following:
(A) Pipe vents:
(B) Trench vents:
(C) Gas barriers:
(D) Gas collection:
(E) Overpacking.
(ii) Surface water controls—These are
remedial techniques designed to reduce
water infiltration and to control runoff
at release areas. They also serve to
reduce erosion and to stabilize the
surface of covered sites. These types of
control technologies are usually
implemented in conjunction with other
types of control and include the
following:
(A) Surface seals:
(B) Surface water diversions and
collection systems:
(1) Dikes and berms;
(2) Ditches, diversions, waterways:
(3f Chutes and downpipes:
(4) Levees;
(5) Seepage basins and ditches:
(6) Sedimentation basins and ditches:
and
tf/Terraces and benches:
(C) Grading:
(D) Revegetation.
(iii) Ground water controls—Ground
water pollution is a particularly serious
problem because, once an aquifer has
been contaminated, the resource cannot
usually be cleaned without the
expenditure of great time, effort, and
resources. Techniques that can be
applied to the problem with varying
degrees of success are as follows:
(A) Impermeable barriers:
(I) Slurry walls;
(2) Grout curtains; and
(3) Sheet pilings;
(B) Permeable treatment beds:
(C) Ground water pumping:
(1) Water table adjustment: and
(21 Plume containment:
(D) Leachate control—Leachate
control systems control surface seeps '
and seepage of leachate to ground
water. Leachate collection systems
consist of a series of drains which
intercept the leachate and channel it tc
a sump, wetwell. treatment system.
approoriate surface discharge poin
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Federal Register / Vol. 50, No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47877
Technologies applicable to kachate
control include the following
(H Subsurface drains
12) Drainage ditches; and
131 Liners.
(iv) Contaminated water and sewer
l-nfs—Samidry sewers and municipal
water mains located downgradienl from
hazardous waste disposal sites may
lircome contaminated by infiltration of
ledchate or polluted ground water
through cracks, ruptures, or poorly
sealed joints m piping. Technologies
applicable to the control of such
contamination to water and sewer lines
include:
(A) Grouting;
(B) Pipe refining and sleeving; and
(C) Sewer relocation.
(2) Treatment technologies.
(i| Caseous emissions treatment—
Gases from waste disposal sites .
frequently contain malodorous and toxic
substances, and thus require treatment
before release to the atmosphere. There
are two basic types of gas treatment
systems:
(A) Vapor phase adsorption: and
(B) Thermal oxidation.
(it) Direct watte treatment methods—
In most cases, these techniques can be
considered long-term permanent
solutions. Many of these direct
treatment methods are not fully
developed and the applications and
process reliability are not well
demonstrated Use of these techniques
for waste treatment may require
considerable pilot plant work.
Technologies applicable to the direct
treatment of wastes are:
(A) Biological methods:
(II Treatment via modified
i.onvenlional wstewater treatment
techniques:
(2) Anaerobic, aerated and facultative
lagoons: and
(3) Supported growth biological
reactors.
(B) Chemical i
(l> Chlorinating;
(2) Precipitation. Mentation,
sedimentation:
tf/Neutralization:
(41 Equalization: and
(S) Chemical oxidation.
(C) Physical methods:
(11 Air stripping:
(21 Carbon absorption:
(31 Ion exchange:
(4) Reverse osmosis:
(51 Permeable bed treatment
16) Wet air oxidation: and
/•/ Incineration.
(in) Contaminated toils and
sediments—In some cases where it can
be shown to be cost-effective.
contaminated sediments and soils will
be treated on the site. Technologies
avHilnble include:
(A) Incineration;
(B) Wet air oxidation:
(C) Solidification:
(D) Encapsulation; and
(E) On-site treatment:
(7) Solution mining (soil washing or
soil flushing):
(2) Neutralization/detoxification:
(3) Microbiological degradation.
(c) Off-site Transport for Storage.
Treatment. Destruction or Secure
Disposition.
(l) General—Off-site transport or
storage, treatment destruction, or
secure disposition off-site may be
provided in cases where EPA
determines that such actions:
(i) An more cost-effective than other
forms of remedial actions:
(ii) Will create new capacity to
manage, in compliance with Subtitle C
of the Solid Waste Disposal Act
hazardous substances in addition to
those located at the affected facility; or
(iii) Are necessary to protect public
health or welfare or the environment
from a present or potential risk which
may be created by further exposure to
the continued presence of such
substances or materials.
(2) Contaminated soils and sediments
may be removed from the site.
Technologies used to remove
contaminated sediments from soils
include:
(i) Excavation:
(ii) Hydraulic dredging:
(iii) Mechanical dredging.
(d) Provision of alternative water
supplies can be provided in several
ways:
(1) Provision of individual treatment
unite:
(2) Provision of water distribution
system:
(3) Provision of new wells in a new
location or deeper wells;
(4) Provision of cisterns:
(5) Provision of bottled or treated
water:
(6) Provision of upgraged treatment for
existing distribution systems.
(e) Relocation—Permanent relocation
of residents, businesses, and community
facilities may be provided when it is
determined that human health is in
danger and that alone or in combination
with other measures, relocation would
be cost-effective and environmentally
preferable to other remedial response.
Temporary relocation may also be taken
in appropriate circumstances.
§300.71 Other party responses.
(a](l) Any person may undertake a
response action to reduce or eliminate
the release or threat of release of
hazardous substances, or pollutants or
contaminants. Section 107 of CERCLA
authorizes persons to recover certain
response costs consistent with this Plan
from responsible parties.
(2] For purposes of cost recovery
under section 107 of CERCLA. except for
actions taken pursuant to section 108 of
CERCLA or pursuant to preaulhorization
under i 300.25 of this Plan, a response
action will be consistent with the NCP
(or for a State or Federal government
response, not inconsistent with the
NCP). if the person taking the response
action:
(i) Where the action is a removal
action, acts in circumstances warranting
removal and implements removal action
consistent with ft 300.65.
(ii) Where the action is a remedial
action:
(A) Provides for appropriate site
investigation and analysis of remedial
alternatives as required under §300.68;
(B) Complies with the provisions of
paragraphs (e) through (i) of ft 300.68;
(C) Selects a cost-effective response:
and
(*•} "rc/Hes -n opportunity for
appropriate public comment concerning
the selection of a remedial action
consistent with paragraph (d) of ft 300.67
unless compliance with the legally
applicable or relevant and appropriate
State and local requirements identified
under paragraph (4) of this section
provides a substantially equivalent
opportunity for public involvement in
the choice of remedy.
(3) For the purpose of consistency
with ft 300.65 and ft 300.66 of this Plan.
except for response actions taken
pursuant to section 106 of CERCLA or
response actions for which
reimbursement from the Fund will be
sought any action to be taken by the
"lead agency" in ft 300.68 or ft 300.88
may be taken by the person carrying out
the response.
actions that an neither Fund-financed
nor pursuant to action under section 106
of TRC1A shall comply with all
otherwise legally applicable or nlevant
and appropriate Federal. State, and
local requirements, including permit
requirements.
(b) Organizations. Pursuant to
CERCLA section 105(9), organizations
may assist or conduct site response by:
(l) organising responsible parties:
(2) initiating negotiation or other
cooperative efforts:
(3) apportioning costs among liable
parties;
. (4) recommending appropriate
settlements to the lead agency;
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47978
(5) conducting the RI/FS in
accordance wilh this Plan:
(6) evaluating and recommending
appropriate remedies to the lead agency:
(7) implementing and overseeing
response actions: .
(8| obtaining assurance* for continued
sile maintenance from responsible
parties: and/or
(9| recommending sites for deletion
jfier completion of all appropriate
response action.
(c) Certification Organizations may
he certified to conduct site response
actions. Certification is not necessary
for. but may facilitate. Fund
preauthonzation under § 300.25(d) and
lead agency evaluation of the adequacy
of proposed response actions.
(11 An organization may request
certification by submitting a written
request to the Administrator or his
designee establishing that the requesting
organization has engineering, scientific.
or other technical expertise necessary to
assist or conduct site response by
carrying out any or all of the functions
listed in paragraph (b) of this section.
(2) For each specific release being
addressed, the certified organization
must:
(i) Meet the requirements of
5 300.25|d) and 40 CER 307 if requesting
preauthonzation: and
(ii) Have established procedures to
recuse members of the organization that
may have a conflict of interest with a
party potentially responsible for the
release.
(3) The Administrator will respond to
a request for certification within 180
days of receipt of the request. The
Administrator may grant certification.
request further information-relating to
the requested certification, or deny
certification.
(4) Certification is effective for two
years from the date nf latest
certification. If ceitification is not
renewed at that time, it automatically
expires.
(S) Certification is not to be construed
as approval by the lead agency of
response actions undertaken by that
organization. Certification does not
authorize that organisation to act on
behalf of. or as an agent for. the lead
agency.
(6) Certification may be revoked at the
discretion of the Administrator for
failure to comply with this Plan or the
requirements of CERCLA.
(d) Releases from Liability.
Implementation of response measures
by responsible parties, certified
organizations, or other persons does not
release those parties from liability.
SoJwart G—Trustees for Natural
Ro«ources
§300.72 Designation of Federal trustees.
When natural resources are lost or
damaged as a result of a discharge of oil
or a release of a hazardous substance.
the following officials are designated to
act as Federal trustees pursuant to
section llllhl(l) of CERCLA and section
311(11(5) of the Clean Water Act for
purposes of sections m(h)(l). lll(b).
and 107(0 of CERCLA and section
311(f)(5) of the Clean Water Act:
(a](l) Natural Resource Loss. Damage
to resources of any kind located on.
over, or under land subject to the
management or protection of a Federal
land managing agency, other than land
or resources in or under United States
waters that are navigable by deep draft
vessels, including waters of the
contiguous zone and parts of the high
seas to which the National Contingency
Plan is applicable and other waters
subject to tidal influence.
(2) Trustee. The head of the Federal
land managing agency, or the head of
any other single entity designated by it
to act as trustee for a specific resource.
(b)(l) Natural Resource Loss. Damage
to fixed or non-fixed resources subiect
to the management or protection of a
Federal agency, other than land or
resources in or under United States
waters that are navigable by deep draft
vessels, including waters of the
contiguous zone and parts of .the high
seas to which the National Contingency
Plan is applicable and* other, waters
subject to tidal influence.
(2) Trustee. The head of the Federal
agency authorized to manage or protect
these resources by statute, or the head
of any other single entity designated by
it to act as trustee for a specific
resource.
(c)(l) Natural Resource Loss. Damage
to a resource of any kind subject to the
management or protection of a Federal
agency and lying in or under United
States waters that are navigable by
deep draft vessels, including waters of
the contiguous zone and parts of the
high seas to which the National
Contingency Plan is applicable and
other waters subject to tidal influence.
and upland areas serving as habitat for
marine mammals and other species
subject to the protective jurisdiction of
NOAA.
(2) Trustee. The Secretary of
Commerce or the head of any other
single Federal entity designated by it to
act as trustee for a specific resource;
provided, however, that where resources
are subject to the statutory authorities
and jurisdictions of the Secretaries of
the Departments of Commerc* o- ;hr
Ip'cr-nr. they shall act as co-'mstpes.
[d!(lj Nmural Resource Loss.
Damages to natural resources protected
by treaty (or other authority pertaining
to Native American tribes) or located on
lands held by the United States in trust
for Native American communities or
individuals.
(2) Trustee. The Secretary of the
Department of the interior, or the head
of any other single Federal entity
designated by it to act as trustee for
specific resources.
§300.73 State trustees.
States may act as trustee for natural
resources within the boundary of a State
or belonging to. managed by. controlled
by. or appertaining to such Slate as
provided by CERCLA.
4300,74 RMporalbUHItsoltnntMt,
(a) The Federal trustees for natural
resources shall be responsible for
assessing damages to the resource in
accordance with regulations
promulgated under section 301(cl of
CERCLA. seeking recovery for the costs
of assessment and for the losses from
the person responsible or from the Fund.
and devising and carrying out a plan for
restoration, rehabilitation, or
replacement or acquisition of equivalent
natural rtjourc--s pursuant to CERCLA.
(b) The trustee may. upon notification.
take the following actions as
appropriate:
(1) request that the lead agency issue
an administrative order or pursue
ludicial relief against parties responsible
for the release, as authorized by
CERCLA section 106;
(2) request that the lead agency
remove or arrange for the removal or
provide for remedial action with respect
in any hazardous substance from a
contaminated medium, as authorized by
CERCLA section 104:
(3) initiate actions-against responsible
parties under CERCLA section 107(a); or
(41 pursue a claim against the Fund for
injury, destruction, or loss of a natural
resource, as authorized by CERCLA
section ill. (When this option is
selected, a plan for restoration.
rehabilitation, or replacement or
(,..qui».don of equivalent natural
resources must be adopted pursuant to
section lll(i) of CERCLA.)
fc) Where there are multiple trustees.
because of co-existing or contiguous
natural resources or concurrent
jurisdictions, they shall coordinate ana
cooperate in carrying out these
responsibilities.
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Federal Register / Vol. 50. No. 224 / Wednesday. November 20. 1985 / Rules and Regulations 47971
i of Diapcrsants and
Othtr Chemical*
330044 Autrwrtnaon of UM.
(a) The OSC with the concurrence of
the EPA representative to the RRT and
(he concurrence of the Stales with
jurisdiction over the navigable waters
polluted by the oil discharge, may
authorize the use of dispersants. surface
collecting agents, and biological
additives on the oil discharge, provided
that the disperaanls. surface collecting
agents, or additives are on the NCP
Product Schedule. The OSC shall
consult with other appropriate Federal
agencies as practicable when
considering the use of such products.
(b) The OSC. with the concurrence of
the EPA representative to the RRT and
the concurrence of the Slates with
jurisdiction over the navigable waters
polluted by the oil discharge, may
authorize the use of burning agents on a
case-by-case basis. The OSC shall
consult with other appropriate Federal
agencies as practicable when
considering the use of such products.
(c) The OSC may authorize the use of
any dispersant. surface collecting agent.
other chemical agent, burning agent, or
biological additive (including products
not on the NCP Product Schedule)
without obtaining the concurrence of the
EPA representative to the RRT or the
Slate with jurisdiction over the
navigable waters polluted by the oil
discharge, when, in the judgment of the
OSC. the use of the product is necessary
to prevent or substantially reduce a
hazard to human life. The OSC is to
inform the EPA RRT representative and
'the affected Slates of the use of a
product as soon as possible and.
pursuant to the provisions in paragraph
(a) of this section, obtain their
concurrence for its continued use once
the threat to human life has subsided.
(d) Sinking agents shall not be
authorized for application to oil
discharges.
(e) RRTs shall, as appropriate.
consider, as part of their planning
activities, the appropriateness of using
the dispersants. surface collecting
agents, or biological additives listed on
the NCP Product Schedule, and the
appropriateness of using burning agents.
Regional contingency plans shall, as
appropriate, address the use of such
products in specific contexts. If the RRT
and the States with jurisdiction over the
waters of the area to which a plan
applies approve in advance the use of
certain products as described in the
plan, the OSC may authonze the use of
the products without obtaining the
concurrence of the EPA representative
to the RRT or of the States and without
consultation with other appropriate
Federal agencies.
|FR Doc 85-27392 Filed 11-19-85: 8:45 am)
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Friday
December 13. 1985
Part VII
Environmental
Protection Agency
40 CFR Parts 305 and 306
CERCLA Arbitration Procedures and
Natural Resource Claims Procedures;
Final Ruies
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51196 Federal Register
, ,,.
5J. No 240 / Frua\. D*cerabei 5J. lft» / R-io a;ui B- Ju!..-.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 305
[SW-FRL2914-7al
CERCLA Arbitration Procedures
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: Section 112 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA) outlines
procedures for asserting a claim against
the Hazardous Substance Response
Trust Fund (the "Fund") established
under CERCLA. A portion of these
procedures concerns the arbitration of
claims, the subject of this regulation.
Claims are authorized by section 111 of
CERCLA for two general purposes: (1)
To reimburse persons for the costs of
responding to actual or threatened
releases of hazardous substances.
pollutants, or contaminants (i.e..
response claims): and (2) to pay trustees
for the costs of assessing injury to.
destruction of. or loss of natural
resources, and/or for the costs of
restoration, rehabilitation, replacement
or acquiring the equivalent of natural
resources injured, destroyed, or lost as a
result of the release of a hazardous
substance (i.e.. natural resource claims).
Section 112(b)(4) of CERCLA directs the
President to establish a Board of
Arbitrators (me "Board") to decide
disputes with regard to claims. The
President has delegated this authority to
the Environmental Protection Agency
(EPA) under Executive Order 12316. This
Final rule establishes and governs the-
procedures of the Board. The general
procedures for filing natural resource
claims (40 CFR Part 306) are presented
in a Final rule elsewhere in today's
Federal Register. The procedures for
Filing claims for necessary response
costs incurred by third parties In
carrying out the National Oil and
Hazardous Substances Pollution
Contingency Plan will be issued
separately under 40 CFR Part 307.
EFFlcnvi DATE March 13.1986.
CERCLA section 305 provides for a
legislative veto of regulations
promulgated under CERCLA. Although
INS v. Chadha. 462 U.S. 919.103 S. Ct
2764 (19S3). cast doubt on the validity of
the legislative veto. EPA has transmitted
a copy of this regulation to the Secretary
of the Senate and the Clerk of the House
of Representatives. If any action by
Congress calls the effective date of this
regulation into question, the Agency will
publish a notice of duufxation in the
Federal Register.
ADDRESSES: The record supporting this
rulemaking is available for public
inspection at U.S. Environmental
Protection Agency. Waterside Mall.
Lower Garage. 401 M Street. SW.
Washington. DC 20460. The docket is
available for viewing by appointment
only from 9:00 a.m. to 4:30 p.m.. Monday
through Friday excluding holidays. As
provided in 40 CFR Part 2. a reasonable
fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT.
William O. Ross. Office of Emergency
and Remedial Response (WH-548). U.S.
Environmental Protection Agency. 401M
Street. SW. Washington. DC 20460.
telephone (BOO) 424-9346 [or 382-3000 in
the Washington. DC metropolitan area].
Superfund Docket (202) 382-3046.
SUmEMENTARV INFORMATION: The
contents of today's preamble are listed
in the following outline:
I. Introduction
IL Background of this Rulemaking
A. Statutory Framework
B. Regulatory Framework
C. Dispute Resolution for Claim* by
Federal Agencies
m. Summary of Changes from the Proposed
Rule
IV. Response* to Major Public Comments
A. Establishment fo an Arbitration Board
B. Submission and Consideration of Claims
to the Board
C. Pleadings
ft Arbitral Heatings
E. Expedited Procedure*
P. Ex Pane Communication
V. Regulatory Statin and Required AaaJytee
A. Executive Order 12291
B. Regulatory Flexibility Act
Section 112 of the Comprehensive .
Environmental Response.
Compensation, and Liability Act of 1980.
42'J.9.C. 9801 etseq.. Pub. L 96-610 -
("CERCLA" or the "Act"), requires the •
Environmental Protection Agency . .
("EPA" or the "Agency") by delegation
from the President to prescribe the
forms and procedures for asserting*
claim against the Hazardous Substance
Response Trust Fund. This regulation-
concerns only one portion of the sectiOB
112 procedures, those pertaining to the
Board of Arbitrators (section H2(b)(3)
and (b)(4)). The purpose of the Board Is
to decide factual disputes with regard to-
claims in one of two circumstances: (1)
When the Administrator declines to '
award a claim: or (2) when a claimant Is
dissatisfied with the size of an award '
and petitions the Board. EPA is
publishing elsewhere in today's Fedent
Register the forms and procedures for
asserting a claim for the cost of
assessment and injury to. dstruction of.
or loss of a nn'ural resoLii.e (40 CFR
Part 306). The Agency expects ><>
propose, shortly, in 40 CFR Part 357
forms and procedures for the assort.cn
of response claims and the other t>pes
of claims that can be made against
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Federal Register / Vol 50. No .2-tO / Friday. December 13. 1985 ,' Rules and Reguidtmr.s 5119"
they are managed or protected by the
United Sta'es. or any State, for natural
resource within the boundary of that
State belonging to. managed by.
controlled by. or appertaining to the
State Trustees can Tile claims for two
general types of costs (1) The costs of
assessing injury to. destruction of. or
loss of a natural resource as the result of
a release of a hazardous substance: and
(2) the reasonable cost for the *
restoration, rehabilitation, or
replacement, or acquiring the equivalent
of an injured natural resource. The
forms and procedures for filing a natural
resource claim are published elsewhere
in today's Federal Register.
B Regulatory Framework
Section 112(b)(4)(A) of CERCLA
authorizes the Administrator of EPA
(the "Administrator") to establish a
Board of Arbitrators to decide factual
disputes with regard to claims against
the Fund. The Agency must select each
Board member by using the procedures
of the American Arbitration Association
(AAA). and no employee of either the
President or a Federal agency which is
delegated responsibility under CERCLA
can serve as a member of the Board.
Apart from these two requirements, the
statute grants the Agency discretion in
establishing the Board and its operating
procedures.
In general, upon receipt of any claim.
the Administrator must inform any
known affected parties of the claim as
soon as practicable and then attempt to
promote and arrange a settlement
between the claimant and the
potentially responsible parties ("PRPs").
If there are no known PRPs. the
Administrator must attempt to arrange a
settlement with the claimant. If a
settlement can be reached, it shall be
final The parties to the settlement will
be deemed to have waived further
recourse to the Fund for any portion
covered by the settlement If the
Administrator cannot arrange a
settlement within 45 days, he will then
proceed to make a derision on whether
to award or deny the claims. After the
Administrator makes this decision, the
claim may be forwarded to the Board.
Today's final rule establishes two
ways m which a claim may be heard by
a member of the Board. First. EPA will
forward all claims denied by the
Administrator to the Regional Office of
the AAA in Washington. D.C. Second, if
a claimant wishes to challenge the
amount of an award, he can file such a
challenge at the Regional Office of the
AAA in Washington. DC. The selection
of the Arbitrator shall be pursuant to
AAA procedures After the selection of
the Arbitrator, all communications from
the parties should be directed to the
Arbitrator Prior to selection to the
Arbitrator, communications should be
directed to the AAA.
The Arbitrator shall, no later than 14
days before the date of tbe hearing.
publish a notice of the hearing in the
newspaper of largest circulation in the
city where the hearing is to take place
and in the city closest to the site of
cleanup or the natural resource at issue
Heanngs before an Arbitrator shall be
informal and open, and shall afford full
and equal opportunity to all parties for
the presentation of relevant material.
The rule prohibits ex parte
communications between the Arbitrator
and any party. The Arbitrator has the
power to subpoena the attendance and
testimony of witnesses as well as the
production of books, records, and other
evidence pertinent to the issues
presented for decision.
An Arbitrator is limited to resolving
factual disputes with regard to a claim
and may not review a decision by EPA
to deny a claim based on competing
priorities for the expenditure of Fund
monies. The Arbitrator is to apply legal
standards as set forth by EPA in
deciding claims before the Arbitrator.
The Arbitrator shall accord substantial
deference to EPA decisions as reflected
in the administrative record.
The Arbitrator shall render a decision
within 90 days of submission of the
claims to him unless the parties agree in
writing to an extension or the
Administrator extends the tune limit
pursuant to section 112(b) (4)(I) of
CERCLA. The decision of the Arbitrator
shall be signed and in writing and shall
contain a concise statement of the basis
and rationale for the Arbitrator's
determination. Tbe award or decision by
a member of the Board shall be binding
and conclusive, and shall not be
overturned except for arbitary or
capricious abuse of the member's
discretion.
Unless the Administrator determines
otherwise, the parties and the Arbitrator
shall follow expedited procedures if the
amount of the claim in dispute does not
exceed S20.000. The parties can also
agree to follow the expedited
procedures for disputed claims
exceeding $20.000.
C. Dispute Resolution for Claims by
Federal Agencies
The dispute resolution process for
Federal agencies that may have claims
before the Fund will be the procedures
outlined in Executive Order 12088. That
is. the Executive Branch.of the Federal
Government, and not the Board of
Arbitrators, will make decisions where:
(1) The Administrator denies the claim
as outlined in section 112(b)|3| or (Ji .1
Federal claimant wishes to challenge
that amount of an award
III. Summary of Changes from the
Proposed Rule
On March B. 1985. EPA proposed
regulations (50 FR 9586) which establish
and govern the Board of Arbitrators
The proposed rulemaking explained, the
selection and dismissal of Board
members: referral of claims to the Board.
the procedures for filing pleadings, the
procedures for the arbitral hearing itself
the process by which a Board member
will make a decision, and the
procedures for expedited decisions by
members of the Board.
Publication of the proposed rule was
followed by a 60-day public comment
penod. A summary of the public
comments, together with the Agency's
responses, is contained in the
"Responses to Comments on the
Proposed Rules on CERCLA Arbitration
Procedures and Natural Resource
Claims Procedures." which is available
for inspection at Room S-325. U.S.
Environmental Protection Agency. 401 M
Street SW, Washington. DC 20460.
After consideration of the public
comments. EPA has made the following
changes from the proposed rule. Each
change is discussed in detail in the
preamble section noted
1. Language has been added to 40 CFR
305.20(d) to clarify any ambiguities that
may anse in the screening and selection
of members of the Board (see section
IV.A.).
2. All claims must be submitted to the
Regional Office of the AAA in
Washington. DC and not to the General
Office as stated in the proposed rule
(see section IV.B.).
3. Language has been added to 40 CFR
305.30(a) to clarify the provision that
only those damage assessment claims
that are of sufficient priority for Fund
expenditures will be forwarded to the
AAA (see section IV.B.).
4. "New or different claim" in 40 CFR
305 40(b) and elsewhere is replaced with
"amended pleading" to clarify the intent
of the provision (see section IV.C.)
5. The seven-day period for a party to
file an answer to a new or different
claim (now called an "amended
pleading") under 40 CFR 305.40(b) will
run from the date of receipt of such
claim by the opposing party instead of
the date of mailing (see section IV C )
6. The authority of an Arbitrator at a
pre-heanng conference under 40 CFR
305 41 has been expanded to provide for
the encouragement of further settlement
discussions (see section IV D )
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51198 Federal Register / Vol. SO. No. 240 / Friday. December 13. 1985 / Rules and Regulations
7. The Administrator's written referral
of a claim to the AAA must now include
a tentative determination of the locale of
the arbitral hearing (see section 1V.D.).
8. Language has been added to 40 CFR
305 42(i) to state explicitly the grounds
for a party to be absent in default or to
waive the right to be present at an
arbitral hearing (see section IV.D.). __
9. Language has been added to 40 CFR
305.42(j)(2) to ensure public access to all
evidence presented at an arbitral
hearing [see section IV.D.).
10.40 CFR 30S.52(a) has been
amended to indicate that objections may
also be made orally during an arbitral
hearing and that all objections should be
made at the earliest possible
opportunity (see section IVJ3.).
11. Language has been added to 40
CFR 305.50(a) to: (1) clarify that the
$20.000 ceiling for expedited procedures
refers to the amount in dispute
regardless of the amount of the original
claim: and (2) encourage parties to use
the expedited procedures (see section
IV.E.).
12. The period for striking the names
of potential Arbitrator* from the AAA's
list of nazes under the expedited
procedures has been reduced to seven
days to be consistent with the regular
procedures (see section IV.E.).
13. Language has been added to 40
CFR 305.41 and elsewhere to authorize
up to a 20-day extension of the pre-
hearing period for expedited procedures
(see section IV.E.).
14. The Agency has added language to
40 CFR 305iz(b) to ensure that neither
the Administrator nor any interested
person shall make exports
communications with the Arbitrator.
Definitions for "export*
rnminiinimSnrm," mi "UXteRSted
person" have been included in 40 CFR
305.12 (see section IV J.).
In addition, the Agency baa also made
the following clarifying rnaaaps,-
1. A new subsection p) has been
added to 40 CFR 30&21M tertorifr that
the Board is not suthoriiadtocaiuadet
or award claims by agendas of the
Federal government. la •*MHm»1 the
reference to the Federal government has
been deleted from 40 CFR 3fl&21(c](2) to
serve the same purpose.
2. A signed acceptance of a case by
the Arbitrator must now be filed at the
Regional Office of the AAA within five
days of the Arbitrator's appointment
3. Language has been added to 40 CFR
305.31(c) to require the AAA to
immediately send a copy of the claim
and all pleadings to the Arbitrator upon
receipt of the Arbitrator's signed
acceptance of appointment.
4. Language has been added to 40 CFR
305.32(h) to require the AAA to
•immediately serve each party with a
copy of the statement from an Arbitrator
disclosing circumstances likely to affect
his impartiality in a case.
5.40 CFR 305 40 has been amended to
require EPA or the claimant to file an
answering statement with the AAA and
the other party fifteen days after service
of the notice provided under section
305.30(d). This amendment provided the
parties with more time to prepare the
answering statement.
8. A new subsection (b) has been
added to 40 CFR 305.51 to provide for
the 30 days statutory deadline for any
party to a proceeding to appeal a
decision or award to Federal district
court.
IV. Response to Major Public Comments
A. Establishment of an Arbitration
Board
According to CERCLA section
112{b](4)(A). EPA must select Board
members through utilization of the
procedures of the AAA. Today's final
rule provides that the AdnmistratoT will
screes applicants for membership to the
Board by evaluating certam criteria; such
as background in Ka»»n4«»i» substances
or aQnttmsuffuve proceouresv i ne*
qualifications of npniifaats passing the
screening will b» scot to AAA to
determine whether they meet AAA's
requirement for membership. If the
reoniresBents ar» met, then the applicant
will be considered by the Administrator
for possible appointment to the Board.
One commenter questioned the lack of
specific standards for the appointment
of appneants for membership to the
Board and recoamended mat EPA
clarifythal standards appneabie to the
•greening process wffl also apply to the
aevaai appotntaieut of members. The
Agency acknowledges that the proposed
rulemaking may not Rare been clear on
this point Acconfinfry, language has
been added to 40 CFR 305.20(0*) to
ensure that inuieduies for the
appointment of members to the Board
and determination of the sue of the
Dutud are in accordance with AAA
procedures.
B. Subnotion and Consideration of
Claims by the Board
The purpose of the Board is to decide
factual disputes with regard to claims
when: (1) The Administrator declines to
award a claim; or (2) a claimant is
dissatisfied with the size of an award
and petitions the Board. The Board is
not empowered to decide legal issues
involving the interpretation of CERCLA
that anse in the course of resolving a
claim The Board also cannot review a
decision to deny a claim based on
competing priorities for the use of the
Fund. Several commenters opposed :k.c
provisions limiting the scope of the
Board to resolving factual disputes v
regard to a claim. One of these
commenters suggested that all
limitations on the Board should be
removed.
EPA disagrees with these comment
The Agency does not believe that
expanding the jurisdiction of the Board
is warranted by CERCLA or that such
expansion would ensure that the limited
resources of the Fund are used in the
most cost-effective manner. In addition.
the Agency does not intend for the l:m:ts
placed on the jurisdiction of the Board
by the regulations to prohibit the Board
from making rulings on evidence
submitted as part of a hearing; the
regulations merely require that the
Board apply the Agency's legal
interpretation of CERCLA provisions.
Neither the rule nor CERCLA place
explicit restrictions on whar may be
submitted as evidence or on what
evidentiary rulings the Board may make
Furthermore. EPA does not believe that
the Board should review claims denied |
by the AdminiatntoT based on
competing priorities for use of the Fund.
Snch decisions are poh'cy decisions
based on EPA's experience in
administering the Fund and on the
Agency's knowledge of the constra'
of the Fund The Board does not ha
the experience or the expertise to mane
decisions about the appropriate
priorities to be placed on competing
uses of the Fund. More important, the
Board is not a policy-making
organization.
The Agency proposed in the March B.
1985 proposed rule that in reviewing
claims the Board accord substantial
deference to EPA decisions as reflected
in the admrm'stratfve record. One
commenter stated that CERCLA does
not require an Arbitrator to accord
substantial deference to EPA decisions.
and that a more complete explanation of
this provision under 40 CFR 305.21(h) is
needed. EPA disagrees with this
comment. Substantial deference is
customarily accorded in judicial
proceedings to an Agency's decisions as
reflected in the administrative record.
The courts generally grant deference
because of the Agency's expertise and
expenence in specific areas. This rule
requires the Board to accord substantidl
deference to EPA decisions for the sdme
reason. EPA is likely to be reviewing a
number of similar claims and will
become experienced with the varir
technical and cost issues assocuh
with claims. EPA believes that the
drbitration process will be most
-------
effective when it makes full use of the
Agency's expertise.
Another commenter stated that all
claims should be forwarded to the
Regional Office of the AAA in
Washington. DC because of
convenience. The Agency agrees with
this commenter that claims be filed with
the Regional Office of the AAA in
Washington. DC so as to save time—
EPA has its headquarters there and
many of the current members of the
Board reside in the ilhmediate vicinity.
One commenter noted that a provision
in the March 8.1985 proposed rule
(proposed 40 CFR 305.30(a)) implied that
all claims denied by the Administrator
will be submitted to the AAA. while
another provision (proposed 40 CFR
306.31(g)(2)) indicated that damage
assessment claims that are of
insufficient priority for Fund
expenditures will not be forwarded to
the AAA. The commenter recommended
that revisions be made to ensure
consistency between these two _
provisions.
The preamble to the proposed rule
stated explicitly that an Arbitrator
cannot review a decision by the Agency
to deny a claim based on competing
priorities for the expenditure of Fund
monies. The Agency maintains its
position that the authority for the
determination of the priority for Fund
expenditures rests with the
Administrator and not with the Board
for the reasons given above. The Agency
has added language to 40 CFR 30S.30(a)
to clarify that claims denied because of
competing priorities will not be
submitted to the Board. Additionally.
claims by other Federal agencies are not
eligible for adjudication by the Board.
C. Pleadings
The March 8.1985 proposed'rule
allowed either party to an arbitration to
make a new or different claim after a
claim is submitted to arbitration.
However, the proposed rule stated that
after an Arbitrator Is appointed, no new
or different claim may be submitted
without the Arbitrator's consent. The
Agency also proposed thai when a party
to an arbitration proceeding makes a
new or different claim, and mails a copy
of the claim to the opposing party, the
opposing party should have a penod of
seven days from the date of such
mailing within which to file an answer
with the general office (now "Regional
Office") of the AAA.
One commenter was concerned that
the provision in 40 CFR 305.40(b) for a
party to submit a "new or different
claim" might not allow for the
submission of an "amended claim." EPA
acknowledges that the provision may
have been ambiguous and has deleted
the term "new or different claim ' and
replaced it with the term "amended
pleading" in 40 CFR 305 40(b) and
elsewhere to clarify the intent of the
provision Another commenter
suggested that the seven-day period for
a party to file an answer to a new or
different claim (now an "amended
pleading") should run from the date of
receipt of such claim by the opposing
party, rather than from the date of
mailing. The Agency agrees with this
suggestion: the seven-day period within
which the opposing party must file an
answer to an amended pleading will run
from the date of receipt, as established
by a return receipt, of such claim by that
party, and not from the date of mailing
as originally proposed. This revision
ensures that the opposing party will
have sufficient time to file an answer
and will be consistent with the provision
for filing an answer under 40 CFR
305.40(a). __
D. Arbitral Hearings
The March 8,1985 proposed rule
provided for a pre-heanng conference
with the Arbitrator and the parties or
their counsel to be schedule in
appropriate cases to arrange for an
exchange of information, such as
witness statements, exhibits, and
documents, and to stipulate uncontested
facts to expedite the arbitration. One
commenter suggested expanding the
authority of an Arbitrator at a pre-
hearing conference under 40 CFR 305.41
so that an Arbitrator can attempt to
consolidate or narrow issues in dispute
and explore the possibility of further
settlement discussions. The commenter
stated that granting an Arbitrator
greater overall authority in this area will
help to make pre-heanng conferences as
flexible and effective as possible. EPA
agrees with the commenter that allowing
an Arbitrator greater authority during a
pre-heanng conference will improve the
flexibility and effectiveness of the
arbitration process. Accordingly.
Arbitrators are authorized under 40 CFR
305.41 to encourage further settlement
discussions during a pre-heanng
conference.
Part 40 CFR 305.42(a) authorizes the
Administrator to set the locale for an
arbitral hearing, with due consideration
to any requests by the claimants. One
commenter suggested that if the
arbitration is initiated due to the
Agency's denial of a claim, then the
Administrator should include in his
written statement to the Board a
tentative determination of the locale of
the arbitral hearing EPA has adopted
this suggestion.
CERCLA l l2|bJMi(B] spec:? es i-..- „
arbitration hearings should be pub t h
the proposed rule the Agenci slated
that where anv of the parties is absent
in default or has waived the right in 1'f-
present at an arbitration hearing the
requirement that ail evidence sh'oulc bo
taken in the presence of the Arbitrator
and of all the parties need not app'j
One commenter suggested that the"
grounds for a party to be in default, or -o
waive the right to be present at an
arbitral hearing, should be explicitly
stated. In addition, it was not clear to
the commenter how the requirement for
all hearings to be public would be
complied with if a party waives the right
to be present, but then provides a
written statement to the Arbitrator The
commenter suggested that the record of
hearings, including written submission-;
should be made available to the public
as part of the file maintained by the
General Manager.
The Agency agrees with the
suggestion that the grounds for a partv
to be in default, or to waive the right to
be present, should be explicitly stated.
Accordingly. 40 CFR 305.42(i) has been
expanded to state that if a party, after
due notice, fails to be present, fails to
obtain an adjournment, or fails to have
evidence presented on his behalf, he
will be deemed to be in default and to
have waived his right to be present at
the arbitration. In addition, to clarify
any ambiguity that may arise concerning
the satisfaction of the public hearing
requirement in the event of the default
and waiver of the right to be present at
an arbitration by a party, the Agency is
amending 40 CFR 305.42(j)(2) to state
that all evidence shall be introduced in
the presence of the Arbitrator and of all
the parries, except where any of the
panics is absent in default and has
waived the right to be present In such
case, all evidence pertinent to the issues
presented to the Arbitrator for decision
whether in oral or written form, shall be
made a part of the record and available
for public inspection. This change
ensures public access to all evidence
presented at the arbitration Even if the
parties waive oral hearings, all
interested parties shall be afforded the
opportunity to examine documents filed
with the Arbitrator.
Proposed 40 CFR 305.52(a] slated that
any party who continues with an
arbitration after knowing that any
requirement of the rules has not been
complied with, and who fails to make en
objection in writing, is deemed to have
waived the right to object One
commenter stated that the requirement
that objections must be made in ixntu.-j
is unclear because it does not tjke .--n
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512CO Federal Register ' Vol j.i .\0 :;p / FJI.<-.V. D^:.-:-..'.jer 13 1^05 / Rules and Reau:.r.ions
demount oral objen.ons to evidence ihji
rndv be made during the arbitration. The
cummenter stated that such objections
ATI normally ordl and are necessary to
prsse:\edn appeal The commenter
si.ticesied thai EPA revise the provision
i j jllow, more clearly for oral objections
'i'lnna a hearing, and also suggested
"hdi LPA identify the purpose of the
provision m the preamble EPA
••(.knowledges that proposed 40 CFR
305 52!j). concerning written ejections,
.-;.i> hd\.e been unclear and has clarified
this section to indicate that objections
r.jy be made orally during the hearing.
In cddition. the provisions has been
clarified to state that an objection,
whether wntten or oral must be made
dt the earliest possible opportunity. The
purpose of the provision is to encourage
:he timely filing of objections and to
ensure that arbitration decisions are not
overturned on minor procedural
grounds.
E. Expedited Procedures
40 CFR 30&50 explains the procedures
for expediting an arbitral hearing.
Expedited hearings would be used when
(he total claim of any party is £20.000 or
less, although the parties involved may
agree to use expedited procedures for
claims greater than S20.000. The
expedited procedures would require
that, as part of the process of selecting
an Arbitrator, each party to the dispute
strike names from the list of potential
Arbitrators submitted by the AAA and
return the list within 10 days. The
expedited procedures also require that
the hearing begin with 60 days of the
selection of the Arbitrator. One
commenter staled that it was unclear
whether the S20.000 ceiling for expedited
procedures refers to the claim as
originally presented to EPA or to thai
portion of the claim that nuy have been
granted by EPA. The ""••'•"'tef also
questioned whether the costs of an
investigation or inspection ordered by
.in Arbitrator would be tmJudnl at the
S20.000 ceiling. The sasn* gMMm >
slated that the ten-day period for
striking the names of potential
Arbitrators was insufficient. Similarly.
the sixty-day period between aeiecuon
of an Arbitrator and beginning the
hearing was Likely to be unreasonably
short if more than few witnesses were to
be called.
The S20.000 figure specified in the
provisions for expedited arbitration
procedures refers to the amount in
dispute between the claimant and EPA.
regardless of the amount of the original
claim For example, if t.L,i» original claim
amour.; is 5200.000. and the
Administrator awards 5190.000. the
expedited procedures will be in effect if
the claimant decides to challenge 'he
award The cost of an arbitrator-ordered
mvesngation or inspection, if approved
by the Agency, would be paid from the
Fund and would not be included in
determining whether the $20.000 ceiling
has been exceeded. EPA has clarified 40
CFR 305.50(a) to indicate that the
S20.000 figure specified refers to the
amount in dispute and not the total
claim. In addition, language has been
added to this section to encourage
parties to use the expedited procedures.
The Agency believes that the ten day
period for striking the names of
potential Arbitrators from a AAA list for
an expedited proceeding is more than of
sufficient length and notes that it had
intended to specify a seven day period
instead. Accordingly, the Agency has
decided to reduce the period for strikiing
the names of potential Arbitrators to
seven days, as applies for regular
procedures, and has decided to maintain
the requirement that a hearing start no
later than sixty days after an arbitrator
is selected. CERCLA section 112fb)(4)(F)
and 40 CFR 305.50(h) require that the
Board render a decision in an expedited
proceeding within 90 days of submission
of the claim to the Arbitrator.
Submission of the claim to the
Arbitrator effectively occurs at me time
that the Arbitrator is selected. Thus.
even with a sixty-day pre-hearmg
penod. in some cases, there may be no
more than thirty days to conduct the
hearing and render a decision. CERCLA
section 112{bH4)(I) does, however.
authorize the Administrator to extend
the time for a pre-hearing conference by
up to 60 days. Accordingly, language has
been added to 40 CFR 305.41 to
authorize up to a 20 day extension of the
pre-heanng period for expedited
procedure* in keeping with the 90 day
limit for an expedited decision under 40
CFR 305.50(h).
F. Ex Porte Communication
The preamble to the March 8.1985
proposed rule noted that EPA was
conndenng adopting procedures similar
to those described in 40 CFR 124.78 to
govern ex parts communication during
the arbitration process. One commenter
stated that without prohibitions on ex
pane communication, a claimant could
be prejudiced if the other party to the
arbitration abuses the lack of a
prohibition. The commenter stated that
although the provisions in 40 CFR 124.78
may be an adequate framework, they
would require rr.cdificat.on to appl;, :o
the arbitration process. As an e\a-np'<;
the comnenter suggested that the rj'c
should be expanded to prohibit the
Administrator from making e.r pr.-.v
contacts with any Arbitrator. EPA
appreciates the importance of resM.cii.-.g
e\parte communication. However, the
Agency does not believe that the
detailed procedures in 40 CFR 124.78 are
r.ecessaryu here. Accordingly, the
Agency is simply prohibiting cr parts
Communications between the Arbitrator
and any interested parties. The terras ex
parte communications." are "interested
person" and defined in 40 CFR 305.12.
V. Regulatory Status and Required
Analysis
Proposed and final rales issued by
Federal agencies are governed by
several statutes and executive orders.
These include Executive Order 12291
and the Regulatory Flexibility Act.
A. Executive Order 12291
Ruiemakiag protocol under Executive
Order 12291 requires that regulations be
classified as major or non-major for
purposes of review by the Office of
Management and Budget (OMB).
According to E.O.12291. major rules are
regulations that are likely to result in.
(1) An annual effect on the economy
of $100 million or more: or
(2) A major increase in costs or prices
for consumers, individual industries.
Federal. Stales, or local government
agencies, or geographic regions; or
(3) Significant advene effects on
competition, employment investment.
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
EPA has determined that this
regulation is a non-major rule tinder
Executive Order 12291 because it is
unlikely to result m any of the impacts
identified above Therefore, the Agency
has not prepared a regulatory impact
analysis for this regulation. This rule
was submitted to OMB for review under
Executive Order 12291.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for all rules that
are likely to have "significant impact on
a substantial number of small entities "
EPA certifies mat this regulation will not
have a significant impact on a
substantial number of smaJI entities.
because all authorized costs and
-------
Federal Register / Vol. 50, No. 240 / Friday, December 13. 1985 / Rules and Regulations 51201
expenses attributable to the operation of
the Board are payable from the Fund.
Further, this regulation imposes no
capital expenditures nor any compliance
requirement on any industrial sector.
List of Subjects in 40 CFR Part 305
Chemicals Hazardous materrals. Inter-
governmental regulations, Natural
resources. Reporting and recordkeeping
requirements. Superfund. Waste
treatment and disposal.
Dated. November 30.1985.
By direction of the Administrator.
A. IMBM Bana*.
Deputy Administrator.
Chapter I. Title 40 of the Code of
Federal Regulation* is amended as set
forth below.
Part 3O& Title 40 of the Code of
Federal Regulations is added m set forth
bekm.
PART 306—COMPREHENSIVE
EMVmOMMEirrAL RESPONSE.
COMPENSATION, AND UABtUTY ACT
(CERCLA) ARBITRATION
PROCEDURES
Subpart A—General
Sec.
30510 Purpose.
305 11 Scape and applicability.
305.12 Definitions.
30520 Selection and diMBMat of the Bond
of Arbitrator*.
305 21 (urudictioo of Board of ArbtfHtom
Subpart C—Acton* of CWms entf
309 30* Referral of cfuiius.
305 31 Selection of arbitrator.
305.32 Diidoeirs sod caaBessje prooedum.
Subpart D Hearings Before me BoanLof
A*Mt»«iMMW
IUIUIIUIV
305 40 Filing of pleadings.
305 41 Pre-hearing conferaac*.
30542 Arbitral bearing.
30543 Arbitral deeMOB,
Subpart E-Sjipedtted Piacerts-as and
Otfisr Provlstons
305 JO
305 51 Appeals procedure*
JOS.52 Miscellan
Authority: 4? U S C 9*01 et teq. and
Executive Order 123m sees. T(a) andTf.eL.3
CFR. 1901 Comp.. p lfle\
Subpart A general
§305.10 Purpose.
This regulataem establishes and
governs procedures for sse arbVrationof
disputes anstng out of daans U> the
Hazardous Substance Response Trust
Fund estabbsned under section 221 of
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980.42 U.S.C. 9601 et seq.
§305.11 Scops and appHcabJUty.
Claims for necessary response costs
incurred, by any person in carrying out
the National Contingency Plan and
claims for injury to. or destruction or
loss of natural resources, including costs
of damage assessment m submitted by
State trustees, may be decided through
the procedures established by this
regulation. These rale* will govern the
procedmret for any arbitration of claims
under section 112 of CERCLA.
§308.12
Terms not defined in this section save
the meaning given by secnee 101 of
CERCLA. All baa deadhBes m this Part
are specified in calendar daya.
Except when athei win* specified-
(a) "Act." and "CERCLA," mean the
Conprehenaiw EovvansBeatal
Response. ContpeasatwsL end Liability
Act of 1980 (42 U.S.C. 9601 et seq).
(b) "Boatd of AifaMrnsoa" or' ~
means a panel of one or i
sesected in accotdaooe with sectim
112(b)(4UA) of CEBCLA and gpvened
ey the provisssns in 40 CTR Part 30ft.
(c) "Claim." nsBane a demand ie>
wnbeoj far a aesn eertaaa.
(dj "CleMnent," awane aaindwidoai.
firm., corporation, association,
partnership. ceaeortioBa. iocat venbua,
commereiai sntsry. LWted 9tatae
Government. Stale, rwmcrpalrty.
commission, political subdivision of a
State, or any intsistnu body whs)
presents a daunt for coaoiansaaea under
secfiaa US «f ORCLA.
(si
iaajaaa>a eiaiai fan
oiinaaittad to thn Pimrl at i
section lll(c)(2) of CERCLA.
(Q -SM pmix cdrMsueacarac
any coasBuntcakiaCb ««HtaB«roDmi.
between tne AfbUnaw end assy party.
or other interested person whack war
AAA AAlA^KKl^M ft&A^ MA^^^.^ ^^ 41.A.
not eaieseeay nssB or SUHN • ne
Substance Response Trust Fund
•estabsnihed ender sictssa 221 of
CERCLA.
any substance designed pursuant t»
section a-U»»M2)CA) of the Fsiisisl
Water PsUetien Conwas Aefc (2) eny
element, cnanpenad. anxrere. asBsnos, or
Ite
sectiaa Itt of tUa Act. (3> aar
hazatdeaswaaarhsBrissj ass
charactenauca identified under or baaed
puanaat to sectraa 9001 of tn« Solid
Waste Disposal Act foot not mciadxasj
any waste the regulanoa of winch under
the Solid Waste Disposal Act has been
suspended by Act of Congress). (4) any
toxic pollutant listed under section
307(a) of the Federal Water Pollution
Control Act. (5) any hazardous air
pollutant listed under section 112 of the
Clean Air Act. and (9) any imminentlv
hazardous chemical substance or
mixture with respect to which the
Administrator has taken action pursuant
to section 7 of the Toxic Substances
Control Act. The term does not include
petroleum, including crude oil or any
fraction thereof which is not otherwise
specifically,listed or designated as a
hazardous substance under paragraphs
(b)(l) through (8) of this section, and the
term does not include natural gas.
natural gas liquids, liquefied natural gas.
or synthetic gas usable for fuel (or
mixture* of natural gas and such
synthetic gas).
(i) "Interested person." means the
Administrator, any EPA employee, any
party, any potentially responsible parly
associated with the site, any person who
filed written coaanunts in the
proceeding, any person who requested
the heanng, any petsen who requested
to participate or satarvane in the
hearing, any paroaftaat in the heanng.
all officer*, diieclaa. employees
consultants, and agents of the claimant
and the persons represented by the
claimant and any attorney of record for
those persons.
(j) "National Contingency Plan." or
"NCP," means the National CXI and
Hazafideos Scbatances Pollution
Contingency Plan, developed under
section 331(cJ ef the Clean Water Act
and revised p*"""» to section 105 of
CERCLA (40 CFR Part 300).
(k) "Natucai resources," means lend.
fish, wndiife, biota, an. water, ground
water, drinking water supplies, and
othet such resource* beiongmg to.
managed bf, held in bust by.
appertaining; to* or otherwise controlled
by the "«it«^ Stales (inr*"^>°fl the
resources of the fishery conservation
zone established by the Magnuson
Fishery Conservation and Management
Act ef 1»W). any Slate, or locet
government, or any bceaga govemnent.
(1) "Party,** means EPA or a claaeent.
(mrftaenthnrsratinn" awane EPA's
apoBovel ta subssit e data* fat
reimbursement to the Fund.
(n) "Regional Office of AAA." means
the Regional O9ce of AAA in
WaakingtoBk IXC.
(o) "Response action." mease remove.
removal, remedy, and remedial action.
(p) "Response* dairtt. nevnv a
preauthonzed demand in writing for a
SOSB certain far response costs referred
to in section ni(sj(2) of CERCLA.
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51202 Federal Register / Vol. 50. No. 240 / Friday. December 13. 1965 / Rules and Regulations
(q) "Restoration" or "Restore." means
the restoration, rehabilitation,
replacement, or acquiring the equivalent
of any natural resources injured.
destroyed or lost as a result of a release
of a hazardous substance.
(r) "Restoration claim." means a
preauthorized or emergency claim for
restoring, rehabilitating, replacing or
acquiring the equivalent of any natural
resources injured by the release of a
hazardous substance.
(a) "Trustee" means any Federal
natural resources management agency
designated in Subpart C of the NO*, and
any State agency that may prosecute
claims for damages under section lll(b)
of CERCLA.
Subpart B— Selection and Jurisdiction
S30UO 9e>ecnon and dtomlessl of me
rt m - ^j ^^
Boeraoi
(a) Members of the Board of
Arbitrators for CERCLA claims shall be
appointed by the Administrator. The
Arbitrator for a particular claims dispute
shall be selected in accordance with
5305.31.
(b) The Administrator shall screen
applicants for membership to the Board
by evaluating such criteria as
background in hazardous substances or
administrative procedures. The names
and qualifications of those applicants '
selected by the Administrator will be
forwarded to the American Arbitration
Association (AAA) for that body to
evaluate whether they meet the AAA's
requirements for membership. If these
requirements are met the applicant's
name will be returned to the
Administrator for possible appointment
to the Board.
(c)(l) Except as provided In paragraph
(c)(2) of the section, members of the
Board serve at the pleasure of the
Administrator, who may dismiss anf
member for such reasons as the
Administrator deems appropriate;
(2) A member may net be dtenissed '
during the pendency of a dUm before : '
such member except fbr eftvse a
provided in | 386.32. •*
(d) The Board shall eaflalkt of as many
members as the Admiaietrater may
determine is necessary for the
expeditions resolution of disputes, and
shall be appointed in accordance with
AAA procedures.
(e) Appointment to the Board shall be
for a three-year term, unless a member
is dismissed pursuant to paragraph (c) of
this section.
§30&21 Juftedtetton of
(a) In accordance with the procedures
set forth in i 305.30. the Board of
Arbitrators is empowered to adjudicate
claims asserted against the Fund
pursuant to section III of the Act when
the Administrator has denied such -
claims under section 112(b)(3) of
CERCLA or when the claimant has
made a request for arbitration pursuant
tot 305 JO of this part.
(b) The Board of Arbitrators is
authorized to award claims for the
reimbursement of response costs only if
such costs were:
(1) Necessary response costs incurred
as a result of carrying out the NCR and
(2) Reasonable and necessary to carry
out the response as preauthorized by the
Administrator pursuant to i 300.25 of
this Part
(c) Subject to paragraph (d) of this
section, the Board is authorized to
award claims for
(1) The reimbursement of costs for
assessing injury to. destruction of. or
loss of any natural resources resulting
from a release of a hazardous substance;
or —
(2] Costs of State efforts in the
restoration, rehabilitation, or
replacement or acquiring the equivalent
of any natural resources injured,
destroyed, or lost as a result of a release
of a hazardous substance.
(d) Costs may be reimbursed under
paragraph (cK2) of this section only If
such costs are:
(1) Necessary and reasonable to
implement a plan developed'and
adopted under section lll(i) of the Act
or
(2) The costs were sacurred in
response to a situation requiting
emergency action to avoid ImversibW
loss of natural resources or to prevent or
reduce aay umthmmg danger to natural
resources or simitar need fbr emergency
action.
(e> Except for claims for assessments
of injury to natural-resources, and
except as provided in- paragraph (d)(2)
of t&ifcseotiao. the Board is net
authorized tor
(1) Consider or award claims which
have not been preaiMhorixed by EPA In
accordance with 40 CPU 30O2B(d) or
30&24:
(2) Award a data In excess-of the
amount preauthorized by EPA in
accordance with 40 CFR 3OO2B(d) and
30&24; and
(3) Consider or award claissa by
agencies of the Federal Government.
(0 The Board is not authorized to
review a decision by the Administrator
to deny a claim based on competing
priorities for the expenditure of Fund
monies.
(g) The Board shall apply such legal
standards as are contained in the
summary of applicable legal standards
and principles furnished by EPA undor
40 CFR 305.30(b) or 305.40(aj.
(h) In reviewing claims under this
Part the Board shall accord substanf
deference to EPA decisions as reflect
in the administrative record.
Subpart C—Referral of Claims and
Arbitrator Selection
5305.30 Referral of claims.
(a) Except as provided in
§ 306.31(g)(2). if the Administrator
denies a claim under section 112 of
CERCLA. he shall within five days
submit the claim to the Regional Office
of the AAA. If a claimant decides to
challenge an award made by the
Administrator with regard to the claim.
he may submit the claim to the Regional
Office of the AAA within 30 days of the
date of the award.
(b) When arbitration is initiated due
to EPA's denial of a claim, the
Administator shall submit to the
Regional Office of the AAA two copies
of a written statement which includes:
(1) The notice of the denial of the
claim, with a short explanation of the
reasons for that denial:
(2) A statement of the legal standard
applicable to the claim and any other
applicable prinicples of law.
(3) Any supporting documentation
which EPA deems necessary to exp>
the reasons) for the denial of the c
(4) A request for the expedited
procedures, if appropriate:
(5) The identity of any potentially
responsible parties, if known, and a
copy of any written communications (or
summary of oral communications) with
such parties: and
(6) A tentative determination of the
locale for the arbitral hearing.
(c) When arbitration Is initialed due to
the challenge of an award by the
claimant the claimant shall submit to
the Regional Office of the AAA two
copies ef a written statement which
includes:
(1) An assertion of the matter in
dispute;
(2) The amount of money in dispute:
(3) The remedy sought
(4) A copy of the Administrator's
disposition of the claim:
(5) Any supporting documentation
which the claimant deems necessary to
support the claimant's* position:
(6) A request for the expedited
procedures, if appropriate: and
(7) The identity of any potentially
responsible parties. If known.
(d) The AAA shall, within five c*
receipt, give notice of the referred
claims under this section to the oth...
parties in the claims dispute. Notice is
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Federal Register / Vol 50. No 2-10 / Friday. December 13. 1965 / Rules and Regulations 51203
complete when a copy of the claim is
placed in the mail by the AAA
addressed to the last known address of
a party, or its attorney, or IB delivered
b> personal service For the purposes of
!>er\ice on EPA notice will be addressed
to the Administrator at 401 M Street.
5VV . Washington. DC 20460.
§305.31 Selection of arbitrator.
(a) After the filing of the submission
asking for arbitration, the AAA shall
submit simultaneously to EPA and each
claimant an identical list of names of
persons chosen from the Board. Each
party to the dispute shall have seven
days from the mailing date in which to
cross off any names objected to. number
the remaining names to indicate the
order of preference, and return the list to
the Regional Office of the AAA. If a
party does not return the list within the
time specified, all persons named
therein shall be deemed acceptable.
From among the persons who have been
approved on both lists, and in
accordance with the designated order of
mutual preference, the AAA shall invite
the acceptance of an Arbitrator to serve.
If the parties fail to agree upon any of
the persona named, or if acceptable
Arbitrators are unable to act. or rf for
any reason the appointment cannot be
made from the submitted list*, the AAA
shall have the power to make the
appointment from among other members
of the Board without the submission, ol
any additional lists.
(b)(l) The dispute shall be heard and
determined by one Arbitrator, unless the
Administrator in bis discretion decides
that a greater number of Arbitrators
should be approved based on the
complexity of the issues.
(2) When a large number ef claims
arise from a single incident or set ef
incidents, a group of claims may ba
submitted to a single Arbitrator if the
Administrator determines that it is in
the best interests of the parties.
(c) Upon appointment of the
Arbitrator, the AAA shall giveJartfce of
the selection of the AtbUtatoc. together
with a copy of these rule*, to the parties.
A signed acceptance of the case by the
Arbitrator shall be Sled at the Regional
Office of the AAA within five days of
appointment. Upon receipt of the signed
acceptance from the Arbitrator, the
AAA shall send a copy of the claim and
all pleadiogft la the Arbitrator. Upea the
final selection of the Arbitrator, att
communications from the parties should
be directed to the Arbitrator (See
§ 305 52 (bl to* communications prioi to
Arbitrator selection).
(d) Unless the Administrator
determines otherwise, the expedited
procedures described in J 305.50 of
these rules shall apply in any case
where the amount in dispute by any
party does not exceed $20,000. exclusive
of interest coats, or the parties agree to
the procedures for claims exceeding
$20,000.
(e) If any Arbitrator should resign, die.
withdraw, refuse, be disqualified or be
unable to perform the duties of the
office, the AAA may. on proof
satisfactory to it declare the office
vacant Vacancies shall be filled in
accordance with the applicable
provisions of this section and the matter
shall be reheard unless the parties shall
agree otherwise.
§305.32
pffOOQGUW&V
(a) The notice from the AAA to a
person appointed as an Arbitrator under
{ 306.31 shall state that within five days
of receipt of his or her notice of
appointment the Arbitrator nuiat file a
statement disclosing any circumstances
likely to affect impartiality. iacrarirng
any bias or any *«•«• •"•> or penonaf
interest m the remit of the arbitration.
or any past or present relationship with
the parties ar their counsel ar aiy past
or present relationship with any
potentially responssble party to which
the daim may relate.
(b) Tne AAA shal anmedlately serve
each party with a copy of the dtaJeeuro
statement
(e) The parttea may request within
seven days of service of me disclosure
statement from the AAA that an
Arbitrator be dtamaltfled
(d) The AAA saoD. make a
determination on any request for
disqualification of as Arbitrator within
seven days after the AAA receives any
such request This determination aJsiB
be within the sole discretion of trie
AAA. and*» deefotam shail be final.
Disqaelifleattofl miter this section hi
distinction dismissal by the
copy thereof shall be mailed (certified.
return receipt requested] to the other
party, who shall have a period of seven
days from the date of receipt of such
pleading (sent by certified mail, return
receipt requested) within which to file
an answer with the Regional Office of
the AAA. After the Arbitrator is
appointed, however, no amended
pleading may be submitted except with
the Arbitrator's consent.
§305.41 Prs hearing corHerenca.
At the request of the parties or at the
discretion of the Arbitrator, a pre-
heanng conference with the Arbitrator
and the parties or their counsel will be
scheduled in appropriate cases to
arrange for an exchange of information.
including witness statements, exhibits
and documents, and the stipulation of
uncontested facts so as to expedite the
arbitration proceedings. Arbitrators may
encourage farther settlement discussions
during the pre-hearing conference so as
to expedite the arbitration proceedings.
The Administrator may-extend the time
for a pre-hearing conference pursuant to
section 112(b)(4)(I) for a penod not to
exceed 80 days for regular proceedings
and 20 daya for expedited proceedings.
Adminnvsjtor under f 365t2O|C).
of
FWnool
(a) EPA or the clajmaai may fife an
answering statement with the Regumi
Office of the AAA and thv other partjr
no later thaa 16 day* from service of the
notice provided nader | 3CUOtd). • the
case of a matter referred to the Board by
a claimant EPA'a aaawer shall mctatde a
statement of applicable legal standards
and principle*
(b) If either party desires to file any
amended pleading after the daun is
submitted to arbitration, such pleading
shall be made in writing and filed widi
the Regional Office of the AAA. and a
(a) The Administrator shall select the
locate for the arbitral hearing, with due
consideration to any requests by the
claimants.
(b) The Arbitrator shall fix the Ume
and place for aach bearing, within the
locale selected is accordance with
paragraph (a) of this section. The
hearing shall commence no later than BO
daya after the selection of the Arbitrator
unleaa the time fat the prc-oeanng
conference haa been extended pursuant
to } 306.44. The Arbitrator shall mail to
each party notice thereof at least 30
daya in advance, uniaas the parties by
mutual agreement waive such notice or
modify the tarma thereof. The Arbitrator
shall pMbUah, no later than 14 days
befan the date of the hearing, a notice
of the bearing in the newspaper of
largest areutetion m the city where the
hearing b to take place and in the city
closest to the sita of dun mm or the
natural resource at isaua.
(c) Any party may be represented by
coanaai A party intended to be so
represented shaH notify the other party
and the Arbitrator of the name and
addreaa ef counsel at least three days
prior to me date set lor the bearing at
which counsel is fin* to appear When
an arbitration is initiated by counsel, or
where an attorney replies for the other
party, such notice is deemed to have
been given.
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51204 Federal Register / Vol. 50. No. 240 / Friday. December 13. 19U5 / Rules and Regulations
(d) The Arbitrator shall make the
necessary arrangements for the taking of
a true and accurate record for all
arbitral hearings.
(ej The Arbitrator shall make the
necessary arrangements for the services
of an interpreter upon the request of one
or more of the parties, and the
requesting party(ies) shall assume the
cost of such service.
(I) The Arbitrator may take
adjournments upon the request of a
party or upon the Arbitrator's own
initiative and shall take such
adjournment when all of the parties
agree thereto.
(g) The Arbitrator shall take oaths of
all witnesses before they testify at the
arbitral hearing.
(h)(l) A hearing shall be opened by
the recording of the place, time, and
date of the hearing, the presence of the
Arbitrator and parties, and counsel if
any. and by the receipt by the Arbitrator
of the statement of the claim and
answer, if any. The Arbitrator may, at
the beginning of the hearing, aak for
statements clarifying the issues
involved.
(2) The claimant shall then present its
claim, evidence and witnesses (if any).
who shall submit to questions or other
cross-examination. The Arbitrator has
discretion to vary this procedure but
shall afford full and equal opportunity to
all parties for the presentation of any
material or relevant proofs.
(3) Exhibits, when offered by either
party, may be received in evidence by
the Arbitrator. The names and
addresses of all witnesses and exhibits
in the order received shall be made a
part of the record.
(i) The arbitration may proceed in the
absence of any party which, after due
notice, fails to be present or fails to
obtain an adjournment If a party, after
due notice, fails to be present fads to
obtain an adjournment or fails to have
evidence presented on his behalf, he
will be deemed to be in default and to
have waived the right to b* present at
the arbitration. An awareVsfeall not be
made solely on the default of a party.
The Arbitrator shall reqatoe the party
who is present to submit men evidence
as the Arbitrator may require for the
making of an award.
(j) Evidence. (1) The parties may offer
such evidence as they desire (subject to
such reasonable limitations as the
Arbitrator deems appropriate) and shall
produce such additional evidence as the
Arbitrator may deem necessary to an
understanding and determination of the
dispute.
(2) All evidence shall be introduced in
the presence of the Arbitrator and of all
the parties, except where any of the
parties in absent in default and has
waived the nght to be present pursuant
to paragraph (i) of this section. In such
cases, all evidence pertinent to the
issues presented to the Arbitrator for
decision, whether in oral or written
form, shall be made a part of the record
and available for public inspection. In
any arbitration proceeding, the claimant
has the burden of proof.
(3){i) Arbitrators may subpoena the
attendance and testimony of witnesses
and the production of books, records.
and other evidence pertinent to the
issues presented to him for decision.
(ii) Subpoenas issued under this
section shall be issued and enforced in
accordance with 5 U.S.C. 555(d).
(iii) If a person fails or refuses to obey
a subpoena, the arbitrator may request
that the Administrator request that the
Attorney General invoke the aid of the
district court of the United States where
the person is found, resides, or transacts
business in requiring the attendance and
testimony of the person and the
production by him of books, papers.
documents, or any tangible things.
(iv) The Administrator shall within
five days of a request under paragraph
(j)(3)(iii) of this section, either
(A) Request that the Attorney General
Invoke the aid of the district court as
provided in paragraph (J)(3)(iii) of this
section: or
(B). Advise the Arbitrator in writing
that a request for invocation of judicial
aid will not be made.
(k) The Arbitrator may receive and
consider the evidence of witnesses by
affidavit interrogatory or deposition.
but shall give it only such weight as the
Arbitrator deems appropriate after
consideration of any objections made to
its admission.
(1) Whenever the Arbitrator deems an
inspection or investigation to be
necessary, the Arbitrator may request
the EPA Administrator to undertake
such activities pursuant to CERCLA
section 104(b). The Administrator shall
have vokt discretion.whether to grant
the Arbitrator's request In making suoh
a determination, the Administrator shall
consider the cost of the inspections or
investigations, the time they will take.
the reasonableness of the particular
activity requested, competing demands
on Agency resources, and the
availability of the technical and
financial capacity to conduct the
requested inspections and
investigations.
(m) After the presentation of all
evidence, the Arbitrator shall
specifically inquire of all parties
whether they have any further proofs to
offer or witnesses to be heard. Upon
receiving negative replies, the Arbitrator
shall declare the heanng ciosed end the
minutes thereof shall be recorded. It
briefs are to be filed, the hearings shall
be declared closed as of the final date
set by the Arbitrator for the receipt of
bnefs. If documents are to be filed as
provided for in paragraph (o) of this
section and the date set for their receipt
is later than that set for the receipt of
briefs, the later date shall be the date of
closing the hearings. The time limit
within which the Arbitrator is required
to make the award shall commence to
run upon the referral of the claim to the
Arbitrator.
(n) The parties may provide, by
written agreement for the waiver of oral
hearings.
(o) All documents not filed with the
Arbitrator at the hearing, but arranged
for the hearing or subsequently by
agreement of the parties, shall be filed
with the Arbitrator. All parties shall be
afforded an opportunity to examine such
documents.
{30&43 Arbitral decision.
(a) The Arbitrator shall render a
decision within 90 days of submission of
the claim to the member of the Board.
except if:
(1) All parties agree in writing to an
extension, or
(2) The Administrator extends the
tims limit pursuant to section 112(b)(4
of CERCLA.
(b) The decision of the Arbitrator
shall be signed and in writing. It shall
contain a full statement of the basis and
rationale for the Arbitrator's
determination.
(c) If the parties settle their dispute
during the course of the arbitration, the
Arbitrator, upon their request may set
forth the terms of the agreed settlement
in an award.
(d) Parties shall accept as legal
delivery of the decision the placing of a
true copy of the decision in the mail by
the arbitrator, addressed to the parties'
last known addresses or their attorneys.
or by personal service.
(e) The Arbitrator shall, upon written
request of a party, furnish to such party.
certified facsimiles of any papers in the
Arbitrator's possession that may be
required In judicial proceedings relating
to the arbitration.
Sufapart E—Expedited Procedures and
Other Provisions
{309.50 Expedited procedures.
(a) Unless the Administrator
determines otherwise, the expedited
procedures of these rules shall be
applied in any case where the amoum ...
dispute does not exceed £20.000
-------
Federal Register / Vol 50. \'o 240 / Friday. December 13. 1985 / Rules and Reg-Ja! cr.s 51205
exclusive of interest costs. The parties
may also agree and are encouraged to
use these expedited procedures for
disputed amounts exceeding $20.000.
The Administrator can make a
determination not to use the expedited
procedures either on his own initiative
or upon petition by a party. The
Administrator must notify the AAA of
any decision not to use the expedited
procedures. The AAA must notify all
parties in writing within five days of the
Administrator's decision.
(b)(l) Under the expedited procedure.
the parties shall accept all notices.from
the AAA by telephone. Such notices by
the AAA shall subsequently be
confirmed in writing to the parties.
(2) Notwithstanding the failure to
confirm in writing any notice or
objection hereunder. the expedited
proceeding shall nonetheless be valid if
notice of obligation has. in fact, been
given by telephone.
(c) Under the expedited procedure, the
AAA shall submit simultaneously to
each party to the dispute an identical
list of five member* of the Board of
Arbitrator! from which one Arbitrator
shall be appointed Each party shall
have the right to strike two names from
the list on • peremptory basis. The list is
returnable to the Regional Office of the
AAA within seven days from the date of
mailing. If for any reasons the
appointment cannot be made from the
list the AAA shall have the authority to
make the appointment from among other
members of the Board without the
submission of additional lists. Such
appointment shall be subject to
disqualification for the reasons specified
in I 309.32. The parties shall be given
notice by telephone, within seven day*
of any objections to the Arbitrators
appointed. Any objection by a party to
such Arbitrator shall be confirmed in
writing to the Regional Office of the
AAA with a copy to the other partyftos).
Upon the final selection of the
Arbitrator, all commuxdcatiOM from the
parties should be directed to the
Arbitrator.
(d) The Administrator shall select the
locale for the arbitral hearing.
(e) The Arbitrator shall fix the date.
time, and place of the hearing. The
hearing shall commence no later than 00
days after the selection of the Arbitrator
unless the time for the pre-hearing
conference has been extended pursuant
to i 305.41. Under the expedited
procedure, the Arbitrator shall notify the
parties by telephone seven days in
advance of the hearing date. Formal
notice of the hearing will be sent by the
Arbitrator to the parties, unless the
parties by mutual agreement waive such
notice or modify the terms thereof
(f) Under the expedited procedure, the
Arbitrator shall publish, no lafer than
five days before the date of the hearing.
a notice of the heanng in the newspaper
of largest circulation m the city where
the heanng is to take place and in the
city closest to the site of cleanup or the
natural resource at issue.
(g) In most instances, the hearing
under the expedited procedure shall be
completed within one day. The
Arbitrator, for good cause shown, may
schedule an additional heanng to be
held within five days.
(h) Unless otherwise agreed to by the
parties, the decision under the expedited
procedure shall be rendered not later
than five business days from the date of
the closing of the hearing. In no event
shall the decision be rendered more that
00 days from the date of selection of the
Arbitrator.
J30531
(a) The award or decision of a
member of the Board shall be binding
and conclusive, and shall not be
overturned except for arbitrary or
capricious abuse of the member's
discretion.
(b) Any party to the proceeding may
appeal the decision within 30 days of
notification of the award or decision to
the Federal district court for the district
where the arbitral hearing took place.
(c) No award or decision shall be
admissable aa evidence of any issue of
fact or law in any proceeding brought
under any other provision of CERCLA or
under any other provision of law. Nor
shall any prearbitral settlement be
adnnasable as evidence in any such
proceeding.
I306J3 Meeeeaneouepi
(a) Any party who proceeds with the
arbitration after knowledge that any
provision or requirement of these Rules
has not been complied with and who
fails to state objection thereto either
orally or in writing, shall be deemed to
have waived the right to object An
objection, whether oral or written, must
be made at the earliest possible
opportunity.
(b) Before the selection of the
Arbitrator all oral or written
communications from the parties for the
Arbitrator's consideration shall be
directed to the AAA for eventual
transmittal to the Arbitrator. Neither the
Administrator nor any party or other
interested person shall engage in ex
parte communication with the
Arbitrator.
(c) All papers connected with the
arbitration shall be served on the
opposing party either by personal
service or United States mail. First
Class.
|FR Doc 85-29566 Filed 12-12-85 8 45 am]
BILUNO COOC (MO-4B-N
40 CFR Part 306
ISW FRL »14-7(b)l
CERCLA Natural Resource Claims
Procedures
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: Section 111 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA) allows the
submission of claims to the Hazardous
Substance Response Trust Fund
established under-CERCLA. Section 111
permits trustees to assert claims for the
costs of restoring, rehabilitating, or
replacing or acquiring the equivalent of
natural resources injured by releases of
hazardous substances, including damage
assessments. Claims may also be
asserted for reimbursement of the costs
of responding to actual or threatened
releases of hazardous substances.
pollutants, or contaminants. Section 112
of CERCLA directs the President to
establish forms and procedures for the
filing of claims against the Fund. The
President has delegated this authority to
the Environmental Protection Agency
under Executive Order 12316. This final
rule establishes the procedures for filing.
evaluating, and resolving claims for
injury to natural resources asserted
against the Fund The procedures
contained herein apply only to natural
resource claims against the Fund. The
procedures governing the Board of
Arbitrators (40 CFR Part 305).
established under section !K(b)(4)(A) of
CERCLA. era presented in a final rule
elsewhere in today's Federal Register.
Proposed procedures for filing claims for
necessary response costs incurred by
third parties in carrying out the National
Oil and Hazardous Substances Pollution
Contingency Plan will be Part 307.
•Fracnvt DATC March 13.1988.
CERCLA section 305 provides for a
legislative veto of regulations
promulgated under CERCLA. Although
INS v. Chadha. 462 U.S. 919.103 S. Ct.
2784 (1983). east doubt on the validity of
the legislative veto. EPA has transmitted
a copy of this regulation to the Secretary
of the Senate and the Clerk of the House
of Representatives. If any action by
Congress calls the effective date of this
regulation into question, the Agency w,.|
-------
51206 Federal Register / Vol. 50. No. 2-iO / Friday. December 13. 1985 / Rules and Regulation
pubksh a notice of clarification in the
Federal Register.
ADDRESSES: The record supporting this
rulenakirg is available for public
inspection at U S. Environmental
Protection Agency. Waterside Mall.
Lower Garage. 401 M Street. SW.
Washington. DC 20460. The docket is
available for viewing by appointment
only from 9:00 a.m. to 4.30 p.m.. Monday
through Friday excluding holidays. As
provided in 40 CFR Part 2. a reasonable
fee may be charged for copying services.
FOR nflTTHER INFORMATION CONTACT
William 0. Ross. Office of Emergency
and Remedial Response (WH-5UI. US.
Environmental Protection Agency, 401 M
Street. SW. Washington. DC 20400.
telephone (800) 424-9348 (or 383-3080 hi
the Washington. DC metropolitan area].
• Superfuad Docket (202) 382-3046.
SUPPLEMENT A«V INFORMATION: The
contents of today's preamble are listed
in the following mtfimr
1. Introduction -~ ~~
II. Background
IB. Summary of Changes from the Proposed
Rule
IV. UK of (he Fund Ear Nataral Resoarce
ChuxD
A Priority Rank ing Sf*wn far &rmi
B. Coordination al Btapnai* Actioas and
Natural Resource Actions
C. Preauthorixation Requirement lor
RcBtuiatujii Gnnis
D. EPA't Amrnal Planning and Budgeting
V. Procedures far Pui m m% Materal Vmowoe
Cleiau Acmml the Foarf
A. Trustee and Lead Trustee
B. Approaches ta Natural Resouic*
Damage Assessment
C Rebunable Presuoption tor
AflTCTORICntl
0. Reque»& for PimuCliuilnition of Ratnral
Reidiroe ftestoratioiui
E. Actions by Trustees •
Situations
VL Sufcnnecn W Natar
A. Truuae Elecuaa 10 —
Action or Fife a CUiai
B Presentation of CUmu to me AttenuaBy
Responsible Partypet)
vn EPA Review and Pcynedt of Claitu
Against (he Fond
VTT1. Statate of Lmrtrtiow
IX Re«^ataryStetiusnd«eq«if«dAiMlywt
A. Executive Order 12ZM
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. introduction
The final rule provides the forms asd
procedures required by section 112(0^1)
of the Comprehensive Environmental
Response. Conpeacanoa and Liabtbty
Act of 1980. 42 UJ&JC. 9601 et ceo.
["CERCLA" of th« "Act"), for Cling
claims allowed by section 111 of the Act
for injury to. destruction of. or loss of
natural resources. This rule applies only
to claims for reimbursement from the
Hazardous Substance Response Trust
Fund (the "Fund") established by
section 221 of CERCLA. The regulation
applies only to Datura! resource claims
under section Ill(a)l3) and (b}—claims
by trustees for injury ta destruction of.
or loss of [hereinafter, collectively
referred to as "injury to") natural
resources, including the cost of
assessing such injury. This regulation
does not apply to claims against the Post
Closure Liability Fund established under
section 232 of CERCLA: procedures for
such claims will be addressed at a later
date.
This preamble discusses: the statutory
background to the natural resource
claims procedures: the natural resource
claims allowable under CERCLA: the •
changes made from the proposed rule:
the major public casements and
responses by the U.S. Environmental
Protection Agency (EPA"~or die
"Agency"]; and the regulatory status of
this regulation under Executive Order
12291. the Regulatory Flexibility Act.
and the Paperwork Reduction Act of
1980.
ILBackfrooBd
CERCLA. eauited en December 11.
nm. establishes broad authority for
iexpending ts> actual or threatened
releases of hazardous sabstanoes.
pollutants, or contaminants. The
Government nay take icjponse actions
whenever there is a release or a
substantial Area* of a reieese of a
hazardous substauue. or whenever there
is a raleaM or SBbstantfai threat of a
release of pollutants or contamfaieats
which may present an imminent aad
substantial danger to public health or
welfare or fte eailiuiiiiieat
(Hereinafter, ordess otherwise indicated.
tin tern "release* refees to actual or
threatened releases of eMber hazardous
substances orpofltrtMrts or
euiUaiMHBirts.) These governmental
response evtirarities may be ntffired
onleaa the President determines that a
response aotraa wS be done properly
by a responsible parry.
The President bn delegated response
authorities to EPA. Any response
actions taken by fee Government
pursMEi to tins aakoiUy anst not be
inconsistent m* tk* National CM and
Hazardous Substances PoHubea
Coatsflsjencr Ptan(NCP) (40 OH Part
300). CERCLA a Is* establishes a Pond
which may be used to pay for responses
to releases and to pay certain claims to
other parties for responding to releases.
CERCLA imposes liability on those
responsible far actual or threatened
releases and provides authority to
undertake abatement actions and to
enforce against responsible parf.es.
The first major type of response
action authorized by section 104(a)'
CERCLA is a removal. In a removal
action. EPA can respond to immediate
and significant threats to pubbc health
or welfare or the environment posed by
a release. Removal actions generally are
limited to not more than six months in
duration and the expenditure of not
more than SI million. One hundred
percent of the cost of these removal
actions may be paid out of the Fund.
The second major type of response
-action available under section 104(a) of
CERCLA is a remedial action. Remedial
actions are responses to prevent or
mitigate the migration of hazardous
substances, pollutants, or contaminants
from the sile to protect human health or
welfare or the environment Under the
NCP. CERCLA-funded remedial actions
must be cost-effective and are restricted
to sites that are on the National
Priorities List (NPL)- Remedial actions
may take several yean to plan, design.
and implement. There is no statutory
limitation on the amouiU of time or
money that can be spent lor a remedial
action: however. EPA is required to
balance the costs af the remedial action
selected against other demands on the
Fund in determining whether and b' 'o-
proceed with the remedial action.
Section 104(b) Authorizes ttudie.
investigations, monitoring, surveys.
testing, and other infonnaiian gathering
necessary to identify the existence.
exleot. source, aad nature of an actual
or threatened release, aad the extent of
danger to the public health or welfare or
the anvironnenL Voder ibis broad
authority. EPA nay authorize Fund
expeaditwes (or studies sod
investigations of iajury to natural
resourcea, to the extent that snca nyury
may pose a threat to public health or
welian or the environment.
Section 106 of CERCLA aumorjc*
Federal enforcement actions, including
administrative orders, to abate the
effects of releases. Section 107 imposes
broad hafaiiity for releases on current
and former owners and operators of
vessels or facilities, as well as on
persons, such as generators and
transporters of tnardoot waste, who
ajtMigtd for the disposal or treatment of
hazardous substances. Section 107 also
confers a nght upon the United States
and States as trwtees to sue for injury
to natural resource*.
Section 111 of CERCLA authom«>* th
submission of claims from the Fi r
injury to natural resources, mclu. he
cost of damage assessment, as a r«>v.:!i
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Federal Register , Vol 50 \o :40 ,' Fr day- December 1J 1965
rtrc Reguid;'0"3 51207
of a release of a hazardous substance
The Federal Government or States, as
trustees, may submit claims against the
Fund For reasonable costs associated
with assessing damage to natural
resources and for restoration.
rehabilitation, replacement or acquiring
the equivalent of injured natural
resources (Hereinafter, unless
otherwise indicated, the term
"restoring" or "restoration" includes
restoration, rehabilitation, replacement
or acquiring the equivalent of.) For the
purpose of claims. CERCLA section
lll(b) designates the President as
trustee for resources over which the
United States has sovereign rights and
certain additional resources identified in
section lll(b) (hereinafter referred to as
"Federal resources"), and States as
trustee for resources within their
boundanes. belonging to. managed by.
controlled by. or appertaining to the
Slate. Subpart G of the NCP specfies
which Federal agency(ies) shall serve as
trustee(s) for the venous Federal
resources. It also describes the
relationship between Federal and State
trustees.
CERCLA permits trustees to obtain
compensation through the claims
process for two types of natural
resource activities—damage assessment
and restoration. Damage assessment is
the process of determining the extent of
ifljury to natural resources. This may
include preliminary investigation of
injury and the use of appropnate
techniques for determining the extent of
injury. Trustees may also include in
such claims the reasonable and
necessary costs associated with
developing cost projections, a
restoration plan, and obtaining public
comments. The Act provides that
restoration may involve restoring,
rehabilitating, replacing or acquiring the
equivalent of an injured resource. The
Agency does not believe that the limited
resources in the Fund may or should be
used to provide monetary compensation
for loss or injury to natural resources. By
contrast, section 107 does not limit sums
which can be recovered against
responsible parties for natural resource
damages (section 107(f]).
Section lll(i) bars the use of Fund
monies for natural resource restoration.
except in limited situations, until a plan
for the use of such monies has been
developed by the trustee and adopted
by affected Federal agencies and States
The Agency interprets this section to
require "preauthonzation" or the prior
approval of EPA before natural resource
claims for restorations may be asserted
against the Fund "Preauthonzation" is
discussed further in section IV C of this
preamble
Section 111 of the Act sets forth
procedures by which claims may be
asserted against the Fund That section
also requires the President, and by
Executive Order, the Agency, to
establish forms and procedures for both
natural resource and response claims
III. Summary of Changes From the
Proposed Rule
On March 8.1985. EPA proposed
regulations (SO FR 9593) which could
prescribe the forms and procedures for
asserting claims against the Fund for
injury to natural resources. Publication
of the proposed rule was followed by a
60-day public cement period. A
summary of the public comments.
together with the Agency's responses, is
contained in the "Responses to
Comments on the Proposed Rules on
CERCLA Arbitration Procedures and
natural Resources Claims Procedures".
which is available for inspection at U.S.
Environmental Protection Agency,
Waterside Mall. Lower Garage. 401 M
Street. SW. Washington. DC 20460. After
consideration of these public comments.
EPA has made the following changes to
the proposed rule. Each change ia
discussed in detail in the preamble
section noted.
1. The Agency has revised 40 CFR
306.24(b) to provide consistency
between the preamble of the proposed
rule describing the criteria according to
which the Agency will evaluate
preauthonzation requests and the
language of the regulation (see section
(IV.A.).
2.40 CFR 308.21(d) was added to link
natural resource actions explicitly with
response actions because many of the
remedial and removal actions selected
for sites will directly or indirectly
address losses to natural resources (see
section IV.B.).
3. A paragraph was added to 40 CFR
306.22(0 that will stop statutory time
limits from running while the
Administrator decides whether to
preauthonze a restoration claim. The
paragraph also requires that the trustee
notify the* responsible party(ies) at the
time of the request for preauthonzation
(see section IV .C.).
4. The Agency, in 40 CFR 306.20(c), is
interpreting CERCLA to accord the force
and effect of a rebuttable presumption
to damage assessments performed by
Federal trustees in accordance with
CERCLA section 301 (c) regulations (see
section V.C.).
5. 40 CFR 308.22(c) and 40 CFR 308.30
(b) and (c) were modified to clanfy that
the use of the EPA forms for filing an
application for preauthonzation of a
natural resource claim ;s optional b1.:
encouraged
6 A provision has been added !o 40
CFR 306.24(a) that explicit!) provides Lr
an explanation of the basis for each
preauthonzation decision, and 40 CFR
306.31(j) has been added to prov ide a
notice of reason(s) for denial decisions
(see section V E.).
7 40 CFR 306.23(e) has been added to
clarify the responsible party search
requirement in emergency situations
(see section V F ).
8.40 CFR 306.25(c) has been revised to
clarify in which situations partial
settlements with responsible parties
preclude resource against the Fund (see
section VLB.).
9. To clanfy that administrative costs
are reimbursable for both damage
assessments and restorations. 40 CFR
306.2l(a)(l) has been amended by
combining paragraphs (1) and (2)(i)
under a new paragraph (1) that covers
both assessments and restorations, and
inserting a new paragraph (2) that
provides for reimbursement of
administrative costs reasonably
necessary for and incidental to both
activities (see section VII].
10.40 CFR 306.32 has been revised to
clarify the requirement that trustees
retain all records relating to an award
from the Fund for the lesser of six years
or until cost recovery is completed by
EPA (see section VII).
11. The Agency has revised 40 CFR
306.30 (b)(4) and (c)(3) to require
explicitly that a trustee consider the cost
of both in-house services and contractor
services in determining necessary and
reasonable costs for assessments and
restorations. As revised, the section
requires justification for the choice of
any service other than the least
expensive (see section VII).
12. The Agency has added 40 CFR
306.30 (b)(4)(iii) and (c)(3)[m) to require
trustees to provide documentation
demonstrating that claimed costs for
natural resources do not duplicate
responses costs (see section VII].
IV. Use of the Fund for Natural
Resources Claims
This section explains the priorities
which the Agency will use to approve
requests for natural resources
expenditures from the Fund. It also
explains why the annual EPA budget
process is necessary for evaluating
requests for funding of damage
assessments and restorations and why
the Agency prefers to address injury to
natural resources, when possible.
through its response authorities It then
explains the preauthonzation process
for restorations.
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51208 Federal Register ' Vol 50
J-Ti / FnJa\ D-icep-.ber 13. 1985 / Rules end
A Priority flanking System for
g Claims
Because of competing demands for (he
'imitPd resources of the Fund, the
Agsncy proposed, in the March 8. 1985
proposed rule, the non-exclusive criteria
the Agency will use in evaluating claims
and requests for preauthonzation and
the priority ranking scheme which will
guide Agency determinations.
The Agency will consider the
following criteria in evaluating claims
ar.d requests for preauthorization:
(l) The seriousness of the problem in
relation to competing demands on the
Fund:
(2) The uniqueness or special
significance of the affected natural
resources as radicated by the trustee:
(3) The extent to which the injury has
been or may be addressed by a response
action: and
(4) The liability of the claimant for the
release or threatened release.
The Agency wffl also be guided by
whether the natural resource action is at
a site (NPL and non-NPL] where
immediate removal or enforcement
action is warranted, due to imminent
and substantial threat to public health
or the ermromnent. end where efforts to
stabttne the site can. with substantial
benefit be augmented by a specific
natural leviwiue assessment or
. A second iiiraiily n
accorded NPL sites where the Agency
has instituted or intends to institute
Fund-financed remedial or enforcement
actions. Third priority wifl be given to
non-NPL sites with damages resulting
from releases associated with NPL she*.
Last priority wttJ be given to sites not on
the NPL that denvt owe an immediate
and significant threat to ptbtk heat*
requiring removal or remedial actiea
under CERCLA, The Agency's
evaluation of chn'ns for dssxage
assessments and requests, for
preaudwnzanan of leirUiurttoa dams
will be glided by these
endorsed EPA's prioritise far siviw
claims, underscoring the. akjoifi
threats to publiic health or-Jhe
environment. These commenters agreed
that the claims regulations stoat
properly account for the larger context
of the CERCLA program, which is
focused oa cleanup of hazardous waste
sites that threaten pubnc health or the
environment.
Other commenteE*. howeTer. were
dusabsfied with the Agency's pmritiea
for evaluating dams. One commenter
found no u***~*rm m CEXCLA or the
legauuim fajsaory
intended to pnorcue claims other than
by date of presentation. The oommenter
said depletion of the Fund is a matter for
congressional consideration through
reauthonzanon of CERCLA or the
appropriations process. Another
commenter stated that the cleanup of
sites threatening public health should
receive funding priority, but public
health concerns should not determine
the focus of natural resource claims The
commenter felt that EPA should
evaluate claims solely on their merits in
accordance with the four considerations
proposed.
EPA has responsibility for Fund
management to ensure that the limited
Fund resources are used effectively.
There is no statutory requirement that
the maximum of 15 percent of the Fund
that may be aDocated to natural
resource claims be used to pay such
claims. EPA sees this lack of a minimum
required expenditure ai a clear
indication that Congress believed dtat
the Administrator should have the
discretion to decide that public health
concerns take precedence over other
concerns. EPA believes thai Congress
did intend that prioriiJes be set for uee
of limited Fund moneys. Senator
Stafford, one of the principal eponsan of
CERCLA, remarked during legislative
debate:
[W]e intend (that)pnontim^eset far
expendfeuei tram the tone, aa4 thM such
expenditana be made in Una •miBtiou
watch matt anrnta threat. The find shndd
not be mad to clean up or nawdy «ay and
every diichanja.
(122 Cong. Dee. SUBK (daily ed. No*.
24. 1980) (emphasM added).)
Accordingly, the Agency's top pnonry
far the JHmd ts t» stabfloe the numerous
hazardous waste site* which pose an
uneaVateAdaignfftosnt three* to
pobllc health and die environment (i.e..
response actions). CQCCLA section 165
calls far the Agency to set priorities by
requiring that the NCP be revised to
include: tl) "Criteria {or determining ^
priorities anwng releases or threatened
releases. . . far the purpose of taking
remedial acBoa" (Section rtJSfBH Aft
and (Z) • Hat of "nattonal priorities
among the known releases or threatened
releases' (section lOSfaMB))- TheNCP
onrrantly contains a National Prionties
List of Ml such sites. The anmnri
planning process provides trustees with
&e chance to assert their priorities:
huwcver. allowing trustees to establish
priorities far the Agency would create
inconsistency in Paid distribution.
DetenMing cost-effecti •euuBS Bird
Fund-balancing are key EPA functions
under CERCLA's mandate for both
natural resource claim and response
claims. Maintaining public health as the
top priority for natural resource claims
is in keeping with EPA 5 dj»:-e 'o !.:>
natural resource actions with re«oo;-.Je
acf.ons whenever possible The
Agency's proposed priority schcrv.e for
evaluating natural resource clu.rr.3 is
being maintained because it
appropnately emphasizes specific
priority sites and emergency situations
ensuring that the Fund is managed
efficiently and allowing maximum
utilization of limited Fund resources.
One commenter stated that the
criteria according to which damage
assessment claims should be evaluated
are expressed differently in the
preamble and in proposed 40 CFR
306.24{b). In response to this commemer
the Agency has revised 40 CFR 306.24(b)
to be consistent with the language in the
preamble to the proposed rule.
8. Coordination of Response Actions
and Natural Resource Actions
In die preamble to the March B. 1985
proposed ndemakmg. EPA stated that it
would, where possible, address injury to
natural resoorces within the context of
Fund-financed response actions. Many
of the remedial and removal actions
selected lor sites will directly or
indirectly address natural resource
injuries.
Seme commefiieu agree that moat
Fund-financed nsspoase actions at sues
would also adequately remedy injurie*
to natural resources that occurred. C
commenter wrote that valuable fund.
time, and personnel resources could be
conserved fay oombiiung the of tea
overlapping processes of response
actions and natural resource actions.
Another conunenter expressed the
opinion that propedy and jointly
coocdinaled response actions and
natural resource actions would provide
a better, mare efficient, and longer-
Luting «"1"""" than either of the two
actions taken by themselves.
One commenter felt that the proposal
to kak natural resource actions with
mponse actions *>"'"lf* be slated not
only la the preamble, but should also be
included in the regulations. This
commenter also noted that assuring that
the proper coordinaUon between
response actions and quantification of
natural resource damages would require
further clarification. EPA agrees with
this commenter and has explicitly linked
natural resource actions with response
actions in 40 CFR 30B.n(d)-
One commenter opposed the policy of
coordinating response actions and
natural resource actions on the grounds
that EPA's response authority under
section 104 of CERCLA extends onh
endangerment or threats to public h.
or welfare or rhe environment Became
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federal Register / Voi 30 No 2-JO
!J
312G3
ihe definuiiin of environment does not
include li\.pg r'sourc'"" th» policy
Mould be legally limited in respo-dmg
ic ,-atural resource daruge This
uommenter aiso maintained that the
policy vv>uld be practically limited
beciuse trustees natural resource
efforts could not be pursued on the same
si.hF>du!e as F.PA's remedial
investigation/feasibility study process
because the trustees are required to
meet a tkrce-Vtiar statute of limitations
deadline which runs from Ihe date of
cJ.ECO.cry of the loss to the filing of a
cldiTi. The commenter recommended
that EPA redraft the provision to
dr.knowlcdge that time constraints may
prevent trustees from following
rsLornmendcd procedures.
EPA aarees that response activities
may be limited. However, it is for this
riHson that the Agency gives Ihe highest
priority to restorations which
complement response actions. If a
cleanup eliminates the source of
contamination, the restoration which
might include, for example, only
restocking or revegetation (i e.. Kving
resources), can then be accomplished in
a most cost-effective manner. Regarding
the three-year statute of limitations, the
regulation provides that the restoration
claim relates back to the date of the
damage assessment claim. Therefore.
while it is desirable that both the
damage assessment and restoration
claims occur within three yean of the
date of discovery of the loss, a trustee is
mmim.illy required to submit only the
damage assessment claim within that
hT.'j frame
C Preouthortzation Requirement for
Restoration Claims
The proposed rule provided thai
cldims for natural resources restoration
mav be submitted to the Fund only if
ihpy are approved in advance or
preduthorized" by EPA. The final rule
retains this requirement. EPA interprets
CERCLA to require that a plan for th*
restoration of natural ntautrrt mast b*
.jdopled before a cium.hr restoration
r.oiis may be submitted to the Fund.
Section 112 of CERCLA. which sets forth
the procedures whereby claims may be
asserted dgainst the Fund, apphes only
to 'all claims which may be asserted
aguinst the Fund pursuant to section 111
• if this title ' Thus, in order fora claim
10 be filed, triggering all the procedures
of section 112. the claim must satisfy the
prerequisites of section 111. Among
those prerequisite* is section lll[iL
which provides.
Fjndi may not be used under this Act for
;he resiorsuon. rehabilitation, or replacement
ii- .irquiaition of the equivalent of any natural
resourrps iiivil J plan for ine use i-f «i -n
fund* t>as been developed ard adoo'ed
While the statute docs not speciiy wner.
this plan trust be adopled. theie are
several reasons to believe thdt it mjs>t
be before a claim :s filed. First, a daim
is defined by section 101(4] as a
"demand in writing for sum certain.'
Since the section 111(1] plan is essential
for determining the nature and extent of
the natural resources restoration, it is
difficult to see how any meaningful
"sum certain" could be identified before
adoption of the plan. Forthermore.
section 112fb)(3) of CERCLA provides
that if no settlement is reached within 45
days of the filing of the claim, the
President [EPA] may male and pay an
award. If EPA declines to make an
award, toe matter is referred to the
Board of Arbitrators. While section
112(b)(3) does not specifically require
that an award be made within 45 days,
it does contemplate that an award might
be made within that tune frame. The
statute certainly does not contemplate
the post-claim development of a section
lll(i) plan, which requires "adequate
public notice and opportunity for
hearing and consideration of all public
comments," a process which would take
considerably longer than 45 days.
Section U2(b) provides foe the referral
of denied claims to a memhre of the
Board of Arbitrators, whose decision
may be disturbed only foe "arbitrary and
caunc;ou* abuse of discretion." There is
no indication 0 the statute or its
legislative history, however, that the
Board should have authority to make
policy judgment* on the priority of
claims. Nor does the traditional rote of
arbitrators suggest sach a retail. An
arbitrator would be ill-equipped to make
such a policy ludgneent. tince he would
not be aware of or fully appteciate the
pres» of other matters which are
competing for the Fund's attention. It is
worth aeung IB this regard that alrhnfigh
Congress imposed a 15% maaaaam on
amounts that cook! be spent on natural
resource daims, there is BO mmmnna.
Indeed, the Agency eoald reasonably
determine that no money at all should
be spent on natural resource claims
pending further progress m deasung np
NPL sites. Given these priorities, which
are consistent with Congressional
intent, it would make little sense for
claims which EPA has determined to be
of insufficient priority to be wbject to
an award by the Board of Arbitrators.
There is no raggEsnon m the statute or
its legislative hnnxy that the Board was
to have the effective authority to
allocate up to 19% of the Fund. Rather.
the secnon 112 dams process makes
most sense if it addresses onry those
ci;nms wh-f h the .\7°r-.c. hd»
determined are of sjffic.er.t <-.?,•:-' •,-.LJ
to nicr;t F^rd expenditure The A^-jrr\
believes thdt Congress has intended >L-s
rcsult by requiring the adoption of d
section lllfi) plan before the filng of .1
cljim under section 112.
EPA recognizes that the court in Veu
Jersey v. Ruckelshcus. Civ Actinn \'o
1668 (JWB) [D.N.I.. Dec. 12.1984).
rejected the Agency s interpretation th.it
preauthorization of natural resource
claims ii required by the Act A>:v
Jersey decision is now on appeal before
'he U.S. Court of Appeals for :he Third
Circuit Of course, pending a reversal.
the Agency will continue to process the
claims that are the subject of the order
However, even if the New Jersey court s
opinion that the statute does not requ.re
preauthorization prevails, the Aqer.cy
believes that the Act provides EPA with
the discretion to impose the
preauthorization requirement by
regulation, as part of its responsibilities
to manage the Fund and otherwise
implement the Act For this reason. EPA
does not bebeve this regulation to be
inconsistent with the court order. In any
event, the regulation will not apply to
any purported claims, such as (hose (hat
wen the subject of the New Jersey
litigation, which have already been
submitted to the. Fund. These claims will
be handled on a case-by-case basis.
EPA believe* that the
preaulhoruabon requirement is a
legitimate and important part of the
procedures being promulgated today.
First, the Agency must harmonize the
reqniresnents of section lll(i) with the
procedures for submitting a claim. We
believe that adoption of the section
lll(i] plan before submitting a claim is
moal appropriate; in mat the claims
process could then focus on only those
claims for which there is a reasoned
basis and which the Agency has
determined to be of sufficient priority.
This is in accordance with the
Congressional directive to spend Fund
monies in a coal-effective manner. As
stated by the Senate Committee Report
on S 1460. "(A|ctions to restore.
rehabilitate, or replace natural resources
under the provisions of this Act (should)
be accomplished in the most cost-
effective manner possible. The process
of developing soch a plan w.U be of
great assistance m avoiding
unnecessary costs" jS Rep. No 96-848.
96m Cong. 2d Sess.. p. 85 (1980))
The primary function of the
presuthonzation is to allow EPA to
evaluate the merits of a proposed
restoration and determine whether it is
of sufficient pnonty for Fund
reimbursement. Presuthonzasion w M be
-------
51210
Federal Register / Vol 50. No 240 / Friday. December 13 1985 . Rjies and Re-;-.j- ors
EPA's commitment to make an award lo
reimburse necessary and reasonable
restoration costs. A maximum
reimbursement may be specified at the
time of the preauthonzation.
Preauthorization thus will provide
assurance to the trustee that a claim will
be paid, although ultimate
reimbursement will depend on amounts
actually available in the Fund. In
addition, the preauthonzation
requirement will prevent the submission
of large claims to the Fund which, under
section lll(e) of CERCLA. must be paid
in the order in which they are finally
determined. By allowing the Tiling only
of high priority claims, the Agency will
ensure that one trustee does not obtain
exclusive use of the Fund.
Preauthonzation also serves another
important function. Under section
U2(a), trustees must elect whether to
Tile a lawsuit against a responsible party
or submit a claim to the Fund. Since a
request for preauthonzation does not
constitute the filing of a claim, denial of
preauthorization will preserve the
trustee's right to proceed against the
responsible parties. No election is made
until a claim or lawsuit is actually Tiled.
Consistent with the priorities
discussed above. EPA will consider
preauthonzation natural resource claims
for restoration activities. With limited
funds available for response actions, as
well as damage assessments and
restorations, trustees are encouraged to
recover the costs of restoration
activities from responsible parties.
whenever possible, using the
information in the damage assessment
to support these cost recovery actions.
Two commenters were in favor of the
preauthonzation requirement. One of
these commenters called the
requirement "sound and justified under
the statute." citing as support CERCLA
section lll(i). The commenter also
pointed out the necessity of
preauthonzation in allowing the Agency
to "prioritize and budget among
competing projects" by providing
advance warning of Fund expenditures.
According to the commenter,
Congressional intent of coat-
effectiveness also is served by
preauthonzation. The commenter
suggested that 40 CFR 306.24 include in
factors for preauthonzation the
"likelihood of obtaining recovery from
potentially responsible parties." as is
mentioned in the preamble. Another
commenter suggested that EPA extend
its preauthorization requirement to all
restoration actions, including those for
which the trustee plans to seek recovery
from potentially responsible parties
The Agency disagrees with these two
suggestions. First, the list of criteria in
40 CFR 306.24 for reviewing requests for
preauthonzation is. as noted in 40 CFR
306.24(b). non-exclusive. Therefore. EPA
may include in its evaluation of requests
the other factors that are mentioned in
the preamble. Among these other factors
is the likelihood of obtaining recovery
from potential responsible parties As
part of its planning and budgeting
process, the Agency encourages trustees
to file a notice of intent to Tile a claim
prior to Tiling an assessment claim or a
request for preauthonzation. Part of the
information to be included in the notice
is the trustee's alternatives to funding
(i.e.. potential for action against a
responsible party), which will be used
by the Agency to set national priorities
for funding. Second, this regulation only
covers natural resource claims asserted
against the Fund. The Agency has no
authority to require preauthorization of
restoration activities for trustees
intending to seek recovery in court from
potentially responsible parties.
Two commenters charged that the
preauthorization requirement would
defeat Congress' intent of restoration
claims to be an integral part of the
Superfund program by requiring a major
up-front expenditure of time and money
before any commitment of funding was
received from EPA. However, the annual
planning and budgeting process
minimizes the possibility that the trustee
will make up-front expenditures in the
unwarranted expectation of Fund
reimbursement. By participating in the
annual planning process, trustees have
some assurance in advance which
natural resource activities may be
reimbursed through the Fund.
Several commenters stated that the
preauthorization requirement could, in
some cases, prevent the filing of claims
under the three-year statute of
limitations set out in CERCLA section
112(d). EPA agrees that the fulfilling of a
statutory prerequisite—
preauthonzan'on—-should not consume
the short time during which a claim may
be filed. Accordingly, the Agency has
added a new paragraph { 306.22(f)
recognizing that the statute of
limitations will be tolled while the
Administrator decides whether to
preauthonze a claim. EPA will endeavor
to make final decisions on
preauthonzation requests for
restorations within 60 days. In addition.
the paragraph requires that the trustee
notify the responsible party(ies) at the
time of the request for preauthonzation.
Several commenters objected that
trustees are offered no process of appeal
from determinations by EPA not to
preauthonze a restoration claim. One of
these commenters suggested, therefore.
that preauthonzation should not be
excepted from the scope of the Board of
Arbitrators' review.
If the Administrator denies a request
for preauthonzation, a claimant has
further recourse. If a preauthonzation
request is denied because of low pnoi
or because of an insufficient balance u
the Fund, the trustee may resubmit the
application in another fiscal year If
preauthorization is denied because of
substantive inadequacies in the damage
assessment or restoration plan, the
trustee may resubmit the request after
correcting the deficiencies. State
trustees may also seek judicial review of
the denied preauthonzation request.
Finally, denial of preauthonzation does
not affect a trustee's right to proceed
against responsible parties.
Three alternatives to the
preauthorization process were suggested
by commenters:
• Damage assessments should first bi
performed by the claimant in consultation
with EPA and financed by the Fund. Then.
the tnistee(s) and EPA should jointly
determine a funding level and develop a
workplan.
• A restoration plan could be required
before a claim would be recognized as
"perfected." "This would allow the trustee to
conduct the damage assessment, do some
preliminary restoration planning, submit a
claim baaed on the damage assessment end
the preliminary restoration planning, and
then develop a final restoration plan . ."
This approach would allow the trustee 10 ' '-
a claim sooner in the process and to alle
the statute of limitations problem.
• An on-going consultative process could
be instituted whereby trustees preseni a
preliminary restoration claim 10 EPA based
on the damage assessment and a "scoping
outline" of the restoration plan. If EPA
agrees, funding is approved and the trustee
completes the restoration plan and presents d
"perfected" claim to EPA. The Agency then
makes the award, the Agency queues (or
rejecu) the claim, and the restoration
activities take place.
The Agency appreciates these suggested
alternatives in response to its request.
However, each of these suggested
alternatives appears to assume advance
funding of damage assessments and /or
restoration activities. EPA has always
interpreted the term "claim" to be a
reimbursement for costs and never an
advance payment. In CERCLA. Congress
has set up two different types of
financial arrangements. Under section
104 of CERCLA. Congress allows
advance payment through contracts or
cooperative agreements. Under sections
111 and 112. however. Congress allows
only for claims. EPA believes that where
Congress intended to allow advance
funding, they provided for it speci[ic»"v
in the statute and that a claim can
be an advance payment. In addiiioi
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Federal Register / Vo! 30 \o 24-) / Fr U.H Dfi'-o.r ;-r 11 ldH:. R' •• •> ^a R-.-j'rr K-»
Xiven ihe Agency s responsibility for
managing the limited resources of the
f-jnd. advance funding may result in
inefficient Fund management because.
(1) There is no mechanism for ensuring
that front-end funds are used m a
manner that would have been
preauthonzed: and (2) actual costs are
likely lo vary from estimates.
In response to die First suggested
alternative, the agency points out that
financing of an assessment should be
provided from the Fund only after the
asaessment has been completed, for the
reasons mentioned above The second
suggested alternative is. in EPA's
opinion, not as clearly authorized by the
statute as preauthonzatran and again
requires that a "claim" be submitted
before a restoration plan is completed.
With respect to the advantages of the
approach that claims can be filed sooner
and the statute of limitations problem
can thus be alleviated, the regulation
provides that the restoration claim
relates back to the date of the damage
assessment claim and that die statute of
limitations will not nm while the
Administrator decides whether to
preauthonze a claim, in response to the
third suggested alternative, the Agency
points out that section lll(t) of CERCLA
requires the adoption of a restoration
. plan, not a "scoping outline" of the plan.
D. EPA's Annual Planning and
Budgeting Process
The proposed rule established a
voluntary annual planning process to
assist the Agency in determining funding
demands and priorities for natural
resource damage assessments and
restoration claims. By enconranng
trustees to file a notice of intenuon. to
file a claim for assessment or restoration
costs, the Agency hope* to improve the
coordination of its response activities
under section 1M with section 111
natural resource claim*. Notices1 of
intention to Tile a clam should Monde
(l) The trustee's ubiattlw for natural
resources actions; (2) tfc» eabnated
costs of and srhftrlnai farsmch acttona;
(3) alternatives to fnadiaa; awd HI the
date of discovery of tbfl las*. Based on
this information, the Agency wdt
establish a tentative ranking of
priorities. The trustee can then modify
its anticipated claim or schedule, or
resubmit the request in a later fiscal
year.
Two coaunenten stated that the
annual planning process is unnecessary
and would be bmrirnanmn. requiring
considerable additional paperwork with
little effect The following pouts \
made in support of this position:
• EPA s concern wu.i cost jccuo.itjbihr. :s
covered by the words reasonaole LOSU ' m
ihe Act and
• The imposition of the planning process
prior to the submillal of claims and the
limitation of claimants only to annual
submitials are clear deterrents to the
Congress' intended granting of natural
resource claims against the Fund.
The annual planning process will help
EPA lo ensure that Fund monies are
used to address sites that pose the
greatest threat "Reasonable coats"
under the meaning of CERCLA relate to
price and need for a particular
expenditure, not the establishment of
priorities. The planning process provides
a mechanism to arrive at priorities and
gives trustees some advance assurance
of which activities may be reimbursed
through the Fund. Participation in the
planning process is optional
One ccraunenter disagreed with the
inclusion of the annual budgeting
process. The commenter expressed
concern that unforeseen contingencies
may be out of phase with the annual
budgeting process, and suggested that
inter-agency procedures have clear
provisions for contingencies. The
Agency points out that the annual
planning and budgeting period, while
the preferred time, is not the only tune
requests may be considered. Per
example, emergency actions, to avoid .
irreversible loss of natural resources are
provided for in 40 CFR 306.21
V. Procedure* for Pursuing Natoral
Resource Game- Against the Fttnrf
This section explains the procedures
to be taken when multiple trustees are
affected by the same release. In
addition, the section discusses, the
relationship of this rula to the rule being
developed by/ the Department of Interior
for assessing natural resource damage.
The section also explains tba Agency's
deosioa on what types, of damage
assessowali will be accorded the
rebuttable presumption provided In
section lllfbnZ}. Finally, ue procedures
to be followed when requesting
preauthonzanan and when taking
actions in emergency sinun'oaa am
discussed.
A. Trustee and Lead Trustee
RespoasibiJiOes
In the March 8.1985 proposed rule.
EPA proposed a set of procedwes to be
followed m ma event that muMple
trustees are affected by the same
release of a hazardous substance and
dean to seek recourse egsans* the Fund
In tins situation, trustees most select a
single trustee to ad as a "lead trustee"
for purposes of administering the claim.
One co-nmenter suggested tKi FP \
rfllow for situations where it mivh: be
more effit.en; >o have multiple ir.itprs
rather than one "lead trustee " Ar.o'hpr
commentcr expressed the opin.on tu.i: .t
would be more desirable to see
voluntary rather than compulsory
cooperation, and that the final rule
should make appointment of a "lead
trustee ' optional rather than mandatory.
EPA disagrees with the suggestions of
these commented and will continue to
require the selection of a "lead trustee '
in situations where multiple trustees are
affected by the same release of a
hazardous substance and the !R|:iry or
any subsequent remedy is not
realistically divisible The Agency
maintains this policy because it is the
most efficient means of processing
annual requests, administering claims
against the Fund, and responding to any
requests for supplementary information.
Multiple trustees who are affccitJ by
the same release and the injury or any
subsequent remedy is realistically
divisible may act independently and
pursue separate requests for funding or
preaathonzation.
B. Approaches to Natural Resource
Damage Assessment
The Department of the Interior (DOI)
is currently developing rules for
assessing natural resource damage, as
authorized by CERCLA section 30l(c)
and Executive Order 12318.
Several commenters expressed the
view thai the appropriate place for the
scope of natural resource damages
under CERCLA to be established was in
the forthcoming DOI regulations. Thus.
one commenter recommended that the
claims procedures be confined to the
mechanics of filing and evaluating
claims, and that afl references to the
definitions of natural resources.
restoration, rehabilitation, compensate
losses, and similar terms be deleted.
Another commenter suggested that
EPA's discussion in the preamble of
various approaches to natural resource
damage assessment in advance of DOI's
assessment regulations "could and
should be deleted to avoid any further
inconsistency."
EPA agrees that the purpose of these
regulations is to set procedures for the
filing of claims against the Fund.
However, these procedures require the
use and definition of certain terms It is
therefore necessary and appropriate to
include language on the scope of natural
resource damages that are compensate
from the Fund under CERCLA m this
regulation. The DOI regulations will
address only the assessment of damages
to natural resources under CERCLA
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51212
Federal Register / Vol 50. No. 240 / Friday. December 13. 1985 RUJPS and Resuldt-or.s
section 301(c)[2). EPA has the authority
For determining where and how Fund
monies are spent
With regard to "any future
inconsistency" between EPA's brief
discussion of various assessment
approaches contained in the preamble
and DOI regulations, the Agency is
working closely with DOI to ensure
coordination and to avoid
inconsistencies. Should it become
necessary for EPA to alter the
provisions of the regulation as a result
of subsequent DOI regulations, the
Agency will propone such changes in the
Federal Register.
C Rebuttable Presumption for
Assessments
Section lll(h)(l) provides that injury
to natural resources resulting from
releases of hazardous substances shall
be assessed by designated Federal
officials in accordance with regulations
to be promulgated under section 301(c)
of CERCLA. Section lll(h)(2) provides
that an assessment of injury to natural
resources shall have the effect of a
rebuttable presumption on behalf of a
claimant in any proceeding under
CERCLA or section 311 of the Federal
Water Pollution Control Act.
In the proposed rule. EPA discussed
three possible options for determining
under what circumstances assessments
of injury to natural resources conducted
by State trustees are entitled to the
rebuttable presumption established in
section lll(h)(2] of CERCLA. The
proposed revision to the NCP also
solicited comments on which of the
options should be adopted. The three
options are as follows:
• Amend the NCP to designate Federal
officials who could perform assessment* of
Stale natural resource damages. State* could
also perform assessments, but only Federal
assessments, performed in accordance with
the regulations required by section 301(c) of
CERCLA. would be entitled to the rebuttable
presumption established in section lll(h)(2)
of CERCLA.
• Amend the NCP such that only State*
would perform assessment* of damages-(or
miury to. destruction of. or lot* of any Slate
natural resources. Such awaHmtnU would
be entitled to the rebuttable presumption.
• Amend the NCP such that only State*
would perform assessment* of damages to
Stale natural resources. Such assessments.
however, would be entitled to the rebuttable
presumption only when performed in
accordance with regulations promulgated
under section 301 (c) of CERCLA.
Upon review of the comments
received in response to this regulation
and in response to the proposed
revisions to the NCP. the Agency has
concluded that a rebuttable presumption
is available only for damage
assessments performed by Federal
trustees in accordance with CERCLA
section 301(c) regulations. CERCLA
section lll(h)(l) states that "damages
for injury to. destruction of. or lost of
natural resources . . . shall be assessed
by Federal officials." This language.
read in conjunction with the section
lll(h)(2) language on the rebuttable
presumption, supports the Agency's
conclusion. While State assessments
will not be accorded a rebuttable
presumption. EPA strongly encourages
State trustees to perform the
assessments in accordance with the
regulations to be promulgated by the
Department of the Interior. EPA will
generally accord great weight to such
assessments, and their consistency with
the Interior regulations should allow for
expedited consideration during the
preauthorization and claims process.
Several commenters supported
approaches that would allow State
assessments. The Agency agrees that
States may perform such asfassments;
they just will not be accorded a
rebuttable presumption. It may be
possible, however, for Federal and State
trustees to work together on
assessments and then qualify for a
rebuttable presumption.
D. Requests for Preauthorization of
Natural Resource Restorations
One commenter pointed out that
proposed 40 CFR 306.22(c) indicated that
requests for preauthorization "may be
submitted on EPA Form ." while the
procedures for filing natural resource
claims in 40 CFR 306.30 indicate that an
EPA form must be used. Trie commenter
suggested that EPA clarify these
conflicting statements as to whether use
of the forms is optional or mandatory.
The Agency had modified 40 CFR
308.22(e) and 40 CFR 306.30(b) and (c) to
indicate that use of the forms is optional
but encouraged
One commenter stated that when the
^JHE ^VFillilTr""^" w*tB**vM •••••• --..—.
Agency denies either a request for
preauthorization or a damage
assessment claim. It is important that an
articulation of the basis of denial be
given. The Agency agrees and has
amended 40 CFR 306.24(a) and added 40
CFR 306.31(f) to provide for such
explanation.
E. Actions by Trustees in Emergency
Situations
The proposed rule stated that in
accordance with CERCLA section lll(i).
the Agency will not require
preauthonzabon in situations where
genuine emergency circumstances exist.
One commenter. however, expressed
concern over the absence of guidelines
that limit emergency responses. The
commenter noted that proposed 40 CFR
306.23 does not include any cap or
limitations on the cost or extent of any
emergency response. It was therefore
suggested by this commenter that
guidelines limiting the cost and extent
an emergency natural resource action bv
created.
EPA believes that sufficient guidelines
are present in regulations to limit
emergency response actions by trustees.
40 CFR 306.23(a) authorizes trustees to
perform emergency responses only
when immediate action is needed to: (1)
Avoid irreversible loss of a natural
resource: (2) prevent or reduce any
continuing danger to a natural resource:
or (3) avoid substantial loss of evidence
of the release from which injury to a
natural resource resulted. A claim for an
emergency response action is limited to
those actions necessary to abate the
emergency situation. Normal
preauthorization procedures are
required before a trustee can undertake
actions which go beyond those
necessary to abate the emergency
situation. In addition. EPA will only
reimburse for emergency actions which
either could not have been addressed
timely in the response action or were
specifically considered but not included
in the response action. These limitations
effectively "cap" the cost or extent of
any emergency response.
One commenter argued that 40 CFT
306.25(b) and 40 CFR 306.30 (b) and (L
should be revised to allow an exception
to the responsible party search
requirement in emergency situations.
The Agency is not requiring trustees to
comply with the responsible party
search requirement pnor to initiating an
emergency response action. Trustees
may present claims for emergency
action* to the potentially responsible
parties after the emergency action has
been completed (but still at least 60
days before presenting a claim for an
emergency action to the Fund as stated
in 40 CFR 306.25(b) and CERCLA section
112(a)). EPA has added 40 CFR 308.23(e)
to clarify that the responsible party
search is required before submitting the
claim, but not before undertaking the
emergency action.
VI. Submission of Natural Resource
Claims
This section explains the Agency's
interpretation of the CERCLA section
112(a) requirement that a claimant must
make an election between pursuing an
action in court or making a claim against
the Fund. The section also discusses »w-
presentation and settlement of clan
with the responsible party(ies).
-------
Federal Register ,' V,:i Vi v.'o :;u / r'-.Ja. D-cer..er !J
RL
P
.4 Trustee Election to Commer.ce a
Court Action or File a Claim
be ir.consis'ent with the election
requirement.
Section 112(a) of CERCLA provides
that a claimant must make an election
between pursuing an action in court or
making a claim agamt the Fund. In the
Agency s view that election need not be
irrevocable A trustee may elect to
pursue an action in court, and. if the
claim is not satisfied, may then make a
claim against the Fund. A trustee must
choose to pursue only one remedy at a
time: thus, a "sequential" election must
be made.
Up to the point where a trustee
actually files a claim for an assessment
or a preauthorized natural resource
claim, he is free, pursuant to section
ll2(a). to decide either to pursue a claim
against the Fund or to sue a responsible
party under section 107 of CERCLA for
the cost of an assessment or restoration.
A trustee preserves both options
throughout the preauthorization process
and completion of the specific natural
resource restoration. The filing of an
assessment claim under section 112 is,
however, an election to proceed against
the Fund for restoration cost. EPA will
not consider a damage assessment claim
or a preauthorized restoration claim
while an action for the same costs it
before the courts. If the trustee fails to
obtain Judicial relief through a section
107 action, he is free to pursue a claim
against the Fund, provided all other
requirements for filing a claim are
satisfied. Similarly, the trustee is free to
initiate judicial action if his claim
against the Fund is denied in part or in
whole.
Both coimnentera on this issue
generally endorsed EPA's proposed
approach. One of these commenten.
however, incorrectly interpreted the
proposed rule as enabling a trnstee to
pursue both a court action and a claim
against the Fund simultaneously. EPA
disagrees with this-interpretation. •->
One of the commenten objected tor
the statement proposed m 40 CFR • ••
306.30(e) that read* "EPA will return
claims presented moat Uue nbpart
when the Agency datomiaes that a -
trustee has initiated act-action for
recovery of the same cost, in court. . ."
The commenter was concerned that the
return of the claim might lead to
CERCLA's statute of limitations running
out before the claim could properly be
filed again, and suggested that EPA
either process the claim and defer
payment or suspend the claim while any
litigation is pending. EPA disagrees with
this commenter's suggestions. CERCLA
section 112 requires an election of a
remedy: merely to suspend the claim
while action is before the court would
B. Presentation of Claims to the
Potentially Responsible Party(ies)
CERCLA requires that before a trustee
can make a claim for natural resource
damages against the Fund, he must first
make a reasonable effort to settle the
claim with any potentially responsible
parties. The preamble to the March 8.
1985 proposed rule stated that when a
trustee and a responsible party agree
upon a settlement, it is final and binding
upon them. Furthermore, parties to a
settlement made after a claim has been
filed waive all recourse against the
Fund.
One commenter recommended that
the provision requiring parties to a
natural resource damage settlement to
waive ail recourse against the Fund
should be changed to allow for partial
settlements. The commenter pointed out
that in a situation where one or more
responsible parties offer to pay for a
substantial portion of the damage
assessment or foe-partial restoration, the
trustee would be faced with a difficult
all or nothing decision: he would have to
forego either his remaining claim against
the Fund or a beneficial settlement that
could save the State or Federal treasury
substantial expenditure. The commenter
suggested that trie language of this
provision be changed to the following:
". . . truatee(s) will have waived all
recourse against the Fund only to the
extent of its settlement with any
responsible party.. . ."Another
commenter stated that it was unclear
how partial or insufficient settlements
(those with financially limited
potentially responsible parties) would
be handled.
EPA agrees with these commenters on
the need to aHow for partial settlements
with responsible parties. The Agency
encourages trustees to attempt to obtain
at least a partial settlement with
responsible parties before filing a claim
against the Fund. Because of the above
comments, however, clarification may
be needed First EPA does not intend to
pay a claim to the extent that the trustee
has already been reimbursed by the
responsible party. Clearly, no such
double payment can be justified.
Second, although settlements are to be
encouraged, the Agency notes that
payment of a claim subrogates the Fund
to any rights enjoyed by the claimant to
recover costs from responsible parties.
To the extent that the claimant has
released those rights, the Fund will be
unable to recover from the responsible
parties. Therefore, the Agency is
specifying in S 306.25(c) that no claim
will be paid to the extent a release has
been cxecii'ed unless the AJ.T-r j1: i1-
has approved the release EPA will
review and approve such settlemprvs -n
accordance with its enforcement
policies.
If a responsible party does not
respond to the trustees' notice within 60
days or efforts to settle the claim are
unsatisfactory, the trustee may file an
action against the Fund. Upon receipt of
a claim against the Fund. EPA is
required to attempt to promote
settlement between the trustee and the
responsible party. Any resulting
settlement would be final. Once a
trustee agrees to a cost settlement with
a responsible party that is negotiated
after a claim has been Piled, the trustee
waives all rights to a claim against the
Fund. 40 CFR 306.25(c) has been revised
to clarify in which situations partial
settlements with responsible parties
preclude recourse against the Fund.
VII. EPA Review and Payment of Claims
Against the Fund
The proposed rule stated that
reimbursable administrative costs are
limited to those incurred incidental to a
restoration activity. One commenter
noted the the placement of the provision
limiting reimbursable administrative
costs connetced with a restoration
activity in 40 CFR 306.21(a)(2)(ii) was
confusing because it is included in a
subparagraph dealing with damage
assessment costs. The commenter
suggested that if EPA intends to limit
this type of reimbursement to
restoration activity only, the provision •
should be moved to the subparagraph
dealing with restoration activities (40
CFR 308.21(a)(l)).
EPA agrees that the proposed
language is misleading. To clarify that
administrative costs are reimbursable
for both damage assessments and
restorations, 40 CFR 306.21(1) has been
amended by combining paragraphs (1)
and (2)(i) under a new paragraph (l)
which covers both assessments and
restorations, and inserting a new
paragraph (2) which provides for
reimbursement of administrative cos's
reasonably necessary for and incidental
to both activities.
Proposed 40 CFR 306.30(b)(4) reqmrpd
that a restoration claim must include
"substantiation that all claimed costs
are reasonable and necessary " EPA
will use several cntena to determine >f
the trustee's costs are reasonable.
including: (1) A review of the trustee s
documentation supporting the decision
to perform an activity in-house or to
contract it out: and (2) a determination
that all contracts were awarded usir.,j
maximum open and free compcvi-on
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51214 Federal Register . Vul 50. \o 240 / Friday. December ':i iy8J ,' 3-Jes <:r.J
One cummenter questioned the legal
authority and rational basis for "dlways
requiring that the use of trustee
employer services be more economical
than contractor services" in performing
assessments and restorations. The
commenier stressed the need for
flexibility, noting that it may be
appropriate for a trustee to perform an
dctivity in-house, such as an emergency
assessment, rather than contract it out
(at a potentially lower cost).
The regulation requires that trustees
consider the cost of m-house versus
contractor services in determining
reasonable cost. Trustees must
demonstrate consideration of both
approaches. U other than the lower cost
ootion is selected the trustee must
justify the decision to use a higher cost
alternative.
Several commenters expressed
concern over the possibility that a
portion of the costs sought by trustees
for natural resource damage* at a site
might also be included m the cost of the
response action. One commenier noted
that many of the response actions taken
at hazardous waste sites will also
remedy damagps to natural resources.
When the trustee calculate* the co«t of
restoring nartural resources at a site.
this effect must be factored into the cost
request or "double counting" of damage
costs could result Another commenter
recommended that if a trustee proceeds
with either a damage assessment or
restoration claim before a remedial
investigation/feasibility study or
remedial action has been completed for
a site, the trustee must demonstrate that
its claims will not result in any lype ef
double recovery. Also, this commenier
suggested that proposed 40 CFR 306.30
(b)(4) and (c)(3) should be revised tc
impose the additional requirement that
the claimed costs are "non-dunlicative."
EPA agrees that it is important to
avoid the potential "double counting" of
costs between response actions and
natural resource actions. To avoid the
potential duplication of coats. EPA
proposed to link, whenever piactkabla,
natural resource actions with response
actions taken at Superfundsites. The
early and active involvement ef trustees
in the process of reviewing planned
response actions should aid in the
coordination between natural resource
actions and response actions, and
thereby eliminate the potential "double
counting" of costs between these two
actions. A restoration plan would not be
approved to the extent that it duplicates
a response action; EPA will not pay
claims for duplicative efforts. For this
reason. EPA has revised proposed 40
CFR 300.TO (bj(4) and (c|(3J to require
trustees to provide documentation
demonstrating that cUined costs for
natural resources do not duplicate
response costs. Under the provisions of
§ 306.31(a). EPA will verify that the
trustee's natural resource claim does not
contain expenses related to response
work done by EPA at the site. It is not
desirable, however, to delay all
assessment or restoration work until
cleanup is completed, or until the scope
of site response action is finalized.
In the"March 8.1985 proposed rule. 40
CFR 306.32 provided that persons who
receive an award from the Fund must
maintain all records related to the claim
for at leeM six yean from the date of the
award or until coat recovery is
completed by EPA. One commenter
suggested that EPA cianfy thn provision
because H is undear which time penod
takes precedence. EPA understands the
confusion with this requirement and
therefore has revised it 40 CFR 306.32
now requires trustees to maintain all
records relating to an award from the
Fund for six years from the time of the
award from the Fond. If. after six years
EPA has not initiated a cost recovery
action, then the trustee is free to dispose
of the records. Before disposing of (he
records, however, the trustee must
notify EPA and allow EPA the
opportunity to take possession of the
records.
Vin. Statute of Untafieaw
Section 112(d) of CERCLA provides:
No claim may be presented, nor may an
action be commenced far «*°"«-i-« miier tha
title. luueae the claua i» praamled or acuan
commenced witbjn. three yeaa from the dsu
of the discovery of the IBM or the date of
enactment of this Act whichever if
later • * •
Whse the date of discovery wiD be
detemaaad ay fee facts «rf each ease
"date of diaoBvery hi fee March *. 18K,
TiW BVfB m WruCD tb0 tTUltCO D8GUO8
a ware-ef *• feifary to the natural lesuuite.
For an Mfuvy na4 GSR be Tnnaxiy obavnmL
this M ttw dale e> which (be twteeaa*
availabk «• naMMMv should k»ve>
available, • daciaoBOi er meaamadn*.
prepared for ike trastfM verrfynf 1a»
observed Huuiy U> (b* aahteal leaatae*. (he
typea of injury, aad which siajgMt* lk»t tk*
injury nay be related !• the rekase of •
hazardous substsnoe.
For an injury that cannot be vwuaHjr
observed, tmt u me date on which the
trustee ha* avatteMe. or reasorubiy should
have rraflabie. a d«ewneM er iiieiuoiaiKhi
prepared for lac Uuslea. including i
sampling anatlabonlary aaaiysts a* is
necessary, watch identifies the i*|««d
natural resource, the type* of injury, and
Mtnrn suggest thai the iniun m«ij he ici.iird
to the release of a hazardous sunsiance
The proposed rule prouded that the
filing of an assessment claim within
three years of the date of discovery of
the loss would satisfy the statute of
limitations for a later restoration claim
against the Fund.
One commenter suggested omitting
any definition of "date of discovery"
from the regulation. The commenier
would prefer that the courts and EPA
deal with "the facts and equities" of
each case without the use of any
definition. Other commenten said that
the definition of "date of discovery" was
too specific and that if the date of
receipt of an assessment memorandum
by the trustee is considered the date of
discovery, it could preclude the running
of the statute of limitations even when
the trustee has actual knowledge of the
damage. These commenters suggested a
"common, law" approach to defining the
"date of discovery"
EPA disagrees wifh these comments.
It is important that responsible parties.
trustees, cotsrts, and EPA have a similar
notion af bow the dale of discovery is
deterauoflL sad EPA beaeva* this is
best aoMSBpheoed by defining the term
in the ngwlanan. The Agency believes
the deficiaba allows trustees a
reasaaaUe amount of tune to file a
claim while at the sane tame
accommodating the policy of repose
embodied at statutes of limitations.
EPA's defioiboB n consistent with
Congressional intent and the present
state of common law on statutes of
limitation.
Several cotananten recommended
that the statute of limitations, as it
relates to potentially responsible
parties, should be more dearly defined.
One ahw omnsneatod that me definition
of "data of dUoevery" should apply only
to trustees' esanas against the Fond and
not to lawamts araagbt by a trostee
against potentially responsible parties
for the recowarf of damages to natural
resotucaa. The statute of mutations in
CERCLA section 112(d) applies to
actions against Msponsieh) parties
under section 107 a* weti as claims
against tfca Pud. The definition of date
of discovery meat be the sane far bom
types of actions. This MgalafeoH.
however, does act govern actions under
section 107. although the courts may find
guidance in EPA's interpretation of the
statute of KmltaHons provision and
definition of "date of discovery."
IX. Regulatory Status and Recjuind
Analysis
Proposed and final rules issued by
Federal agencies are governed by
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Federal Register /' Vol. 50. No 240 / Friday. Decpmoer 13. 1965 / Rules dnd Regulations 51215
several statutes and executive orders.
These include Executive Order 12291.
the Regulatory Flexibility Act. and the
Paperwork Reduction Act.
.1 Executive Order 12291
Rule making protocol under Executive
Order 12291 requires that regulations be
classified as major or non-major for
purposes of review by the Office of
Management and Budget (OMB).
According to E 0.12291. major rules are
regulations that are likely to result in:
(1) An annual effect on the economy
of Si00 million or more: or
(2) A major increase in costs or prices
for consumers, individual industries.
Federal. State, or local government
agencies, or geographic regions: or
(3) 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 or export
markets. _ _
EPA has determined that this
regulation is a non-major rule under E.O.
12291 because it is unlikely to result in
any of the impacts identified above.
Therefore, the Agency has not prepared
a regulatory impact analysis for this
regulation. This rule was submitted to
OMB for review under Executive Order
12291.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed, for all rules that
are likely to have "significant impact on
a substantial number of small entities."
EPA certifies that this regulation will not
have a significant impact on a
substantial number of small entities.
because only Federal and State trustee*
may submit claims under this regulation.
Further, this regulation imposes no
capital expenditures, nor any
compliance requirement on any
industrial sector.
C Paperwork ReductiojiAct
In accordance with the Paperwork
Reduction Act of 1980.44 ILS.C 3501 et
seq . the reporting or recordkeeping
provisions that are included in this final
rule have been approved by OMB and
have been assigned OMB control
number (OMB 2050-0043.
List of Subjects in 40 CFR Part 306
Chemicals. Hazardous matenals.
Inter-government regulations. Natural
resources. Reporting and recordkeeping
requirements. Superfund. Waste
treatment and disposal.
Ddled November 30.1965
By direction of the Administrator.
A. (arnes Barnes,
Deputy Administrator
Chapter I. Title 40 of the Code of
Federal Regulations is amended as set
forth below.
Exhibit A—List of EPA Regional Office*
Note.—Exhibit A will not be shown in the
Code of Federal Regulations.
Environmental Protection Agency—Region I.
John F. Kennedy Federal Building. Boston.
Massachusetts 02203
Environmental Protection Agency—Region IL
26 Federal Plaza—Room 402. New York.
New York 10278
Environmental Protection Agency—Region
HI. Curtis Building. 6th and Walnut Streets.
Philadelphia. Pennsylvania 19106
Environmental Protection Agency—Region
(V. 345 Courtland Street. N.E.. Atlanta.
Georgia 30365
Environmental Protection Agency—Region V.
230 South Dearborn Street. 13th Floor (HR-
13). Chicago. Illinois 60604
Environmental Protection Agency—Region
VI. First International Building. 1201 Elm
Street Dallas. Texa»J«270
Environmental Protection Agency—Region
VU. 324 East llth Street. Kansas City,
MiSBOun 64016
Environmental Protection Agency—Region
VIII. I860 Lincoln Street Denver. Colorado
80095
Environmental Protection Agency—Region
IX. 215 Fremont Street San Francisco.
California 94105
Environmental Protection Agency—Region X.
1200 Sixth Avenue. Seattle. Washington
96101
Part 306, Title 40 of the Code of
Federal Regulations is added to read as
set forth below.
PART 30«-COMPREHENSIVE
ENVIRONMENTAL RESPONSE,
COMPENSATION. AND LIABILITY ACT
(CERCLA) NATURAL RESOURCE
CLAIMS PROCEDURES
•Mraf
SubpartA-O
Sec
308.10 PurpOM.
306.11 Scop* and applicability.
306.12 Definitions.
306.13 Penalties and statute of limitations.
Subpart B—Natural Rnourc* Ctahna
306.20 Who may present claims.
306.21 Scope of coverage.
306.22 Preauthonzation.
306-23 Emergency action to avoid
irreversible loss.
306.24 Review of natural resource
preauthonzation applications.
306 25 Requesting payment from the
responsible pany.
Subpart C Procedures for FUbtg and
Proctaatng Natural RMOUTC* Claima
308 30 Filing procedures.
308 31 Venfication. settlement, and
adjustment requirements.
306 32 Records retention.
J08 33 Extension of settlement period
Subpart 0—Payment and subrogation
108 40 Payments of approved claims
306 41 Subrogation of claimant s rights to
the fund.
Appendix A—Application for
Preauthonzation of Natural Resource
Restoration Claim (EPA Form 2075-11.
Appendix B—Claim for CERCLA Natural
Resource Action (EPA Form 2075-2)
Authority: 42 U.S C. 9601 et seq. and EO
12318. sec. 7(a) and 7(e). 3 CFR. 1981 Comp.
p. 166.
Subpart A—General
§308.10 Purpose.
This regulation establishes forms and
procedures for presenting claims to the
Fund for injury to. or destruction, or loss
of natural resources.
S 306.11 Scop* and applicability.
Claims against the Fund for injury to.
or destruction, or loss of natural
resources, including costs of damage
assessment, may be submitted only
through the procedures established by
this regulation. Under this regulation.
trustees may bring claims for the cost of
restoring, rehabilitating, or replacing, or
acquiring the equivalent of natural
resources injured as a result of the
release of a hazardous substance, and
the costs for assessing injury to such
natural resources.
{306.12 DtflnWona,
Terms not defined In this section or
restated herein, have the meaning given
by section 101 of CERCLA. Except when
otherwise specified:
(a) "Act" and "CERCLA." both mean
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (42 U.S.C.. 9601 et seq.).
(b) "Board of Arbitrators." or "Board"
means a panel of one or more persons
selected in accordance with section
112(b)(4](A) of CERCLA and governed
by the provisions in 40 CFR Part 305.
(c) "Claim." means a demand in
writing for a sum certain.
(d) "Claimant." means any person
who presents a claim for compensation
under section 112 of CERCLA.
(e) "Damage assessment claim."
means a claim for assessment costs
descnbed in section lll(c)(l] of
CERCLA.
(f) "Date of discovery!" means the
date on which the trustee became aware
of the injury to the natural resource- (l)
For an injury that can be visually
observed, this is the date on which the
trustee has available, or reasonably
should have available, a document or
memorandum prepared for the trustee
verifying the observed injury to (he
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51216 Federal Register / Vol. 50. No 240 / Friday. December 13. 1985 / Rules and Regulations
natural resource, the types of injury, and
which suggests that the injury may be
related to the release of a hazardous
substance: or (2) for an injury that
cannot be visually observed, this is the
date on which the trustee has available.
or reasonably should have available, a
document or memorandum prepared for
the trustee, including such sampling and
laboratory analysis as is necessary.
which identifies the injured natural
resource, the types of injury, and which
suggests that the injury may be related
to the release of a hazardous substance.
(g) "Fund." means the Harardous
Substance Response Trust Fund
established under section 221 of
CERCLA.
[h) "Hazardous substance." means (1)
any substance designated pursuant to
section 311(b)(2)(A) of the Federal
Water Pollution Control Act (2) an?
element, compound, mixture, solution, or
substance designated pursuant to
section 102 of this Act. (3) any
hazardous waste having the
characterstics identified under or listed
pursuant to section 3001 of the Solid"
Waste Disposal Act (but not including
any waste die regulation of which under
the Solid Waste Disposal Act has been
suspended by Act of Congress). (4) any
toxic pollutant listed under section
307(a) of the Federal Water Pollution
Control Act. (S) any hazardous air
pollutant listed under section 112 of the
Clean Air Act. and (B) aay uanuaeatly
hazardous chemical substance or
mixture with respect to which the
Administrator has taken action pursuant
to section 7 of the Toxic Substances
Control Act. The term does not include
petroleum, including crude oil or any
fraction thereof which is not otherwise
specifically listed or designated as a
hazardous substance under
subparagraphs (1) through (8) of this
paragraph, and the term does not
include natural gas. natural gas liquids,
liquefied natural gas. or synthetic gas
usable for foei (or mixtures of natural
gas and such synthetic gaaj.
(i) "Lead trustee." means-a trustee
authorized to act on behalf efafl
affected trustees where there an
multiple trustees becaase-ef co-existing
or contiguous natural ILSWIIULS er
concurrent jurisdiction.
(j) "National Contingency Plan." er
"NCP." means the National Oil and
Hazardous Substances Pollution
Contingency Plan developed under
section 311|c) of the Clean Water Act
and revised pursuant to sec&on IDS of
CERCLA (40 CFR Pan 300).
(k) "Natural resource*." mean rand.
fish, wildlife, biota, atr. water, ground
water, drinking water supplies, and
other such resources belonging to.
managed by. held in trust by.
appertaining to. or otherwise controlled
by the United States (including the
resources of the fishery conservation
zone established by the Magnuson
Fishery Conservation and Management
Act), any State or local government, or
any foreign government.
0) "NPL" means the National
Priorities List established under the
NCP.
(m) "Notice of claim." means a written
notice of intent to file a claim in
accordance with S 308.22 of this part.
(n) "Perfected." means the point at
which EPA determine* that the Cling
requirements for a claim have been met
(o) "Potentially responsible party."
means either (1) an owner, or operator
of the veaaei or facility from which mere
is a release or threatened release of a
hazardous sebstance: or (2) any other
person who may be liable under section
107 of CERCLA.
(p) "Preauthorixation." means EPA •
approval to subarit a claim for
reirnbafMment to the Fund.
(q) "Response action." meana remove.
removal, remedy, and remedial action.
(r) "Response data." means a
preeathonzed demand in writing for a
sum certain for response costs referred
to in section lU[a)f2) of CERCLA.
(s) "Restoration." or "Restoring."
mean* tha restoration. rehaailitatioB. or
replacement or acquiring the equivalent
of any natural resource injured.
destroyed, or lost a* a reaidt of a release
(t) "Restoration claim." means a
preauthonzed demand in writing for a
sum certain lor *• eeet of Maturing.
rehabilitating, prplacraa or aoajnrng tha
equivalent at «•? natml resource
injured, eettJOftd. or bat as a remit of
the release of a hamaraW substance.
(u) 'Trustee." means any Federal
natural resources management agency
designated in subpart C of the NCP. and
any State agency that may ponue
claims for damages under section llljb)
of CERCLA.
{306.13 Panama* and atatutaol
Hmltatlona.
(a) Any person who knowingly gives
or causes to be given aay falaa
information as a pert ef a claim against
the Fund may. upon conviction, be fined
up to $5.008 or mpnaaned for net more
than one year, or both.
(b) No damage assessment claim nwy
be filed against the Fund more than
three years frara the date of m*
discovery of (ht lam ef or vapory to The
natural resource for which lae
assessment «va* made.
(c) No restoration claim may be filed
against the Fund unless:
(l)(i) an assessment claim with
respect to the same loss of or injury to
the natural resource was filed with EPA
within three years from the date of the
discovery of the loss of or injury to the
natural resource for which the
restoration claim is made: and
(li) any known potentially responsible
parties were informed prior to the filing
of such assessment claim that a
subsequent restoration claim may be
presented to the Fund: or
(2) except as provided in S 306.22(0.
that preauthonzed restoration claim is
made to EPA within three years from the
date of the discovery of the loss of or
injury to the natural resource for which
that claim is made.
Subpart B—Natural Resource Clalma
mt claim.
$306 M Wkemayaf
Damage assessment and restoration
claims may be asserted by:
(a) Any trustee for the natural
resource in quaanoa. except as provided
in { aoa^OfbJ.
(b) tf a release result* in injury to.
destruction at loaa of natural resources
represented by aiuluple mains, a "lead
trustee" seiactad by the truatee* to
assart the daoa OB behalf of all trustees.
Shmdd the trustee! fail ta agree on a
lead trustee. EPA in its sole discretion
shall appoint a lead trustee for the
purposes of asserting a claim against t
Fund on behalf of all trustees.
(c) Aa provided by section lllfh) of
CEXCLA, damage assessments
performed by Federal officials in
accordance wtth regulations
promulgated pennant to CERCLA
section 301(e) shall have the force and
effect of a rebattaWe presumption on
behalf of any trustee (including a trustee
under section 107 of CERCLA or a
Federal agency) ta any judicial or
adjudicatory adonmtrative proceeding
under CERCLA er section 311 of the
Federal Water Pollution Control Act.
}30U1 Scope of eovwvga.
(a) Subject to the provisions of this
subpart. onrjr two types of costs are
eligible for reimbursement from the
Fund tinder this Part.
(1) Necessary and reasonable
restoration costs where the injury, loss
or destruction resulted from the release
or threat af release of a hazardous
substance from a vessel or facility, and
necessary and reasonable costs
associated with assessing both short-
term and long-term injury to. destruction
of. or loss of any natural resource
resulting from a release or threat of
release of a hazardous substance- and
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Federal Register / Vo! 50. No 240 / Fnddy. Decerr.ncr 13 1^85 .' Rules .ir.d Rcgu'd'.ur.s 512V
(2) Admmislrdtive costs and expenses
reasonably necessary for. and incidental
to. the restoration and assessment.
(b) No money in the Fund may be
used to pay natural resource claims
where such expenses are associated
vMth injury or loss resulting from long-
term exposure to ambient
concentrations of air pollutants from
multiple or diffuse sources.
(c) Natural resource claims may not
be presented where the injury.
destruction, or loss of natural resources
and the release of a hazardous
substance from which such damages
resulted have occurred wholly before
December 11.1960. the effective date of
the Act.
(d) Whenever practicable, the Agency
shall address injury to natural resources
within the context of response actions.
§306.22 Proauthartmtan.
(a) Except as provided in § 306.23, no
claim may be asserted against the Fond
for costs of restoration of natural
resources, unless such claim has been
preauthorized by the Administrator.
(b) Trustees may submit requests for
preauthonzation to the Administrator.
EPA. Washington. DC 20460. Attention:
Director. Office of Emergency and
Remedial Response.
(c) Requests for preauthonzation may
be submitted on EPA Form 2075-4.
found at Appendix A to this section. The
use of this form, which is optional is
encouraged.
[d] An application for
preauthonzation must include, where
possible:
(1J A description of the location and
nature of the natural resource injured.
destroyed, or lost
(2) A description of the location and
nature of the release of a hazardous
substance from which the injury to or
loss of a natural resource resulted
including the date upon which the
release was discovered;
(3) The date on which the injury to 01
loss of the natural resource was
discovered:
(4) A plan for the OR of the Funds for
which the claim will be made.
developed in accordance with
paragraph (e) of this section:
(5) A copy of the damage assessment.
if any. relating to the natural resource at
issue, including any determination by
EPA on whether to pay a damage
assessment claim and any jodictal order
wirii respect to the damage assessment;
(6) A description of the methods used1
to assess the damage or injury to the
natural resource:
(7) Reference to the applicant's
authority to act as trustee or lead trustee
for the injured natural resource:
(8) Identity of other known or
potential trustees for resources at or
about the same location:
(9) The identity of known poten'ially
responsible parties, and any contact
with such parties; and
(10) Proposed schedule and projected
costs of restoration activities.
(e) The plan required in 5 306.22(d)(4)
shall meet the following requirements:
(1) The plan shall be developed by the
trustee and adopted by any affected
Federal agency (other than EPA) and by
the Governors of any States which
managed the natural resource in
question or to which the natural
resource belonged or appertained:
(2) The trustee shall allow adequate
public notice of the plan and an
opportunity for a hearing. Notice of the
plan shall also be given to EPA. In
submitting the plan to EPA as part of the
preauthonzation. the trustee shall
include responses to all relevant public
comments; and
(3) The plan will not be adopted
unless and until it Is approved by EPA.
(f) The trustee must notify all known
potentially responsible parties of the
trnstee's request for preauthonzation at
the time the request is filed with EPA. IT
this requirement is met. the statute of
limitations for claims against the Fund
shall cease running while the
Administrator decides whether to
preauthonze the claim.
(g) The trustee may modify the
preauthonzation request at any time
before commencing restoration work
which is the subject of the modified
request
{306.23 En
ifoavoM
(a) Preauthonzation is not required
with respect to a situation requiring
immediate action tor
(1) Avoid substantial h»» of evidence
of the reieese from which hrjary to a
natural resource resulted:
(2) Avocrf an hiefeufble Ion of a
natural resource: or
(5) Present or reduce any continuing
danger to a natural resource, or similar
need for emergency action.
(b) Trustees who undertake actions-
under | 306.23f» must within five days.
notify EPA in writing that socfa action is
underway.
[c) The burden of proving that
emergency action was required shaft
rest with the trustee.
(d) The trastee must request
preauthorization for that portion of me
restoration which is not immediately
required.
(e] The trustee is not required to
comply with 1308.25 prior to the
emergency action, but must comply with
§ 306 25 prior to filing a natural resourc.-1
restoration or damage assessment c!,i -
5 30fL24 Review of natural resource
preautnorlzatlon application*.
(a) The Administrator shall rex lew-
each preauthonzation application and
will notify the trustee or the lead trustee
of the decision together with an
explanation of the basis for the decision
(b) In evaluating each request for
preauthonzation. the Administrator
shall consider the following non-
exclusive list of criteria:
(1] The seriousness of the problem
when compared with competing uses of
the Fund:
(2) The uniqueness or importance of
the affected natural resource as sidled
by the trustee.
(3) The extent to which the miury has
been or may be addressed by a resporse
action:
(4) The extent to which the claimant is
liable for the release or threat of release
from which die infury to the natural
resource resulted.
(c) The Administrator may
preauthonze all or part of a proposed
restoration.
(1] The Administrator may set a limit
on the amount that may be claimed as
reimbursement from the Fund Cor any
restoration.
(2) If. as a result of EPA's
preauthonzation decision, the trustee
plans to mdertake a restoration action
of narrower scope than that contained in
the restoration plan, the trustee shall
notify the public before undertaking the
restoration.
(d) If EPA denies a preauthonzation
request because of an msaffiaent
bahmoe in the Fund or the low priority
assigned to the restoration when
weighed against other requests, the
trustee may cesofanut the application in
another fiscal year. If a preaudionzation
request is denied becaase of substaotu e
inadequacies in the damage assessment
or restoration plan, the trustee may
resubmrt the request only after
correcting the noted deficiencies.
$ 306.25 Requesting payment from the
reapinalras party.
(a) Where the responsible parry is
unknown, the trustee must make a good-
faith, reasonable effort to identify the
responsible party prior to submitting a
claim. If the responsible party is
identified, the trustee must then comply
with the procedures of } 300.25 (b) ard
(c). Where a respons.ble party car.ro! uo
identified, the trustees may submit d
claim to the Fund pursuant to subpa." C
Claims submitted under this suh« •<•'••)-,
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51218 Federal Register / Vol. 50, No. 240 / Friday. December 13. 1985 Rules and Regulations
must be accompanied by documentation
of efforts to identify responsible parties.
(b) A trustee or lead trustee must
present both damage assessment claims
and preauthorized restoration claims to
all known responsible parties at least 60
days before filing a claim against the
Fund. The presentation to the
responsible parly must be a written
request for payment, delivered either by
certified mail (return receipt requested)
or in such a manner as will establish the
date of receipt. At a minimum this
request must contain:
(1] The name(s) of the State(s).
Commonwealth(s). or U.S. Trust
Temtory(ies). or Federal agency(ies). or
other authorized tnistee(s):
(2) The name(s). title(s), and
address(es) of any authorized
representative or lead trustee:
(3) The location of the injuries:
(4) The ownerfs) of the property.
where the release of a hazardous
substance from which injury to a natural
resource resulted:
(5) The date(s) of the release and its _
discovery,
(6) A copy of the damage assessment:
(7) The amount of the request (in
dollars) including costs of any
preliminary resource investigation, and
the assessment, or the restoration
activities: and
(8) If applicable, notice of intent to
subsequently file a restoration claim
against the Fund.
(c) If. prior to the filing of a claim, the
trustee and the responsible parties agree
to a settlement, the trustee will have
waived recourse against the Fund for
the amount specified in the settlement
agreement. EPA will not consider claims
against the Fund arising from the release
or threat of a release of a hazardous
substance to the extent that the trustee
has released or waived any legal rights
against the responsible parties unless
the Administrator has approved the
terms of the release.
(d) If the claim is denied by the party
believed responsible, and has not been
satisfied after 60 days of presentation to
such party, the trustee may submit a
claim to the Fund in accordance with
subpart D.
Subpart C—Procedures for Wing and
Processing Natural Resource Claims
§306.30 FHIng Procedure*.
(a) For purposes of this regulation, a
natural resource claim is deemed
perfected when EPA determines that the
claim complies fully with all filing
requirements. When the claim is
perfected, a notice will be provided to
the trustee of EPA's receipt and
acceptance for evaluation.
(b) A restoration claim must be
submitted on EPA Form 2075-2 and must
include:
(1) Documentation showing that the
claimed restoration activities were
preauthorized by EPA:
(2) Documentation showing that the
restoration activity was accomplished:
(3) Documentation that a search in
accordance with S 306.25 was conducted
to identify potentially responsible
parties and any contacts with such
parties: and
(4) Substantiation that all claimed
costs are reasonable and necessary.
The following criteria will be used to
determine if the costs are reasonable
and necessary:
(i) Documentation supporting the
trustee's decision to use employees >
and/or contractors to carry out
restoration activities, as applicable.
including justification of the use of other
than the lowest-cost alternative:
(ii) Documentation demonstrating that
contracts were awarded using maximum
open and free competrtien; and
(iii) Documentation demonstrating
that claimed costs do not duplicate the
costs of response actions, whether those
costs were incurred by the Fund or by
any potentially responsible party.
The trustee may not seek
compensation for restoration expenses
that have not been preauthorized.
(c) A natural resource damage
assessment claim must be submitted on
EPA Form 2075-2 and must include:
(1) Documentation showing what the
assessment activity accomplished:
(2) Documentation that a search in
accordance with S 306.25 was concluded
to identify potentially responsible
parties and any contacts with such
parties; and
(3) Substantiation that all claimed
costs are reasonable and necessary. The
following criteria will be used to
determine if the coats are reasonable
and necessary:
(i) Documentation supporting the
trustee's decision to use employees and/
or contractors to carry out restoration
activities, as applicable, including
justification of the use of other than the
lowest-cost alternative:
(ii) Documentation demonstrating that
contracts were awarded using maximum
open and free competition: and
(iii) Documentation demonstrating
that claimed costs do not duplicate the
costs of response actions, whether those
costs were incurred by the Fund or by
any potentially responsible parties.
|d] Trustees (or their authorized
representatives) may amend their claims
at any time before final action by EPA.
Amendment of claims after final action
by EPA will be allowed only at EPA's
discretion. Each amendment must be
submitted in writing and signed by the
trustee or authorized representative The
time limitations of { 306.31(g) begin from ,
the date the amendment is filed.
(e) Trustees may not pursue both a-
action in court against potentially
responsible parties and s claim against
the Fund at the same time for the same
injury to a natural resource. EPA will
return claims presented under this
subpart when the Agency determines
that a trustee has initiated an action for
recovery of the same costs, in court.
against a party potentially liable under
section 107 of CERCLA. However, a
claim for assessment costs may be
pursued in one forum at the same time a
claim for restoration costs is pursued in
the other forum.
S 306.31 Verification, settlement, and
adjustment requirements. •
(a) Upon receipt of a natural resource
claim. EPA will verify that it complies
with all filing requirements. Where the
claim is incomplete or has significant
defects. EPA will return the claim to the
trustee with written notification of its
deficiencies.
(b) A claim returned to the trustee for
failure to comply with the filing
requirements may be resubmitted to
EPA. Resubmitted claims are new
claims for purposes of the time
limitations of paragraph (g) of this
section.
(c) Where a claim complies with i
filing requirements, it is deemed
perfected for purposes of this regulation.
(d) After a claim is perfected. EPA
will attempt to promote a settlement
between the claimant and any known
responsible parties. If the parties then
agree upon a settlement, it is final and
binding upon them.'and they are deemed
to have waived all recourse against the
Fund for compensation arising out of the
incident giving rise to the settlement.
(e) If no settlement is reached within
45 days of the filing of a perfected claim
(unless extended in accordance with
J 306.33). the Administrator will proceed
to determine whether to make an award
on the claim and. if an award is made,
the amount of such award. Awards will
be made:
(1) Only for costs which are
reasonable and necessary:
(2) In the case of claims for restoration
costs, only to the extent that the claim
was preauthonzed by EPA pursuant to
40 CFR 306.24:
(3) In the case of claims for damage
assessments or emergency restoration
only to the extent the Administrator
determines that the claim is of suffi
pnonty to merit Fund expenditure
-------
federal
rrtd.r.
'f *h« section wtH be
'.uspended during this- period.
(g) Where settlement in accordance
with either paragraph (d) or (e) of this
suction is not reached within 45 days of
the claim's perfection (unless extended
in accordance with S 306.33], EPA will
proceed to:
(1) Make an award on the rlaim: or
(2) Dedine to make an award and
refer the claim to the Board of
Arbitrators under the provisions of 40
CFR Part 305. except that, if the
Administrator's decision is made
pursuant to paragraph (e)[3). the claim
shall not be referred to the Board of
Arbitrators.
(h) If the claimant is dissatisfied with
the amount of an award, the claimant
may submit the claim to the Board of
Arbitrators in accordance with 40 CFR
Pdrt 305.
(i) \otice of an award under
paragraph |g)(l) of this section will be
given by First Class Mail within live
days of the date of the decision.
Payment of approved claims will be
made according to § 305 40 of this
regulation.
(i) Notice of denial of an award will
include EPA's reason(s) for the decision.
0) Not withstanding any provision of
this part, no claims submitted by
Federal trustees shall be submitted to
the Board.
§ 306.32 Record! retention.
A trustee receiving an award from the
Fund is rwjmred to maintain all cost
documentation and any other records
relating lo the claim and to provide EPA
with access to such records. These
records must be maintained until cost
recovery is initiated by EPA. If. after six
years from the date of the award from
the Fund. EPA has oat initiated a cost
recovery action, the trustee need no
longer retain the records. The trustee
must, however, notify EPA and allow
EPA the opportunity to take possession
of the records before they are destroyed.
§ 306.33 Extension of Mttlement period.
(a) Where EPA determines that.
because of a large number of claims
ansmg from an incident or set of
incidents, it is in the best interest of the
parties concerned, the time for
prearbitral settlement (S 306.31] or for
rendering an arbitral decision (40 CFR
305.43) may be extended by up to BO
days.
(b) Where ail parties to the claim
agree, (he time limits of S 306.31 and 40
CFR 305.43 may be extended for a
mutually agreed-upon time penod
Subpart 0—Payments and
Subrogation
$ 306.40 PtyiMAt of approved
(a) An award against the Fund GJ.I
only be paid when Fund monies are
available. An award against the Fjr;d m
excess of available appropriations in the
Fund may be paid only when additional
money is collected, appropnated or
otherwise added to the Fund. As
appropriations in the Fund become
available, payment of awards will be
made in the order in which the claim
was finally determined.
(b) Subject to the conditions m
paragraph (a), payment will be maikj as
applicable, within-
(1) 30 days of EPA's decision to na'n'
an award in accordance with
§ 306.31 (g)(l): or
[2] 20 days of the expiration of the
period for appeal of any arbitrjl award:
or
(3) 20 days of the final judicial
decision of any appeal taken.
1306.41 Suferooettox e4 cMmanta' nonts
to the Fund.
(a) Payment of a claim by the Fund is
subject to the United States' acquiring
by subrogation all rights of the irjatee to
recover the cost of aueaament or
restoration awarded by the Fund from
the person or persons liable for such
release to the extent to which the
claimant is compensated.
(b) Any person, including the Fund.
who compel nates any trnslee m
accordance with the Act for restoration
costs resulting from a release of a
hazardous substance will be subroqated
to all rights, claims, and causes of action
fot such ooaU of restoration (hat the
trustee has under the Act or any other
law.
-------
51220 Federal Register / Vol 50 No 2-JO / Friday. December !J 1985 • Rjies Or.c
Appendix A—Application for Preauthorization of Natural Resource Restoration Claim (EPA Form 2075-1)
Form aoD'o-re OMB No 1050 00*3
E PA Application for Preauthorization
of Natural Resource Restoration Claim
EPA Doc«ei Number
General Instructions Complete ail items mink or 6y typewriter Where applicable, insert the woro none Use additional
sheets if necessary Read carefully the specific instructions on the opposite page
i Name Tule. ana Aooiess oi Trustee- Lead Trustee (Attach delegation establishing authority to represent »H altecied trustees I
II Name. Title and Address of Ageni lit any/ Authorized To Represent Trustee'Lead Trustee
III Relates to Actual Release of a Hazardous Substance
A .Date/Time Itm/omi trl Release lit known)
B Date of Discovery of Loss of Natural Resource)5)
C Location of ReleaM and Injured Natural Resource)*)
0 Description of Release
E Description of Natural Resources)
F Are Any Potentially Responsible Parties IPRPsl Known to You?
O Yes lAnecfi a list ol Remitted PHPs mnd detent* results of any contacts with them I
D No /Describe ettons to identity PHPsl
IV Relates to Natural Resource Damage AsMsamem
A Provide Oaie/Bnefly Describe ine Finding* of ttw Oamag* Aaansnwm
B Briefly Describe the Methodology usad To Assess the Natural Resource Injury
C Was Court Action Filed To Recover Assessment Costs?
LJ Yes (Describe the results and pro*> V ea*» name, ease number, /urisdiction of the court, end date of determination i
EPA Fern 20780 (ID-IS)
-------
Register / Vol ;-0. No ^ ) / Fr-day Decenb-r 13 :385 / Rules J.-.Q R.-jui^'ins 512JM
D Was a noi.ce of inieni 10 submit a claim (nsi the Fund to recover assessment costs?
LJ Yes (Give date describe the results and attach a copy of the Agency's determination /
DNO
V Relates to Natural Resource Restoration Plan
A Briefly describe the oonons considered in developing the restoration plan lAttaeh copy of plan!
B Describe in detail the opinnls) selected a* the best* lot the restoration ptan
C Briefly describe the procedure* used to notify the public and to obtain public comments
0 Was the restoration plan adopted by all trustees and affected Federal agencies?
LJ Yes (Provide documentation I
D NolEiplatnl
VI Relates to Preautnoruaton of Restoration
A Briefly describe the restoration lor wnicn you seek preauthoriution
B Do you propose more than one phase?
LJ Ye* (Describe
a NO
C Was a nonce of intent to submit e claim for the restoration filed with EPA?
D Yes (Give date I D No
VII
Protected Costs of Restoration
EPA-Approved Costs I EPA Use Onryl
Phase 1
Phase 2
Phase 3
Restoration
Other
Total
VIII Is This Proposal Witnm EPA's Planned Annual Budgetary Appropriation?
DYB,
No
EPA Form 2075-1 (10-85)
-------
51222
Federal Register / Vol. 50. No 240 / Friday. December 13, 1985 / Rules and Rc-gulbiions
iX Does This Aooucaiion Revise a Previous Reouest'
U Yes D NO
Certification
1 certify that all information contained herein is true to the best of my knowledge 1 agree to supply additional
information, as requested, m support of this application and access to the site for the purpose of inspection
Signature ei D»imani
Civil Penalty for Presenting Fraudulent Claim
The claimant will forfeit and pay to the United States
S2 000 plus double the amount of damages sustained
by the United States 131 USC 3729 and 3730.)
Daw
Criminal Penalty for Presenting Fraudulent Claim or
Making False Statements
The claimant will be charged a maximum fine of not
more than S 1 0.000 or be imprisoned for a maximum of
5 years, or both. {See 62 Stat 698. 749: 18 USC 287.
lOOt.)
EPA Form 2V7B-1 (10-8S)
-------
Federal Register / Vol 50. No. 240 / Friday December 13. 1983 / Rules rind Regulations 51223
Instructions for Applying for Preauthorization
of Natural Resource Restoration Claim
I. Name any Federal natural resource manage-
ment agency, principal State, commonwealth,
U S. Trust Territory, or other political entity act-
ing on behalf of all affected trustees. Provide a
list (including name, title.-and address) of all
trustees for the injured natural resources and
supporting evidence authorizing them to prose-
cute claims for damages, as defined in 111 (b) of
CERCLA. If you are the lead trustee, provide this
evidence and describe your efforts to identify
and coordinate with other trustees.
II. Self-explanatory.
III. A. Provide documentation of the date and
time of the release, if known.
B. Provide the date of the mitiatreport first estab-
lishing that the injury resulted from the release
fill. A.) 'and provide a copy. (Date of the actual
assessment is required in IV. A.)
C. Provide the name of the city or town and State
where the release and the injury occurred. If the
location is outside the city's limits, indicate the
distance between it and the nearest city or town.
D. 'Describe in detail all the known facts and
circumstances associated with the release of
the hazardous substance. Include the name of
the substances released (see "SuperfundNotifi-
cation Requirement and Reportable Quantity
Adjustments. "40 CFR Part 302). and the type of
facility that released the substances (e.g.. any
building or structure, pipe or pipelmer well.
lagoon, landfill, storage container, motor vehicle).
E. Describe in detail the resources), its use(s)
prior to the release and injury, and its uniqu-
eness or special characteristics. Indicate whe-
ther its use and characteristics at the time of the
injury were residential, commercial/industrial,
agricultural, forestral. recreational, mixed use,
etc.
F. List all potentially responsible parties (PRPs)
known to you. Describe efforts to locate PRPs.
date of presentation of your claim, and any reply
from the PRPs.
IV. A. Summarize the natural resource impacts.
including short- and long-term injury to both
media and living organisms. Attach a copy of the
damage assessment. Also indicate who approved
the assessment, who conducted the assess-
ment, when it was conducted and when it was
completed.
B. Does the methodology selected comply with
the section 301 damage assessment regula-
tions, or some other reasonable methodology?
C. Self-explanatory.
D. Supply date. EPA recommends that trustees
submit a notice of intent to file an assessment
claim by means of the annual planning process.
E. Self-explanatory.
V. A. Identify the options considered, e g., resto-
ration, replacement, rehabilitation, acquisition
of the equivalent, or "no action." (Hereinafter.
"restoration" refers to restoring, rehabilitating.
replacing, or acquiring the equivalent of injured
natural resources.)
B. Describe the basis for selection of the alterna-
tivefsjfe.y.. cost-effectiveness, cost-benefit, total
cost, impact on affected ecosystems). Attach a
copy of the restoration plan. Primary emphasis
should be given to the most cost-effective
alternative.
C. For example, was there a town meeting, pub-
lic hearing, etc? How were the public's concerns
addressed?
D. Self-explanatory.
VI. A. Provide the timetable for discrete activi-
ties, including start and completion dates. Indi-
cate the projected schedule for submission of
the claim(s).
B. Trustees may propose claims for operable
units (i.e.. phases) of work. If appropriate, in-
clude the timetable for each phase of the
planned activities and the projected schedule for
submitting each preauthorization request and
subsequent claim.
C. Supply date. EPA recommends that trustees
submit a notice of intent to file a restoration
claim by means of the annual planning process.
VII. Provide an itemization of the estimated
costs of restoring the injured natural resources
for each category. For the costs projected for
actions not identified (i.e., "Other"), provide a
written statement indicating the nature and
extent of said activity. Supply the basis for all
estimated costs. If phased claims are requested.
provide separate itemization of costs by phase.
Explain why the estimated costs and expenses
are reasonable, necessary, and cost effective for
restoring the injured natural resources).
VIII. If EPA notified you that a sufficient level of
funding exists to cover your planned restoration.
please check "Yes."
IX. Self-explanatory.
EPA Form 2076-1 (10-861
-------
51224 Federal Register / Vol. 50. No. 240 / Friday. December 13. 1985/Rules and Regulation^
Appendix B-Claim for CERCLA Natural Resource Action (EPA Form 2075-2)
Un.tea States en.wonmeowi Proteciion Agency
Washington, DC 20460
OMB He ?05000<3 *oo'0*»i tto"'t • X S3
EPA Docket Number
wasnington. uv- «w»«v
&EPA Claim for CERCLA Natural Resource Action]
General Instnict.on,- Complete all Hems m .nk or by rypewnter Where applicMta. •"««
aVd.t.onai sheets if necessary Read caretuUy »* specrfic instructions on the oppos.te page.
"no""'" "**
;neck as aopropiate
Assessment Cl»m
Resiorwon CtoMi
Name Tme and AdOress o» Trustee- Lead Tfusiee
ii Nam. !««.*« AoaressolAumor.no Agent/rfa^;.0 «eprese« Trustee/Lead Trustee
"EPA ID Hume* Md Oau /for PrMuir»mea**f***'<*' Ci*au Qota
iv Relates to Aciu* Release o< a Mauroou* Suosunce
A Date 'time Hm'pail ol release /rf »no«/»^
B. D«a ol discovery o« lots o) naiurM reaouremt
C Location o«
a«d in)Hr«d natuwi i«ou«eel«
D was irte etaun pre«v«Md i» me recponwbto p«nv>
DNO
D Yet /C«»e d»it tnttf etuis)
v Relates to Damage ^jH-^Tieni Claims Qniv
A Aie ciaimefl costs contained wxmo EPA scnnuBl a
D Vei
No
B Bueiir oesenoe the findings ol tne damvge asaessmem
C 6r.etiy oescnoe tne memc
•**! 10 a»seas the natural (esource .n(yrY
Vi Reiaiea 10 Reuoration Cl»«*» 0"*v
A Does m« dam fMaw 10 a prewOMSh biea^MMCMnK
DNO
I I ves lC">e aaie ana number ol claw
B indicate date ol Agency
peauwonzation ot resiorauon etaim
EPA Form 207S 2 110 85)
-------
Federal Register / Vol. 50. No. 240 / Fnday. December 13. 1985 / Rules and Regulations
51225
C mo.caie aaie oi completion a» resio'si.on proieci lot preauthomta pnasel
~D~5eia.i .1 apfxopnaie how tne ,nc.oem s oescnoi-on ana actmiiiesai oompteiad nave elevated from mat g.iren * me approval preautnoniaiior
and me reasons lor it
vn Amount of Damage Assessment Claim lAnxh til documents ihm support Ota claim I
A Damage Assessment Costs
6 Omer Cose tSeuuti and/w»Mr»
C Total Costs
Amount of Restoration Cla.mllnd,caie »*Mn«f ft* c/»*nu lor iottlor9tni*»uthorii«leo*a. Aaacft*// docun»BMt*wsyppon U*s tt*m >
A Costs for restoration, rehabilitation replacamem. or aoquiMioo oC
ine equivalent
Preautnorirad Cost*
B Otner Cosit fSoeotr
C Total Costs
Cneck One
D
Total autnorited costs
D Parti
Partial auihortndcosu
I certify th» the i»i«»rmatio« conwiwe* herein ts mw ID Itie best of my knowledge I agree to supply
additional mlormwiwi. aa re^uaswd. in support e* Km daw and acceas to th« SM «or fee purpose ol
specnon
Signature of Claimant
Date
Civil Penalty for Presenting Fraudulent Claim
The claimant will forfeit and pay to the United States
52 000. plus double the amount of damages sustained
by the United States (31 USC 3729 and 3730 )
Criminal Penalty for Presenting Fraudulent Claim or
• Making Falsa Statements
The claimant will be charged a maximum line of not
more than S10.000 or be imprisoned for a maximum of
5 years, dr both ("See 62 Sfar 698. 749:18 USC 287.
1001 >
EPA Form 2075-2 110-85) ftevrie
-------
51226 Federal Register / Vol. 50. No. 240 / Friday. December 13.1985 / Rules and Regulations
Instructions for Submitting a Claim for Natural Resource Action
I. Name any Federal natural resource man-
agement agency, principal State, common-
wealth U.S. Trust Territory, or other political
entity acting on behalf of all affected trustees.
II. Self-explanatory.
III. See the upper right-hand corner of the
approved preauthorization form.
IV. A. Provide documentation of the date and
time of the release, if known.
B. Provide the date of the initial report first
establishing that the injury resulted from the
release of a hazardous substance (IV. AJ. (Date
of actual damage assessment required in V.
B.).
C. Provide the name of the city or town and
State where the release and the injury
occurred. If the location is outskJe-the city's
limits, indicate the distance between it and the
nearest city or town.
O. List all potentially responsible pan\es(PPPs}
known to the trustee. Describe efforts to locate
PRPs, date of presentation of your claim, and
any reply from the PRPs.
V. A. It is recommended that the trustee sub-
mit a notice of intent to file an assessment
claim by means of the annual planning pro-
cess. If you have followed this process, give the
date of receipt of Federal Government appro-
val. If you check "No." indicate which of these
two conditions apply: (1) you submitted a
notice of claim as part of the annual planning
process, but the assessment was deemed a
low priority, or (2) you declined to file a notice
of claim.
B. Summarize the natural resource impacts.
including short- and long-term injury to both
media and living organisms. Anach a copy of
the damage assessment Also indicate who
approved the assessment, who conducted the
assessment, when it wea conducted and when
it was completed.
C. Does the methodology selected comply with
the Section 301 damage assessment regula-
tions, or some other reasonable methodology?
Specify if you are asserting that your assess-
ment is entitled to a rebuttable presumption.
VI. A. If this restoration claim relates to a pre-
viously filed assessment claim for the same
injury, supply the date on which the claim was
filed and the number assigned by EPA. (Herein-
after, "restoration" refers to restoring, rehabil-
itating, replacing, or acquiring the equivalent
of an injured natural resource).
B. — C. Self-explanatory.
D. Describe and justify any methods used m
taking the natural resource action that devi-
ated from the preauthonzed approach. If such
deviation required modifying the preauthorized
actions or project costs, a request for pre-
authorization detailing such modifications
must be resubmitted and approved. (See §306.)
VII. Document that all actions conducted by
employees were more economical than using
contractors and that all contractors were
selected through maximum competition.
A. Submit proof of all aspects of the claimed
costs associated with ascertaining actual
injury to natural resources.
B. Submit proof of all aspects of the claimed
costs associated with actions not identified m
"A" above.
VIII. Document that all actions conducted by
employees were more economical than using
contractors and that all contractors were
selected through maximum competition.
A. Supply preauthorized costs and actual
costs. Submit proof of all aspects of the
claimed costs associated with restoration of
injured natural resources and a written state-
ment indicating the nature and extent of such
activity.
B. Supply preauthorized costs and actual
costs. Submit proof of all aspects of the
claimed costs associated with actions not iden-
tified m "A" above.
If EPA approved a phased approach authoriz-
ing partial reimbursement, check "partial
authorized costs"; if EPA approved total reim-
bursement, check "total authorized costs."
EPA Fonn 2078-2 (10-88)
|FR Doc 85-29567 Filed 12-12-S5. 845 am)
BILLING COM UM-M-C
-------
Tuesday
^= December 31, 1985
Part III
Environmental
Protection Agency
40 CFR Part 300
National Oil and Hazardous Substances
Contingency Plan; National Priorities List
Update; Proposed Rule
-------
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[SW-FRL-2945-«l
National Oil and Hazardous
Substances Contingency Plan; the
National Priorities Lists
AGENCY: Environmental Prelection
Agency.
ACTION: Notice of Intent to Delete Sites
from the National Priorities List; Request
for Comments.
SUMMARY: The Environmental Protection
Agency (EPA) announces its intent to
delete eight sites from the National
Priorities List (NPL) and requests public
comment. The NPL is Appendix B to the
National Oil and Hazardous Substances
Contingency Plan (NCP). which EPA
promulgated pursuant to section 105 of
the Comprehensive Environmental
Response. Compensation, and Liability
Actofl980(CERCLA).
DATES: Comments concerning the sites
may be submitted on or before January
30. 1966.
ADDRESSES: Comments may be mailed
to Russel H. Wyer. Director. Hazardous
Site Control Division (Attn: RAfi Staff).
Office of Emergency and Remedial
Response (WH-548E). Environmental
Protection Agency, 401 M. Street, SW.,
Washington. DC 20460. The
Headquarters Docket clerk will maintain
some background information on each
site. Comprehensive information on
each site is available through the EPA
Regional Docket clerks.
The Headquarters public docket is
located in EPA Headquarters, Waterside
Mall subbascment. 4Gi M Street. SW..
Washington. DC 20460. and is available
for viewing by appointment only from
9-00 a.m. to 4:00 p m., Monday through
Friday excluding holidays. Requests for
copies of the background information
from the Headquarters public docket
should be directed to the EPA
Headquarters Docket Office. Requests
for comprehensive copies of documents
should be directed formally to the
appropriate Regional Docket Office.
Addresses for the Headquarters and
Regional Docket Office arc:
For background information on all
eight- Denise Sines. Headquarters. U.S.
EPA CERCLA Docket Office. Waterside
Mall. Subbasement. 401 M Street. SW..
Washington. DC 20460. 202/382-3046.
For the Friedmdn. New Jersey site:
Carole Petersen. Region II. U S. EPA. 20
Fedrral Plnza. 7th Floor. Room 734. New
York. NY 10278. 212/20-WJ677.
For the Enterprise Avenue and Lehigh.
Pennsylvania sites: Diane McCreary.
Region III, U.S. EPA Library. 5th Floor.
841 Chestnut Bldg.. 9th & Chesnut
Streets. Philadelphia. PA 19106. 215/597-
0580.
For the PCB Spills site. North
Carolina: Gayle Alston. Region IV. U.S.
EPA Library, Room G-8, 345 Courtland
Street. NE.. Atlanta. GA 30365,404/881-
4216.
For the Morris Dump site. Minnesota:
Lou Tilley. Region V. U.S. EPA Library.
Room 1420. 230 South Dearborn Street,
Chicago. IL 50804. 312/353-2022.
For PCB Warehouse site.
Commonwealth of the Northern Manana
Islands. PCB Waste sites. Trust
Territory of the Pacific Islands.
Taputimu Farm site. America Samoa:
Jean Circiello, Region IX. U.S. EPA
Library. 6th Floor, 215 Fremont Street.
San Francisco. CA 94105. 415/974-6076.
FOR FURTHER INFORMATION CONTACT:
Russel H. Wyer, Director. Hazardous
Site Control Division, Office of
Emergency and Remedial Response
(WH-548E). Environmental Protection
Agency. 401 M Street. SW.. Washington,
DC 20460. Phone (800) 424-9346 (or 382-
3000 in the Washington. DC.
metropolitan area).
SUPPLEMENTARY INFORMATION:
Table of Contents.
I. Introduction
H. N?L Deletion Criteria
HI Delelion.Procedures
IV Basis for Intended Site Deletion*
I. Introduction
The Environmental Protection Agency
(EPA) announces its intent to delete
eight sites from the Naitonal Priorities
List (NPL). Appendix B, of the National
Oil and Hazardous Substances
Contingency Plan (NCP). and requests
comments on these deletions. The EPA
identifies sites that appear to present a
significant risk to public health, welfare
or the environment and maintain* the
NPL as the list of those sites. Sites on
the NPL may be the subject of
Hazardous Substance Response Trust
Fund (Fund) financed remedial actions.
Any sites deleted from the NPL remain
eligible for Fund-financed remedial
actions in the unlikely event that
conditions at the site warrant such
action.
The eight sites EPA intends to delete
from the NPL are:
1. Enterprise Avenue. Philadelphia.
Pennsylvania
2. Friedman Property (once listed at
Upper Freehold). Upper Freehold. New
Jersey.
3 Lehigh Electric and Engineenng Co.,
Old Forge Borough. Pennsylvania.
4. Morris Arsenic Dump. Morns.
Minnesota.
5. PCB Spills, 243 miles of roa ,r.r
Carolina.
6. PCB Warehouse. Saipan.
Commonwealth of the Northern Mariana
Islands.
7. PCB Wastes. Trust Territory of the
Pacific Islands.
8. Tapulimu Farm. Island of Tutuilj.
American Samoa.
The EPA will accept comments on
these eight sites for thirty days after
publication of this notice in the Federal
Register.
Section U of this notice explains the
criteria for deleting sites from the NPL
Section III discusses procedures that
EPA is using for this action and those
that the Agency is considering using for
future site deletions. Section IV
discusses each site and explains how
each site meets the deletion criteria.
D. NPL Delebon Criteria
Recent amendments to the NCP
establish the criteria the Agency uses to
delete sites from the NPL as published in
the Federal Register on November 20.
1985 (50 FR 47912). Section 300.66(c)(7)
of the NCP provides that sites:
* * * may be deleted from or rer wd
on the NPL where no further respc
appropriate. In making this determ.
EPA will consider whether any of the
following criteria has been me I.
(i) EPA. in consultation with the Stale, has
determined that responsible or other parties
have implemented all appropriate response
actions required:
(n) All appropr.dte Fund-financed
responses under CERCLA has been
implemented, and EPA. in consultation wnh
the Slate, has determined that no further
cleanup by responsible parties is appropriate
or
(in) Based on a remedial investigation.
EPA. in consultation with the State, ha*
determined that the release poiei no
significant threat to public health or the
environment and. therefore, taking of
remedial measures is not appropriate.
Before deciding to delete a site. EPA will
make a determination that the remedy
or decision that no remedy is necessary.
is protective of public health, welfare.
and the environment, considering
environmental requirements which are
applicable or relevant and appropriate
at the time of the deletion.
Deletion of a site from the NPL does
not preclude eligibility for subsequent
Fund-financed actions if future
conditions warrant such action*. ion
300.66(c)(8) of the NCP stjtes thai ,un
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Federal Register / Vol 50. N'o. 231 / Tuesday. December 31. 1985 / Proposed Rules
53449
III. Deletion Procedures
In the \PL rulcmaking published in
the Federal Register on October IS. 1934
(49 PR -10320). the Agency solicited and
received comments on the question of
whether the noiice and comment
procedures followed for adding sites to
the NPL should also be used before sites
are deleted Comments jlso were
rpccivcd in response to the amendments
to the NCP ihat were proposed in the
Federal Register on February 12. 1985.
150 FR 5862] Deletion of sites from the
NPL docs not itself create, alter, or
revoke any individuals r.ghls or
obligations. The NPL is designed
primarily for informational purposes and
to assist agency rr.anage.iient. As is
mentioned in section II of this nonce.
§ 300 66(c)(8) of the NCP makes clear
that deletion of a site from the NPL does
not preclude eligibility for future Fuid-
fmanced response actions.
For the deletion of this group of eight
sites. EPA's Headquarters Office will
accept and evaluate public comments
before making 1he final decision to
delete. In the future. EPA's Regional
Offices may accept and evdludle public
comments The Agency believes that
deletion procedures should focus on
notice and comment at the local level.
similar to those procedures for local
comment outlined in EPA's March 27.
1984. "Interim Procedures for Deleting
Silos from the NPL." Comments from the
loc:il community surroundms the sites
considered for deletion arc likely to be
the most pertinent to deletion decisions
The following procedures were used for
i he intended deletion of these eight
sites. The Agency is considering using
b'milar procedures in the future, with the
exception that the notice and comment
period would be conducted concurrently
.it the local level and through the
Federal Register.
The procedures used were:
1. EPA Regional Offices recommended
deletion and prepared relevant
lionumenls.
2 F.PA P.egional Offices provided a
t MO to three week public comment
period on the deletion package. The
nnufic-jtion was provided to local
n oiilunts through local >ind community
newspapers The Region made ..ill
n lev. ml document* av.iiljlile in the
KcRiun.il Office's .ind lor.il sis A Key Indicator Analysis was
usfl in determine whit h soil lots would
he disposed of in tin off site f.iulily This
lest i si itih'.lii-d .iriinn leu Is fnr organic
imt.ls ,inil inury.imr rlrmenls
disposed of at the ^iln as identified from
sampling results. If any one indicator
pxccpded action levels. the entire soil lot
was deemed contaminated and disposed
of off-site Action levels for inorganics
were selected based upon the Extraction
Procedi re Toxicity Test used to
determine if A waste is hazardous under
KCRA Orsnn.c arno;-. levels \\erp
estdblu-hcJ i*:J -ieg s mi'nr
methodology nnd aie consistent with
levels that would be used today After
removal of contaminated soils from the •
site, the area was sampled on a grid
pattern to insure that all soils not
passing the test had been removed and
disposed of off-site. The results indicate
that the rempdial objectives were
attained and that all soils considered
contaminated were removed. The s-.le
was then capped and revcgctjted as a
further precautionary measure and the
site fenced. A local public comment
period was held August 2,1985. through
August 23.1965. specifically concerning
deletion of the site No public comments
were received.
EPA, with the concurrence of the
Commonwealth of Pennsylvania, has
determined that dll appropriate Fund-
financed response under CERCI.A at the
Enterprise Avenue site has been •
completed, and has determined that no
further cleanup by responsible parlies is
appropriate. The Pennsylvania
Department of Environmental Resources
(PADER) committed to operate and
maintain the site The PADER has also
developed and implemented an
operations and maintenance plan for the
cap approved by EPA and will monitor
the ground water to insure that the
water quality remains al background
levels.
Friedman Property Site. Upper Freehold
New Jersey
The Friedman Property is a 3-dcre site
located in Upper Freehold Township.
Monmoulh County. New Jersey. The sue
is located near 5 other NPL sites
collectively known as the Plumsled
sites. In the late 1950's and early 1900's
the alleged dumping of free-flowing
liquids, household wastes, and
demolition debris occurred into a
nntural diich which was then covered
The site was proposed for inclusion on
the Notional Priorities List (NPL) on
Decpmber 30.1902. and appeared on the
final NPL on September 8.19153
FPA and N|OEP completed a reined;.il
invostiR.ition/fpasibilny study {RI/l'Sl in
19U4 The RI/FS studied the :nr. soil-.
wastes, ground und surface w.tier ,ied
ad'ricent stream sediments for cvniencr
of contamir..
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Federal KcgM?r / Vjl 50. \'o. 251 / TueSiLv. Uccemljt.-r 31. l'ja:> / Prupuscd Rules
p.i'Si-nt .il list; -.iln. u
I,-,! ilU'ion of six r.'.cjr'iloiiii!" v^-iis and
s inipling of domestic .vi;il? ]n ihc
\isimty ol tha sde.The' shallow ground
i» jli-i iv.is sampled for standard priority
pnllut.inl3 and mdiL«i!fid slightly
e'pvjtod levels of zinc bi'low 0.5 nig/I
«3..d delected some phenols deod notice and plut
rostnctious would be entered >n county
land records noting previous use of the
s :e for waste disposal and restricting
on-site excavations, agricultural, and
rrsidentidl use.
Lehigh Electric Site. Old Forge Burouyh.
Pennsylvania
The Lchigh Elcctnc site is located in
Old Purge Borough. Lackawanna
County. Pennsylvania. The site was
operated as a transformer service
company by the Lehigh Electric
Company. About 4.000 transformers and
cipjcitors were stored at the facility.
Indiscriminate transformer dielectric
find handling and disposal occurred at
the si'e. resulting in PCB contamination
of on-sile soils. The site was proposed
for inclusion on the National Priorities
List (NPL) on December 30. 1982. and
appeared on the final NPL on September
8, 198.1.
In 1983. EPA and Pennsylvania
Department of Environmental Resources
(PADER) completed » remedial
investigation and feasibility study (Rl/
FS) dt the site. The study included the
analysis of ground water, air and river
sediment samples, and the evaluation of
ctean-up alternatives. A local public
comment penod was held August 2,
19.85, through August 23. 1985.
specifically with respect to deletion. No
comment* were received.
Phase I of the remedial action
removed all transformers, transformer
contents, and surface debris from the
site. This was completed m December
1982. The Phase U remedial action
removed contaminated soils, and
buildings from the site, and backfilled.
graded, and vegetated the site. These
di. lions were complet«d in Scp'embpr
TJrt4 Sampling was conducted
continuously during excavation showing
thut the remedial action reduced the
concentration uf PCBs to 10 ppm.
Contaminated soils were removed from
the site and disposed of in a TSCA
approved disposal facility off-site. EPA
inspected the nite and collected samples
in M.iy 10415 and verified that the
the remeili.il di.tion were
met
Af!i r ricMv.itiiin of the ror.l.i
soils w.is completed, the remaining suiis
uunMimnij low level PCDs wt-rj buried
undiTnc.iih 10 to 13 taut of (Jean
b'K.k'ill This ji.ticm nlimmnii.s 4iirfiu.il
dirrrt i nnt.ir.t PCD? are not rr ,dily
soluble in w.iti-r PCDs remaining are not
exprctrd to imp-jet ground wator no
PCDs 'f-ctf detertcd in the ground wat«T
samples t.ikcn dufir.jj the RI/FS.
EPA. with the concurrence uf the
Conim.mwpalih of Pennsylvania, has
determined that all appropriate Fund-
financed response under CERCLA at the
Lehigh Electric site has been completed.
and has determined that no Tardier
cleanup by responsible parties is
appropriate. The Pennsylvania
Department of Environmental Resources
agrees to perform all future operation
and maintenance including the
continued sampling of ground water
PCB.
Moms Arsenic Site. Morris. Minnesota
The Morris Arsenic site is located in
Stevens County approximately one mile
northeast of Moms. Minnesota. In the
early 1940's, approximately 1.500 pounds
of arseni'c-laced'grasshopper bait were
buried at the site. The subsequent
construction of a highway through the
general location of the burial site may
have dispersed the bait and has made
the discovery of the exact burial
location difficult. The primary public
health threat at the site was the
potential for contamination of the
shallow glacial aquifer, a source of
dnnkmg water for residential wells and
the ci'y of Morns. The site was
proposed for inclusion on the National
Priorities List (NPL) on September 8.
1383. and appeared on the final NPL on
September 21.1984.
In 1984. the EPA conducted a remedial
investigation (Rl) to determine the soil
contamination levels and the ground
water contamination levels. Eleven
monitoring wells were installed on and
around the site and a sampling program
implemented to search for arsenic
contamination in the site an>a.
The results of the Rl indicate that
arsenic levels in the turface soils were
all below 7 H8/kg. well within the
natural batktground range of 3 to 14 >/#/
kg Arsenic concentrations in the soils A\
the water t.ihle were somewhat
elevated, ranging between 20 and 40 pg/
kg, but far below the Centers for Disease
Control (CDC) action level of TOO jig/kg
for surficiHl soils CDC was consulted
with rcappct to the soils and concurred
that no artinn was necessary Ground
water 4.ini)ilb!t taken from the
monitoring wells and from nearby
domestic Noumea indicate that iirsrnu.
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Federal Register / Vol 50 No 251 / Tuesday. December 31. 1985 / Proposed Rules 53451
levels were considerably below the
Primary Drinking Water Standard of 50
MR/I. Concentrations of arsenic wrre
found to be at or near 3 ng/l. The
municipal well field for Morris is
approximately one mile in the opposite
direction of ground waier flow and
would not be impacted if there were
contamination at the site Other
domestic wells in the site vicinity wen-
sampled and did not show any
indications of arsenic contamination
ubove background. A public meeting
was held on May 2.1965. and a local
three-week public comment punod was
conducted from April 23.1985. to May
14.1985. concerning the no action
alternative. No public comments were
received
EPA. with the concurrence of the Stale
of Minnesota, has determined that the
Morns Arsenic site poses no significant
threat to public health or the
environment and. therefore, taking
remedial measures is not appropriate
EPA has recommended to Sidle. Countv.
and local officials that as a further
precaution, a notice be placed on the
property. The deed nonce would be
entered in county land records noting
prev IQUS use of the site for the dispos.il
of a hazardous substance.
PCS Spills Site. North Carolina
Between June 1978 and August 1978.
over 30 000 gallons of waste transformer
oil contaminated with polychlonnated
biphenyls (PCB's) were deliberately
discharged along 243 noncontiguous
miles of highway shoulders in fourteen
counties in North Carolina The site was
proposed for inclusion on the National
Priorities List (NPL) on December 30.
19H2. and appeared on the final NPL on
September 8.1983.
The Slate conducted several
investigations and feasibility studies
between 1979 and 1981 and ascertained
thai contamination did not migrate from
the spill areas into surface water, biota
or ground water A detailed report was
prepared and evaluated by EPA
concerning the siting and construction of
the landfill to receive the contaminated
soils and wastes
In May 1982. EPA and thy Stale of
North Carolina initiated remedial action
lo (1) Conslrucl a landfill for disposal of
PCD wastes. [2] remove. Kirsport and
dispose of c'intdmmaled soils and (3)
reconstruct the highway tliuuldcrs.
Disposdl uf contaminated sml i\^s
completed in November i«-'h2. .ind the
Toxic Subst.mco Control Act (1SCA)
.'ipproved l.mdfill was c.-ipped. jjMded.
and vegetated
Snmplinfj v\.is conducted sl-.nng
ii movrfl .it l!ic beginning .mil end point-.
of thp cunt.iimn,iled strips in mHer lo
insure th.il .ill contaminated soils wcrp
removed Random samples were
collected from the areas aflcr soils were
removed Sampling results indicate that
a cleanup level of 10 ppm or less was
achieved for nearly all of the samples.
No soils contaminated with PCBs above
50 ppm were left in place. Excavated
areas were then filled wilh clean soil.
A local three-week public comment
period was held May 10.1984. through
May 31.1984. with respect to deletion.
No public comments were received.
EPA. with the concurrence of the State
of North Carolina, has determined that
all appropriate Fund-financed response
under CERCLA at the PCS Spills site has
been completed and has determined that
no further cleanup by responsible
parties is appropriate. The Stale is
currently moniinnng the landfill
constructed to contain contaminated
soils removed from the site and
continues to meet all requirements for
post-closure monitoring.
PCB-\\'arehousc Site. Saipan.
Commonwealth of the Northern
Mariana Islands
PCB Wdrehouse is a Public Works
warehouse building where intact drums
of PCB transformer oil were stored. The
warehouse is located adjacent to the
Philippine Sea. The concern was that the
PCB oil could be released in the event of
a severe tropscal storm thereby
endangering public health and the
environment through risk of direct
contact and contamination of marine
life. The site was proposed for inclusion
on the National Priorities List (NPL) on
December 20.1982. and appeared on the
final NPL on September 8.1983.
A remedial investigation of the site in
December 1982. revealed the presence of
21 drums of PCB contaminated oil and 3
crates of sodium arsenite. Drums were
found to be intact and there was no
evidence of any reported spills or leaks.
The transformers from which the oil
was drained were located at the Saipan
Headquarters Building and at the
Departmen' of Public Works Yard
The:e was no indention of leaks or
spills near thobc transformers
An immcd'ate removal wjs conducted
in 1984 that rcmovrd the 21 drums of
PCD wastes and 3 crates of sodium
drspiute These were repackaged and
transported hark to the United Slates
for disposal in a 1 SCA approved
disposal fac.blj The sodium arsenilc
\\.is disposed of in the continental
L'niled States in a Rcsouice
Conservation anJ Recovery Act (RCRA)
perm,lied facility Aflcr removal, testing
w.is cunducted on sile. to insure lhal
cleanup was complete Hfd that no spills
h.id ar.t urrcd during ur before cleanup
Test results confirmed that no PCB
wastes had been spilled during the
removal action
A local public comment period was
held |une 13.1985. through June 28.1985
with respect to deletion. No public
comments wero received
EPA. with the concurrence of the
Commonwealth of Ihe Northern Man.ii.i
Islands, has determined that all
appropriate Fund-financed response
under CERCLA has been completed at
the PCB Warehouse site, and that no
further cleanup by responsible parties is
appropriate
PCB Waste Sites. Trust Territory of the
Pacific Islands
PCB Waste sites is a unique site
comprised of 8 separate locations
scattered throughout the Trust
Territories of Ihe Pacific Islands, an area
larger than the continental United
States. The sites were located on the
islands of Koror in the Republic of
Palau. Moen in Truk State. Yap. Kosrae.
and two on both Ponape and Maiuro.
The sr.es represented a threat to public
health and the environment because of
their proximity to human populations.
ground water supplies, and marine
resources. The site was proposed for
inclusion on the National Priorities List
(NPL) on December 30.1982. and
appeared on the final NPL on September
8.1983
A remedial investigation at the biles
in December 1982. revealed that the
PCBs in drums and transformers, and
some pesticides and chemicals were
improperly stored at the stiles A
previous oil spill was apparent at one-
site formerly used to store transformers
Some sites had intact transformer oil
containers located in unsecured arc.is
open to the general public.
An immediate removal v\as conducted
in 1984 removing all PCB wastes over 5(1
ppm and the other hazardous wastes
found at the various sites
PCB fluids under 50 ppm were
blended and burned on the 'slar.di
Other PCB wastes were transom'cd to j
TSCA approved disposal facility n ihe
Untied States Other hazardous wastes
at the sites were removed and disposed
of in Ihe continental United Sl..its in a
RCRA permittee! faciHy
During Iho removal ,-ic.tion su-K ,i;-.,!
waste oils were sarrpluil :n the field
using a pot table testing kit l!...i ,i'lo...-J
for the segregation of wastes for
transport A target of below 10 pp-. I'f !l
was selected Only one site f,.,d
cnr.liimmulrd soils The j,.ic w.is
formerly used fnr lran<-fiirmi-r sin- i^e
ufld is luc.i!<:d in a fenreJ in rur.il .ir. ,i
js w,is ( nndurie'l where llii- • jv'i
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53452
Federal Ki!»islnr / Vol. SO. No 251 / Tunsil.iy. Dcccmbnr .11. VW> / Prupusi-iJ R:.li-s
orcurrcd before and after removal of
Liint.iminiiliMJ soils to HStcri.iin whether
contamination over 50 ppm of PCB
remained No PCBs above SO ppm were
found in structures or soils after
reniovdl. A local public comment period
was held July 1.1985. through July 22.
1985. with respect to deletion. No
comments were received.
EPA. with (he concurrence of the
Trust Territory of the Pacific Islands,
h.-s determined that all appropriate
Fund-financed response under CERCLA
h>is been completed at the PCB Waste
sites, and that no further cleanup by
rpspon&ponsible parties is appropriate.
Toput.'.tiu Farm Site. Island of Tutuila.
American Samoa
The Taputimu Farm site consists of
three rooms of a farm warehouse and a
tr.tilnr. The site was the repository for
unused and out-of-ddte agricultural
cHennc.ils and pesticides on American
S.mioa. A remedidl investigation and
fedsibilny study (RI/FS) conducted in
1982 revealed that the materials were
improperly stored within the faulity
builiimgs. Analysis of the materials
cullocti.'d inside the building identified
several pesticides iind chlorinated
onj.imc solvents The site was proposed
for inclusion on the National Priorities
List (NPL) on December 30.1982. and
appeared on the final NPL on September
8.1983.
The chemical/pesticide materials
were stored on a concrete or steel floor
of the storage areas and trailer. Soil
sampling for primary pollutants and
visual examination of the site confirmed
that contamination was confined to the
intenor floor areas of the warehouse
and trailer.
The remedial action alternative
selected and implemented at Taputimu
Farm in 1984. involved repacking the
chemical/pesticide materials for
shipping to the continental United States
for disposal in a RCRA approved
facility. The remedial action also
included washing down all exposed
surfaces of the storage areas with
bleach to ensure deactivation of any
residual materials not picked up by
sweeping and vacuuming. Finally, two
layers of epoxy paint were applied to
the interior walls and three inches of
concrete were poured over the existing
floor thereby eliminating the threat of
direct contact. The American S.IIUOH
Government only ulilr/i** I ho s'rnciun.'
for farm equipment storage and luis
banned all food storage from the
building Since all matenals were
removed and contaminated surfaces
cleaned and sealed, no further
monitoring was conducted. Warning
signs were placed on the building
prohibiting food storage as <'in addition.il
precautionary measure.
A local public comment period was
held from June 13.1985. through June 26.
1985. with respect to deletion. No public
comments were received.
EPA. with the concurrence of the
Government of American Samoa, has
determined that all appropriate Fund-
financed response under CERCLA has
been completed at the Taputimu Farm
site, and that no further cleanup by
responsible parties is appropriate.
Ddied December 13.1985
). Winston Porter,
Assistant tdaimistrator. Office of Solid
Waste a.ij Emuryenry Response
|FR Doc 85-30006 Filed 12-30-85. 8.45 am)
BILLING CODE IS40-SO-*
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Tuesday
June 10, 19B6
Part II
Environmental
Protection Agency
40 CFR Part 300
Amendment to National Oil and
Hazardous Substances Contingency Plan;
National Priorities List; Final Rule and
Proposed Rules
-------
Federal Register / Vol. 51. No. Ill / Tuesday. |une 10. 1986 / Proposed Rules
21099
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
(SW-FRL-296&-51
Amendment to National Oil and
Hazardous Substances Contingency
Plan; National Priorities List
AGENCY: Environmental Protection
Agency
ACTION: Proposed Rules.
SUMMARY: The Environmental Protection
Agency ("EPA") is proposing the fifth
update to the National Priorities List
( \'PL ) This update contains 45 sites
Th<" NPL is Appendix B to the National
0:1 and Hazardous Substances
Contingency Plan ("NCP"). which EPA
promulgated pursuant to section 105 of
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 ("CERCLA") and Executive
Order 12316 CERCLA requires that the
N'PL be revised at least annually.
Today s notice proposes the fifth maior
revision to the \PL.
These sites are being proposed
because they meet the eligibility
requirements of the NPL EPA has
included on the NPL releases and
threatened releases of designated
hazardous substances, as well as
"pollutants or contaminants" which may
present an imminent and substantial
danger to the public health or welfare.
This notice provides the public with an
opportunity to comment on placing these
45 sites on the NPL
DATE: Comments may be submitted on
or before August 11.1986.
ADDRESSES: Comments may be mailed
to Russel H. Wyer. Director. Hazardous
Sue Control Division (Atnr NPL Staff).
Office of Emergency and Remedial
Response (WH-548E). Environmental
Protection Agency. 401 M Street. SW.,
Washington. OC 20460.
Addresses for the Headquarten and
Regional dockets are provided below.
The contents of these dockets are
described in Section I of the
Supplementary information.
Denise Sines. Headquarters. U & EPA
CERCLA Docket Office. Waterside
Mall. SubbasemenL 401 M Street
S W.. Washington DC 20460. 202/382-
3046
Peg Nelson. Region 1. U S. EPA Library.
Room E121. John F. Kennedy Federal
Bldg . Boston. MA 02203. 617/223-5791
Carole Peteraen. Region 2. Site
Investigation & Compliance Branch. 26
Federal Plaza. 7th Floor. Room 737.
New York. NY 10278. 212/284-8877
Diane McCreary. Region 3. U S EPA
Library. 5lh Floor. 841 Chestnut Bldg..
9th & Chestnut Streets. Philadelphia.
PA 19107. 215/597-0580
Cayle Alston. Region 4. U.S. EPA
Library. Room G-6. 345 Courtland
Street. N.E.. Atlanta. GA 30365. 404/
347-4216
Lou Tilley. Region 5. U.S. EPA Library.
16th Floor. 230 South Dearborn Street.
Chicago. 1L 60604. 312/353-2022
Barry N'ash. Region 6. InterFirst II Bldg .
1201 Elm Street. Dallas. TX 75270.
214/767-»075
Connie McKenzie. Region 7. U.S. EPA
Library. 726 Minnesota Avenue.
Kansas City. KS 96101. 913/236-2828
Dolores Eddy. Region 8. U S. EPA
Library. 999 18th Street. Suite 1300.
Denver. CO 80202-2413. 303/293-1444
Jean Circiello. Region 9. U.S. EPA
Library. 6th Floor 215 Fremont Street.
San Francisco. CA 94105. 415/974-
B076
loan Shafer. Region 10. U.S. EPA. llth
Floor. 1200 8th Avenue. Mail Stop 525.
Seattle. WA 98101. 206/442-4903
FOR FURTHER INFORMATION CONTACT:
Trudi | Fancher. Hazardous Site Control
Division. Office of Emergency and
Remedial Response (WH-548E).
Environmental Protection Agency. 401 M
Street. S.W.. Washington. D C. 20460.
Phone (800) 424-9346 (or 382-3000 in the
Washington. D C.. metropolitan area).
SUPPLEMENTARY INFORMATION:
Table of Content*
I Introduction.
II Purpose of the NPL
111 NPL Update Process and Schedule.
IV Eligibility.
V Contents of the Proposed Filth NPL
Update
VI Regulatory Impact Analysn
VII Regulatory Flexibility Act Analysis
I. Introduction
Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980. 42 U S.C 9601-9857
("CERCLA" or "the Act") and Executive
Order 12316 (46 FR 42237. August 20.
1981), the Environmental Protection
Agency ("EPA" or "the Agency!
promulgated the revised National
Contingency Plan ("NCP"). 40 CFR Part
300. on July 16.1982 (47 FR 31180). EPA
promulgated further revisions to the
NCP on September 16.1989 (50 FR
37624) and November 20.1985 (50 PR
47912). These amendments to the NCP
implement the responsibilfties and
authorities created by CERCLA to
respond to releases and threatened
releases of hazardous substances.
pollutants, or contaminants.
Section 10S(8)(A) of CERCLA requires
that the NCP include criteria for
determining priorities among releases or
threatened releases throughout the
United States for the purpose of taking
remedial action and. to the extent
practicable, taking into account the
potential urgency of such action for i.._
purpose of taking removal action
Removal action involves cleanup or
other actions that are taken in response
to emergency conditions or on a short-
term or temporary basis (CERCLA
section 101(23)) Remedial jction tends
to be long term in nature and involves
response actions which are consistent
with a permanent remedy for a rele*^
(CERCLA section 101(241) Criteria Lr
determining priorities are included in
the Hazard Ranking SjsiernJ MRS )
which EPA promulgated as Appendix -\
of the NCP (47 FR 31219. Jul> 16. 1982)
Section 105(8)(B) of CERCLA retires
that the statutory- criteria be used to
prepare a list of national priori es
among the known releases or ihreateni-d
releases throughout the L'nr.td Stales
and that to the extent practicable, ji
least 400 sites be designated
individually. CERCLA requires :hdt ths
National Priorities List ("\PL"| be
included as part of the NCP Todjv m
this notice. EPA is proposing 10 add -15
sites to the NPL. bringing the :o;jl
number of proposed sues to 185 On
March 7. 1986 (51 FR 7935). EPA
published a notice to delete 8 sites f~
the NPL. resulting in a final NPL of
sites. In a separate notice touay. EP.-. ,
promulgating 170 sites, resulting in a
final N'PL of 703 sites The total number
of final and proposed NPL sites is now
888 EPA is proposing to include on the
NPL sites at which there are or have
been releases or threatened releases of
hazardous substances or of "pollutants
or contaminants." The discussion below
may refer to "releases or threatened
releases" simply as "releases.'
"facilities." or "sites."
This Federal Register notice proposing
45 sites to the NPL opens the formal 60-
day public comment period. Comments
may be mailed to Russel H VYver.
Director, Hazardous Site Control
Division (Attn. NPL Staff!. Otfice of
Emergency and Remedial Response
(WH-548E). Environmental Protection
Agency. 401 M Street. SW.. Washington.
D C. 20460. The Headquarters public
docket for the fifth update to the NPL
will contain: Hazard Ranking System
(HRS) score sheets lor each proposed
site: a Documentation Record for each
site describing the information used to
compute the scores: and a list of
document references. The Headquarter
public docket is located in EPA
Headquarters. Waterside Mall
subbasement. 401 M Street. SW .
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21100
Federal Register / Vol. 51. No. Ill / Tuesd.n |ur.e 10. 19»6 / Proposed Rules
Washington. D.C. 20460. and is avmiable
for viewing by appointment only .;om
9.00 a m. to 4.00 p.m.. Monday through
Friday excluding holidays. Requests for
copies of the documents from the
Headquarters public docket should be
directed to (he EPA Headquarters
docket office. The HRS score sheets and
the Documentation Record for each site
in a particular EPA Region will be
available for viewing in that Regional
Office when this notice is published.
These Regional dockets will also
contain documents referenced in the
Documentation Record which contain
the background data EPA relied upon in
calculating or evaluating the HRS
scores. Copies of these background
documents may be viewed in the
appropriate Regional Office, and copies
may be obtained from the Region.
Documents with some relevance to the
scoring of each site, but which were not
used as references, may also be viewed
and copied by arrangement with the
appropriate EPA Regional Office An
informal written request, rather than a
formal request, should be the ordinary
procedure for obtaining copies of any of
these documents. Requests for HRS
score sheets and Documentation
Records should be directed to either
Headquarters or the appropnate
Regional Office docket. Requests for
background documents should be
directed to the appropriate Regional
Superfund Branch Office.
Comments submitted to Headquarters
during the 60-day public comment
penod may be viewed only in the
Headquarters docket during the
comment period. A complete set of
comments pertaining to sites in a
particular EPA Region will be available
for viewing in the Regional Office
docket approximately one week
following the close of the formal
comment period. Comments received
after the close of the comment penod
will be available at Headquarters and in
the appropriate Regional Office docket
on an 'as received" basis. An informal
wrtten request, rather than a formal
request, should be the ordinary
procedure for obtaining copies of these
comments. Addresses for the
Headquarters and Regional Office
dockets are provided in the summary.
II. Purpose of the NPL
The primary purpose of the NPL is
stated in the legislative history of
CERCLA (Report of the Committee on
Environment and Public Works. Senate
Report No. 96-848. 96th Cong.. 2d Sess.
60(1980)):
The priority lists serve primarily
informational purposes, identifying for the
Sutes and the public, those fdLilnies and sues
or other releases which appear tn warrant
remedial actions Inclusion of a facility or site
on the list does not m itself reflect a judgment
of the activities of its owner or operator it
does not require (hose persons to undertake
any action nor does it assign liability to any
person Subsequent government action in ihe
form of remedial actions or enforcement
actions will be necessary in order to do so.
and these actions will be attended by all
appropriate procedural safeguards.
The purpose of the NPL therefore, is
primarily to serve as an informational
tool for use by EPA in identifying sites
that appear to present a significant risk
to public health or the environment. The
initial identification of a site for the NPL
is intended primarily to guide EPA in
determining which sites warrant further
investigation, to assess the nature and
extent of the public health and
environmental risks associated with the
site, and to determine what CERCLA-
Financed remedial action(s), if any.
many be appropriate. Inclusion of a site
on the NPL does not establish that EPA
necessarily will undertake remedial
actions. Moreover, listing does not
require any action of any private party.
nor does it determine the liability of any
party for the cost of cleanup at the site.
In addition, a site need not be on the
NPL to be the subject of CERCLA-
fmanced removal actions, remedial
investigations/feasibility studies, or
actions brought pursuant to sections 106
or 107(a)(4)(B) of CERCLA.
In addition, although the HRS scores
used to place sites on the NPL may be
helpful to the Agency in determining
priorities for cleanup and other response
activities among sites on the NPL EPA
does not rely on the scores as the sole
means of determining such priorities, as
discussed below. The information
collected to develop HRS scores is not
sufficient in itself to determine the
appropnate remedy for a particular site.
EPA relies on further, more detailed
studies to determine what response, if
any. is appropnate. These studies
evaluate more fully the extent of the
contamination m terms of area and
severity, and the risk to affected
populations and the environment. These
studies also consider the cost to correct
problems at the site and the response
actions that have been taken by
potential responsible parties or others.
Decisions on the type and extent of
action to be taken at these sites are
made m accordance with the cntiena
contained in Subpart F of the NCP After
conducting these additional studies.
EPA may conclude that ir is not
desirable to conduct response action at
some sites on the NPL because of more
pressing needs at other sites. Given the
limited resources a\aiUble in the
Hazardous Substance Response Trust
Fund established under CERCLA. '.he
Agency must carefully balance the
relative needs for response at the
numerous sites it has studies ANo. it is
possible that EPA will conclude after
further analysis that (he site does not
warrant response action
III. NPL Update Process and Schedule
Pursuant to section 105(8)(B) of
CERCLA. 42 U S C 9605(81(8). EPA is
required 10 establish, as part of the NCP
a priority list of sites. The NPL fulfills
that obligation. The purpose of this
notice is to propose the addition of 45
new sites to the NPL.
CERCLA requires that the NPL be
revised at least once per year
Accordingly. EPA published the first
NPL on September 8.1983 (48 FR 40b58|
containing 406 sites The NPL has been
amended several times since then.
including the addition of 170 sites which
are promulgated elsewhere in ioda> s
Federal Register (see 49 FR 19480. May
8.1984. 49 FR 37070. September 21.1964.
30 FR 8320. February 14.1985. and 50 FR
37630. September 16.1985) [51 FR 7935)
The NPL now includes 703 final sites
The Agency has periodically propose
major additions to the NPL (see 49 FR
40320. October 15.1984. 50 FR 14115
Apnl 10.1985: 50 FR 37950. September
18.1985).
In addition to these periodic updates.
it is sometimes desirable m rare
instances to propose or promulgate
separately individual sites on the NPL
because of the apparent need for
expedited remedial activities. This
occurred in the case of the proposal of
Times Beach. Missoun (48 FR 9311.
March 4.1983). the promulgation of four
San Gabriel Valley. California, sites (49
FR 19480. May 8.1984). the promulgation
of two New Jersey radium sites in Glen
Ridge and Montclair/West Orange (50
FR 8320. February 14.1985). and (he
promulgation of the Lansdowne
Radiation site. Lansdowne.
Pennsylvania (50 FR 37630. September
16.1985).
There are three mechanisms for
placing sites on the NPL. The principal
mechanism is the application of the
HRS. Those sites that score 28.50 or
greater on the HRS. and which are
otherwise eligible, are proposed for
listing. In addition. States may designate
a single site as the Stale top pnonty In
rare instances, EPA may utilize the
listing provision promulgated as
§ 300.66(b)(4) of the NCP (50 FR 37624.
September 16.1985).
Section 300.86(b)(4) of the NCP allows
certain sites with HRS scores below
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Federal Register / Vol 51. No m / Tuesday. June 10 1986 / Proposed Rules
21101
:8 50 to be eligible For the MPL These
sues may qualify for the NPL if all of the
following occur
• The Agency for Toxic Substances
and Disease Registry of the U.S.
Depdrtment of Health and Human
Services has issued a health advisory
which 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
ciuthonty than to use its removal
iiuthonty to respond to the release.
The Lansdowne Radiation site was
odded to the NPL (50 FR 37630.
September 16.1985) pursuant to this
sernon of the NCP
As with the establishment of the
mitidl NPL and subsequent revisions.
Slides have the primary responsibility
for selecting and scoring sites that are
candidates and submitting the candidate
sites to the EPA Reg-onal Offices. For
erfch proposed NPL update. EPA informs
the Sidles of the closing dates for
submission of candidate sites to EPA.
The EPA Regional Offices then conduct
a quality control review of the Slates'
candidates sites After conducting this
renew, the EPA Regional Offices submit
candidate sites to EPA Headquarters.
The Regions may include candidate
sues in addition to those submitted by
States In reviewing these submissions.
EPA Headquarters conducts further
qudlity assurance audits to ensure
accuracy and consistency among the
various EPA and State offices
participating in the scoring.
This Federal Register notice lists sites
that EPA is proposing to add to the NPL
These proposed additions of 43 non-
F-ecierjl sites and 2 Federal sites, are
listed m Tables 1 and 2 immediately
following this Preamble
Pi-blic Comment Period
EPA requests public comment on
these proposed additions. Comments
will be accepted for 60days following
publication of this notice in the Federal
Register. EPA is also soliciting
comments on two Federal facilities that "
hdi e HRS scores 28.50 or higher, and
which are now eligible for the NPL
pursuant to the NCP amendments of
November 20. 1985 (50 FR 47912)
Section IV of this Preamble includes a
discussion of EPA's Federal facilities
policy
The "ADDRESSES" portion of this
notice contains information on where to
obtain documents relating to the scoring
of the 45 proposed sites. After
considering the relevant comments
received during the comment period.
EPA will add to the NPL all proposed
sites that meet EPA's criteria for listing
In past NPL rulemakings. EPA has
considered comments received after the*
qlose of the comment period. Because
the Agency has now increased the
frequency of NPL rulemakmgs. EPA may
no longer have the opportunity to
consider late comments
IV. Eligibility
CERCLA restricts EPA's authority to
respond to certain categories of releases
and expressly excludes some
substances from the definition of
release In addition, as a matter of
policy. EPA may choose not to use
CERCLA to respond to certain types of
releases because other authorities can
be used to achieve cleanup of these
releases Preambles to previous NPL
rulemakmgs have discussed examples of
these policies. See. e g. 48 FR 40658
(September 8.1983): 49 FR 37070
(September 21.1984): and 49 FR 40320
(October is. 1984). Generally, this
proposed update continues these past
eligibility policies. The policy regarding
Federal facilities is relevant to this
update, and is discussed below.
Federal Facility Releases
CERCLA section lll(e)(3) prohibits
use of the Trust Fund for remedial
actions at Federally-owned facilities.
and until the November 20.1985.
amendments to the NCP (50 FR 47912).
§ 300.66(e)(2| of the NCP prevented the
placing of Federal facilities on the NPL
Section 300.66(e)(2) of the NCP has now
been deleted, removing the prohibition
of listing Federal facilities on the NPL.
Prior to proposal of NPL Update =2
(49 FR 40320. October 15.1984). EPA did
not propose for listing any site on (he
NPL where the release resulted solely
from a Federal facility regardless of
whether contamination remained on-site
or migrated off-site. However, based on
public comments received from previous
NPL announcements. EPA proposed 38
Federal facilities for NPL Update «2.
EPA did not plan to promulgate the 36
Federal facilities unless the NCP was
revised to permit the placing of Federal
facilities on the NPL
In Updatea «3 (50 FR 14115. April 10.
1985). and «4 (SO FR 37950. September
18.1985). the Agency did not include any
additional Federal facilities in the
proposed rule because the NCP
amendments had not been promulgated
However, six Update «3 Federal
facilities and three Update *4 Federal
facilities which met the catena for
proposal were named in the preambles-
of those updates. For «5. the Agency is
proposing two Federal facilities listed in
Table 2 and requests comments on the
scoring of these sites. The Agency
intends to promulgate Federal facilities
which have been proposed or identified
m the preambles of previous updates m
future NPL rulemakmgs.
Individual Site Issues
Silver Bow Creek/Butte Area Site—
Butte. Montana The Agency believes
that the existing Silver Bow Creek NPL
site m Butte. Montana, and the Bulte
Area should be considered as one site
In order to assess the appropriateness cf
this decision, the Agency solicits
comments on the expansion of the SiUer
Bow Creek site, and will evaluate
comments received before proceeding
with any Fund-financed remedial
actions in the Butte Area
At the time of listing on the NPL (48
FR 40658. September 8.1983). the Silver
Bow Creek site was characterized as
approximately 28 stream miles
Preliminary evaluation of data from the
remedial mvestigation/feasibilit> stud>
(RI/FS) indicates that sources upstream
of the existing SiKer Bow Creek sue are
contributing to contamination in the
creek EPA considered two options for
dealing with the upstream problems-
proposing a separate Butte Area Site or
expanding the existing Silver Bow Creek
site The Butte Area was scored
separately: however, the Agenc)
believes it is more appropriate to
expand the Silver Bow Creek site tr
include the Butte Area.
A thorough analysis of the
relationship between the Silver Bow
Creek site and the Butte Area led EPA to
conclude that the geographical
relationship of the headwaters of SiKer
Bow Creek (which originate a short
distance upstream of the Silver Bow
Creek drainage area) and the portion of
the Silver Bow Creek downstream of the
City of Butte favors treating these areas
as one site under CERCLA In addition.
EPA decided to analyze the nature and
extent of contamination under one
comprehensive RI/FS because it
appears that contamination from both
areas threatens the same surface wnter
body and the same target population
The geographic relationship of the two
areas suggests that the Butte Area is a
maior source of contamination to the
Silver Bow Creek, which is the major
receiving water body for mining
discharges and drainage from the Butte
Area EPA treats sources of and extent
of contamination at other sites in this
way and concluded that it was logical to
evaluate the Butte Area and the Silver
Bow Creek site together. Adding the
Butte Area does not greatly expand t^-
site geographically. Documents
supporting the technical justification
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21102
Federal Itegister / Vol. SI. Ma 111 / Tuesday. Me 10. 1986T- / Proposed Rules
expanding the Silver Bow Creek NPL
site to include the Butte Area are
available in the public docket.
Butler \Tine Tunnel—Pi ttston.
Pennsylvania. The Butler Mine Tunnel.
situated m a populated area of
Pittstown. Pennsylvania, is a mine
discharge tunnel designed to dram acid
mine waste into the Susquehanna River.
The tunnel is honeycombed with
boreholes and shafts. In addition to
mine drainage, 'he disposal of
hazardous materials into the tunnel is
also suspected.
In |uly 1979. EPA initiated an
emergency response action at the site
under section 311 of the Clean Water
Act because of a release of oily material
from the tunnel into the river Response
jctions ended in January 1981 In 1980.
the State began monitoring the outfall of
the tunnel via an automated detection
system. The Slate continued to mom toe
the outfall until 1964. during which tune
there was no evidence of any discharge
from the tunnel.
On October 23.1901. the Agency
announced the Interim Priorities List
(IPL), which included the ButJ-jr Mine
Tunnel site. The IPL was a preliminary
list of 115 sites developed by the Agency.
prior to the proposal of the First NPL la
February 19&2. the State of Pennsylvania
indicated that no further response
actions were warranted at the Butler
Mine Tunnel site based on monitoring
results of existing conditions. On
December 30.1982. the first NPL was
proposed in the Federal Register (47 FR
56476). Butler Mine Tunnel was not
included on the list, but the preamble
stated ihafall appropriate Fund-
financed cleanup had been completed.
Following heavy rams aaaouatedvuuh.
Hurricane Gloria, oily material was.
observed discharging from tha Butler
Mine Tunnel outfall into tha
Susquehanna River on September 27.
1985. On September 28.1985. EPA again
initiated an emergency response-aciuaa.
including measure* to sample, and
contain the oily material However.
remedial actions may be needed 11* the
future to provide a long-term.resolution.
of problems at Butler MintTunneL
Consequently. EPA believes ***** it
would be appropriate to propose, tha
Butler Mine Tunnel for the NPLaltlua-
time in order to provide the Agency with.
the response capabilities* provided, undo
the remedial action authorities ef
CERCLA.
V. Coolants at tnn PtopowdPmb WE.
Update
All siles in today's proposed addition
to the NPL received HRS scores of 28,50
or above-
Following this preamble is a list of the
45 sites proposed for addition, to. the NPL
(Tables. 1 and 2). Each entry an the list
contains the name of the facility, the.
State and city or county in which kt is
located, and the corresponding EPA
Region. Each proposed site a placed by
score in a group corresponding to. tha
groups of 50 sites presented within the
final NPL For example, sites in group 5
of the proposed update have scores thaf
fall within the rangt of scores, cavered
by the fifth group of 50 sites- on the hnal
NPL Each eniry i» accompanied by one
or more notations referencing (he status-
of response and cleanup activities at the
site at the time this list was prepared.
EPA categorizes NPL sites based on
the type of response at each site (Fund-
financed. Federal enforcement. State
enforcement and/or voluntary action).
In addition. EPA is including the cleanup
status codes to identify sites where
significant response activities are
underway or completed. The codes are
included in response to public requests
for information regarding actual site
cleanup activities, and to acknowledge
situations where EPA. States, or
responsible parties have undertaken
response actions. The response
categories/status codes for these
proposed sires and all final NPL sites
will be updated each tune EPA
promulgates additional sites on the NPL
Response Categories,
The following response categories are
used to- designate the type of response
underway. One or more categories may
apply to each sate.
Federal and/or Slate tospeasa (Rfi.
Thu eaUgBty includes sites- at which*
EPA or State agencies- have started; or
completed leapcoaa- actions. These
mcluda cenur*«i action*.
nonenibMsman* remsdiaJl planning*
and/ar remedial actions aadtrCEBCLA
(NCP, i3flO.Mf£HiJ47 FB 31217. July *&.
l£B2)v For purpose* of assigning, a
category* the- response action
commences when- EPA obligates fundsv
Fsdetol Enf9fC£jnent (F). This-
category mdtults sites where the United1
StaU&havbledia civil complaint
(including cost recovery actions) or
issued aa.adrnias AUsHes.at wstdr
EPA has obligated. kn^fM
enforcenwurlaati nnadttii
invisuganoss. a*d fsosihiisqi stMdias. an
also inok»ded.in-thiaic»tsjsw>.
AuuabaEoCsiUB oo-ihe MfiLs»tfas>
subject o£ legal invssugBMna si haw*
bats formally ra£erred> to. to
Department of jueuca £oc pnnmhts
enforcement action. EPA's policy is not
to release information, concern ing a
possible enforcement action until a
lawsuit has been filed. Accordingly.
sites subject tn.pending Federal action
are nor included in this category, but are
included under "Category To Be-
Determined:"
State Enforcement fS>' This category
includes sites where a S'ate has filed a
civil complaint or issued an
administrative order It also includes
sites at which a State court has
mandated some form of response action
following a judicial proceeding Sues
where a State has obligated funds for
enforcement-'ead remedial
investigations and feasibility studies are
also included in this category.
It is assumed that Stale policy
precludes the release of information
concerning possible enforcement actions
until such action has been formally
taken. Accordingly, sues subject to
possible State legal action are not
included in this category but are
included under "Category To Be
Determined."
Voluntary or Xegoiiaied Response
(V). This category includes sites where
private parties axe conducting response
actions pursuant to settlement
agreements, consent decrees, or consent
orders to which EPA or the State is a
party Usually, the response actions
result from, a Federal ot State
enforcement action. This category
includes proataly-fiaanced remedial
planning.removal actions, and/or
remedial actions.
Category To. Be Determined IDl. This
category includes aU. sues not listed in
any other categsry. A wide range of
activities may be- m progress at sites, in
this category<. EPArara Stale may be
evaluating the type of response action to
undertake, or a response action may be
determined but funds not yet obligated.
Sites where a Federal or Stare
enforcement case may be under
authorities other than CERCLA or RCR A
are also included in this aategorv.
Additionally included in this category
are sites where responsible parties may
be undertaking cleanup acnens that are
not covered by a consent decree.
consent ordec. or administrative order
Cleanup Slatus Codes
EPA assigns codavto indicate the
status of Fund-finalised, ot private party
cleanup activities underway or
completed ai proposed: and. Dual NPL
sites Frad-finaocsd response activities
whiefe are coded incJods: significant
removal action*, sevee csmroi< remedial
action* and: otf-sita-remedial actions.
The status, at cleanup seawtin
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Federal Register / Vol 51. No 111 / Tuesday |ane 10. 1996 / Proposed Rul-s
21103
conducted by responsible pu. .es under
H consent decree court order, or an
administrative order also is coded, as
dre similar cleanup activities taken
independently of EPA and/or the State
Remedied panning activities or
engineering studies do not receive a
cleanup status code
Many sites on the NPL are cleaned up
m stages or operable units." For
purposes of cleanup status coding, an
operable unit is a discrete action taken
js part of (he entire site cleanup that
significantly decreases or eliminates a
release, threat of release, or pathway of
exposure One or more operable units
may be necessary to complete the
cleanup of a hazardous waste site.
Operable units may include significant
removal actions taken to stabilize
deteriorating site conditions or provide
alternative water supplies, and remedial
actions. A simple removal action
[constructing fences or berms or
lowering free-board) that does not
eliminate a significant release, threat of
release, or pathway of exposure is not
considered an operable unit for
purposes of cleanup status coding.
The following cleanup status codes
(and definitions) are used to designate
the status of cleanup activities at
proposed and final sites on the NPL.
Only one code is used to denote the
status of actual cleanup activity at each
sue since the codes are mutually
exclusive.
Implementation activities are
underway for one or more operable
units (If Field work is in progress,at the
site for implementation of one or more
removal or remedial operable units, but
no operable units are completed.
Implementation activities are
completed for one or more (but not oil]
operable units Implementation
activities may be underlay for
additional operable units (Of Field
work has been completed for one or
more operative units, but additional site
cleanup actions are necessary.
Implementation activities are
completed for all operable units (C) All
actions agreed upon for remedial action
at the site have been completed, and
performance monitoring has
commenced. Further site activities could
occur if EPA considers such activities
necessary.
VI. Regulatory Impact Analysis
The costs of cleanup actions that may
be taken at sites are not directly
attributable to listing on the NPL as
explained below.
Therefore, the Agency has determined
that this rulemaking is not a "major"
regulation under Executive Order 12291
EPA has conducted a preliminary
analysis of the economic implications of
today's proposal to add new sites EPA
believes that the kinds of economic
effects associated with this revision are
generally similar to those identified in
the regulatory impact analysis (RIA)
prepared in 1982 for the revisions to the
NCP pursuant to section 105 of CERCLA
(47 FR 31180. July 16.1982) and the
economic analysis prepared when the
amendments to the NCP were proposed
(50 FR 5882. February 12.1985). The
Agency believes the anticipated
economic effects related to proposing
the addition of 45 sites to the NPL can
be characterized in terms of the
conclusions of the earlier RIA and the
most recent economic analysis.
Costs
EPA has determined that this
proposed rulemaking is not a "major"
regulation under Executive Order 12291
because inclusion of a site on the NPL
does not 'self impose any costs. It does
not est i the EPA will necessarily
underta emedial action, nor does it
require any action by a private 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.
Nonetheless, it is useful to consider the
costs associated with responding to all
sites included in a proposed rulemaking.
This action was submitted to the Office
of Management and Budget (OMB) for
review.
The major events that follow the
proposed listing of a site on the NPL are
a responsible party search and a
remedial investigation/feasibility study
(RI/FS) which determines whether
remedial actions will be undertaken at a
sue Design and construction of the
selected remedial alternative follow
completion of the RI/FS. and operation
and maintenance (O&M) activities may
continue after construction has been
completed.
Costs associated with responsible
party searches are initially borne by
EPA Responsible parties may bear
some or all the costs of the RI/FS.
design and construction, and O&M. or
the costs may be shared by EPA and the
States on a 90% 10% basis (50%.50% in
the case of State or locally owned sites).
Additionally. States assume all costs for
O&M activities after the first year at
sites involving Fund-financed remedial
actions.
Rough estimates of the average per-
site and total costs associated with each
of the above activities are presented
below. At this time1. EPA is unable to
predict what portions of the total costs
will be borne by responsible parties.
since the distribution of costs depends
on the extent of voluntary and
negotiated response and the success of
any cost recovery actions.
lOldi rmi jrr
V r
5800000
440000
T 200000
' 3 "0 000"
Cost category
RI/FS
Remedial design . . .
Remedial action
Net present value of O&M >
' IMS U S Uoll.rt
: Include! Sou con «hare
' Anumei con of O»M ovr JO >ean MOO 000 lor Hit
firai >nr nc>
ReiponK Ub EP«i .
Costs to States associated with
today's proposed amendment arise from
the required State cost-share of (!) 10
percent of remedial action and 10
percent of first year O&M costs at
privately-owned sites, and (2} at least 50
percent of the remedial planning (RI/FS
and remedial design), remedial action
and first year O&M costs at State or
locally owned sites. States will assume
all the cost for O&M after the first year
Using the assumptions developed in the
1982 RIA for the NCP. EPA has assumed
that 90 percent of the 43 non-Federal
sites proposed to be added to the N'PL m
this amendment will be privately-owned
and 10 percent will be Slate- or Joe
owned. Therefore, using the budge
protections presented above, the co*. ,
States of undertaking Federal remedial
actions at all 43 non-Federal sites would
be S194 million, of which S147 million is
attributable to the State O&M cost
Listing a hazardous waste site on the
final NPL does not itself cause firms
responsible for the site to bear costs
Nonetheless, a listing may induce firms
to clean up the sites voluntar.lv, or it
may act as a potential trigger for
subsequent enforcement or cost
recovery actions. Such adions may
impose costs on firms, but the decisions
to take such actions are discretionary
and made on a case-by-case basis.
Consequently, precise estimates of these
effects cannot be made. EPA does not
believe that every wte will be cleaned
up by a responsible party. EPA cannot
project at this time which firms or
industry sectors will bear specific
portions of response costs, but the
Agency considers: the volume and
nature of the wastes at the site, the
parties' ability to pay. and other factors
when deciding whether and how to
proceed against potentially responsible
parties.
Economy-wide effects of this
proposed amendment are aggregate
-------
21104
Federal Register / Vol 51 No. ill / Tuesday. June 10. 1986 / Proposed Rules
of effects on Firms and State and locdl
governments Although effects could be
Felt by some individual firms and Slates.
iHe total impact of thus revision on
output, prices, and employment is
expected to be negligible at the national
level, as was the case m the 1982 RIA.
Senefits
The benefits associated with today's
proposed amendment to list additional
sites ace increased health and
environmental protection as a result of
increased public awareness of potential
hazards In addition to the potential for
mure Federally-financed remedial
actions, this proposed expansion of the
N'PL could accelerate privately-financed.
voluntary cleanup efforts to avoid
potential adverse publicity, private
lawsuits, and/or Federal or Stare
enforcement actions.
As a result of the additional NPL
remedies, there wilTbe lower human
exposure to high-risk chemicals, and
higher quality surface water, ground.
water soil, and air. These benefits are
expected to be significant although
difficult to estimate laadvance of
completing the RI/FS at these particular
sites.
Associated with tbe costs of remedial
actions are significant potential benefits
and coat offsets. The distributional coats
to firms of financing NPL remedies have
corresponding "benefits" in thai funds
expended for a response genxEat*
employment, directly OF indirect IT
[through purchased maienalg}.
VII. Regulatory Flexibility Act Analysis
The Regulatory Fle.\ibilm Act of 1980
requires EPA to review the impacts of
this action orr small entities, or certify
that the action will not have a
significant impact on a substantial
number of small entities By small
ennties the Act refers to small
businesses, small governmental
jurisdictions, and nonprofit
organizations
While proposed modifications to the
N'PL are considered revisions to the
NCP. they are not typical regulatory
changes since the revisions do not
automatically impose costs. The
proposed listing of sites on the NPL does
not in itself require any action of any
private party, nor does it determine the
liability of any party for the cost of
cleanup at the site Further, no
identifiable groups are affected as a-
whole. As a consequence, it is hard to
predict impacts on any group A site's
proposed inclusion on the NPL could
increase the likelihood thai adversfe
impacts to responsible parties (in the
form of cleanup costs) will occur, but
EPA cannot identify the potentially
affected businesses at this time not
estimate the number of small businesses
that might be affected.
The Agency does, expect that certain-
industries and. firms wuhm industries
thai have caused a proportionally high
percentage of waste, stta. pcoblam* coukt
be significantly affected, by CERC1A
actions. However. EPA does not expect
the impacts, fraa the proposed listing cf
these 46 sites to. hare a significant
economic impact on a substantial
number of small businesses
hi any case economic impacts would
only occur throusn enforcement and cost
recovery actions, which are uken at
EPA s discretion- on a site-by-site basis
EPA considers many factors when
deiermming what enforcement actions
to take, including not only the firm s
contribution to the problem, but also the
firm s ability to pav The impacts from
cost recovery on small governments and
nonprofit organizations would be
determined on a similar. case-by-case
basis.
List of Subjects in 4» CFR Part 300
Air pollution control Chemicals.
Hazardous materials. Intergovernmental
relations. Natural resources. Oil
pollution. Reporting and recordkeeping
requirements'. Superfund. Waste
treatment and disposal. Water pollution
control Water supply
ft is proposed lo amend 40 CFR Part
300 as follows;
1. The authority citation for Pan 300
continues to cead as follows.
Aulhontvr4ZU S.C 960SI8||B|/CERCLA
105(8||B1-
2. It is proposed to add the following
sites to Appendix B of Part 300
Dated May 19. 1986.
lack W. McCraiw.
Deputy .•tsfistanlAdmiiMSUrK
Solid Waste ami Emergency Btuponse
-------
/' Vat 51 He. Ill / Ta«9day. frne ItX 198fr / Proposed ffutar
NATIONAL PRIORITltS LIST rWFOSEfr BPOtfTE 5 SITTS
NPL C PA RESPONSE Ci f ANUP
RANK RC ST Sl-fr M*MC CITY/COUNTY CATEGORY* STATUSe
CROUP >4
09 A£ Apacne Powder Co. Benson 0
03 PA But'er Mine T mine I PitCStan R Q
05 MI American Ansdco, Inc. Ionia 0
======s:i=-======= ==========-===-==== ====s==s=============i============r==:^==si===a=
CROUP 5
05 wi Toman Municipal Sanitary Landfill Toman 0
----- = s= ~ ~-= = == = = = = = = = — = s=== = = r = = = rsrr=sss5srr=s = =sssssaassrsss = =B= = = ssrsssrssssss = =s
CROUP 6
10 WA Hidden valley LT (Thun Field) Pierce County 0
09 A/ Hrfssayampa Landfill Hassayampa 0
05 IL fn-County Lf/Waste Mgmt Illinois South Elgin 0
CROUP I
05 IN Dnuijiass Road/un i roya I . 'inc.. Lf MisnavaKa 0
Ou SC Hornester Property Travelers Rest U
03 I'A Delta Qua rnea/Stot ler Lanufrii Antis/Loqan Twps 0
01 (f Hovere Textile Prints Corp. Sterling 0
03 VA At la-rrcic wootf industries, inc. Portsmouth • 0
CROUP 8
05 wi Aiijoma Municipal Landfill Algoma 0
OU fL Syonny Mine Sludge Ponds Brandon 0 o
= = = r = = = r=ir = i = = i = = =r= = = = = == = =z==s = = = = =s..= = = = = = = = = = ===- = = = = ---_-__. ._....._..J. ..._..__
V = VOLUNIARY OH NICOMAILD RE.SPONSE;
F = FlOfHAL ENfOHCEMLNT;
0 = ACTIONS TO BE OCTERMINEO.
R = FEDERAL AND SIAIE. RESPOHSf
S = STATE ENFORCEMtNT;
I = IMPI EMCNTATION ACTIVITY UNDERWAY. ONC OR MORE OPERABLE UNITS;
o = ONI OR MORF OPERABLE UNITS COMPIMED. o-T»tiR5 KAY or UNDERWAY:
C = IMPI (.MENTATION ACTIVITY COMPtCTCC FOR ALL OPERABLE UNITS.
-------
21106
Federal Register / Vol. 51. No. Ill / Tuesday. |une 10. 1986 / Prooosed Rules
NPL EPA
RANK RC ST SITE NAME
NATIONAL PRIORITIES LIST PROPOSED UPDATE 5 SITES
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS«
CROUP 9
05
03
05
05
01
OH TRW. inc. (Minerva Plant)
PA Bally Ground Water Contamination
MN LaGrand Sanitary Landfill
Ml j ft L Landfi 1 1
KY Howe valley Landfill
Mmerva
Ba 1 ly Borough
LaGrand Township
Rochester HI i I s
Howe va 1 1 ey
V s i
0
S
0
0
CROUP 10
02
05
NY
IN
BioCi mica
Souths ide
i Laboratories.
Sani tary Landfi
me
i i
Bohemia
ind ianapoi is
V
0
S
CROUP 11
02
oa
09
07
ou
02
06
02
NY Richardson Hill Road LndMl/Pond Sidney Center
ur Midvaie Slag
CA waste Disposal, inc.
i A Red Oak Ci ty La nan 1 1
NC Cape Fear wood Preserving
NY Conkl in Dumps
I A Combust ion. I nc .
NY Cental e Plating Co.
Midva ie
Santa Fe Springs
Red Oak
Fayettevi i ie
Conkl m
Dennam Springs
F rank! m Square
0
U
0
D
R 0
U
S
0
CROUP 12
02 NY Malta Rocket Fuel Area Malta
09 A^ Mesa Area Ground water Contamm Mesa
U5 Ml Folkcrtsma Refuse Grand Rapids
08 MF Montana Pole and Treating Butte
0
D
0
H: V - VOIUNIAKY OR NEGOTIATED RESPONSE;
F = FIOLRAL ENIORCIMLNT.
0 = ACTIONS TO BE DETERMINED.
R = FEDERAL AND STATE RESPONSE.
s = STATE ENFOHCEMENT;
e. i = iMPLfMENTATION ACTIVITY UNDERWAY. ONE OR MORE OPF.RABIE UNITS;
0 = ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BE UNDERWAY;
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
-------
Fedetat Ragistei / Vol. SI. No. HI / Tuesday. Jung 10. 1963 / Proposed Rules 21107
NATIONAL PRIORITIES LIST PROPOSED UPDATE 5 SI-TE.&
NPL EPA RESPONSE CLEANUP
RANK RC ST S-lir. NAME C.ITVCOUNTY CATEGORY* SIATUS4
CROUP U
03 PA Hebeika Auto Salvage Yard Weiseaberg. Township.
02 NY Rowe industries Ground" Water Cone Noyack/Sag. HarDor R
OH SC Medley Farm Drum Dump Caffney R
04 FL Piper Ai rcraf t/vero Beach WtrkSwr vero Beach.
0) PA Eastern Diversified Metals Hometown v S
05 wi Hunts'Di sposai Landfill Caledonia 0
06 TX Sheridan Disposal Services Hempsuad 0
========= ============================== ====r====:=======r=====r===-=====-=-=======-==
CROUP 1<4
03 OE Tyler Refrigeration Pit Smyrna a
10 WA Old inland Pit Spokane a
- = = = === = ==" = = = = = = = === = == ==========^= =-====.===.= ^=-======.=— ===================== =i= ====
CROUP 1^
03 PA CryoChem. Inc. Woman
NUMBER OF SITES PROPOSED FOR LISTING: U3
-------
21108 Federal Register / Vol. 51. No. Ill / Tuesday. |une 10. 1986 / Proposed Rules
NATIONAL PRIORITIES LIST PROPOSED FEDERAL UPDATE 5 SITES
RESPONSE CLEANUP
RANK RC ST SITE NAME CITY/COUNTY CATEGORY* STATUS4I
CROUP 2
03 PA Naval Air Develop Center(6 Areas] warmmsier ^Dflll? —-=- = ==•= = = = ===
CROUP 12
10 WA Nav unaersea warf Stat (U Areas I Keyport
===================================s==========================="
R
„: V = VOIUNIARY OR NEGOTIATED RESPONSE; R = "DERALANO STATE RESPONSE;
F = FEDERAL ENFORCEMENT; S = STATE ENFORCEMENT.
0 = ACTIONS TO BE DETERMINED.
A. i - IMPITMENIATION ACTIVITY UNDERWAY. ONE OR MORE OPERABlE UNITS;
•' o = ONELoSEM0« SPER^BLE UN.TS COMPLETED °TrE"5rS:SJEu"7?lHWAy!
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
NUMBER OF SITES PROPOSED FOR LISTING: 2
|KR Doc 86-12004 Filed 6-9-66. 6 4S «im|
BILLIHC CODE 6540-SO-C
-------
•/-<*
Tuesday
June 10, 1986
Part II
Environmental
Protection Agency
40 CFR Part 300
Amendment to National Oil and
Hazardous Substances Contingency Plan;
National Priorities List; Final Rule and
Proposed Rules
-------
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
ISW-FRL-2973-21
Amendment to National OH and
Hazardous Substances Contingency
Plan; National Priorities List
ACENCV: Environment.,I Pn.teciion
.\urni).
ACTION: Kin«l ru'e
SUMMARr: The Environmentdl Protection
Awencv (' EPA") is amending the
N'.monal Oil and Hazardous Substances
Cor. urgency Plan ("NCP"). which was
promulgated on July 16.1982. pursuant
to section 105 of the Comprehpnsive
r.mironmental Response.
Compensation, and Liability Act of 1960
! CERCLA") and Executive Order 12316.
CERCLA requires that the NCP include a
list of national priorities among the
known releases or threatened releases
of hazardous substances, pollutants, and
contaminants throughout the United
States, and that (he lib) be revised at
least annually. The National Priorities
List ("NPL"). initially promulgated as
Appendix B of the NCP on September 8.
1983. constitutes this list and is being
revised today by the addition of 170
sites to the final NPL EPA has reviewed
public comments on the listing of these
sites and has decided that they meet the
eligibility requirements of the NPL
EFFccnvE DAT* The effective date for
this amendment to the NCP shall be July
10.1986 CERCLA section 305 provides
for a legislative veto of regulations
promulgated under CERCLA. Although
INS v. Chadha. 462 U.S. 919.103 S Ct.
2764 (1983). 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 Representative. If
any action by Congress calls the
cifective date of this regulation into
question, the Agency will publish •
nonce of clarification in the Federal
Register.
AOOMISSU: Addresses for the
Headquarters and Regional dockets
follow For further details on what these
dockets contain, see the Introduction to
the SUPtlMMNrAMV INPMSSAT10N
section of this preamble.
Oenise Sines. Headquarters. U.S. EPA
CERCLA Docket Office. Waterside
Mall Subbasement. 401 M Street. SW.,
Washington. DC 20460.202/382-3046
Peg Nelson. Region 1. U.S. EPA Library.
Room E121. John f. Kennedy Federal
Bldg.. Boston. MA 02203. 817/223-6791
Pf.prson .
'iiganun & Coinp... -ce Brj.ich. J6
Federal PUza. 7th Fluor Room 737.
\ew York. \} lore. :iJ':64-86~
Diane McCrparv Rpgion 3 I1 S EPA
Library. 5th Hoor 841 Chestnut Bids
9th & Chestnut Streets. Philadelphia
PA 19107. 213/579-0580
Crtyle Alston. Region 4. L' S EPA
Library. ROOQ C-6. 345 Courtland
Street. N E. Aildnta. CA .10165 404/
347-1216
Lou Tilley. Region 5. U.S EPA Library.
16th Floor. 230 South Dearborn Street.
Chioago. IL 60604. 3U, 3S.1-.2022
Barry Nash. Region 6. InterKirst II Bldg
1201 Elm Street. Dallas. TX 75270.
214/767-1075
Connie McKemze. Region 7. U.S EPA
Library. 728 Minnesota Avenue.
Kansas City. KS 66101. 913/23B-2828
Dolores Eddy. Region 8. U.S. EPA
Library. 999 18th Street. Sujle 1300.
Denver CO 80202-2413. 303/293-1444
lean Circiello. Region 9. U.S. EPA
Library. 8lh Floor. 215 Fremont Street.
San Francisco. CA 94105. 415/974-
8078
loan Shafer. Region 10. U.S. EPA. llth
Floor. 12006th Avenue. Mail Stop 525.
Seattle. WA 98101 206/442-4903
FOR FUWTMM INPONMAT1ON CONTACT!
lane Metcalfe. Hazardous Site Control
Division. Office pf Emergency and
Remedial Response (WH-548E). U.S.
Environmental Protection Agency. 401 M
Street SW. Washington. DC 20480.
Phone (800) 424-9346 (or 382-3000 in the
Washington. DC. metropolitan area).
,.,.•> , ;-, , -,
i.vs «ul »id,-u >•>•
TabbofCoolMtt
I. Introduction
II. Purpose and Implementation of tht NPL
III. Process for Establishing and Updating tbt
NPL
FV. Eligibility
V. Genera: HRS Issues
VI. Deposition of Proposed Sues
VIL Detanon of Final Sites
VIIL Contents of the NPL -
IX Regulatory Impact Analysis
X. Regulatory Flexibility Act Analysis
L Introduction
Pursuant to section 105 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980. 42 U.S.C. 9801-4657
("CERCLA" or the -Act"), and Executive
Order 12316 (46 FR 42237. August 20.
1981). the Environmental Protection
Agency ("EPA" or "the Agency")
promulgated the revised National
Contingency Plan ("NCP"). 40 CFR Part
300, on July 1& 1982 (47 FR 31180) and
amendments to the NCP on September
16. 1988 (SO FR 37824) and November 3*
1988 (90 FR 47912). The NCP and to
amendments implement responsibilitfes
ui'd uuthi.;.1
respond -o 'i-
rpleasrs uf hj
polluljnls. ai.a
Setiion 1o::,ni|A!nfCFKCi..\ .
thrfl »r.u NCP mr!udp iru-rn f...-
determining; pruniies arnnns rr'i i- •, •,
threatpncd releases 'hrp ish"ut •-(•
United Stc'cs fiir the P;:TI i-ns <>l :nMr«
remedial jciion ,md •<> IS- i>\;ent
practicable, t^e into .iixojp.t i'*\<
potential urne-jcy n| such .it':nn V- -:i.
purpose nf tokir.n remowi JL: :.•
Rumuvdl action involve* i it ,n<- •. ,
other actions that are l.iken • ..
to releases or threats of ruir.iM - .n •
short-term or tempuMrx 'UdSiSH.! KCI '.
section 101(231). Remedial HCHOI-. -i mU
to be long-torm in natun 0nJ ir... •; »
response actions which arp r.on»is.iMit
with a permanent rumodv for j -en .,»•
ICERCLA section 101(24)1. Cr::i» .1 :»i
determining pnoritius tor posn..;,
remedial actions financed bv "ir-
Hazardous Response Trust Fund
established under CERCLA arc .-,( i..,;..-.!
in the Hazard Ranking Sv stem! MRS i
which EPA promulgated <*s Appendix \
of the NCP (47 FR 31219. |ul> 16. iw«j|
Section 105(81(8] of CERCLA requ.r.-x
that these criteria be used to prepare >i
list of national priorities among th>>
known releases or threatened rrli-.i-»-«i
of hazardous substances, pollut.iris >,i
contaminants throughout the I :in> .1
Stales, and that to the extent
practicable, at least 400 sites be
designated on this National Pnonm-s
List (NPL). An original NPL of 406 sun
was promulgated on September 8. i**fl I
(48 FR 40658). The NPL has bepn
expanded since then (see 49 FR 194HI)
May 8. 1984: 49 FR 37070. Scptrmbi-r :i
1984. 50 FR 8320. February 14. 19R5 n
SO FR 37830. September 16. 19851 On
March 7. 1986 (51 FR 7935). EPA
published a notice to delete eight
from the NPL (see section VII of ihs —
preamble). Earlier, the Agenc\ had
proposed to add another 309 site's io ihc
NPL (see 49 FR 40320. October V5 !9ffT
SO FR 14115. April 10. 1985. jnd SO ! R
37950. September 18. 1985) The
proposed update -S rulemdkmg
announced elsewhere in today s Federal
Register adds 45 proposed sues to ihe
NPL In a second notice in today s
Federal Register, the Agency is'solicmnx
additional comments on 5 previously
proposed sites (50 FR 8320). Todays rule
adds 170 of the remaining proposed sues
to the NPL including 20 from the two
1986 proposals— Update =3 end Update
•4— on which no comments were
received. This brings the number of final
sites oa the NPL to 703. with an
additional 185 (including 47 Federal
-------
c era easier / Vol. 51. Mo. ill / Tuesday June 10. 1S86 / Rules and Regulations
21051
fd(.iliiies) in the proposed category, for a
ioi.il of 866 final and proposed sites.
Following the October IS. 1964.
proposal. EPA carefully considered
public comments submitted" during the
comment period and made some
modifications m this final rule in
response to ilwse comments. Responses
to major NPI. policy comments are
•idtlrcssod m this preamble, as are
generic HRS scoring comments.
Responses to iiie-specific HRS
comments are presented in the "Support
Documpn' Tor the Revised National
Priorities List—1986." which is a
si-parav document available in the EPA
duckets m Washington. D.C. and the
Retiiun.il Offices (see AOOHISSM).
Public. OiK.t>ft Information
The HpHiJqiMrters public docket for
iKe NPL w>;i contain Hazard Ranking
Svstem 11 IRS) score sheets for each final
sue. d Doc.mentation Record for each
SUP dear rising the information used to
compute ihe scores, a list of document
rt>terenres and the "Support Document
for the National Pnonties List—1986."
1 he Headquarters public docket is
j'.dilable for viewing by appointment
only from 9 00 a m. to 4:00 p m.. Monday
through Friday excluding holidays.
Reqnpsis for copies of the documents
from the Headqudricrs public docket
should be directed to the EPA
Hindquarters docket office. The HRS
score sheets and the Documentation
Record for e«ich site in a particular EPA
Region will be available for viewing in
ihdt Regional Office when this notice is
published. The Regional dockets wilt
dlso contain documents referenced in
the Documentation Record which
com j m the background data EPA relied
upon m calculating or evaluating the
HRS scores und a copy of the "Support
Document for the Revised National
Pnonties List—1986." Copies of these
'idckground documents may be viewed
n the appropriate Regional Office and
rnpies may be obtained (ran each
Atonal docket. Documents with some
i-lev ince to the scoring of each site, but
which were not used as references, may
-t^u be viewed and copied by
derangements with the appropriate EPA
Regional Office. Requests for HRS scon
sheets. Documentation Records.
background documents and copies of
the Support Document should be
directed to either Headquarters or the
appropriate Regional Office docket (so*
Addresses section). An informal written
request, rather than a formal request
should be the ordinary procedure for
obtaining copies of these comments.
Organization of the Preamble
Section II of th'is preamble discusses
the purpose and implementation of the
NPL The process EPA uses for the
development of this rulemaking. and of
the NPL in general, is discussed in
Section (II. NPL eligibility policies and
eligibility issues raised by commenters
are addressed in Section IV of this
preamble. Section V addresses generic
HRS issues, while Section VI
summarizes scare changes and
discusses and disposition of the
previously proposed sites. Deletion of
sites from the NPL is discussed in
Section VII. Section VIII provides
information on the contents of the final
ruiemaking. Finally. EPA's regulatory
impact analysis and Regulatory
Flexibility Act analysis are discussed in
Sections IX and X. respectively.
II. Purpose and ImpleneaUttoa of the •"
NPL
Purpose
The primary purpose of the NPL is
stated in the legislative history of
CERCLA (Report of the Committee on
Environment and Public Works. Senate
Report No. 98-648. 9Ath Cong.. 2d. Sess.
60 (19801):
The NPL serves primarily informational
purposes, identifying for the Stain and the
public those facilities and site* or other
releases which appear to warrant remedial
actions. Inclusion of a facility or site on the
list does not in itself reflect a judgment of the
activities of its owner or operator, it does not
require thoaa persons 10 undertake any
action, nor doee it assign liability to any
person. Subsequent government action ID the
form of remedial actions or enforcement
actions will be necessary in order to do so.
and these action* will be attended by all
appropriate procedural safeguards.
The purpose of the NPL therefore, is
primarily to serve as an informational
tool for use by EPA in identifying site*
that appear to present a significant nak
to public health or the environment The
initial identification of a site for the NPL
is intended primarily to guide EPA in
determining which sites warrant further
investigation, to assess the nature and
extent of the public health and
environmental risks associated with the
site, and to determine what CERCLA-
financed remedial action(s). if any. may
be appropriate. Inclusion of a site on the
NPL does not establish that EPA
necessarily will undertake response
actions. Moreover, listing doea not
require any action of any private party.
nor doea it determine the liability of any
party for the cost of cleanup at the site.
A site need not be on the NPL to be the
subject of CERCLA-financed removal
actions, actions brought pursuant to
section 106 or 107[a|(J|(b| of CERCLA.
or remedial investigations/feasibility
studies.
Implementation
EPA's policy is to pursue cleanup of
hazardous waste sites using the
dppropnate response and/or
enforcement actions which are available
to the Agency, including authorities
other than CERCLA. Publication of sites
on the NPL will serve as notice to any
potentially responsible party that the
Agency may initiate Fund-financed
response action. The Agency will decide
on a sile-by-site basis whether to take
enforcement or other action under
CERCLA or other authorities, or whether
to. proceed directly with Fund-financed
CERCLA response actions and seek
recovery of response costs after
cleanup. To the extent feasible, once
sites are listed on the NPL EPA will
determine high-prionty candidates for
either Fund-financed response action or
enforcement action through both State
and Federal initiative. These
determinations will take into account
which approach is more likely to most
expeditioualy accomplish cleanup of the
site while using the Fund's limited
resources as efficiently as possible.
Funding of response actions for sues
will not necesaanly take place :n the
same order as the sites' ranking on the
NPL In addition, although the HRS
scores used to place sites on tne \PL
may be helpful to the Agency in
determining priorities for cleanup and
other response activities amonq sites on
the NPL EPA does not rely on the scores
as the sole means of determining a jch
priorities. The information collec'ed to
develop HRS scores is not sufficient in
itself to determine the appropriate
remedy for a particular site. EPA relies
on further, more detailed studies 10
determine what response, if any. is
appropriate.
These studies will take into account
the extent and magnitude of/ *-•
contaminants in the environment, the
nsk to affected populations and
environment, the cost to correct
problems at the site, and the response
actions that have been taken by
potentially responsible parties or others
Decisions on the type and extent of
action to be taken at these sites are
made in accordance with the criteria
contained In Subpart F of the NCP. After
conducting these additional studies.
EPA may conclude that it is not
desirable to conduct an'Agency
response action at some sites on the
NPL became of more pressing needs at
other site*, or because an enforcement
action may instigate or force pnvate
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21056 Federal Register /' Vol. 51. No. Ill / Tuesday.
party cleanup. Given the limned
resources available in the Trust Fund.
the Agency must carefully balance tne
relative needs for response at the
numerous sites it has studied. It "is also
possible that EPA will conclude after
further analysis that the site does not
warrant response action.
Revisions to the NPL such as today's
rulemakmg may move some previously
listed sites to a lower positioaon the
N'PL If EPA has initiated action such as
a remedial investigation or feasibility
study (Rl/FS) at a site, the Agency does
not intend to cease such actions in order
to determine if a subsequently listed site
should have a higher priority for
funding. Rather, the Agency will
continue funding site studies and
remedial actions once they have been
initiated, regardless of whether higher-
scoring sites are later added to the NPL
The NPL does not determine priorities
for removal actions; EPA may take
removal actions at any site, whether
listed or not. that meets the criteria of
5 $ 300.65-300 87 of the NCP. Likewise.
EPA may take enforcement actions
under applicable statutes against
responsible parties regardless of
whether the site is listed on the NPL
although, as a practical matter, the focus
of EPA's enforcement actions has been
and will continue to be on NPL sites.
A site cannot undergo Fund-financed
remedial action until it is placed on the
final NPL However, an Rl/FS can be
performed at proposed sites pursuant to
the Agency's removal authority under
CERCLA. as outlined in $ 300.68(a)(l) of
the NCP. Section 101(23) of CERCLA
defines "remove" or "removal" to
include "such actions as may be
necessary to monitor, assess and
evaluate the release or threat of release
- " The definition of "removal" also
includes "action taken under Section
104(b) of this Act . . ." Section 104(b)
authorizes the Agency to perform
studies, investigations, and other
information-gathering activities.
The Agency may elect to conduct an
RL FS at a proposed NPL site in
preparation for a possible Fund-
financed remedial action in a number of
circumstances, such as when die
Agency believes that delay io
commencing the studies may create
unnecessary risks to human health or
the environment In making such a
decision, the Agency assumes the risk
that after consideration of public
comments and the consistent
application of the HRS. it is possible
that the proposed site might not qualify
for the NPL In assuming this risk, the
Agency has determined that the
desirability of expediting remedial
action through the initiation of the
mvestigationpuge prior to placing a site
on the NPL outweighs the risk of
expending a limited amount of Fund
monies for the Rl/FS.
III. Process for Establishing and
Updating the NPL
There are three mechanisms for
placing sites on the NPL The principal
mechanism is the application of the
f IRS. Those sites that score 28.50 or
greater on the HRS are eligible for
listing. In addition. States may designate
a single site as the State top priority.
EPA may also place sites on the NPL
pursuant to § 300.66(b)(4) of the NCP.
States have the primary responsibility
for identifying sites, computing HRS
scores, and submitting candidate sites to
the EPA Regional Offices. EPA Regional
Offices conduct a quality control renew
of the States' candidate sites, and may
assist in investigating, sampling,
monitoring, and scoring sites. Regional
Offices may consider candidate sites in
addition to those submitted by States. °
EPA Headquarters conducts further
quality assurance audits to ensure
accuracy and consistency among the
various EPA and State offices
participating in the scoring. The Agency
then proposes the new sites that meet
the criteria for listing and solicits public
comment on the proposal. Based on
these comments and further review by
EPA. the Agency determines final scores
and promulgates those sites that still
qualify for listing.
On October 15,1984. EPA proposed
NPL Update «2 (49 PR 40320). All of the
244 proposed sites received HRS scores
of 28.50 or higher. The cut-off score of
28.50 was the same cut-off score chosen
for the previous NPL rulemakings.
The public comment period on the
October 15.1984. proposed rule ended
December 14,1984. To the extent
practicable. EPA considered late
comments received after the close of the
formal comment period. EPA evaluated
all comments received by May 7.1988.
Based on the comments received on the
proposed rule, as well as further
investigation by EPA and the States.
EPA recalculated the HRS scores for
individual sites where appropriate.
EPA's response to site-specific public
comments and explanations of any
score changes made as a result of such
comments are addressed in the "Support
Document for the Revised National
Priorities List—1988." This document is
available for review in the EPA dockets
in Washington. D.C. and the Regional
Offices (see Addresses). EPA's response
to comments oo NPL eligibility issue* i*
included at Section IV of this preamble:
while comments on generic HRS issues
are discussed in Section V.
IV. Eligibility
CERCLA restricts EPA's author: ^ :o
respond to certain categories of ri;ie«i»i»,
by expressly excluding some substances
from the definition of "release" In
Addition, as a matter of policy. EPA m*
choose not to use CERCLA to respond to
certain types of releases because other
authorities can be used to achieve
cleanup of these releases. Where such
other authorities exist and the Federal
government can undertake or enforce
cleanup pursuant to a particular
established program, listing on the NPL
to determine the priority or need for
response under CERCLA may not lie
appropriate. Therefore. EPA has . h.-sen
not to consider certain types of sites for
the NPL'even though CERCLA muy
provide authority to respond. If.
however, the Agency later determines
•that sites not listed as a matter of policy
are not being properly responded to. the
Agency may consider placing them on
the NPL
NPL eligibility policies of particular
relevance to this final rule are discussed
below and cover Federal facility sites.
Resource Conservation and Recovery
Act (RCRA) sites, mining waste sites.
pesticide-application sites, and
radioactive material sites.
/le/eoses From Federal Facilities
CERCLA Section lll(e)(3) prohibits
use of the Trust Fund for remedial
actions at Federally-owned facilities.
However, pursuant to $ 300.66fe)(2) of
the NCP. amended on November 20.
1985 (50 FR 47912). the Agency can place
Federal facilities on the N'PL
Prior to the proposal of NPL Update
=2. EPA did not list any sites on the N'PL
where the release resulted solely from a
Federal facility, regardless of whether
contamination remained on-site or had
migrated off-site. However, based on
public comments received from previous
NPL announcements. EPA proposed 36
Federal facilities for NPL Update =2 afjil
solicited comments on the listing of
Federal facilities on the NPL All general
comments received in response to thut
solicitation are addressed in the
preamble to the Federal Register .-.once
for the promulgation of the NCP
amendments and the "Response to
Comments Document—October 10.
1985" that accompanied that rulemaking.
This document is available in the
Headquarters public docket.
In a future reiemaking. EPA will add
Federal facility sites to a separate
section of the NPL and will provide ihe
response categories and cleanup status
codes for those sites..The same
technical criteria that qualify non-
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Federal Register / Vol 51. \ii in / Tuesday, [une 10 1986 / P-JJPS and Reg.Utions 21057
l sites for Ihe NPL will hp used to
qu.ilify Federal sues.
EPA has not completed its review of
the public comments received on the 36
Fc'lernl facility sites proposed for this
N'PL update and. therefore is deferring
rulomdk:ng on these sites Ht this time.
tf< /( a-.es From Resource Conservation
«",/ Recovery Act (RCRAI Sites
Since the first NPL final rule (48 FR
40KS8 Septembers. 1983). it has been
:he Agency s policy to defer placing
>HI>S on the NPL that can be addressed
liv KCRA Subtitle C corrective action
.(uthonties. Pnor to enactment of the
I liizardous and Solid Waste
Amendments of 1984 (HSWA). only
rclrascs to ground water from surface
impoundments, waste piles, land
treatment areas, and landfills that
received RCRA hazardous wastes after
July 26. 1982. and did not certify closure
pnor to January 26. 1983. (the effective
ti.ite of the RCRA regulations for
permitting land disposal facilities) were
subject to corrective action
requirements under Subtitle C.
Therefore, these units were not eligible
for listing unless they were abandoned.
l,ickwJ sufficient resources or RCRA
corrective action requirements could not
lie enforced.
The enactment of HSWA greatly
expanded RCRA Subtitle C corrective
action authorities. For example, under
section 3004{u). hazardous waste
To.iiment. storage and disposal facilities
hrrkmg RCRA permits must address all
rcliMSPs of hazardous constituents to
r
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21058
federal Register / Vol. 51, No, 111 / Tuesday. June 10. 19o6 / Rules and Regulations
situations. Several sites are being added
to the NPL based upon that aspect of the
proposed policy.
At two sites that were included in
proposed NPL Update * 2. Fund-
financed remedial planning is now in
progress. These sites were proposed
before the enactment of HSWA and met
all of the NPL eligibility requirements at
the time they were proposed, including
the RCRA listing policy then in effect.
The expanded RCRA Subtitle C
corrective action authorities established •
by HSWA did not apply at the time of
the proposals: thus. CERCLA appeared
to be the only authority that could
effectuate remedial action if it were
necessary. Based on the conditions at
those two sites. EPA found it
appropriate to begin the remedial
planning process. The owners or
operators of these sites were offered the
opportunity to undertake the remedial
planning activities themselves but did
not agree to do so. At one site, the
owner/operator also declined to pay for
other response activities that EPA
advised the owner/operator were
appropriate to mitigate threats to public
health and the environment.
The Agency's final and proposed
RCRA listing policy announced today is
based in part on the conclusion that
RCRA sites should be placed on the NPL
if their owners or operators exhibit an
unwillingness or inability to undertake
corrective action. At these two sites, the
Agency has concluded that the owner/
operators' unwillingness to undertake
remedial planning and/or removal
activities is an indication that the
owners or operators would also be
unwilling to undertake remedial actions
if they are required. Therefore, the
rationale for placing them on the NPL
now is the same rationale that underlies
the basic policy announced today.
Consequently, the Agency has
concluded that listing these two sites at
this time is appropriate.
As explained below, the Agency will
continue to develop more precise
criteria which identify those RCRA sites
which should be listed on the NPL based
upon the owner/operators'
unwillingness to undertake corrective
action. Until those criteria an
delineated more clearly, the Agency
believes it appropriate to place or retain
sites on the NPL on a case/by-case
basis. This is particularly true for sites
where CERCLA-fmanced activities an
now in progress, since developing more
precise criteria to determine
unwillingness may take a substantial
period of time.
Once a complete, final RCRA listing.
policy is developed, this component of
•he RCRA policy will be withdrawn.
Sites will be addressed under RCRA in
the first instance unless they fit within
one of the exception categories that are
included in the complete final policy.
C. Components of Proposed RCRA
Policy
In addition to the circumstances
identified in the final portion of the
RCRA listing policy, there are other
situations for which the exercise of
RCRA authorities may not result in
expeditious or adequate remedial action
and. therefore. NPL eligibility should
also be considered. For example, even
though an owner/operator is not
bankrupt or has not lost authorization to
operate, he may have failed to comply
sufficiently with a permit condition or
an order issued pursuant to RCRA
authorities or may not have adequately
closed a facility in accordance with an
approved closure plan. The Agency is
considering providing more specificity to
the third component of today's policy by
proposing in a separate notice of today's
Federal Register that sites falling into
the categories below would be eligible
for the NPL
1. Facilities whose owners or
operators have not complied adequately
with an administrative order, judicial
action, or a RCRA permit condition
requiring response or corrective action.
As a general matter, the Agency would
prefer to use RCRA permit or
enforcement authorities to secure
corrective actions at RCRA sites. When
a facility owner fails to adequately carry
out corrective action activities, there is
little assurance that releases will be
addressed in an appropriate manner.
Such facilities should be eligible for
listing in order to make CERCLA
authorities available expeditiously.
Although the Agency has not previously
taken into account compliance with
corrective action requirements in a
permit or a federal enforcement action
when considering a site for listing.
Congress deliberately expanded die
scope of the RCRA corrective action
authorities. Accordingly, it is
appropriate for the Agency to rely on
these authorities. When an owner/
operator fails to comply adequately with
a RCRA corrective action requirement,
however, it means that CERCLA
remedial action may be needed to
protect human health and the
environment By making these facilities
eligible for listing, the Agency provides
that appropriate CERCLA-financed
remedial action can occur expeditiously.
2. Facilities whose owners or
operators have not submitted or
implemented an adequate closure plan.
Adequate closure of a RCRA facility is
integrally related to prevention of futura
releases and often involves measures
similar to those undertaken during
corrective action, such as waste
removal, excavation of contaminated
soil and capping. Similarity, where an
owner or operator is unwilling to catty
out such activities there is a need to
ensure that CERCLA will be available.
If the Agency decides to incorporate
into the final RCRA listing policy a
component that allows listing of sites in
the two categories described above, an
important issue will be how the Agency
establishes that there has not been
adequate compliance with RCRA
requirements relating to corrective
action or closure. If non-compliance is
established through a determination by
an administrative law judge or a court.
there may be delays in employing
CERCLA to respond to problems at
these sites. It may be more appropriate.
therefore, for the Agency to base its
decision to list sites on the NPL under
this criterion based upon the issuance of
an administrative order or initiation of a
judicial action to enforce corrective
action requirements imposed by permit
or order or in a closure plan. In a
separate notice in today's Federal
Register, the Agency specifically solicits
comments on how and when it should
determine that the likelihood of
compliance with RCRA requirements is
low enough that a RCRA site should be
eligible for the NPL
As explained above, the components
of the Agency's policy with respect to
sites that may be subject to RCRA
corrective action are designed to ensure
that RCRA authorities are employed
first except where there are indications
that an owner or operator is unwilling or
unable to perform corrective action. The
Agency has identified three categories
of sites for which there are indications
of unwillingness or inability to carry out
corrective action and has announced
that facilities in those categories will be -
eligible for the NPL EPA may not have
identified all types of sites for which the^
exercise of RCRA authorities may hot
result in timely and appropriate
remedial action and invites common ters.
in a separate notice in today's Federal
Register, to suggest other categories of
RCRA sites that should be considered
eligible for the NPL For example,
additional categories that may merit
inclusion are RCRA facilities whose
owners or operators did not notify the
appropriate authority that they treat.
store, or dispose of RCRA Subtitle C
hazardous waste or did not submit the
required permit applications or who
have otherwise indicated an
unwillingness to undertake corrective
action.
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Federal Register ,' Vol 51. \o \\\ ' Tuesdev. |une U. 1"«G /' Ru'.i-s ar.d
21059
1 ~i -uc-.cy w.1! cor.b JIT
- : !i:.Tion:mg the RCRA listing
. ."H".:ncod toduv :f comments or the
'.jei'cv s experience wiih the'new
iml-'.v demonstrate that additional
I'l'Surici of PCX Vrelated sites sl-.nc'd
1 «• pMLPd on ihe \PL to ensure
• ippropnate -"\d expeditious rervrdial
iir'ion
I) Xpplicahon of the hm.il RCRA Policy
.<) Currently Proposed S.tes
!><• Agrncv is promulgating six RCRA
«iifs today. These six sites fall within
:ur scope of the final policy defining
\PL-eligible RCRA sites Four of the six
situs are bankrupt and two sites.
proposed prior to HSWA. meet the third
criterion of the RCRA policy as
explained above The RCRA-related
sues promulgated in this final rule anr
bankrupt Sites:
• Interstate Lead Co (ILCO). Inc..
Leeds. Alabama
• Thermo-Chem, Inc. Muskegon.
Michigan
• Whitmoyer Laboratones. Jackson
Township. Pennsylvania
• American Creosote Works. Inc.
(Jackson Plant). Jackson. Tennessee
Sites deemed unwilling to perform
remedial action.
• Operating Industries. Inc.. Landfill.
Monterey Park. California
• LA. Clarke & Son. Spotsylvania
County. Virginia
The L.A. Clarke & Son site also appears
•o qualify under the second component
of the final listing policy.
The remainder of the RCRA-related
sites proposed in October 1984 will
remain in proposed status until the
Agency evaluates their RCRA status in
order to determine whether they are
eligible for the NPL based on this new
policy. Elsewhere in today's Federal
Register, in the notice describing the
proposed components of the RCRA
policy. EPA invites the owner/operators
of the remaining 31 proposed facilities.
and any other persons, to provide any
information that would assist EPA in
evaluating: (1) The facility's status under
RCRA and (2) the relationship this
information has to the final and
proposed elements of the new RCRA
policy discussed above.
E. Application of Policy to Final NPL
Sites
The Agency plans to review the status
of and apply this policy to RCRA sites
that are already listed on the final NPL
NPL sites that are not subject to Subtitle
C corrective action requirements or
RCRA facilities that are eligible for the
NPL based on the final or proposed
policy announced today will continue to
l>e l-bied on i'ie \PL The rerr.jining
S.IPS iv.il Le aeicted. Elsewhere m
lodjv s Federal Register. ;n a notice
doscnb.r'j the proposed components of
the RCRA policy, the Agency invites the
nuiers or operators of fac,lilies on the
proposed or final NPL. or other persons.
to provide information that would assist
EPA m evaluating. (1) the facility s
status under RCRA and [Z] the
relationship this information has to the
findl and proposed elements of the new
RCRA policy
F Federal Sites
Application of this policy with respect
to Federal facilities will be addressed at
a later dale. The Agency is working to
resolve a number of issues associated
with Federal facilities and will
coordinate application of this policy
with those efforts.
C. Response to Public Comments on
Proposed Policy for RCRA-Related Sites
On April 10.1985. (SO FR 14110). the
Agency proposed a policy for deferring
listing of RCRA sites and for deletion
from the NPL of RCRA sites currently
proposed or promulgated on the NPL
The policy proposed at that tune is
summarized elsewhere in this preamble.
The Agency received a number of
comments on the April 1985 proposal
and on the reiteration of the proposal in
the September 1985 preamble to NPL
Update ss4. These comments can be
summenzed as falling within five broad
categories:
• Support for the proposed policy
• Concern about flexibility in the
proposed policy
• Suggested revisions to the proposed
criteria for deferring the listing of RCRA
facilities
• Revisions to the proposed criteria
for deleting RCRA facilities from the
NPL
• Suggested need for greater
flexibility in dealing with sites under
RCRA.
Responses to the significant
comments on the policy are presented
below.
I. Support for proposed policy. All but
two commenters specifically stated that
they supported the policy proposed by
the Agency, and the other two
comments generally were favorable.
(One raised a technical issue about the
proposed deletion criteria: the other
stated that, while the proposed policy
was reasonable and that mere was no
objection to it. the Agency needed to
retain the flexibility to deal with RCRA
sites under CERCLA first when
circumstances warranted such an
approach.)
The iorr.:".gn ers presented fou- ::,isir.
->rtsuns for s.ippor'.mg •'ic proposed
policy.
• Policy better ;.•• fleets the in'ont ^
both CERCH and HSWA
• Policy preserves the limited
CERCLA Trust Fund monies for .he-r
intended use
• HSWA eliminates the need for
listing most RCRA sites on the NPL
• RCRA authorities provide more
effective and efficient means for cleanup
of RCRA sites than CERCLA au;hon;:es
Comment. Commenters stated that
they supported the proposed poucy
because they believed that u reflects the
intent of both CERCLA and HSXX A
Several commenters asserted that
CERCLA was intended to address only
those abandoned or mactiv'e sites for
which there is no resoonsible party
capable of assuming financial
obligations for corrective action. 1 i«?se
commenters noted that by deferring NPL
listing of RCRA sites, the limited
CERCLA Trust Fund monies would be
preserved for use at abandoned or
inactive sites. Commenters also
indicated that deferring listing of RCRA
sites would provide an incentive for
facility owner/operators to conduct
cleanup activities.
Response: While the Agency agrees
that responsible panics should bear the
.cost of response activities, the Agency
does not agree that CERCLA is intended
to address only those abandoned or
inactive sites for which there is no
responsible party able to assume
financial obligation for response costs.
CERCLA authority exists regardless of
whether responsible parties can be
identified. It is appropriate to expend
CERCLA funds to respond to releases at
RCRA sites where there is a responsible
party who is unwilling or unable to
undertake response actions. Section 107
of CERCLA specifically provides [or the
recovery, from responsible parties, of
Fund monies spent for response actions
in such situations.
Furthermore, the listing of a site on
the NPL does not mean that Fund
monies will automatically be spent for
remedial action or study at that site In
many instances, these activities will still
be funded by the responsible party. The
Agency agrees, however, that by
addressing sites under RCRA that
appear likely to be cleaned up
adequately through the use of RCRA
aumonties. more CERCLA'funds may be
available for sites that cannot be
addressed under RCRA. This is one of
the purposes of the policy announced
today. The Agency also agrees and
hopes that today's policy may act as an
incentive to owners/operators of RCRA
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21060
Federal Register / Vol. 51. No. Ill / Tuesday. Jjne 10. 1936
dnd Reaulaticns
sites to comply with RCRA requirements
and. in particular, to take whatever
corrective actions are appropriate
without the need for the Agency to place
their sites on the NPL
Comment: In supporting the proposed
policy, a few commenters noted that
HSWA effectively eliminates any
distinction in RCRA authority with
regard to regulated and nonregulated
units at a RCRA facility. The
commenters indicated that HSWA
provides ample authorities to ensure
that corrective actions are conducted at
facilities having RCRA permits or
interim status. As a result, the
commenters stated that there was no
longer any reason to continue the
current NPL policy of listing those RCRA
facilities where a significant portion of a
release appeared to originate from a
nonregulated unit. These commenters
indicated that the Agency should first
apply its RCRA authorities to these
facilities before proceeding under
CERCLA.
Response: The Agency agrees that
there is no longer a reason for
distinguishing releases at regulated units
from other releases that can be
addressed under the expanded HSWA
authorities. Today's policy eliminates
this distinction.
Comment: Some commenters
expressed support for the proposed
policy because they believed it would be ,
more effective and efficient to use
RCRA authorities, ratherthan CERCLA
authorities, to clean up RCRA facilities.
They indicated that dealing with RCRA
facilities under the RCRA program
would avoid duplication of technical
review and enforcement efforts under
the CERCLA program. This would save
time and money for both the Agency
and facility owners/operators and
ensure that facilities are addressed in a
consistent and uniform manner. One
commenter further stated that by
deferring the listing of Subtitle C
commercial waste management
facilities, these facilities would be more
likely to remain solvent (and thus pay
for their own corrective actions under
RCRA) because generators would be
more likely to send wastes to them if
they were not listed on the NPL This
commenter also indicated that RCRA
facilities would be better able to obtain
insurance required for continued
operation under Subtitle C if they were
not listed on the NPL
Response: The Agency agrees that it is
generally more desirable to deal with
RCRA facilities under RCRA authorities
than under CERCLA authorities. This is
the intent of the policy announced
today. If facilities being deferred from
listing do not ultimately have to be
addressed under CERCLA. the policy is
luely to reduce duplication of effort and
save time and resources. Placing a site
on the NPL does not impose liability
upon anyone or necessarily result in the
expenditure of funds for remedial
action. It may be the case, however, that
some RCRA facilities may derive some
incidental benefits bqm not being
placed on the NPL However, the policy
is not designed to protect the financial
integrity of the owner/operator it is
designed to provide a frame work for
most effectively addressing releases that
may affect public health and the
environment.
Comment: In supporting the proposed
policy, one commenter stated that the
only advantage of using CERCLA rather
than RCRA is public notification, through
the NPL listing process. The commenter
noted that RCRA imposes several public
notification requirements. If public
listing is deemed absolutely necessary,
public listing of RCRA Part B
applications receiving priority attention
because of ground water problems could
be implemented.
Response: EPA does not believe, at
this time, that it is necessary to publish
a separate list of RCRA facilities with
ground water problems that are seeking
Part B permits. The RCRA regulations
now require public notification when
new Part B permits are under
consideration, when major
modifications are proposed to a Part B
permit, and when a facility is closing. At
that time the affected public is given
adequate notice of pending actions that
would address releases to all media
including ground water. In addition, the
Agency will develop a public
participation process for interim status
corrective action orders.
2. Concern about flexibility in the
proposed policy.
Comment: One commenter stated that
while the proposed policy was
reasonable, the Agency needs to retain
some flexibility to address RCRA sites -
under CERCLA first when that approach
would lead to a more expeditious
remedy or would allow for a more
equitable distribution of costs. The
commenter stated that flexibility in the
initial choice of authority would: (1)
provide more options for site remedies,
(2) ensure that the maximum number of
parties are involved, and (3) possibly
prevent a single company from
shouldering an unexpected and
inequitable share of cleanup
responsibility since previous owners
and generators may be drawn in as
responsible parties under CERCLA.
Response: After examining this issue,
the Agency has concluded that, to the
extent practicable, it is better to identify
in the policy those categories or RCRA
facilities that are eligible for the \Pl.
than to determine for each facility
whether-a release should first be
addressed under RCRA or CERCLA. In*
policy announced today is designed to
ensure that RCRA authorities are
employed first at facilities that do not
fall within the final eligibility categories.
The policy allows ail interested persons
to know whether a particular facility
may be considered eligible for NPL
listing.
Under today's policy, the Agency
foregoes some flexibility in the
mechanisms for obtaining site mmedies
by limiting the use of CERCLA-findnced
remedial action to certain categories of
RCRA sites. However. RCRA affords
.flexibility comparable to CERCLA for
selecting technical remedies for
responding to releases. Thus, employing
RCRA corrective action authorities is
expected to achieve protection of public
health and the environment as
effectively as remedies achieved under
CERCLA. The Agency's goal is to
develop RCRA corrective action
requirements that remove
Inconsistencies between remedial
actions performed under CERCLA and
corrective actions performed under
RCRA. Under the National Contingency
Plan, the Agency now attempts to make
the two programs consistent by having
CERCLA actions meet RCRA technical
requirements where they are applicable.
With regard to the commenter's
concern about the equitable distribution
of response costs, in situations where an
owner/opera tor who has performed a ,
response action feels that there are
additional responsible parties who
should share the response costs, the
owner/operator may seek recovery of
these response costs from other parties.
Comment: One commenter argued
agamst allowing States the flexibility to
decide whether to pursue remedies
under CERCLA or RCRA. The
commenter indicated that States will _.
choose CERCLA rather than RCRA
regulatory authorities if presented a
choice, primarily because CERCLA
provides funds to a State for its
activities while RCRA does not.
Response: EPA. not the States,
decides which sites are listed on the
NPL Only those sites that meet the
eligibility criteria promulgated by EPA
may be listed. States may recommend
sites for the NPL but State concurrence
is not required for listing. The policy
announced today specifies categories of
RCRA facilities for which the Agency
believes the use of CERCLA authorities
is appropriate. CERCLA authorities will
be used to address only those RCRA
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. era n,«er , o, M. No 111 / Tuesday fun, 10 1986 / Ru|,, and B...jl.lioil» 21061
C
facilities for which the exercise of RCRA
authorities is not likely to result in
appropriate cleanup activities.
3. Suggested revisions to proposed
criteria for deferring listing of RCRA
facilities. A number of commenters who
indicated support for the proposed
policy suggested criteria for use in
determining when a RCRA facility is to
be deferred from listing. The various
criteria suggested by these commenters
include the following:
• Financial ability of the facility
owner/operator to carry out corrective
action
• Willingness of the facility owner/
operator to carry out corrective action
• Availability of sufficient legal
guarantees to ensure that corrective
action will be carried out
• Existence of ongoing litigation
concerning corrective action at the
facility
• Issuance or likelihood of issuance of
d Subtitle C permit
For the most part, the commenters did
not suggest specific means for
evaluating these criteria (e.g.. how
financial inability would be
determined). The cntena suggested by
each commenter are discussed below.
, Comment- One commenter suggested
that listing should be deferred for sites
meeting all of the following criteria:
• The owner/operator is a permittee
or operator of an interim status site
subject to the (urtsdiction of RCRA.
• The owner/operator has admitted
responsibility for performance of any
needed corrective action at the facility.
• The owner/operator is not presently
subject to any proceedings in
bankruptcy, and
• The owner/operator is willing to
agree to perform analytical work or
remedial action pursuant to the
applicable RCRA enforcement
provisions and the enter into a consent
decree with the appropriate agency
upon these ter ns.
Response: The Agency believes that
the policy announced today essentially
incorporates the basic Ideas suggested
by this commenter that where the
owner/operator is not bankrupt and
exhibits a willingness to undertake
necessary response action, the facility
should be deferred from listing on the
NPL However, it may not be desirable
for the Agency to always defer listing a
site at which an owner/operator has
entered into an agreement to perform
appropriate studies or remedial action.
For example, the RCRA listing policy
proposed elsewhere in today's Federal
Register would address situations in
which an owner/operator who may
have entered into a consent agreement
fails to comply adequately with its
terms.
Comment: Another commenter slated
that the proposed policy was more
stringent than necessary and stated that
deferral of NPL listing and deletion of
proposed or promulgated sites from the
NPL should occur if the site meets all of
the following cntena:
• The facility has completed its Part B
permit application.
• The Part B permit application, the
permit itself if issued, or other relevant
administrative or judicial consent
decree addresses the releases which are
the subject of the HRS score that led to
eligibility for NPL listing in the first
instance, and
• There is sufficient legal guarantee.
by way of court order and/or
enforceable permit terms and
conditions, which assures that the
releases to be addressed will in fact be
addressed, and there is adequate
financial assurance that the costs of
such actions are within the means of the
facility.
Response: The Agency believes that
the final policy announced today
incorporates some elements suggested
by this commenter. The Agency, like the
commenter. is concerned about the
sufficiency of legal guarantees and the
adequacy of financial assurances for
corrective action. Pursuant to HSWA.
the Agency is developing regulations
under which facilities seeking RCRA
permits will be required to demonstrate
financial responsibility for corrective
action. •
The Agency does not. however, agree
with the commenter's suggestion that
only facilities that have completed
RCRA Part B permit applications should
be deferred from NPL listing. Pursuant to
Section 3008(h) of RCRA. the Agency
has the authority to require corrective
action at interim status facilities. Interim
status facilities that have not completed
Part B permit applications should thus
be deferred, like any other RCRA
facility, unless the site falls within the
categories of sites that are eligible for
NPL listing under today's final and
proposed policy. Facilities that have lost
interim status under RCRA sections
3005(c). 3005(e). or 3008(h) are eligible
for the NPL under the second component
of today's final policy.
Comment One other commenter
stated that RCRA sites that are currently
in litigation should not be placed on die
NPL after a civil suit has been started
The commenter noted that NPL listing
could be interpreted as an effort to
influence the outcome of the case. The
commenter indicated that listing is
unnecessary in such cases because
action is already taking place and the
litigation serves the NPL purpose of
identifying sites requiring action.
Response: The Agency does not aqree
that NPL listing would influence the
outcome of litigation. As has been
explained repeatedly in preambles to
NPL rulemakmgs. the NPL is primarily
an informational .tool for use by the
Agency in identifying sites that appear
to present a significant nsk to public
health or the environment. Placing a site
on the NPL is not intended to influence
litigation over candidate sites. Rather.
NPL listing is intended to guide the
Agency in determining which sues
warrant further investigation and
consideration for Fund-financed
response. Inclusion of a site on the NPL
does not establish that the Agency
necessarily will undertake response
action, does not in itself reflect a
judgment of the adequacy of the
activities of any person, does not require
any person to undertake any action, nor
does it assign any liability to any
person.
Furthermore, the Agency does not
agree that listing is unnecessary for all
sites that are in litigation. In those
situations where the circumstances at
the site which gave rise to the litigation
reflect an unwillingness of an owner/
operator to undertake necessary
response activities, the Agency believes
it may be appropriate to place the site
on the NPL The policy announced today
reflects the Agency's concern about
such situations. The second component
of today's final policy considers the
compliance history of sites that have
lost interim status. On-going litigation
would not prevent a site from being
listed under this component of the policy
if the criteria are met. The proposed
policy announced elsewhere in today's
Federal Register considers the adequacy
of compliance in other situations, many
of which will involve ongoing litigation
Comment: Another commenter -
expressed support for defemng the NPL
listing of RCRA facilities until it can be
proven that corrective action would not
be adequate under RCRA Subtitle C
permit provisions. RCRA section 7003
imminent hazard provisions or CERCLA
Section 106 abatement action
provisions.
Response: Under the proposed
component of the policy announced
today, the Agency would place on the
NPL sites at which the owner/ opera tors
were not complying with RCRA Subtitle
C permit conditions or with orders or
judicial actions requiring corrective
action. The Agency does not agree that
inadequate compliance with corrective
action requirements of permits. RCRA
section 7003 orders or CERCLA section
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21062
era egisier , o . 51. No 111 / Tuesday. June 10. 1986 / Rules and Regulations
106 orders should be the only basis for
NPL listing of RCRA sites. Today's
announcement describes other criteria
to be used by the Agency for listing
RCRA sites and the rationale for their
inclusion in the policy.
Comment: One other commenter
indicated that CERCLA should apply to
RCRA facilities only in those Situations
which represent an imminent and
substantial danger or where there are no
responsible panics in a position to
assume financial obligations.
Response: Reasons for not limiting
toddy's policy to situations where there
are no responsible parties capable of
assuming financial obligations have
previously been discussed. The Agency
also does not agree that CERCLA should
be employed at RCRA facilities only in
situations which represent an imminent
and substantial danger. Section 104 of
CERCLA provides response authorities
for situations in which there is a release
which may not present an imminent and
substantial danger to public health or
welfare. It would be appropriate to take
CERCLA action at RCRA facilities that
are eligible for the NPL under today's
policy, but at which imminent and
. substantial endangerment has not been
demonstrated.
Comment: Another commenter
supported the concept that sites that
could be covered under other statutes.
especially RCRA. need not and should
not be listed on the NPL
Response: As is discussed above.
there are some RCRA sites that me
Agency believes should be listed on the
NPL. Some statutes administered by
Agencies other than EPA provide
authorities that can be used to effect
remedial action at certain types of sites
that can also be addressed under
CERCLA. The Agency's current policies
with respect to such sites have been
discussed in previous NPL ralemakings.
If changes in these policies are
considered, public comments will be
solicited at that time.
4. Suggested revision to proposed
criteria for deleting RCRA facilities
from the NPL Two commenlera raised
issues about the policy piopuaud for
determining whether RCRA facttitis*
currently proposed for or promulgated
on the NPL should be deleted from the
NPL
Comment: One) commenter supported
the proposed criteria, but indicated tkat
the Agency needs to explicitly state that
RCRA sites will not be deleted from the
NPL if remedial mvestigationVnaiibiitty
studies, remedial design* ••••H**!
actions), or other similar actions have
been initiated or rnmienusjtad at the
NPL site. The eotnmentat mtHem»^4
this prevision should apply to boa
Fund-finance* activities as well as
voluntary activities being conducted by
responsible parties.
Response: As discussed elsewhere in
this preamble, two RCRA-related sites
at which there is ongoing Fund-financed
remedial planning are today being listed
on the NPL under the second component
of the final RCRA listing policy.
The Agency does not. however.
believe that there is any reason to retain
on the NPL those RCRA sites at which
voluntary (non-Fund-financed) activities
are being conducted by responsible
parties since the voluntary action
indicates a willingness by these parties
to undertake necessary response actions
under RCRA. If these response actions
are not adequately carried out. then
these facilities would become eligible
for NPL listing if the proposed
components of today's policy.
announced elsewhere in today's Federal
Register, are adopted
Comment: Another commenter
indicated that the two criteria proposed
for deleting sites from the NPL were
more stringent than the criteria
proposed for deferral of NPL listing. The
comments* indicated that the criteria
for deletion should be identical to the
criteria for deferring NPL listing, except
in those instances where some current
obligations of the Fund, or the legal
ability of the Fund to recover monies
expended, may be adversely affected.
Response: The final and proposed
components of the RCRA sites policy
announced today that will be used In
deleting RCRA sites from the NPL an
identical to those components that will
be used in deferring RCRA sites from
NPL listing.
5. Suggested need for greater
flexibility in dealing with sites under
RCRA.
Comment: Two oommenters
suppurtnig the policy proposal noted
that in applying the policy, for those
sites shifted to administration under
RCRA rather mast CERCLA. the Agency
needs to retain flexibility in the
remedial action standards being applied
by the RCRA program to the difierent
units at these sites. They stated that
different standards needed to be applied
to new or active RCRA units, inactive
hazardous waste management units, and
solid waste management units. On*
commenter indicated that RCRA
standards should not be applied
retroactively to pre-RCRA waste
management units. TSe other staled that
flexibtK efficient and cost-effectiMe
remedial naponaaa should be appnedte
situ specific conditions at inactive unite
or solid wast* management units rather
than requiring these writs to comply
with standards applicable to new
hazardous waste management units.
Sections 3004(o] and 3005(j) of HSWA
were cited as justification for
distinguishing requirements at new and
existing facilities, and Sections 4001
through 4010 were cited as justification
for distinguishing among hazardous and
non-hazardous waste management
units.
One other commenter stated thai by
having RCRA-related facilities handled
entirely through RCRA. artificial
distinctions among releases based on
the status of a solid waste management
unit may be eliminated. The commenter
noted that pollution conditions do not
respect distinctions in time or place. The
commenter indicated that it is far better
from a legal, administrative, and
technical perspective for an entire
facility and all releases and potential
releases from the facility to be dealt
with in a uniform manner and by a
single review.
Response: The Agency does not
believe that these issues are relevant to
listing of sites on the NPL These issues
are. however, relevant to the
implementation of the RCRA corrective
action program and are being
considered in deliberations on the
development of the corrective action
program. These will be addressed when
the Agency issues regulations and/or
guidance on the implementation of the
corrective action program.
Releases of Mining Wastes
The Agency's position, as discussed in
the preambia to previous final NPL
rulemakinga (48 FR 40656* September 8.
1983:49 FR 37070. September 21.1904) is
that mining wastes may be hazardous
substances, pollutants or contaminants
under CERCLA and. therefore, are
eligible for listing on the NPL This
position was afiirmed in 1988 by the
United States Court of Appeals for the •
District of Columbia Circuit (Bogle-
Picher Industries. Inc. v. EPA. 750 ?. 2d
90S.D.C.CU-.1985).
In the past EPA has included mining
waste sites on the NPL Eight mining
sites were included m the October IS.
1984. Update *2 proposal In subsequent
proposals, however. EPA has considered
whether mining sites cmM be addressed
satisfactorily under the Surface Mining
Control and Reclamation Act of 1977
(SMCRA) before deciding whether to
place them on the NPL EPA has .-
initiated discussions with the U.S.
Department of the Interior (DOT) to
determine if DO! or the State could take
appropriate action under SMCRA to
protect aobKe health and the
environment at these sites.
-------
Federal Register / Vol 51. No. in / Tuesday. June 10. 1986 / Rules and Reflations 21063
EPA is including six of the
mining sites that were proposed for
Update *2 in today's rulemakng. Four
of these sites are being placed on the
NPL because they are non-coal sites
with mining operations that occurred
after the enactment date of SMCRA
(August 3.1977); therefore these sites
are neither regulated by SMCRA nor
eligible for reclamation funds from the
SMCRA Abandoned Mine Land
Reclamation (AMLR) Program These
sites are:
• Eagle Mine. Minturn/Redcliff.
Colorado
• Smuggler Mountain. Pitkin County.
Colorado
• Uravan Uranium Project (Union
Cdrbide Corp.). Uravan. Colorado
• Silver Mountain Mine. Loomis.
Washington
One site Torch Lake. Houghton
County. Michigan, is being placed on the
NPL because the State of Michigan does
not have an approved SMCRA program
and. consequently, the site is not eligible
for reclamation funds from the SMCRA
AMLR program.
The Mayflower Tailings Site in
Wasatch County. Utah, will not be
placed on the NPL at this time because.
in response to public comments, its HRS
score dropped below 28.50. This site is
discussed in more detail in the "Support
Document for the Revised National
Priorities List—1986."
The remaining two mining sites
proposed in Update «2—Olson/Neihart
Reservoir. Wasatch County. Utah and
Sharon Steel (Midvale Tailings).
Midvale. Utah—ceased mining before
the enactment date of SMCRA and
therefore may be eligible for reclamation
funds under SMCRA. Until EPA
explores this issue further, these site*
remain in proposed status. EPA will
announce in a future NPL rulemaking
what relationship SMCRA activities will
have to NPL listing decisions.
A number of comments were received
on the proposal of these mining sites in
Update *2. One commenter stated that
Congress recognized the unique
characteristics of mining wastes and
expressly excluded mining wastes from
EPA's regulatory authority under RCRA
and CERCLA.
EPA disagrees with the commenter.
The Eagle-Picher decision has affirmed
the Agency's decision that mining
wastes may be "hazardous substances.
pollutants or contaminants" under
CERCLA.
Several commenters stated that the
HRS is biased against high-volume, low-
hazard wastes, such as mining wastes.
The commenter said EPA is unable to
provide the evidence required by law
that the HRS ia a rational basis on
which to rank mimng sites for inclusion
on the NPL
The issue of bias against mining
wastes has been raised by commenters
in previous NPL rulemakmgs. and EPA's
responses can be found in the preambles
to these mlemakings (48 FR 40663.
September 8.1983: and 49 FR 37075.
September 21.1984). Specifically. EPA
believes that there is ample evidence
that the concentrations and amounts of
pollutants and contaminants discharged
by mining sites can and do pose a
significant threat to public health and
the environment. Mining sites tend to
generate extremely large quantities of
wastes. Thus, even though the
concentration of hazardous substances
in mining waste may be low. the total
quantities of hazardous substances
available to be discharged into the
environment are often large.
Furthermore, the waste-quantity factor '
in the HRS is only one factor, and is
generally not as important as
population, toxicity. and likelihood of a
release. This relatively low emphasis on
waste quantity reflects the fact that the
HRS was designed to score a wide
variety of releases and potential
releases of hazardous substances.
including mining sites.
Another commenter stated that the
proposed listing of mining sites violates
the Corutitutional prohibition against ex
post facto regulation and denies mining
companies the due process protection of
property rights guaranteed by the Fifth
Amendment to the Constitution. The
commenter also stated that listing
mining sites on the NPL violates
Executive Order 12281 by failing to
consider the tremendous costs to the
mining industry.
The Agency believes that the
conunenter's arguments are groundless.
Placing a site on the NPL does not
deprive any property owner of property.
nor does It create liability or impose any
costs. Listing on the NPL does not
establish that EPA will necessarily
undertake response action, nor does it
require any action by any private party
or determine liability for site response
costs. Costs that arise out of site
responses result from site-by-site
decisions about what actions to take.
not from the act of listing itself.
Releases of Pesticides Registered Under
the Federal Insecticide. Fungicide, and
Rodenticide Act (FIFRA)
The proposal of NPL Update *2 (49 FR
40320, October 15.1984) included six
sites in South Central Oahu. Hawaii
where parts of the basal aquifer- have
been contaminated by pesticides.
including ethylene dibromide (EDB).
dibromochioropropane (DBCP). and
tnchloropropane (TCP), a likely
contaminant of the pesticide 0-0 (which
contains 1.2-dichloropropane. 1.3-
dichloropropene and related C3
compounds). These six sites were the
first s'tes proposed for the N'PL on the
basis of releases which appear to
originate entirely from the application of
pesticides registered under FIFRA.
The Agency has received numerous
comments on the listing of the Hawaii
pesticide sites. The Agency is continuing
to evaluate these sites in the context of
an overall policy with respect to sites at
which contamination results from the
application of FIFRA-registered
pesticides. Therefore, the Agency has
not reached a final decision on listing of
these six sites on the NPL and is
deferring final rulemaking on these sites
at this time.
Releases of Radioactive Materials
Section 101(22) of CERCLA excludes
several types of releases of radioactive
materials from the statutory definition of
"release." These releases are therefore
not eligible for CERCLA response
actions or inclusion on the NPL As a
policy matter. EPA has also chosen not
to list releases of source, by-product, or
special nuclear material from any
facility with a current license issued by
the Nuclear Regulatory Commission
(NRC). on the grounds that the NRC has
full authonty to require cleanup of
releases from such facilities. Formerly
licensed facilities whose licenses no
longer are in effect will, however, be
considered for listing.
These exclusions and policies are
discussed in the preambles to previous
NPL rulemakmgs (47 FR 58477.
December 30.1982:48 FR 40801.
September 8.1983: and 49 FR 37074.
September 21.1984) and remain the
same.
Four sites containing radioactive
waste are being placed on the NPL'm
today's rulemaking. One site—the Lodi
Municipal Well in Lodi. New Jersey—
will remain in proposed status while
EPA evaluates additional technical
information.
V. Generic HRS Issues
The Agency received a total of 607
comments on proposed NPL Update * 2.
Of these. 543 comments pertained to 126
of the proposed sites, including the 36
Federal facility sites. The remainder of
the comments addressed sites that were
not proposed, or were generic or
technical issues that were not site-
specific •Comments regarding specific
sites are addressed in the "Support
Document for the Revised National
Priorities List—1986."
-------
e era e^is er / Oi.
o ui I Tuebddy. June 10. '.966 / Rules and Resulations
M.IP.V rommeniers raised issues thai
luve been r.nsud in previous NPL
rulemakmijs. These issues are discussed
in thp preambles to previous
mlt-makings (-W FR 40658. September &
l<5«3 49 FR rtro. September 21.1984).
The Agency s position on these issues
r-rr.nns unch.mwd. Many of these
cunniPiis cntir.,2cd the HRS. Since the
I iRS was pron.ulxJted as a final rule in
|-i!v 1982147 I'R 31219). these comments
c.innut dlfe«.t ine scoring of the sites
proposed in Octooer 1984.
EPA s re'-jonses !o public comments
on generic I !RS ..-.sues are presented in
this sect. ,.i of h- preamble.
WtosteQic :•
A num:v •;'. -.mentors said thdt the
wdsie qudii:::-. \ -,'. .es assigned under
the HRS WIT» v:' n.«h because EPA had
included the nor.r.dzardous constituents
of :he hdznrdous ^ibstances in
calculating -.he quantity of waste located
at the facility. Conunenters raised
similar issues m previous final NPL
rulemakmgs and EPA s response
remains unchanged (48 FR 40664.
September 8.19B3: 49 FR 37077.
September 31.1984).
Consideration of Flow Gradients
Several commentere argued that EPA
should consider hydrogeoiogjc
information on the direction of ground-
water flow when assigning an HRS
score to population served by ground
water. As was the ease with the waste
quantity issue, this issue was addressed
in previous NPL rulemakmgs (48 FR
406&4. September 8.1983:40 FR 37077,
September 21.1984). The rationale for
the Agpncv s approach is further
discussed m the preamble to the NCP
|47 FR 31190. My 18.1982) and is
equally applicable now.
Scoring on the Bas.s of Current
Conditions
Many commenters stated that EPA
should take current conditions into
account when scoring a site where
response actions have reduced the
hiizards posed by the site In response.
EPA computes HRS scores and lists
sites on the basis of conditions existing
before any response actions are taken in
order to represent the full scope of the
original problem presented by a site.
This policy was explained in the
preamble to the final revisions to the
NCP (47 FR 31187. July 16.1982). and in
previous NPL rulemakings (48 FR 40664,
September 8. 1983:49 FR 37078.
September 21.1984). The Agency's
position remains unchanged.
Small Observed Release
Some commenters maintained that
EPA should not assign a value for an
observed release to ground water when
the concentration of contaminant is
below the regulatory limits specified
under the Safe Drinking Water Act or
other Federal and State laws. Similar
comments were raised in previous final
NPL rulemakings (48 FR 40665.
September 8.1983:49 FR 37078.
September 21.1984). and EPA's response
remains unchanged. The HRS does not
define the chemicals of concern to be
only those which meet or exceed a
State's primary or secondary drinking
water standards. An observed release is
considered to have occurred if
contaminants are detected at levels
significantly above background levels.
VI. Dispossttoa of Proposed SHn
Of the 244 sites proposed far the NPL
on October 15.1SB4. two New Jersey
sites—the Glen Ridge Radium Site and
the Montdair/West Orange Radium
Site—were promulgated in a separa:
-------
rederal Renter / Vol. 51. No. ni / Tuesday. |une 10. 1986 / Rules and Regulat.ons 21065
TABLE 1 —FINAL SITES WITH HRS SCORE CHANces-Continued
SUM ana SM NMIW
industrial Excess Undffll
«, ,
as- i
35
Previously Proposed Sites
On September 21.1984. EPA deferred
rulemaking on four sites (Olm Corp.—
Areas 1. 2. A 4. Augusta. Georgia: Sand
Springs Petrochemical Complex. Sand
Springs. Oklahoma: Pig Road. New
Waverly. Texas: and Quail Run Mobile
Manor. Cray Summit. Missouri) that had
been included in the first proposed
update lo the NPL (48 PR 40674.
September 8.1983).
EPA determined in the promulgation
of the first Update (49 FR 37070.
September 21.1984) that the HRS
sconng documents on which the
proposed rulemaking for the Olin Corp.
Site and the Sand Spnngs Petrochemical
Complex Site was based were not in the
public docket and were not available to
the public during the 80-day comment
period for that proposed rule. Therefore.
EPA allowed further comment on these
sites for a period of 60 days following
publication of the final rule. Interested
parties were given the opportunity to
inspect the HRS sconng documents for
these two sites.
During the comment penod. EPA
received additional comments on the
Olm Corp. (Areas 1.2 & 4) Site.
However, the Agency is continuing this
site in proposed status because a is an
RCRA-related site that may be deferred
under the revised RCRA-related site
listing policy.
No additional comments were
received on the Sand Spnngs
Petrochemical Sue after the proper HRS
documents were placed into the docket
for public review. Therefore, the HRS
score remains the same, and this site is
included in today's final rulemaking.
Disposition of the two remaining a)tes in
the September 1963 proposal will be
discussed later in this section.
Sites With Scores Below 2B.3O
in evaluating the comments received
in response to the proposal of NPL
Update 92 (49 FR 40320. October 15.
1984). the Agency revised the proposed
HRS scores for seven sites. The final
HRS scores for these sites are now
below the cut-off score of 28.50 and will
not be included on the NPL A summary
of the comments and EPA's response are
recorded in the "Support Document for
the Revised National Priorities List—
1986." These sites are listed in Table 2.
Table 2.—Sites Dropped From Consideration
(Scorn Below 2150)
. State. Site Name, and City
California Precision Monolithic. Inc —Santa
Clara
Florida: Davidson Lumber Co.—South Miami
Michigan: Lenawee Disposal Service. Inc-
Landfill—Adrian
New Jersey fame Fine Chemical—Bound
Brook
Texas: Pig Road—New Waveriy
Utah: Mayflower Mountain Tailings Pond—
Wasalch
Washington: Quendall Terminal—ftenlon
Reproposed Sites
One site—the Pratt & Whitney
Aircraft/United Technologies Corp. Site
in West Palm Beach. Flonda—has been
reproposed for the NPL The site was
originally proposed for the NPL on
October IS. 1984 (40 FR 40320). The
Agency reproposed the site on
September 18.1985 (50 FR 37950). and
solicited comments on a completely
revised HRS score. The Agency is
considering comments received on this
site and will make a decision whether to
include it on the NPL in a future
rulemaking.
Sites Still Under Consideration
The Agency has not made a final
decision for 88 sites, including 36
Jgederal facilities sites and 31RCRA-
related sites (Table 3); eighty-thrae o£.
these sites will continue to be proposed.
The basis for continuing the proposal of
these sites is explained below or in
section IV of the eligibility policies. In a
separate notice in today's Federal
Register. EPA is soliciting further
comments on five sites.
Table 1—Sites Still Under Coosideniioa
Category Site Name, and Location
Proposed Sites: Comment Period Not
Extended
Federal Facilities
Alabama Army Ammunition Plant—
Chlldenbunj. Alabama
Aimnton Army Depot (Southeast induitriel
Area}—Anmston. Alabama
Castle Air Force Bast Merced: California
Ldwrence bvermore Ndlional Ljborilorv
(USDOE1—Livermore. Cdlifomid
Mdther Air Force Base (AC& W Dispot-al '
Site}—Sacramento. Cdlifornia
McClellan Air Force Base (Ground Water
Contamination)—Sdcramenio.(.diifum:.i
Norton Air Force Base—San Bendrdmo
1 California
Sacramento Army Depot—Sacramento.
Cdlifornia
Sharp* Army Depot—Ldthrop. Cdlifornia
Rocky Flats Plant (USDOEI—Golden.
Colorado
Rocky Mountain Arsenal—Adams Countv.
Colorado
Dover Air Force Base—Dover. Delaware
Robins Air Force Base—Houston County
Georgia
joliet Army Ammunition Plant
(Manufacturing Area)—(diet. Illinois
Sangamo Electric Dump/Crab Orchard
National Wildlife Refuge (USDOIr-
Cartemlle. Illinois
Savanna Army Depot Activity—Sdvnnna
Illinois
Louisiana Army Ammunition Plant—
Doylme. Louisiana
Brunswick Naval Air Station—Brunswick.
Maine
Lake City Army Ammunition PUnt
(Northwest Lagoon I—Independence.
Missouri
Weldon Spring Quarry (L'SDOE/Army}—
St Charles County. Missouri
Comhusker Army Ammunition PUnt—Hall
County. Nebraska
Fort Dix (Landfill Siter—Burlington County
New Jersey
Naval Weapom Station Edrle (Sue A)—
Colls Neck New jersey
Cfiffiss Air Force Bdse—Rome. New York
Umatilla Army Depot (Lagoons)—
Hemuston. Oregon - -
Letterkenny Army Depot (Southedsi
Area)—Chambenburg. Pennsvlvanid
Milan Army Ammunition Plant—MiUn.
Tennessee
Air Force Plant «4 (Cenerdl Dynamics)—
Fort Worth. Texas
Lone Star Army Ammunition Plant—
Texarkana. Texaa
Hill Air Force Baae—Ogden. Utdh
Ogden Defense Depot—Ogden. Utah
Tooete Amy Depot (North AreaJ—Tooele.
Utah
Defense General Supply Center-
Chesterfield County. Virginia
Bangor Ordnance Disposal—Bremerton.
Washington
Fort Lewis (Landfill «S|—Tacoma.
Washington
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c era
Keg.s-.er / Vol. 51. N... in / Tuesddv. [urn-
/ Rules and Rcsuljt.ons
N!i Chord Air Force Buse (Wdsn
Treatment Are*!— TdLomn VV.ishmc'un
Pri:icieif>-\pplicot:on Sites
Kunia Wells I— Odhu. Hawaii
Kunid W-Hg ||_0dhu. Hawaii
Mihlam VVPlls— Odhu. Hawaii
Wdidwd Shaft— Odhu. Hawaii
W..ipahu Wells-Oarm. HdHMii
Wdipio I (eights Wells I! —Odhu. Hawaii
RCR ^ R^laifJ Sn-">
Motorola Inr (SJnii Sir»ei PUnt!— Phocnn
Arizona
\pplied Materials— Santa CUrj C.ilifornid
t-dirrhild Camera & Instrument Corp.
(Mountain View Plnnt}— Mountain VIPW.
California
r'airchild Cdtnera A Instrument Corp.
iSmi'h Sdn lose Plant}— South San (use.
Cl.ifnm.ld
KMC Corp (Fresno Pljnt}— Frpsnn
California
Hewlett-Packard— Palo Alto Cdlifornid
IBM Corp (San lose Plant)— San |ose.
California
Loremz Bdtrel ft Drum Co —Sun |os«.
California
Murley Cooling Tower Co.— Stockton.
Cuhfumia
Monolithic Memories. Inc.— Sunnyvdle.
Cdlifornia
\diional Semiconductor Corp.— Sdn la
Clan Cjlifomia
Khonp-Puulenc. Ine /Zoecon Corp.— Ed»l
Palo Aliu. Cdlilomia
Signpiics Inc— Sunnyvdle.Cdlifomid
Southern Pacific Transportation Co. —
Row illt Cdlifumia
Teledynp Semiconductor — Mountain V.ew.
California
Vdn Waters & Rogers. Inc.— Sdn Jose.
California
City Industries. Inc.— Orlando. Florida
Olin Corp ,'AfPds 1. 2 & 4|— Auautta.
Cfurgia
Sheffield (U S. Ecology. Inc.)-Sheffield
Illinois
Criirnplex Co.— Clmlon/Camjnche. Iowa
I.' S. Ndtnepldte Co —Mount Vemon. Iowa
\iimnai Industnal Environmental
Sen. ILCS— Furley. Kansas
F. I OuPunt de Nemours & Co.. Inc.
(Montague Plant)— Montague Michigan
Li..ks Industries. Inc. — Grand Rdpids.
Michiaan
Fmdett Corp —St. Charles. Missoun
Oiirlinuton NorthHm Railroad iSomersTie-
rruaiina Plant}— Somers. Montana
I .nJiny Manufacturing Co.— Lindsay.
Cenpral Electric Co (Coihoclon Plant)—
Coshocton. Ohio
Culppppr Wood Preservers. Inc.— Culpeper
County Virginia
IBM Corp (Mdndssas Plant Spillr—
Mdndssas. Virginia
Mob.iy Chemicdl Corp. (New Martmaville
Plant)— New Martmsvillp, Went Virginia
Vi/ifjy Waste Sites:
Olson/Neihart Reservoir— Wasatch
County. Utah
Sharon Steel Corp. (Midvale Tailings}—
Midvale. Utah
Other Sites:
I H. Baxter Co.-Weed. California
Montrose Chemical Corp.— Torrancc.
Cilifomia
Montco Research Proiluc'.s. Inc —Hollister.
h'loridd
Michimn Disposal Serxice (Cork Stnvt
Landfill)—Kaldmazoo. Michigan
Qudil Run Mobile Manor—CMV Su-nmit.
Missoun
Lodl Municipal Well—I odi New |pr«;^y
Brio Refining Co. Inc— Fnend.i.vood.
Texas
Sol Lynn/Industrial Trdnsformers—
li-mmon. Texas
Proposed Sites. Comment Period Extended
Firestone Tire ft Rubber Co (SdlindS
Plant}—Salinas. Cdhfomia
Kerr McCee (Kress/Creek/West Branch of
DuPage River>—DuPage County. Illinois
Kerr-McC«e (Reed-Keppler Park>— West
Chicago. Illinois
Kfrr-McCee (Residential Areas}—West
Chictigo/DuPage County. Illinois
Kurr-McCee (Sewdge Treatment Plant}—
West Chicago. Illinois
Montrose Chetnical Corp.. Torrance.
California. The Montrose Chemical
Corp. Site in Torrance. California, waa
part of the October 15.1984 (49 FR
40320) proposal. EPA is deferring final
rulemakmg on this site until additional
air monitoring is completed. The site
was scored with an observed release of
DDT to the dir based on the presence of
DOT in several soil samples surrounding
the site. The Agency believes that
additional sampling may confirm an air
release from this site.
Quail Run Mobile Manor Site. Cray
Summit. Missoun. The Agency has not
made a final decision on the
promulgation of the Quail Run Mobile
Manor Site in Cray Summit. Missouri, at
this time. The site was originally
proposed in Update «1 [48 FR 40874,
September 8.1983) on the basis of a
proposed health advisory listing
criterion, rather than on an MRS score of
28.50 or above. This proposed listing
criterion was subsequently promulgated
(SO FR 37624. September 16.1385) as
Section 300.ee(b)(4) of the NCR The
Agency is continuing to evaluate this
site. Accordingly. EPA ra deferring final
rulemaking on the Quail Run Site at this
time.
Other Sites. EPA has received
additional technical information for six
sites—the J.H. Baxter Co. Site in Weed.
California: Montco Research Product*
Inc. Site in Hollister. Florida: Michigan
Disposal Service (Cork Street Landfill)
Site in Kalamazoo. Michigan: Lodi
Municipal Well in LodL New Jersey: the
Brio Refining Co. Site in Fnendswood.
Texas; and the Sol Lynn/Industrial
Transformer Site in Houston. Texas. In
order to further evaluate this
Information, the Agency has decided to
defer final rulemaking on these six sites.
They will remain in proposed status
until a later rulemaking.
\aine
A number of changes are being rridde
m the site names in the October 1984
proposal, some in response to
information received dunng the
comment period (Table 4). The change;
are intended to reflect more accurately
the location or nature of the problems i
the sue. or to give each site a unique
name.
The following site, placed on the NPI
in October 1984. is also being renamed:
• American Creosote Works in
Pensacola. Florida, becomes American
Creosote Works. Inc. (Pensacola Plant)
Table 4.— Changes in Site Names
S.te Name on Proposed \'PL and Site Vo/ne
on Final-NPL
California-
Aiviso Dumping Areas. Alviso— South BH>
. Asbestos Area
Thompson-Hayward Chemical Co..
Fresno— T.H. Agriculture a Nutrition Co
Zeocon Corp./Rhone-Poulenc. Inc.. EMI
Palo Alto— Rhone-Poluenc, Inc./Zoer.un
Corp.
Minnesota. Pine Bend Sanitary Landfill/
Crosby American Demolition Landfill.
Dakota County— Pine Bend Sanitary
Landfill
Pennsylvania- Domino Salvage Yard. Valley
Township— MW Manufacturing
Tennestee: American Creosote Works. Inc..
Jackson— American Creosote Wonts Inc.
(Jackson Plant)
Utah: Sharon Steel Corp. (Midvale Smeller}—
Sharon Steel Corp. (Midvale Tailingsl
Wiconsm: Lemberger Fly Ash Landfill.
Whitelaw— Lemberger Landfill. Inc.
Comments on Sites Not Proposed
EPA received comments on a few
sites that were not proposed as
candidates for the NPL These sites
include: Kesterson Wildlife Refuge. Los
Banos. California: Prewitt Refinery.
Prewitt. New Mexico: Lake Erie
(Ashtabula North Shore). Ashtabula.
Ohio: and Buckingham County Landfill.
Buckingham Courthouse. Virginia.
In response. EPA updates the NPL
using rulemaking procedures established
pursuant to the Administrative
Procedure Act. One of these sites.
Buckingham Courthouse. Virginia hds
been proposed for the NPL in the Apnl
10. 1985. update to the NPL (50 FR 14115)
as Love's Container Service Landfill.
Since the rest of these sites have not
been proposed for the NPL they are not
eligible for action in this final rule. EPA
is working with the States to evaluate
the hazards at these sites and determine
the appropriateness of including them
on the NPL
VIL Datetkms of Final SUn
There is no specific statutory
requirement thai the NPL be revised to
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Federal Register / Vol. 51 No m / Tuesday. |une 10
19R6
21067
Uf^ie sues. However. EPA has decided
u delete sites to provide incentives for
r.!?dnup to private parties and public
•isencies. Furthermore, deleting sites
jllows the Agency to drive notice that
!he sites have been cleaned up and gives
ihe pliblic an opportunity to comment on
those actions Section 300 66(c)(7) of the
\CP establishes criteria for deleting
SUPS from the \PL Under § 30066(c)(7).
d sue mdy be deleted whe'e no further
response is appropriate In making this
determination. EPA will consider
whether any of the following criteria has
be<>n met.
(1) EPA in consultation with the State
has determined that responsible or other
parties have implemented all
appropriate response actions required:
(Z) All appropriate Fund-financed
response under CERCLA has been
implemented, and EPA. in consultation
with (he State, has determined that no
further cleanup by responsible parties is
appropriate: or
(3) Based on remedial investigation,
EPA. in consultation with the Stale, has
determined that the release poses no
significant threat to public health or the
environment, and therefore, remedial
measures as not appropriate.
Sites that have been deleted from the
NPL remain eligible for further Fund-
financed remedidi actions if future
conditions warrant such action.
The criteria and procedures for
deleting sites from the NPL were
outlined initially m a guidance
memorandum dated March 27.1984
EPA solicited comments on the deletion
criteria and procedures when EPA
proposed the second update to the NPL
(49 FR 40322. October 15.198SJ. EPA
again solicited comments when the NCP
amendments were proposed (50 FR 5862.
February 12.1985). The November 20.
1985. promulgation of amendments to
the NCP reflects EPA's consideration of
all the comments received on the criteria
for deletion of sites on the NPL (50 FR
47912).
On December 31.1985 (50 FR 53448).
EPA published a notice of intent to
delete eight sites from the NPL EPA
accepted comments on (he deletion of -
these sues jnd published a notice on
March 7.1988 (51 FR 7935) indicating
that the following sites have been
deleted from the NPL
• Taputimu Farm. Island of Tutuila.
American Samoa
• PCB Warehouse. Saipan.
Commonwealth of the Northern Manana
Islands
• Morris Arsenic Dump. Moms.
Minnesota
• Fnciimdn Propc'tv jr-.e :><:c:! .11
Upper Freehold Township) Upper
Freehold Township. New Jersev
• -PCD Spills. 243 Miles of Road.
North Cdrolma
• -Enterprise Avenue. Philadelphia
Pennsylvania
• -Lehigh Electric & Engineering Cu .
Old Forge Borough. Pennsylvania
• -PCB Wastes. Trust Territory of ihc
Pacific Islands
VIII. Contents of the NPL
CERCLA requires that the NPL
include, if practicable, at least 400 bites
The NCP amendment published toddy
contains a total of 703 entries, including
170 new sites. The 170 sites added to th»-
final list are shown in Table 5 by rank.
Each entry contains the name of the
facility, the Slate and city or counu m
which it is located, and the
corresponding EPA Region. Fur
informational purposes, each entr> is
accompanied by a notation on the
current status of response and cleanup
activities at the site. The definitions of
the response categones and cleanup
status codes are descnbed more fully
below.
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21068
Federal Register / Vol. 51. No 111 / Tuesday June 10, 1986 / Rules dnd Reflations
NPL EPA
HANK RG ST SITE NAME
TABLE 5
NATIONAL PRIORITIES LIST (BY RANK)
SITES ADDED IN MAY 1986
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY! STATUS*
GROUP 2
"}U ou rt Peak Oil Co./Bay Drum Co. Tampa
68 03 IN International Minerals (E. Plant) Terra Haute
71 09 CA Operating industries, inc. Lndfll Monterey Park
CROUP 3
112 08 UT Portland Cement (Kiln Dust 2*3) Salt Lake City
M7 10 WA Midway Landfill Kent
i?8 06 Tx Bailey waste Disposal Bridge City
Ui 05 MI Thermo-Che«. Inc. Muskegon
i'<0 05 MN Pine Bend Sanitary Landfill Dakota County
1(41 07 IA Lawrence Todtz Farm Camanche
v . s
R
R
CROUP U
159
163
IB)
I8U
186
192
:93
'96
05
02
Od
05
06
02
U<4
0)
OH
NY
NC
Ml
TX
NY
NC
PA
industrial Excess Landfill
Liberty Industrial Finishing
Ce ianese( Shelby Fiber Operations)
Motor wneel, inc.
Stcwco. inc.
Johnstown City Landfill
NC State U (Lot 86, Farm Unit fl )
Hunters town Road
Union town
Famingdaie
She I by
Lansing
Waskoa
Town of Johnstown
Raleigh
Straban Township
R
V
R F
R F
S
S
0
0
D
D
1
0
o
0
CROUP 5
213
219
223
22<*
228
233
08
or
05
01
03
03
CO Cagie Mine
MO Lee Chemical
MI Torch Lake
Rl Central Landfill
PA MW Manufacturing
PA Whitmoyer Laboratories
Minturn/Redcl iff
Liberty
Houghton County
Johnston
val ley Township
Jackson Township
R S
0
D
V F S
S
D
0
0
STATES' DESIGNATED TOP PRIORITY SITCS
V= VOLUNTARY OR NEGOTIATED RESPONSE;
F = FEDERAL ENFORCEMENT;
0 = ACTIONS TO BE DETERMINED.
R = FEDERAL AND STATE RESPONSE;
S - STATE ENFORCEMENT;
9: I = IMPLEMENTATION ACTIVITY UNDERWAY, ONE OR MORE OPERABLE UNITS;
0 = ONE OR MORE OPERABLE UNITS COMPLETED, OTHERS MAY BE UNDERWAY
C = IMPLEMENTATION ACTIVITY COMPLETED FDR ALL OPERABLE UNITS.
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Federal Register / Vol. 51. No 111 / Tuesday. June 10. 1986 / Rules and Regulations 21069
NATIONAL PRIORITIES LIST (BY RANK)
SITES ADDED IN HAY 1986
NPL EPA RESPONSE CLEANUP
RANK RC ST SITE NAME • ' CITY/COUNTY CATEGORY* STATUSfl
CROUP 5 (CON'T)
235
239
2UO
2U1
2U5
250
03
05
05
05
OU
05
PA
IL
HN
MN
MS
IN
Shnver' s Corner
Pagel's Pit
U or Minnesota Rosemount Res Cent
Freeway Sanitary Landfill
Newsom Brothers/Old Reichhold
Columbus Old Municipal Lndfll |1
Straban Township
Rock ford
Rosemount
Burnsvi I le
Co I umb i a
Co I unbus
R F
0
s
D
R
0
0
0
0
CROUP 6
253
258
263
27H
2/5
278
287
292
02
02
09
10
08
05
05
Ob
NY
NJ
CA
OR
CO
MN
OH
AL
Tronic Plating Co.. Inc.
waidick Aerospace Devices, inc.
South Bay Asbestos Area
Martin-Marietta Alum nun Co.
Uravan uranium (union Carbide)
Oak Grove Sanitary Landfill
Ai sco Anaconda
interstate Lead Co. ( ILCO)
Farmmgdaie
Wa 1 1 Townsh i p
Alviso
The Dalles
Uravan
Oak Grove Township
Gnadenhutten
Leeds
-
R
R
' V
- R
V R
0
S
0
S
F S
0
1
0
GROUP 7
305
307
311
319
120
321
325
326
327
328
332
333
337
05
05
03
06
06
07
09
09
09
09
OU
02
02
IN Fort Wayne Reduction Dump Fort Wayne
wi National Presto Industries, inc. Eau, Claire
MO Mid-Atlantic wood Preservers, Inc Hat-mans
Tx Odessa Chromium fl Odessa
TX Odessa Chromium §Z (Andrews Hgwy) Odesse
NE Hastings Ground water Contain in Hastings
CA San Fernando Valley (Area 1) Los Angeles
CA San Fernando Valley (Area 2) Los Angeiei/Glenda le
CA San Fernando valley (Area 3) Clendale
CA T.H. Agriculture ft Nutrition Co. Fresno
NC Jadco-Hughes Facility Beimont
NJ Monitor Devices/ interci rcuits Inc Wall Township
NY Hooker Chemica l/Ruco Polymer Corp Hlcksville
R
R
R
R
o
0
o
0
o
o
D
0
0
•: STATES' DESIGNATED TOP PRIORITY SITES
I: V = VOLUNTARY OR NEGOTIATED RESPONSE; R * FEDERAL AND STATE RESPONSE-
F = FEDERAL ENFORCEMENT; S » STATE ENFORCEMENT;
0 » ACTIONS TO BE DETERMINED.
6: I = IMPLEMENTATION ACTIVITY UNDERWAY. ONE OR MORE OPERABLE UNITS:
0 - ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS NAY BE UNDERWAY;
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
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21070
Federal Register / Vol. 51, No. Ill / Tuesday. June 10. 1986 / Rules and Regulatio
NPL EPA
RANK RC ST SITE NAME «
NATIONAL PRIORITIES-'UST {BY RANK)
SITES ADDED IN MAY 1966
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
GSOUP 7 (CON'T)
02 NY Applied Environmentat Services
01 NH Tibbets Road
Glenvood Landing
Barrington
I
0
CROUP a
352
353
35U
362
363
370
373
37<4
360
187
391
397
05
05
07
10
06
09
U5
02
02
01
06
05
Ml ROtO-FiniSh CO., Inc.
MN Oimsted County Sanitary Landfill
MO Oual i ty Plating
WA Toftdafii Drums
TX Texarkana Wood Preserving Co.
CA west ingfiouse (Sunnyvale Plant)
HIM. B rown Co . , 1 nc .
NY Nepera Chemical Co., Inc.
NY Pastey Solvents & Chemicals, Inc.
Rl Davis (GSR) Landfill
TX South Cavalcade Street
IL Petersen Sand fc Crave)
Ka lama zoo
Oronoco
Sikeston
Brush Prairie
Texarkana
Sunnyva 1 e
Grand Rapids
May to rook
Hemp stead
Clocester
Houston
Libertyvi 1 le
0
0
0
it
0
0
0
V
0
0
V F
R
0
O
GROUP 9
U01 08 MT Idaho Pole Co.
H06 05 MN Windom Dump
i<08 05 IL NL Industries/Taracorp Lead Smelt
U15 02 NJ Cinnarainson Ground Water Contain in
die OH NC Bypass 601 Ground Water Contarn;n
ui9 0? MO Solid State Circuits, tne.
U20 07 NC Waverly Ground Water Contamin
t*2i 09 CA Advanced Micro Devices, Inc.
U32 03 PA Brown's Battery Breaking
U33 02 NY SMS instruments. Inc.
i*36 02 NY Byron Barrel * Drum
138 02 NY Anchor Chemicals
<439 05 MI waste Management-Mich (Holland)
Bozeman
Wtndom
Granite City V f S
Cinnaminson Tovnship M
Concord .
Republic It F s
waver < y R
Sunnyvale
Shovmakersvll la R F
Dear Park
Byron R F
HiCkSVlila
Holland
0
0
": STATES' DESIGNATED TOP PRIORITY SITES
t: V = VOLUNTARY OR NEGOTIATED RCSPON5C;
F = FEDERAL ENFORCEMENT;
0 = ACTIONS TO BE DETERMINED.
ft * FEDERAL AND STATE RESPONSE;
S = STATE ENFORCEMENT;
I = IMPLEMENTATION ACTIVITY UNDERWAY, ONE OR MORE OPERABLE UNITS:
0 = ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BE UNDERWAY;
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
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Federal Register / Vol. 51. No 111 / Tuesday. June 10 19R6 / Rules and Resulations
21071
NPL EPA
RANK RC ST SITE NAME •-
NATIONAL PRIORITIES LIST (BY RANK)
SITES ADDED IN HAY 1986
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP 9 (CON'T)
uuo
06
TX
North Cavalcade Street
Houston
R
CROUP 10
U56
U5B
U65
U68
U73
U76
U77
U78
U79
<48I
U82
«89
U92
U97
500
05
03
05
03
03
02
02
05
05
07
09
03
02
OU
02
IN
PA
Wl
PA
WV
NY
NY
MN
OH
MO
CA
VA
NY
IN
NY
Neat's Dump (Spencer)
westmghouse Elevator Co. Plant
Stoughton City Landfill
Middle town Air Field
Ordnance works Disposal Areas
Suf fern Vi Mage we 1 1 Field
Endicott Village Well Field
Kummer Sanitary Landfill
Sanitary Landfill Company (IWO)
va 1 1 ey Pa rk TCE
San Fernando Valley (Area U)
Avtex Fibers, Inc.
Katonah Municipal well
American Creosote (Jackson Plant)
Preferred Plating Corp.
Spencer
Gettysburg
Stoughton
Middle town
Morgantown
Vi I lage of Suf fern
VI I lage of Endicott
Bern i d j i
Dayton •
valley Park
Los Angeies
Front Royal
Town of Bedford
Jackson
Farningdale
F
R F
' F
R
R
R
R
R
s
0
0
D
D
0
0
0
0
0
0
1
o
o
CROUP 11
502 08 UT Mont ice Mo Rad Contaminated
505 01 MA Salem Acres
515 10 WA Mica LandrIii
522 02 NY Clothier Dispose!
523 03 PA Ambler Asbestos Plies
525 03 VA L.A. Clarke at Son
527 03 MO Southern Maryland Wood Treating
529 09 CA Beckman Instruments (PorterviIle)
530 Ott FL Oubose Oil Products Co.
535 05 Wl Lemberger Landfill, inc.
5<«1 03 PA Modern Sanitation Landfill
Props Mont ice Ilo
Salem
Mica
Town of Granby
Ambler
Spotsyivania County
Hoilywood
PorterviIle
Cantonment
wnIeeiaw
Lower Windsor Twp
0
D
F S
S
S
s
0
0
0
•: STATES' DESIGNATED TOP PRIORITY SITES
Jf: V = VOLUNTARY OR NEGOTIATED RESPONSE;
F = FEDERAL ENFORCEMENT;
0 = ACTIONS TO BE DETERMINED.
R « FEDERAL AND STATE RESPONSE;
S » STATE ENFORCEMENT;
I = IMPLEMENTATION ACTIVITY UNDERWAY. ONE OR MORE OPERABLE UNITS:
0 = ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BE UNDERWAY;
C =• IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
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*»» .r , P.. ai. MO. m , Tuesday June TO. 1986 / Rules and Relations
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PPIORITIES LIST (BY RANK)
SITES ADDED IN MAY 1906
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUSf
CHOUP 11 (CON'T)
bil 05 MI North Bronson industrial Area
•JUS in WA Northwest Transformer
5'.9 u5 wi Sheboygan Harbor fc R,ver '
Bronson
Everson
Sheboygan
0
D
562
573
57U
'
602
603
60U
605
CROUP 12
02 NY Ha v,i ana Complex
05 MN Adr, an Mun.c.pal Well Field
HI J-S Strotner r.eid induitrm Parli
02 Nj Fried Industries
of NY »"B'«S"«"rdlng.. Inc.
02 NY Sarney Farm
ul MA Rose Disposal Pit
05 CH van Dale JunKyard
Mun=lpal Landfi"
Town of Hyde Park
fSrtmn
Cow ley County
rast Brunswic
S"»r!oS C
Aaenia
Lanesooro
Manlt?a
5
600 02 NJ
Far.
Oaks Residential Wells Caliowiy Township
CROUP 13
SI
09
09
EN" ijao:!.ppraa;kris.?rsund W8ter cont"
CA Intel Magnetics
CA mtil Co?p. (Santa Clar. HI)
R
R
D
D
D
V R
v
R
R
R
V
F S
S
s
0
0
0
0
0
R
R
D
D
H:
9:
STATES' DESIGNATED TOP PRIORITY SITES
V = VOLUNTARY OR NEGOTIATED RESPONSE* R'
f s FEDERAL ENFORCEMENT1 «
0 = ACTIONS TO BE DETERMINED.
« = IJJJLEMENTATION ACTIVITY UNDERWAY. ONE OR MORE —EHAI
0 = ONE OR MORE OPERABLE UNITS COMPLETED? OTHERS MAY BE
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ' ~*
-------
Federal Regstar / Vol. 51. No. m / Tuesday. June 10. 1986 / Rules and Regulation.
•^••^•* • • ^
NATIONAL PRfORrTlES LIST (BY RANK)
SITES AOOED fN NAY 1986
NPL EPA
RANK RC ST SITE MANE •
CROUP 13 (CON'T)
CI TV/COUNTY
RESPONSE CLEANUP
CATEGORY^ STATUS*
610 02
612 0«4
613 06
6 1U 02
616 03
617 07
618 05
620 06
622 08
625 05
629 05
631 05
636 03
6UO 06
6U1 02
6U2 02
6<«6 03
NY Kenmark Textile Corp.
KY Maxey Flats Nuclear Disposal
MT Mouat industries
NY Claremont Poiychemical
PA Craydon TCE
iA vogei Paint * Wax Co.
MN Kurt Manufacturing Co.
Tx Koppers Co.. Inc. (Texarkana Pit)
CO Smuggler Mountain
Ml Avenue "E" Ground water Contanm
MN noch Rerinfng Co./N-Ren Corp.
Wl Fadrowski Drum Disposal
OE Haiby Chemical Co.
AR ttidrantf Products
NY Robmtech, Inc./Nat iona I Pipe Co
NY BEC Trucking P
VA Rhmehart Tire) Fire- Duma
s?
y?
662
66U
III
g
s;
03
10
670 05 MN
672 01 MA
67U 01 MA Norwood .
678 05 IN Trl-State . .....
680 01 NH Coakiey Landfll
MO Kane fe Lombard Street Dru«»
WA Silver Mountain Mine
Si
Faroirtgdal*
Hi I Isboro
Coiunbus
Old Bethpege
Croytfon
Orange City
Fndiey
Texarkana
Prtkin County
Traverse City
Pine Bend
Frank! in
New Castle
Ola/Birta
Town or vestal
Town or vestcl
Frederick County
0
0
V
V
S
s
R
R
V R F
GROUP 111
srr, •*.,...
a;rn
Baltimore
Looi »
,.
KSXf
~
SSrt'bH.".pton
D
D
s
VR s
.
°
0
0
0
0
0
1
0
STATES' DESIGNATED TOP PRIORITY SITES
V - VOL"1"^ OR NEGOTIATED RESPONSE;
F = FEDERAL ENFORCEMENT;
TO BE DETERMINED.
R
S
FEDERAL AND STATE RESPONSE:
STATE ENFORCEMENT; rvnac'
*: o ! ^S^l*™.™™™ "H0"^™ OR MORE OPERABLE
-------
21074 Federal Register / Vol 51. No. Ill / Tuesday. June 10. 1986 / Rules and Regulations
NATIONAL PRIORITIES LIST (BY RANK)
SITES ADDED IN MAY 1966
NPL FPA
RANK RC ST S.TE NAME • CITY/COUNTY "rECoivj
CROUP 111 (CON'T)
66(4
688
693
69H
695
696
05
07
10
06
06
05
Wl
HO
WA
OK
TX
MN
wausau Ground water Contamination
Nortn-u Drive Well Contamination
Nortnside Landf i 1 1
Sand Springs Petrochemical Cfflplx
Pesses Chemical Co.
East Bethel Demolition Landfill
wausau
Springfield
Spokane
Sand Springs
Fort Worth
East Bethel Township
R
R
R
R F
R
D
0
0
0
0
0
CROUP 15
702
07
MO
Bee Cee Manufacturing Co.
Maiden
0
'
V STATES' DESIGNATED TOP PRIORITY SITES
#: V - VOLUNTARY OR NEGOTIATED RESPONSE; R = FEDERAL AND STATE RESPONSE-
F -- FEDERAL ENFORCEMENT; S = STATE ENFORCEMENT;
0 = ACTIONS TO BE DETERMINED.
e- I = IMPLEMENTATION ACTIVITY UNDERWAY. ONE OR MORE OPERABLE UNITS-
0 - ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BE UNDERWAY-
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
NUMBER OF NPL SITES: 170
BILLING COM esw-ao-c
-------
Federal Register / Vol. 51. Mo. m / Tuesday June 10. T986 / Rule, and Regulations
21073
The new sites added to the NPL are
incorporated into the previously
promulgated MPL in order of tbeir HRS
score (except where EPA modified that
order to reflect top priorities designated
by the States, as discussed IB the
following paragraph). The NPLm
presented in groups of SO sites to
emphasize the fact that minor
differences in HRS scores do not
necessarily represent significantly
different levels of risk EPA considers
the sites within a group to have
approximately ;he same priority for
resoonse actions.
Section 105(8|{B) of CERCLA requires
that, to the extent practicable, the NPL
include within the 100 highest priorities
at least one facility designated by each
State as representing the greatest danger
to public health, welfare, or the
environment among known facilities in
[he State. Because States are no4
required to rely on the HRS in
designating their top-pnority sites, the
HRS scores of some oC these sites would
not have placed them among the first
100. Consequently, these lower-scoring
State priority sites are listed at the
bottom of the first 100 sites. All top-
priority sites designated by States are'
indicated by asterisks.
For informational purposes, the NPL
includes several categories of notation
reflecting the status of response and
cleanup activities at .these sites at the
time this, list was prepared. Because this
information may change penodfcaUy.
these notations may become outdated.
The response categories and cleanup
status codes are defined below:
Response Categories
The following response categories are
used to designate the type of response
underway. One or more categories nay
apply to each site.
Federal and/or State reapoase fRL
The Federal and/or Slate Response
category includes sites at whtdt EPA or
State agencies have started or
completed response ectioM. These-
include removal action* noe>
enforcement remedial awestfgariom/
feasibility studies, initial remedial
measures, and/or rcmedtaraction*
under CERCLA {NCR |30MefrJffM7P*
31217. |uly ie. me;. Pot purpoeeeer
assigning a category, the respOMe>
action commence* when EPA oblkMM
funds.
Federal enforcvamt (Ft. That
category include* sites where the United!
Stales has fited e erU caejplaar
(including coat recover* action*} ec
issued an adaunsttstnreacdeviinsfer
CERCLA or RCBA. It eba include, sfte*
at which a Federal coait ha* ••••lib
some fora of rerpoosa-action fnthranng
a lucficial proceeding. All sites at which
EPA has obligated funds for
enforcement-lead remedial
investigations and feasibility studies
also are mcluded in this category.
A number of sites on the NPL are the
subject of investigations or have been
formally referred to the Department of
Justice for possible enforcement action.
EPA's pohcy is not to release
information concerning a possible
enforcement action until a lawsuit has
been filed. Accordingly, srtes subject to
pending Federal actioa are not included
in this category, but are included under
"Category To Be Determined."
State enforcement (S). This category
includes sites where a State has filed a
civil complaint or issued an
administrative order, (t also includes
sites at which a State court has
mandated some form of response action
following a judicial proceeding. Sites
where a State has obligated funds foe
enforcement-lead remedial
investigations and feasibility studies ere.
also included in this- category.
tt rs assumed that Stare pohcy is not
to release information concerning)
possible enforcement action* until such-
action has been formally taken.
Accordingly, nte» subject to pending
State legal action are not included ia
thw category, but are included under
"Category To Be Determined."
Voluntary or negotiated response (VJ.
Sites are incfnded in mis category if
private parties- have started or
completed response actions pursuant to
consent agreements, consent order* or
consent decrees, to which EPA and/oe
the S'ate is a party. Usually, the
response actions result from, a Federal
or Slate enforcement action. Tkis
category includes privately-Bnaneed
remedial uiveatiaaiiona/feasibility
studies, removal action*, initial remedial.
measures, aod/oi lenwdial action*.
Category to- oe detemiaed {D)> This
category includes all sites not listed IB
any other category. A wide range of
activities may be- la progress at sues ia
this category. EPA or a State any b*
evaluating t** type of mponae actm fe>
undertake, or e respoaae action any be
deterauedbetfaadiareBotyet
obligated. A site where ana
action may be under oevefe
Federal or Stale h
initiated oBdnaaL
CERCLA at KBAMmi «•» asaoneo H»
this cafeBjnijL RaspsMbie sartfes may
be undartaiDB9dBanaa.activM tot are-
not coveted by. • caoasaft decree.
coasaa* agnenevt eran-ednMetre(fve>
order.
Cleanup Status Codes
EPA indicate* ue status of Fumi-
Einanced or private party cleanup
activities underway or completed at NPL
sites. Fund-financed: response activities
which are coded include: significant
removal actions, initial remedial
measures, source control remedial
actions, and off-site remedial actions.
The status of cleanup activities
conducted by responsible parn"
-------
21076
Federal Register / Vol 51. No. Ill / Tuesday. June 10." 1986 / Rules and Reeulat.ons
has commenced The site will be
considered for deletion from the \PL
subsequent to completion of the
performance monitoring and preparation
of a deletion recommendation. Further
sue activities could occur if EPA
considers such activities necessary.
IX. Regulatory Impact Analysis
The costs of cleanup actions that may
be taken at sites are not directly
attributable to listing on the NPL as
explained below. Therefore, the Agency
has determined that this rulemakmg is
not a ' major" regulation under
Executive Order 12291. EPA has
conducted a preliminary analysis of
economic implications of today's
amendment to the NCP. EPA believes
that the kinds of economic effects
associated with this revision are
generally similar to those effects
identified in the regulatory impact
analysis (RIA) prepared in 1982 for the
revisions to the NCP pursuant to section
105 of CERCLA and the economic
analysis prepared when the
amendments to the NCP were proposed
|SO FR 5882. February 12.1985). The
Agency believes the anticipated
economic effects related to adding 170 •
sues to the NPL can be characterized in
terms of the conclusions of the earlier
regulatory impact analysis and the most
recent economic analysis.
Costs
EPA has determined that this
rulemakmg is not a "major" regulation
under Executive Order 12291 because
inclusion of a site on the NPL does not
itself impose any costs. It does not
establish that EPA will necessarily
urdertake remedial action, nor does it
require any action by a pnvale 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.
Nonetheless, it is useful to consider the
costs associated with responding to all
sites included in this rulemaking.
Costs associated with responsible
part> searches are initially borne by
EPA. Responsible parties may bear
some or all the costs of the remedial
investigation/feasibility study (RI/FS).
design and construction, and operation
and maintenance (O & M). or the costs
may be shared by EPA and the States on
a 90S.10* basis (50ft:50% in the case of
publicly-owned sites). Additionally.
States assume ail coats for O&M
activities after the first year at sites
involving Fund-financed remedial
actions.
Rough estimates of the average per-
site and total costs associated with each
of the above activities are presented
below. At this time. EPA is unable to
predict what portions of the total costs
will be borne by responsible parties.
since the distribution of costs depends
on the extent of voluntary and
negotiated response and the success of
any cost recovery actions.
* vermr loai
it'll per site'
Cost category
RI/FS $800.000
Remedial design 440 000
Remedial action »7.200.000
Net present value of O4M
(over 30 yrs )' » 3.770.000
' I«M u S dolUra
1 Inrluan Sldie coil
Costs to States associated with
today's amendment arise from the
required State costs-share of: (1) 10
percent of remedial action and 10
percent of first year O&M costs at
privately-owned sites: and (2) at least 50
percent of the remedial planning (RI/FS
and remedial design), remedial action
and first year O&M costs at publicly-
owned sites. States will assume all of
the cost for O&M after the first year.
Using the assumptions developed in the
1982 RIA for the NCP. EPA has assumed
that 90 percent of the 170 sites added to
the NPL in this amendment will be
privately-owned and 10 percent will be
State or locally-owned. Therefore, using
the budget projections presented above.
the cost to States of undertaking Federal
remedial actions at all 170 sites would
be $764 million, of which $582 million ts
attributable to the State O&M cost.
Listing a hazardous waste site on the
final NPL does not itself cause firm* .
responsible for the site to bear costs.
Nonetheless, a listing may induce firms
tfretean-up tfof-sites voluntarily" or it
may actas a potential triggerfdr -"°*a
subsequent enforcement or cost
recovery actions. Such actions may
impose costs on firms, but the decisions
to take such actions are discretionary.
and made on a case-by-case basis.
Consequently, precise estimates of these
effects cannot be made. EPA does not
believe that every site will be cleaned
up by a responsible party. EPA cannot
project at this time which firms or
industry sectors will bear specific
portions of the response costs, but the
Agency considers: the volume and
nature of the wastes at the site: the
strength of the evidence Unking the
wastes at the site to the parties: the
parties' ability to pay: and other factors
when deciding whether and how to
proceed against potentially responsible
parties.
Economy-wide effects of this
amendment are aggregations of effects
on firms and State and local
governments. Although effects could t
felt by some individual firms and State.
the total impact of this revision on
output, prices, and employment is
expected to be negligible at the national
level, as was the case in the 1982 RIA.
Benefits
The real benefits associated with
today's amendment to list additional
sites on the NPL are increased health
and environmental protection as a result
of increased public awareness of
potential hazards. In addition to the
potential for more Federally-financed
remedial actions, expansion of the NPL
-could accelerate privately-financed
voluntary cleanup efforts to avoid
potential adverse publicity, private
lawsuits, and/or Federal or State
enforcement action. Listing sites as
national priority targets may also give
States increased support for funding
responses at particular sites.
As a result of the additional NPL
remedies, there will be lower human
exposure to high risk chemicals, and
higher quality surface water, ground
water, soil, and air. The magnitude of
these benefits is expected to be
significant, although difficult to estimaf
in advance of completing the RI/FS at
these sites.
Associated with the costs are
significant potential benefits and cost'
offsets. The distributional costs to firms
of financing NPL remedies have
corresponding "benefits" in that funds
expended for a response generate
employment, directly or indirectly
(through purchased materials).
X. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act of 1980
"Requires EPA to review the impacts of
this action on small entities, or certify'
that the action will not have a
significant impact on a substantial
number of small entities. By small
entities the Act refers to small
businesses, small governmental
jurisdictions, and nonprofit
organizations.
While modifications to the NPL are
considered revisions to the NCP. they
are not typical regulatory changes since
the revisions do not automatically
impose cost*. The listing of sites on the
NPL does not in itself require any action
of any private party, nor does it
determine the liability of any party for
the cost of cleanup at the site. Further.
no ^identifiable groups are affected as a
-------
Federal Register / Vol
No. Ill / Tuesday. June 10. 1986 / Rules and Resulat.ons
whole. As a consequence, it is hard to
predict impacts on any group. A site's
inclusion on the NPL could increase the
likelihood that adverse impacts to
responsible parties (in the form of
cleanup costs) will occur, but EPA
cannot identify the potentially affected
businesses at this time nor estimate (he
number of small businesses that might
be affected.
The Agency does expect that certain
industries and firms within industries
thdt have caused a proportionately high
percentage of waste site problems could
be significantly affected by CERCLA
actions. However, EPA does not expect
the impacts from the listing of these 170
sites to have a significant economic
impact on a substantial number of small
businesses.
In any case, economic impdcts would
only occur through enforcement and cost
recovery actions which are taken at
EPA's discretion on a sile-by-site basis.
EPA considers many factors when
determining what enforcement actions to
take, including not only the firm's
contribution to the problem, but also the
firm's ability to pay. The impacts (from
cost recovery) on small governments
and nonprofit organizations would be
determined on a similar case-by-case
basis.
List of Subjects in 40 CFR Part 300
Air pollution control. Chemicals.
Hazardous materials. Intergovernmental
relations. Natural resources. Oil
pollution. Reporting and recordkeeping
requirements. Superfund. Waste
21077
treatment dnd disposal. Water pollution
control. Water supply.
PART 300-{ AMENDED]
40 CFR Part 300 is amended to read HS
follows:
1. The authority citations for Part .100
continues to read as follows:
Authority: 42 U S.C. 9605(8|(B)/CERCLA
105(8)|B|.
2. Appendix B of Part 300 is revised to
read as set forth below.
Dated. May 19.1986.
(•ck W. McGraw.
Deputy Assistant Administrator O'fice.if
Solid Waste and Emergency Response
-------
21078
Federal Register / Vol 51. No 111 / Tuesday, [une 10. 1986 / Rules and Regulations
Appendix B—National Priorities List (By Rank)
NPL EPA
RANK RC ST SITE NAME *
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY! STATUS*
CROUP 1
8
9
in
11
12
i J
lu
ir;
15
i/
:n,
!•/
?)
c\
-------
Federal Register / Vol. 51. No. in / Tuesday. |une 10. 1986 / Rules and Regulations
21079
NPL EPA
RANK RG ST SITE NAME
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS0
CROUP
<<0 02 NJ Burnt Fly 809
41 02 NJ Vine land Chemical Co., Inc.
U2 OH FL Schuyikiii Metais Corp
«3 05 MN New Brighton/Arden Hills
44 02 NY Old Bethpage Landfill
45 02 NJ Shieidai loy Corp.
1*6 OK FL Reeves SE Galvanizing Corp.
47 08 MT Anaconda Co. Swelter
48 10 WA western Processing Co., Inc.
<49 05 wi omega HI MS North Landfill
50 OU FL American Creosote (Pensacoia)
1 (CON'T)
Marlboro Township
Vine land
Plant City
New Brighton
Oyster Bay
Newfieid Borough
Tampa
Anaconda
Kent
• German town
Pensaeoia
R S
Vr
r
0
V R
V S
V S
0
V F
V R F S
R F
0
0
0
0
1
1
0
CROUP 2
51 02 NJ Cai dwell Trucking Co.
52 02 NY CE Moreau
53 OS IN Seymour Recycling Corp. •
51 OU FL Peak on Co. /Bay Drum Co.
55 05 OH united Scrap Lead Co.. inc.
56 06 OK Tar Creek (Ottawa County)
57 07 KS Cherokee County
58 02 NJ Brick Township Landfill
59 05 Ml Northerns-ire Plating
60 05 Wi janesvine Old Landfill
61 10 WA Frontier Hard Chrome, inc.
62 04 SC independent Nail Co.
63 04 SC Kaiama Specialty Che* lea is
64 05 WI Janesviiie Ash Beds
65* 04 FL Davie Landfill
66 05 OH Miami County Incinerator
67 04 FL Gold Coast Oil Corp.
68 05 IN international Minerals (E. Plant)
69 05 wi wheeler Pit
70 09 A2 Tucson Intl Airport Area
71 09 CA Operating Industries, Inc. Lndf 1 1
72 02 NY wide Beach Development
•: STATES' DESIGNATED TOP PRIORITY SITES
I: V s VOLUNTARY OR NEGOTIATED RESPONSE; R •
F = FEDERAL ENFORCEMENT; s •
n _ A^T I 4**«a9 VM •**• •*••«»••&• • U«K
Fai rf ield
South Glen Fa I is
Seymour
Tampa
Troy
Ottawa County
Cherokee County
Brick Township
Cadillac
Janesvi i le
Vancouver
Beaufort
Beaufort
Janesvi I le
Davie
Troy
• *rf
Miami
Tar re Haute
La Prairie Township
Tucson
Monterey Park
Brant
R S
V F S
V R F
R
R
R
V S
R
S
F
0
S
F
R
0
0
0
1
0
0
FEDERAL AND STATE RESPONSE;
STATE ENFORCEMENT:
I » IMPLEMENTATION ACTIVITY UNDERWAY, ONE OR MORE OPERABLE UNITS-
0 = ONE OR MORE OPERABLE UNITS COMPLETED, OTHERS MAY BE UNDCAWAY:
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.'
-------
21080
Federal Register / Vol. 51. No. Ill / Tuesday. |une 10 1966 / Rules ar.d Regulations
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES-LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS®
CROUP 2 (CON'T)
75
7(4
T>
;<,
ii
I A
i'l
80
81
fl?
81
e-i
85
O'i
fl/
63
tt9
00
91
92
93
9<4
95
96
97
98
99
100
09
0?
' 3
m
t;5
05
01
01
f)6
05
ou
01
08
05
(15
01
OJ
07
08
1)3
07
09
OU
ou
09
014
08
07
CA
NJ
CO
NJ
MN
Ml
Rl
MA
LA
OH
SC
CT
CO
IL
MM
vr
wv
MO
NO
VA
IA
A;
TN
ny
cu
MS
UT
KS
I ron Mounta m Mine
Scientific Chemical Processing
Ca I i Torn ia Culch
D ' I moe r i o P rope r ty
Oakdaie Dump
Grat-ot County Landfill •
P i c i 1 1 o Farm •
New Bedford Si te •
Old inger Oil Refinery •
Chem-Dye •
SCRDI Bluff Road •
Laurel Park. Inc. •
Marshal i Landfi 1 1 •
Outboard Marine Corp. •
South vai ley *
Pme Street Canal •
west Virginia Ordnance •
El I isvi Me Si te •
Arsenic Trioxide Site •
Matthews Electroplating •
Atdex Corp. *
Mountain View Mobile Home Estates
North HOI lywood Dump •
A.L. Taylor (Valley of Drums) •
Ordot Landfi 1 1 •
f I owood Site*
Rose Park Sludge Pit •
Arkansas City Ounp •
Redding
Caristadt
Leadvi i ie
Hami i ton Township
Oakda le
St. Louis
Coventry
New Bedford
Oar row
Ham i ton
Co I umb i a
Naugatuck Borough
Boulder County
waukegan
Albuquerque
Burl ing ton
Pomt Pleasant
El I isvi i ie
Southeastern N.O.
Roanoke County
Counci'l Bluffs
Globe
Memphi s
Brooks
Guam
F 1 owood
Salt Lake City
Arkansas Ci ty
V
v
v
y
y
V
' V
v
v
V
R
R
p
R
p
f|
f|
R
R
p
p
R
R
R
R
R
R
R
F S
F
F S
• W
F S
F S
• *
Fe
9
f
S
F
F
F
o
F
F S
r «
F
s
F
0
0
1
1
0
1
1
0
o
c
c
CROUP 3
101
102
103
10U
105
05
03
02
05
01
IL
PA
NJ
MN
MA
A ft F Material Reclaiming. Inc.
Oougiassvi i le Disposal
Krysowaty Farm
Koppers Coke
Plymouth Harbor/Cannon Engnrng
Creenup
Douglassvl 1 la
HI i tsbo rough
St. Paul
Plymouth
y
V
R
R
R
F
S
0
0
0
•: STATES' DESIGNATED TOP PRIORITY SITES
»: V = VOLUNTARY OR NEGOTIATED RESPONSE;
F = FEDERAL ENFORCEMENT;
0 = ACTIONS TO BE DETERMINED.
R « FEDERAL AND STATE RESPONSE;
S = STATE ENFORCEMENT;
6: I = IMPLEMENTATION ACTIVITY UNDERWAY, ONE OR MORI 'OPERABLE
COMfttag? OTHERS '
0 = ONE OR MORE OPERABLE UNrTS COMft OTHERS 'MAY 'BE UNOEt
C = IMPLEMENTATION ACTIVITY COMPLETED 'FOR ALL OPERAM.E UNITS.
-------
Federal Register / Vol. 51. No. Ill / Tuesday. |unc 10. 1986 / Rales and Regulations
21081
NPL EPA
RANK RC ST SITE KANE •
NATIONAL PRIORITIES LIST (BY
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS0
CROUP 3 (COM'T>
106
107
106
109
110
1 1 1
112
113
114
115
116
117
1 18
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
10
02
02
09
10
03
06
01
02
09
10
10
02
04
05
04
02
10
02
04
04
05
06
01
05
05
02
05
02
04
04
05
05
02
05
07
05
04
ID
NY
NJ
CA
WA
PA
ur
CT
NY
AZ
OR
WA
NY
AL
Ml
FL
NJ
ID
NJ
AL
FL
IL
TX
NH
Ml
Ml
NJ
MN
NJ
FL '
CA
Ml '
OH :
NY 1
MN 1
IA 1
IN I
FL 1
Bunker Hill Mining ft Metallurg
Hudson River PCBs
universal Oil Products!Chen Oiv)
Aerojet General Corp.
Com Bay. South Tacoma Channel
Osborne La nan 11
Portland Cenent (Kiln Oust 2 ft 3)
Old Southington Landfill
Syosset landFrlt
Nineteenth Avenue Landfill
Teiedyne wah Chang
Mrdw»y LantfftM
Sinclair Refinery
Moworay Engineering Co.
Spiegel berg, Landfil I
Miami Drum Services
Reich Farms
Union Pacific Railroad Co.
South Brunswick Landfill
Ciba-Geigy Corp. (MeIntosh Plant!
Kassauf-Kimerimg Battery
wauconda Sand ft Gravel
Bailey waste Disposal
Ottati- ft Coss/Kingston Steel Drue
Ott/Story/Cordova
Therao-Chem. inc.
NL industries
St. Regis Paper Co.
Rlngwood Mines/Landfill
Whitehouse Oif Pits
Hercules 009 Landfill
velsicoi Chemical (Michigan)
Sum*ft Nation*!
Love Canal
Pine Bend Sanitary Landfill
Lawrence Totftz Far*
F.sher-Caio
Pioneer Sand Co.
Smeltery i Me F S
Hudson River R
Cast Rutherford V S
Rancho Cordova, F
Tacotia V R F S
Grove City v S
Salt Lake City V S
South ing ton s
Oyster Bay
Phoenix s
Albany •
Rent R
we 1 1 sv i 1 1 e R
Creenvi lie R
Green Oak Township • R
Miaai R
Pleasant Plains R
Pocateiio
South Brunswick v F
Mclntosh
Tampa V B F
Wauconda R
Bridge City R
Kingston V R F S
Oalton Township R f
Muskegon
Pedricxtown '
Cass Lake s
Rfngwood Borough v F
Whftenouse R
Brunswick
St. Louis y $
Oeerfieid Township R
Niagara Falls R
Dakota County
Camanche
La Porte
Warrfngton R
I
0
S
s
O
0
0
0
I
0
0
I
0
1
0
0
0:
STATES' OCSIGNATED TOP PRIORITY SITES
• — — —• • •— • —-«—• • ^ w • vr r r» i WV« i I ¥ W ff I •» 0
VOLUNTARY OR NEGOTIATED RESPONSE:
FEDERAL ENFORCEMENT; ^^
ACTIONS TO BE DETERMINED.
R • FEDERAL AND STATE RESPONSE:
* - STATE ENrORCTMEMT; '
IMPLEMENTATION ACTIVITY UNDERWAY., ONE OR MORE OPERABLE
ONE OR MORE OPERABLE UMTS CaMTLETCO. OTHC ^
IMPLEMENTATIOII ACTIVITY CONfUTEff FOR ALL
-------
21082
Federal Register / Vol 51. No. Ill / Tuesday. Jane 10. 1986 / Rules and Reo..la,.nn,
NPL EPA
RANK RC ST SITE NAME ••
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP 3 (CON'T)
l'4'i 05 HI Springfield Township Dump
IU5 03 PA Hranica Landfill
I'i6 Oi4 NC Martin Marietta, Sodyeco. Inc.
IU7 OU FL Ze II wood Ground Water Contain
iU8 05 Ml Packaging Corp. of America
109 U5 wi Muskego Sanitary Landfill
150 02 NY Hooker (S Area)
Oavisburg
Buffalo Township
Charlotte
Ze 1 1 wood
Filer City
Muskego
Niagara Falls
R
0
V
F
V F
F
F S
0
GROUP 4
151 03 PA Lindane Dump
152 08 CO Central City-Clear Creek
'53 02 NJ Ventron/veisicol
10U ou FL Taylor Road Landfill
>55 01 Ri western Sand * Gravel
156 OU SC Koppers Co.. inc (Florence Plant)
157 02 NJ Maywood Chemical Co.
158 02 NJ Na sco lite Corp.
159 05 OH industrial Excess Landfill
160 06 OK Hardage/Crmer
161 05 Ml Rose Township Dump
162 05 MM waste Disposal Engineering
163 02 NY Liberty industrial Finishing
16« 02 NJ Km-Buc Landfill
165 05 OH Bowers Landfill
166 02 NJ Ctba-Geigy Corp.
167 05 Ml Butterworth 12 Landfill
168 02 NJ American Cyanamid Co.
169 03 PA He leva Landfill
1 70 02 NJ Ewan Property
171 02 NY Batavia Landfill
IT? S5 MN Boise Cascade/Onan/Medtronies
173 01 RI LftRR. Inc.
17H OU FL NW 58th Street Landfill
175 02 NJ Del i (ah Road
176 03 PA Mill Creek Dump
Harrisor Township
Idaho Springs
wood Ring* Borough
Seffner
Burri 1 Ivi I le
Florence
Maywood/Rochel la Pk
MI i ivi i ie
Uniontown
Cr i ner
Rose Township
Andover
Farningdale
Edison Township
Ci rclevi i la
Tons River
Grand Rap i da
Bound Brook
North Whitehal I Twp
Shamong Township
Batavia
Fridley
North. Smithfieid
Hia lean
Egg Haroor Township
Erie
0
R
V R S
Vr
R S
S
R
R S
R
V R F S
V S
V R F
V F
V F
F
V S
V R F
R
r
S
S
R
R
0
0
0
1
0
0
0
0
STATES' DESIGNATED TOP PRIORITY SITES
D = ACTIONS TO BE DETERMINED.
« = iUr4MENTATION ACr|V'TY UNDERWAY. .ONE OR MORE OPERABLE UNITS-
0 = ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BE UNDERuIv!
C = .MPLEMENTAT.ON ACTIVITY COMPLETED FOR ALL OPERATE UN??! '
-------
Federal Register / Vol. St. No. in / Tuesday. |aue 10. 1988 / Rales and Regulations
21083
NPL EPA
RANK RG ST SITE NAME .»
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP • rcoN'ri
177 02 NJ Glen Ridge Radium Site
178 02 NJ Montciair/Wesc Orange Radium Site
179 OU FL Sixty-Second Street Dump
180 05 Ml C4M LandfiII
18' OU NC Ce»anese(Sheiby Fiber Operations)
182 02 NJ Metaitec/Aerosystems
18J 05 wi Schmaiz Dump
10U 05 HI Motor Wheel, Inc.
185 02 NJ Lang Property
186 06 TX Stevco. rnc.
187 02 NJ Sharkey Landfill
158 09 CA Selma Treating Co.
169 06 LA Cieve Reber
t90 05 IL veisicol Chemical (Illinois)
191 05 HI Tar Lake
192 02 NY Johnstown City Landfill
19J OU NC NC State u (Lot B6. Farm unit 11)
19" 08 CO Lowry Landfi ti
195 05 MN MacGi11is » Gibbs/BelI Lumber
196 03 PA Hunterstown Road
197 02 NJ Combe Fill North Landfill
198 01 HA Re-Solve, inc.
199 02 NJ Coose Farm
200 OU TN veisicol Chem (Hardeman County)
cren Ridge R
Monte lair/w Orange R
Tampa R
Utica R
She toy 0
frank Iir 60rough R
Hsrri son R
Lansing 0
Penberton Township F
waskom -8 F
Parsippany Troy HI* R
Seine F
Sorrento V R
Marshall R
Mancerona Township' f
Town of Johnstown 0
Raleigh 0
Arapshoe County V »
Me* Brighton R S
Straban Township R F
Mount 011we Twp R
Dartmouth R F
Plwmstead Township V R F S
0
0
0
0
r
C
0
I
0
I
o
0
CROUP
201
202
203
201
205
206
207
208
209
02
OK
OK
02
05
07
02
01
01
NY
FL
SC
NJ
WI
KS
NJ
Rl
MA
York Oi 1 Co.
Sapp Battery Salvage
wane hem, inc.
Chemical Lea man Tank Lines, Inc.
Master Disposal Service Landfill
Doepke Disposal Site (Hoiilday)
Florence Land Racontourlng LF
Davis Liquid Waste
Charles-George Reclamation Lf
Metre
Cottontfafe
Burton
Bridgeport
»rocfcf!eld
jetmcon County
Florence Towwshfp
SaitnTleld
Vynoebo rough
R
R
V
R
R
R
R
R
F
0
F
S
r
o
0
0
0
•: STATES' DESIGNATED TOP PRIORITY SITES
f: V = VOLUNTARY OR NEGOTIATE!! RESPQME;
F = FEDERAL ENFORCEMENT;
0 - ACTIONS TO BE DETERMINED.
• m fCDCRAL AND STATE RESPONSE;
S - ItATE CNFORCERCNT;
8: I s IMPLEMENTATION ACTIVITY UNBCIMtV, (ME OR MORE OFERAfftE UlffTS;
0 = ONE OR MORE OPERABLE UNITS COMVEETED, OTHERS MAY BE UMOCRWAV;
C = IMPLEMENTATION ACTIVITY COMfLETEO F0» ALL OPERABLE UlffTS.
-------
Federal Register / Vol. 51. No. in / Tuesday. |une 10. 1986 / Rules and Regulation-,
NPL EPA
RANK RC sr SITE NAME •.
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
CROUP 5 (CON'TI
RESPONSE CLEANUP
CATEGORY* STATUSt
210 02 NJ King of Prussia
?' t 0) VA Chisman Creek
2)2 05 OH Nease Chemical
21 ) 06 CO Eagie Mine
215 02 NJ Chemical Control
2i6 0«4 SC Leonard Chemical Co.. inc
2J7 05 OH Aided Chemical ft ironton'coke
218 05 Hi verona we) I Field
219 07 MO Lee Chemical
220 01 CT Beacon Heights Landfill
?2i 0* AL Stauffer Chem (Cold Creek Plant)
^22 05 MN Buri.ngton Northern (Bramerd)
22) 05 Ml Torch Lake
22U 01 Rl Central Landfill
225 03 PA Maivern TCE
??6 02 NY Facet Enterprises, inc.
227 03 OE Delaware Sand * Gravel Landfill
228 03 PA MW Manufacturing
229 OH TN Murray-Ohio Dump
2)0 05 IN Envirochem Corp.
2)1 05 IN MlOCO 1
2)2 05 OH South Point Plant
2)3 03 PA whitmoyer Laboratories
oJt SlJ -L Colen|an-Evans wood Preserving Co.
2)5 01 PA Shr.ver's Corner
2)6 03 PA Dorney Road Landfill
2)7 05 IN Northside Sanitary Landfill. Inc
218 ou FL Florida Steel Corp.
239 05 IL Pagei's Pit
2UO 05 MN U of Minnesota Rosemount Res Cent
2UI 05 MN Freeway Sanitary Landfill
2U2 09 A2 Litchf.eid Airport Area
2U3 02 NJ Spence Fans
2uu 06 AR Mid-south wood Products
?!*] 2S US Newsom Brothers/Old Reichhold
2U6 09 CA Atlas Asbestos Mine
2U7 09 CA Coatmga Asbestos Mine
•• STATES' DESIGNATED TOP PRIORITY SITES
t\ V = VOLUNTARY OR NEGOTIATED RESPONSE- ft =
F = FEDERAL ENFORCEMENT; "«•»•*. «
0 = ACTIONS TO BE DETERMINED.
Wins low Township v F
York County R
Ca i am _
oo i cm y
Mmtur"/Redcl i ff R
Wayne Township R
Elizabeth R
Rock Hill
1 ronton a c
Battle Creek R
Liberty
Beacon Falls - R1
Bucks v
Bra i nerd/Baxter v
Houghton County
Johnston - y f
Ma i ve rn
E | IR i ra ~ v F
New Castle County R
vai ley Township
Lawrenceburg y
Zionsvi lie V R F
South Point F
Jackson Township
Whitehouse R f
Straban Township R F
Upper Macungie Twp R
Zionsvi i ie r
Indian town y
Rockford
Rosenount
Burnsvi i ie
Goodyear/ Avondale F
Plunstead Township v R
Mena r
Co I uiRb i a R
Fresno County R
Coa I i nga R
FEDERAL AND STATE RESPONSE:
STATE ENFORCEMENT;
S
s
S
D
D
S
0
S
s
D
S
S
D
S
D
S
•^^••^^H
I
0
0
0
0
I
0
0
0
0
0
I
0
0
0
0
I
0
IMPLEMENTATION ACTIVITY UNDERWAY,.ONE OR MORE
-------
Federal Register / V0|. 51. No. in / Tuesday. June 10. 1986 / Rules and Re?ula,,ons
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CI TV/COUNTY
RESPONSE CLEANUP
CATEGORY^ STATUS*
CROUP *> (CON'T)
218 01 FL Brown Wood Preserving
249 02 NY Port Washington Landfill
250 09 IN Columbus Old Municipal Lndfll
Live Oak V F
Port Washington R
Columbus
CROUP 6
251
252
253
25<4
255
256
257
258
259
260
261
262
263
264
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
inc.
02 NJ Combe Fill South Landfill
02 Nj jis Landfi I i
02 NY Tronic Plating Co., Inc.
03 PA Centre County Kepone
05 OH Fields Brook
01 CT Solvents Recovery Service
08 CO Woodbury Chemical Co.
02 NJ waidick Aerospace Devices,
01 MA Hocomoneo Pond
04 KY Oistier Brickyard
02 NY Rama po Landfill
09 CA Coast Wood Preserving
09 CA South Bay. Asbestos Area
02 NY Mercury Refining, inc.
2U FL H°"'n9swortn Soideriess Terminal
02 NY Olean well Field
00 FL Varsol Spi I I
05 MN Joslyn Manufacturing ft Supply Co
06 CO Denver Radium Site
04 FL Tower Chemical Co.
07 MO Syntex Fac i I ity
08 MT MI i i town Reservoir Sediments
05 MN Arrowhead Refinery Co.
10 OR Martin-Marietta Aluminum Co.
08 CO Uravan Uramom (union Carbide)
02 NJ Pijak Farm
02 NJ Syncon Resins
05 MN Oak Grove Sanitary Landfill
09 CA Liquid Cold Oil Corp.
09 CA Purity OH Sales. Inc.
Chester Township R
Jamesburg/S. Brnswck
Farmmgdale
State College Boro
Ashtabuia R
Southmgton
Commerce City - R
Wall Township R
westborough R
West Point R
Ramapo y
Ukiah
AI v i so R
Coionie y
Fort Lauderdale R
Olean y R
Miami R
Brooklyn Canter v
Denver R
Clermone R
Ve rona y
Mi 11 town R
Hermantown R
The Oallei v
Uravan
Piumscead Township v R
South Kearny R
Oak Grove Township R
Riehmond
Malaga R
•: STATES' DESIGNATED TOP PRIORITY SITES-
I: V = VOLUNTARY OR NEGOTIATED RESPONSE; R
F - FEDERAL ENFORCEMENT; ' S
D = ACTIONS TO BE DETERMINED.
AND STATE RESPONSE;
STATE ENFORCEMENT;
«: I = IMPLEMENTATION ACTIVITY UNOERWAV, ONE OR MOW OPERABLE UMITQ.
0 = ONE OR MORE OPERABLE UNITS CWWM.ETED. -OTHERS MAY BE UNDERuIv
C * IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UN ITS. '
0
I
I
0
0
I
0
I
I
I
0
-------
21086
Federal Register / Vol. 51. No. Ill / Tuesday. June 10. 1986 / Rules and Regulations
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY! STATUS*
CROUP 6 (CON'T)
?81
282
233
28U
285
286
287
288
?89
?'JO
291
292
293
29U
295
296
297
293
?99
300
01
OU
02
01
02
OU
05
01
03
05
05
OU
01
01
02
05
05
05
02
02
NH
FL
NJ
ME
PR
FL
OH
MA
PA
IN
Wl
AL
MA
MA
NJ
Wl
Ml
MN
NJ
NJ
Tinkham Garage
Alpha Chemical Corp.
809 Creek Farm
Saco Tannery Waste Pits
Front era Creek
Pickettvi I le Road Landfill
Al sco Anaconda
Iron Horse Park
Pa imerton Zinc Pile
Nea I ' s Landfill (Bloomington)
Kohier Co. Landfi 1 1
interstate Lead Co. (ILCO)
Si i resim Chemical Corp.
we I i s C&H
Chemsol, inc.
Lauer i Sanitary Landfill
Petoskey Municipal Wen Field
Union Scrap
Radiation Technology, Inc.
Fai r Lawn Wei I Field
Londonderry
Gal low&y
Howe II Township
Saco
Rio Aba jo
Jacksonvi I le
Gnadenhutten
B i 1 1 e r i ca
Pa imerton
Bloom ing ton
Kohier
Leeds
Lowe i i
Woburn
Pi scatavay
Menomonee Fa 1 1 s
Petoskey
Mmneapol is
Rockaway Township
Fa i r Lawn
V
V
V
V
V
V
V
' V
V
V
F S
R
R
F
F
S
R
F
. F
"
R F S
R S
F
S
S
F
S
S
s
0
0
0
0
0
CROUP 7
301
302
30J
304
305
306
307
308
309
310
311
312
313
05
05
10
03
05
05
05
02
02
05
03
10
07
IN
MN
WA
PA
IN
Wl
Wl
NJ
NJ
IN
MO
10
IA
Mam Street Wei 1 Field
Leni i i ier/Manhato Site
Lakewood Sue
Industrial Lane
Fort Wayne Reduction Dump
Onaiaska Municipal Landfill
National Presto Industries, inc.
Monroe Township Landfill
Rockaway Borough well Field
Wayne waste 01 1
Mid-Atlantic Wood Preservers. Inc
Pacific Hide ft Fur Recycling Co.
Oes Moines TCE >
Elkhart
Lent i i ler/Mankato
Lakevood
Will iams Township
Fort Wayne
Onaiaska
Eau C I a i re
Monroe Township
Rockaway Township
Columbia City
Hermans
Pocatei lo
Oes Moines
V
R
R
R
F
R
R
0
$
R
R F
0
F
R
0
0
o
o
1
•: STATES' DESIGNATED' TOP PRIORITY SITES
»: V = VOLUNTARY OR NEGOTIATED ftCSMNSCi
F » FEDERAL ENFORCEMENT;
0 = ACTIONS TO BE DETERMINCD.
ft - FEDERAL AND STATE RCSPOM8E;
S • STATE ENFORCEMENT;
I = IMPLEMENTATION ACTIVITY UNDERWAY._ONC Oil MOM OPERAOX. UNITS:
0 = ONE OR MORE OPERABLE UNITS COMPLETED. OTMCBS MAY B€ UND€RM*V««
C = IMPLEMENTATION ACTIVITY COMPUTED FOB ALL OPCRAM.E UNITS.
-------
Federal Regi.te, / Vol. 51. No. Ill / Tuesday. |une 10. 1986 / Rules and Reflations
21087
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP 7 (CON'T)
3IU
315
316
317
318
319
320
321
322
323
324
329
326
327
338
329
330
331
332
333
33U
335
336
337
338
339
3MO
3UI
312
3'i3
3U4
3U5
3U6
3U7
318
3«9
350
02 NJ
02 NY
02 PR
05 Ml
05 MN
06 TX
06 TX
07 NE
09 AZ
09 CA
09 CA
09 CA
09 CA
09 CA
09 CA
10 WA
05 IL
05 IL
01 NC
02 NJ
02 PR
09 CA
03 PA
02 NY
10 WA
06 LA
02 NY
02 PR
01 NH
03 MD
05 Ml
02 NJ
03 PA
04 TN
02 NJ
01 MA
02 NY
Beachwood/Berkley Wells
vestal water Supply well U-2
Vega Aita Public Supply Wells
Sturgis Municipal Wells
Washington County Landfill
Odessa Chromium jjri
Odessa Chromium g2 (Andrews Hgwy)
Hastings Ground water Contarnm
Indian Bend Wash Area
San Gabriel Valley (Area 1)
San Cabnel Valley (Area 2)
San Fernando Valley (Area 1)
- — •— »•• "*j \ r*i v*J
San Fernando Valley (Area 2)
San Fernando valley (Area 3)
T.H. Agriculture • Nutrition Co.
Com Bay. Near Shore/Tide Flats
LaSaiie Electric Utilities
Cross Brothers Pail (Pembroke)
Jadco-Hughes Facility
Monitor Devices/lntercircults Inc
upjonn Faci Mty
MCCOII *
Henderson Road
Hooker Chemicai/Ruco Polymer Corn
Colbert Landfill *
Petro-Processors
Applied environmental Services
Bareel oneta Landfi11
Tiboots Road
Sand. Gravel ft Stone
Spartan Chemical Co.
Roebling Steel Co.
East Mount Zlon
AwnicoIa Dump
Vlneiand State School
Grove I and Wei Is
General Motors (Cent Foundry 01v)
R
ft
Berkley Township
Vestal
Vega Aite
Sturgis
Lake Elmo
Odessa
Odessa
Hastings
Scottsdaie/Tempe
El Monte
Baldwin Park Area
Los Angeles
Los Angeles/Ciendaie
C I enda I e
Fresno
Pierce' County
LaSaiie
Pembroke Township
Belmont
wan Township
Ba reel one ta
Ful lerton
Upper Merion Twp
Hicksvilie
Colbert
Scotiandvl I le
Glenwood Landing
Florida Afuera
Barring ton
Elkton
Wyom i ng
Florence R
Springettsbury Twp R
Chattanooga •
Vineland y
Grove I and y R
Massena y
F s
*
0
0
0
0
0
0
D
v R F
0
I
0
I
0
0
s
s
I:
STATES' DESIGNATED TOP PRIORITY SITES
" VOLUNTARY OR NEGOTIATED RESPONSE?
FEDERAL ENFORCEMENT; ""•»*.
ACTIONS TO BE DETERMINED.
R « FEDERAL ANO STATE RESPONSE-
S - STATE ENFORCEMENT; """"*•
-------
21088 Federal Register / Vol. 51. \'o. m / Tuesday [une 10. 1986 / Rules and Regulations
NPL EPA
RANK RC ST SITE MAME • -
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY! STATUS®
CROUP 8
351 OU SC SCRDI Oix.ana
302 05 Ml Roto-finish Co.. Inc.
3^3 05 UN Oimsced County Sanitary Landfill
!Vi 07 MO Quality Plating
3^5 07 MO Fulbrighi Landfill
\'j6 <;3 PA Presque isle
307 02 NJ Williams Property
35fl 02 Nj Renora, inc.
309 02 NJ Oenzer & Schafer x-Ray Co.
16-') 02 NJ Hercules. Inc. (Gibbstown Plant)
361 05 IN Ninth Avenue Dump
36? 10 WA Toftoahi Onims
363 06 Tx Texarkana Wood Preserving Co.
16U 06 AR Cur ley Pit
365 01 Rl Peterson/Puritan, inc.
3*6 07 MO Times Beach Site
367 05 MI wash King Laundry
368 05 MN Wh.tiaker Corp.
369 05 MN NL industries/Taracorp/Coiden
3M 09 CA West inghoosc (Sunnyvale Plant)
)M Ot CT Keiioqg-Deermg Well Field
372 01 M* Cannon Engineering Corp. (CECl
3/3 05 Ml M. Brown Co.. Inc!
37U 02 NY Nepera Chemical Co.. Inc.
375 02 NY Niagara County Refuse
376 OU FL Shervood Medical industries
377 OU AL 01m Corp. (Mclntosh Plant)
378 05 Ml Southwest Ottawa County Landfill
3/9 02 NY Kentucky Avenue well Field
380 02 NY Pasley Solvents ft Chemicals, inc.
381 02 NJ Asbestos Dump
382 OU KY Lee's Lane Landfill
383 06 AR Fnt industries .
38U 05 OH FultZ Landfill
335 OU FL Tn-Clty Oil Conservationist. Inc
386 05 OH Cosnocton Landfill
387 01 Rl Oavis (CSR) Landfill
388 03 PA Lord-SAope Landfill
Cayce R F S 0
Kalamazoo o Q
Oronoco o
Sikeston o
Springfield o
Erie R
Swam ton R
Edison Township V F 0
Bayville v S
Gibbstown Q
Ca ry R'
Brush Prairie R o
Texarkana . o
Edmondson F
Lincoln/Cumberland ' o
Tines Beach R 0
Pleasant Plains Twp R
Minneapolis 5
St. Louis Park s I
SunnyvaIe D -
Norwalk R
Bridgewater R $
Grand Rapids n
Maybrook y
Wheatfieid 'o
Del and o
Mclntosh o
Park Township y s
Horseheads R
Henpstead o
Mi 11ington y F .
Louisvi Me V F o
Walnut Ridge V F c
Jackson Township R |
Taapa R F o
Franklin Township F o
Clocester o
Clrard Township V S 0
f:
STATES' DESIGNATED TO* PRIORfTV SITES
V = VOLUNTARY OR NEGOTIATED RESPONSE;
F = FEDERAL ENFORCEMENT;
0 = ACTIONS TO BE DETERMINED.
R « FEDERAL AND STATE RESPONSE:
S - STATE ENFORCEMENT; .
I = IMPLEMENTATION ACTIVITY UNDERWAY. ONE M MORE OPERABLE (WITS'
0 = ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BE UNDERWAY-
C = IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
-------
NPL EPA
RANK RC ST SITE NAME •
Federal Register / Vol 51 No in / Tuesday June 10 1986 / Rules and Re«ulatic
NATIONAL PRIORITIES UST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP 8 (CON'T)
389
3 '70
391
392
393
39U
395
396
397
398
399
UOO
to
05
06
01
05
01
01
04
05
05
03
03
WA
Wl
TX
HA
Ml
PA
NH
SC
IL
HI
PA
DE
FMC Corp. (Yakima .Pit)
Northern Engraving Co.
Soutn Cavalcade Street
PSC Resources
Forest waste Products
Drake Chemica I
Kearsarge Metallurgical Corp.
Palmetto Wood Preserving
Pecersen Sand ft Crave I
Clare water Supply
Ha vert own PCP
New Castle Spi 1 1
Yakima
Sparta •
Houston
Palmer
Ot i svi I le
Lock Haven
Convay
Oixianna
Liberty vi I le
Clare
Haverford
New Castle County
V
R
R
R
F
s
f
T
F
0
0
0
CROUP" 9
(401 08 MT I da no Pole Co.
<<02 05 IN Lake Sandy Jo (M&M Landfill)
<<0) 05 IL Johns-Manvi I le Corp
UOU 05 Ml Chem Central
UU5 05 Ml Novaco industries
'1116 05 MN wmdom Dump
no7 02 NJ Jackson Township Landfill .
M08 05 IL NL Industries/Taracorp Lead Smelt
U09 05 HI KtL Avenue Landfill
UIO 10 WA Kaiser Aluminum Mead works
411 05 MN Perham Arsenic Site
U12 05 Ml Charievoix Municipal Well
U1J 02 NJ Montgomery Township Housing Dev-
il IU 02 NJ Rocky Hill Municipal Well
1*15 02 NJ Cinnammson Ground Water Con tan in
U16 02 NY Brevster well Field
U17 02 NY vestal water Supply well 1-1.
U18 OU NC Bypass 601 Ground Water Cental I IT
<419 07 MO Solid State Circuits. Inc.
U20 07 NE Waver I y Ground Water Contanfrr
U21 09 CA Advanced Micro Devices, Inc.
Bozeman
Gary R
waukegan F
Wyoming Township $
Temperance R
Wmdom
Jackson Township
Granite City V F S
Oshtemo Township F
Mead v
Perham R
Charievo i x R
Montgomery Townehtp- R
Rocky Hill Borough R
Ci'nnaminson Township R
Putna* County- R
Ve«t*.l R
Concord
Repulri Ic R F S
waverly R
Sunnyvale
0
i
•: STATES' DESIGNATED TOP PRIORITY SITES
t: V VOLUNTARY OR NEGOTTATEflrRESPONSE^
F FEDERAL ENFORCEMENT;
D ACTIONS TO BE DETERMINED.
f: I
0
C
R. - FEDERAL AND STATE RESPONSE;
S-- STATE ENFORCEMENT;
UNOERUAVV ONE. OR" NOftC OPERA8tr WITTS-
, r OPERABLE UITITS- CflSPLETEO^ OTHEKS: MAV B
IMPLEMENTATION ACTIVITY COHftETEO fOH ALL OPERABLE
-------
21090
Federal Renter / Vol. 51. No. ill / Tuesday. June 10. 1966 / Rules and Regulations
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP 9 (CON'T)
U22 05 MN NuttiPQ Truck k Caster Co.
1)23 02 NJ U.S. R.ldium Corp.
'it'll 06 TX Highlands AC id Pit
03 PA Resm Disposal
08 Mr L>t)t>y Ground water Contamination
OK kV Newport Dump
«28 03 °A Moyors Landfill
'i29 OU FL Parramore Surplus
«30 01 NM Sav.tge Municipal Water Supply
UJl 05 IN Pocr Farm
'i)2 03 PA Brown's Bdttery Breaking
H33 02 N< SMS instruments. Inc.
11314 05 Ml He-JOHim industries
U35 06 TX United Creosotmg Co.
'<36 02 NY Byron Barrel * Drum
U37 08 WY Baxter/Union Pacific Tie Treating
it IB 02 NY Anchor Chemicals
U39 05 Ml waste Management-Mich (Holland)
UUO 06 TX Norm Cavalcade Street
uui 02 NJ Sayrevilie Landfill
Ud2 01 NH Dover Municipal Landfill
UU3 02 NY Ludiow Sand ft Gravel
iii«b 05 wi City Disposal Corp. Landfill
UU5 02 NJ Tabernacle Drum Dump
UU6 02 NJ Cooper Road '
UU7 ,07 MO Minker/Stout/Romaine Creek
'i'i8 01 CT Yaworski waste Lagoon
<<(49 03 wv Lee town Pesticide
-------
Federal Register / Vol. 51. No. Ill / Tuesday, fune 10. 1986 / Rules and Regulations 21091
NPL EPA
RANK RC ST SITE NAME' •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY! STATUS*
CROUP TO (CON'T)
i»55 02 NJ Mannheim Avenue Dump
U56 05 IN Neai's Dump (Spencer)
i»57 02 NY Fulton Terminals
•»58 03 PA westmghouse EJevator Co. Plant
059 01 NH Auburn Road Landfill
U60 03 WV Fike Chemica-l, Inc.
U61 05 MN General Milis/Henkel Corp.
1*62 05 OH Laskin/Poplar Oil Co.
U63 05 OH Old Mi I I
i*6<« 07 KS Johns' Sludge Pond
(*65 05 wi Scoughton City Landfill
166 09 CA Del Norte Pesticide Storage
i*67 02 NJ Oe Rewai Chemical Co.
1*66 03 PA Middietown Air Field
i*69 02 NJ Swope Oi I * Chemical Co.
i«70 ou GA Monsanto Corp. (Augusta Plant)
i*7i 01 NH South Municipal Water Supply Well
U72 01 ME wmthrop Landfill
<*7] 03 wv Ordnance works Disposal Areas.
U7U 06 AR Cecil Lmdsey
U75 05 OH Zanesvi i le wel I Field
U76 02 NY surrern Village well Field
1*77 02 NY Endicott Village Well Field
U78 05 MN Kummer Sanitary Landfill
i«79 05 OH Sanitary Landfill Company ( IWO)
1*80 05 WI Eau Claire Municipal well Field
U81 07 MO Valley Park TCE
<*82 09 CA San Fernando Valley (Area- U)
<*8 J 04 GA Powersviiie Site
K8U 05 MI Grand Traverse Overall Supply Co.
U85 05 Ml Metamora Landfill
1*86 05 Ml Whitehall Municipal Wells
U87 05 MN South Andover Site
1*88 02 NJ Diamond Alkali Co.
i*89 03 VA Avtex Fibers, inc.
U90 05 MI Kentwood Landfill
U91 05 Ml Electrovoice
U92 02 NY Katonah Municipal wall
•: STATES' DESIGNATED TOP PRIORITY SITES
t: V » VOLUNTARY OR NEGOTIATED RESPONSE;: R «
F = FEDERAL ENFORCEMENT; S •
Gal loway Township
Spencer
Fulton
Gettysburg
Londondarry
Nitro
Mmneapol is
Jefferson Township
Rock Creek
Wichita
Stoughton
Crescent City
Kingwood Township
Middfetown
Pennsauken
Augusta
Peterborough
Wmthrop
Morgan town
Newport
Zanesvi I le
Vi I (age of Suffern
¥i I (age of Endicott
Bemidj i
Dayton
Eau Claire
va 1 1 ey Pa rk
Los Angeles
Peach County
Gre.i I ickvi 1 1 a
Metamora
Wh i teha 1 1
Andovar
Newark
Front Royal
Kentwood
Buchanan
Town of Bedford
V F
f S
R
R F
F S
F
S
V R F
R
V F
0
R
F
0
V R F.
V
F S
V F S
F
R
V S
R
R
R
D
R
D
D
R
F
R
R
R-
V R F S
D
V F
0
R
1
0
0
0
0
0
1
o
0
0
0
1
1
1
0
0
0
FEDKRAi. AND STATE. RESPONSFr
STATE ENFORCEMENT;
I = IMPLEMENTATION ACTIVITY JMOERUAtt.. ONE Oft MOflC. CPCRAflLE UNITS';
0 a ONE OR MORE OPERABLE UattTS. OQMPLCTEifc. OtN&Hft MJOhtf UNDERWAY?
C - IMPLEMENTATION ACTIVW COMPLETED KM Ati. OPERABLE UN UTS.
-------
21092
Federal Renter / Vol. si. No. ill / Tuesday. Me 10. 1986 / Rules and RMula,.on.
NPL EPA
BANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
««PONSE CLEANUP
CATEGORY* STATOSO
500
°<
05
02
5
CROUP 10 (CON'T)
OH Buckeye Reclamation
NY Preferred Plating Corp.
s cai rsvi i ••
F^nJd.Je '''
CROUP 11
•
1
0
1
50?
503
506
507
508
509
510
511
512
513
5m
515
516
517
518
519
520
521
522
521
52U
525
06 TX Bio-Ecology Systems, inc.
08 UT Mont ice110 Rad Contaminated
02 NJ woodland Route 532 Dump
05 IN American Chemical Service.
01 MA Sal em Acres
01 VT Old Springfield Landfill
02 NY Solvent Savers
03 VA U.S. Titanium
05 IL Calesburg/Koppers Co
02 NY Hooker (Hyde Park)
05 MI SCA independent Landfill
09 CA MGM Brakes
06 LA Bayou Sorrel I
05 Mi Oueii * Gardner Landfill
10 WA Mica Landfi11
02 NJ El Ms Property
OH KY Distler Farm
10 WA Harbor island (Lead)
nl nu Lemoerger Transport • Recycl
05 OH E.H. Schilling Landfill
05 Ml Cliff/Dow Dump
02 NY Clothier Disposal
03 PA Ambler Asbestos Piles
10 WA Queen City Farms
03 VA L.A. Clarke « Son
inc
Grand Prairie R
Props Montieello R
Woodland Township y R
Griffith F
Salem
Springfield y p
Lincklaen
Piney River p
Calesburg
Niagara FalIs V F
Muskegon Heights
Cloverdale
Bayou Sorrell f
Daiton Township
Mica
Evesham Township R
Jefferson County R f
Seattle
Frankiin Township R
Hami(ton Township R
Marquette F
Town of Granby R
Ambler v R F
Mapie valley y
Spotsyivania County R
ing
e
s
S
s
c
D
D
.0
0
0
0
0
1
•: STATES' DESIGNATED TOP PRIORITY SITES
f. V = VOLUNTARY OR NEGOTIATED RESPOMScT
F = FEDERAL ENFORCEMENT:
0 = ACTIONS TO BE DETERMINED.
0 =
C =
FEDERAL AND STATE.RESPONSE-
STATE ENFORCEMENT? wrwf*E'
-------
Federal Register / Vol 51. No. in / Tuesday. |une 10. 1986 / Rules and Regulations
21093
NPL EPA
RANK RG ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP U (CON'T)
526
527
528
529
530
531
532
5J3
53'«
535
536
riM
538
539
5'iO
<)
-------
21094
Federal Register / Vol. 51. No. Ill / Tuesday, fune 10.1988 / Rules and Hesitations
NPt EPA
RANK RG ST SITE NAME *
NATIONAL MitOJII TIES LIS1 (BV RANK;
ciry/couNTv
RCSPONSC CLEANUP
CATEGORY* STATUS*
CROUP 1? fCON'T)
559 02 NJ Upper Oeerfield Township Sir
560 02 NV Hertel Landfill
561 02 NV Havlland Complex
562 05 MN Adrian Municipal Well Field
563 06 NM AT t SF (ClOviS)
564 07 KS Strother Field industrial Park
565 02 NJ Fried industries
566 02 NY American Thermostat Co.
567 04 TN Lewisfturg Dump
568 05 Hi McCraw Edison Corp.
569 02 NV Cotdisc Recordings, Inc.
570 04 KV Aireo
571 03 PA Metal Banks
572 02 NV Sarney Fam
57) 01 MA Rose Disposal Pit
574 05 OH Van Dale Junkyard
575 Qlt KV B.F. Good rich
576 05 Ml Organic Chemicals. Inc.
577 02 NY voiney Municipal Landfill
578 02 NY FMC Corp. (Dublin Road Landfill)
579 01 MA Sullivan's Ledge-
580 04 KV Smith's Farm
581 02 PR Junces Landfill
582 07 KS 819 River Sand Co.
581 05 IN Bennett Stone Quarry
584 04 FL Muni sport Landfill
585 OU AL Stauffer Che* |LeMoyne Plant)
586 02 NJ MfcT Delisa Landfill
587 06 IX Crystal City Airport
588 04 SC Ceiger (C k M Oil)
589 05 wi Moss-American(«err-McGee Oil Co.1
590 05 wi waste Research fc Reclamation Co.
591 10 OR Could, inc.
592 02 NV Cortese Landfill
593 05 MN St. Louis River Site
59U 05 Ml Auto ion Chemicals, Inc.
595 04 SC Carol awn, inc.
596 07 IA Midwest Manufacturing/North F*r»
Upper Oeerfield Twp,
PieitekiM
Town of Hyde Park
Adrian
Ciovis
Cow fey County
Cast Brunswick Twp
South Cairo
Lewisburg
Albion
Ho I brook
Cat vert City
Phrladelphia
Amen i a
Larmsboro '
Marietta
Celvert City
Crandville
Town of Volney .
Town of »e ley
New Bedford
Brooki
Junces
WitCMta
Bloemfngton
NortA Hiami
Ax i a
Asbury Perk
Crys.ta.1 City
Rantoules
MHvvukee
Can Cfa ire
fortrantf
VI r of Narrovsbura
Se. Louie County
ffaraavzoo
Fare Lawn
R
R
V f
V S
R
0
o
V
v
v
V
f
F S
V
s
V R S
V S
R F
R
V F
R
V F
V
v F
R
R
R f
o
O
v
V
R
v F
V R F
9
S
r
o
o
STATES' DESIGNATED TOP PRIORITY SITES
V s VOLUNTARY OR NCCOT t*IC9 KSPONM;
F = FEDERAL ENFORCEMENT;
D a ACTIONS TO BE DETERMINED.
* • FCDC1WL AMD STATE RESPONSC;
9 ' SMTf ERTMCEHCNT;
I = IMPLEMENTATION ACTIVITY \UtOtfMff, OUT Off MORC OPERABLE WftTS;
0 = ONE OR MORE OPERABLE UNIT* COMnETTO, OTMCWS NAV BE IMOENMAV;
C = IMPLEMENTATION ACTIVITY COMPLETE* FOW ALC. OPERABtE BWPT5.
-------
Federal Register / Vol 51. No. Ill / Tuesday. June 10. 1988 / Rules and Regulations
21095
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS9
CROUP 12 (CON'T)
597
598
599
600
03
05
05
02
PA
Ml
IL
NJ
Berks Sand Pit
Sparta Landfi i i
ACME Solvent (Mornstown Plant)
Pomona Oaks Residential wells
Long swamp Township
Sparta Township
Mornstown
Gal loway Township
V
R
S
R
R
0
1
0
CROUP 13
601
602
603
60it
605
606
607
608
609
610
611
612
613
61U
615
616
617
618
619
620
621
622
623
62U
625
626
627
628
629
OU
05
05
09
09
OU
Ot
05
05
02
03
OU
08
02
05
03
07
05
05
06
08
08
05
02
05
05
02
02
05
•: STATES
t: V
f
FL
MN
MN
CA
CA
FL
ME
Wl
Ml
NY
PA
KY
MT
NY
OH
PA
IA
MN
Ml
TX
CO
CO
IN
PR
Ml
OH
NJ
PR
MN
Hipps Road Landfi 1 1
Long Prairie Ground Water Contain
Waite Park Wei Is
Intel Magnetics
Intel Corp. (Santa Clara Ml)
Pepper Steel at Alloys, inc.
O'Connor Co.
Oconofflowoc Electroplating Co. inc
Rasmussen1 s Dump
Kenmark Textile Corp.
west) me Si te
Maxey Flats Nuclear Disposal
Mouat Industries
Ciaremont Polychemical
Powell Road Landfill
Croydon TCE
vogel Pamt fc Wax Co.
Kurt Manufacturing Co.
Ionia Ci ty Landfi i I
Koppers Co., Inc. (Texarkana Pit)
Lincoln Park
Smuggler Mountain
Wedzeb Enterprises, Inc.
CE Wiring Devices
Avenue "E" Ground Water Con tarn in
New Lyme Landfi il
Woodland Route 72 Dump
RCA Del Caribe
Koch Refining Co./N-Ren Corp.
Duval County
Long Prairie
Waite Park
Santa Clara
Sant'a Clara
Med i ey
Augusta
Ashippm
Green Oak Township
Farnnngda le
westl me
Hill sbo ro
Columbus
Old Bethpage
Dayton
Croydon
Orange City
Fndley
loma
Texarkana
Canon City
Pitkin County
Lebanon
Juana Diaz
Traverse City
New Lyme
Woodland Township
Ba reel one ta
Pine Bend
' DESIGNATED TOP PRIORITY SUES
= VOLUNTARY OR NECOTIATgfrTtttfCStSE: R s
•
V
V
V
V
V
V
V
V
a.
R
R
R
D
0
R F
R
R
R
D
R
R
D
S
R
D
S
S
F
F
F
F •
r s
F
S
R
R S
0
S
-
0
0
0
1
0
1
1
1
FEDERAL AND STATE RCCPONSE;
F - FEDERAL ENFORCEMENT; —
D = ACTIONS TO BE DETERMINED^
S = STATE ENFORCEMENT;
6: I = IMPLEMENTATION ACTIVITY UNDERWAY, ONE OR MORE OPERABLE UNITS:
0 = ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BE UNDERWAY;
C * IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
-------
21096 FederalRegistef / Vol 51. No. ill / Tuesday. June 10. 1986 / Rules and Regulations
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*)
GROUP 13 tCON'TJ
630
631
612
6)3
63U
635
636
6)7
638
639
6'iD
6<41
6U3
6<4U
6'i5
6U6
6(47
6H9
650
03
05
10
05
05
03
03
03
OK
05
06
02
02
03
05
03
03
03
03
02
03
PA
Wl
OR
Ml
Ml
PA
OE
DE
TN
OH
AR
NY
NY
DE
Ml
PA
VA
DE
MO
NY
OE
8 rod head Creek
Fadrowski Drum Disposal
United Chrome Products, rnc.
Anderson Development Co.
Shtawassee River
Taylor Borough- Dump
HaiDy Chemical Co.
Harvey ft Knott Drum. inc.
Cat raway Pits
Big. 0 Campground
Midland Products
RoDmtech. Inc. /Nat iona 1 Pipe
BEC Trucking
Wi idcat Landfi 1 1
Burrows Sanitation
Blosenski Landfill
Rh i neha rt T i re F i re Dump
Delaware City PVC Plant
Limestone Road
Hooker (102nd Street)
New Castle Steel
Stroudsburg
Frank! m
Co rva Mis
Adrian
Howe i i
Taylor Borough
New Castle
K r rkwood
Ca-Mavsy
Kmgsvi 1 le
Ola/Birta
Co. Town or vestal
Town or vestal
Dover
Hartford
West Cain Township
Frederick County
Delaware Cfty
Cumberland
Niagara Fa I Is
New Castle County
R
R
R
R
R
o
• n
V R
V R
V
R
V
F
F
F •
D
r
F
r
F S
0
0
0
o
0
0
0 .
CROUP
651
6W
653
65K
655
656
657
658
659
660
661
662
06 NM united Nuclear Corp.
06 AR industrial Waste Control
09 CA Celtor Chemical works
01 MA Haverhiii Municipal Landfill
OK AL Perdido Ground Water Con tea
02 NY Marathon Battery Corp.
02 NY Coiesviiie Municipal Landfill
OK FL Ye I low Water Road Dump
05 OH Skinner Landfill
OK NC Chemtronics.. Inc.
05 IN MIOCO II
03 MO Kane ft Lombard Street Drums
Church Rock
Fort Smith
Hoc pa
Have mm
PertfCdo
Cord Springs
Town or Coiesvirre
Baldwin
west Che-star
Swanrunoa
Carv
\*mry
Ba-rtlmor*
F
0
V
R
0
R r
R
V t
R r
R
0
0
0
f
0
0
O
•: STATES' DESIGNATED TOP PRIORITY SITES
1: V
= VOLUNTARY OR NEGOTIATED RESPONSE:
R • FEDERAL AND STATT mf
•«*nu«r.
r = FEDERAL ENFORCEMENT;
0 = ACTIONS TO BE DETERMINED.
X • STATE ENFORCCMCNT;
I
IMPLEMENTATION ACTIVITY UNDERWAY. ONE OR MORE OPERABLE
-------
Federal Register / Vol. 51. No. ill / Tuesday. June 10. 1986 / Rules and Regulations
21097
NPL EPA
RANK RC ST SITE NAME •
NATIONAL PRIORITIES LIST (BY RANK)
CITY/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP 1U (CON'T)
663 07 MO Shenandoah Stables
664 10 WA Silver Mountain Nine
665 06 TX Petro-Chemical (Turtle Bayou)
666 05 OH Republic Steel Corp. Quarry
667 06 LA Bayou Bonfouca
6'1-a 09 CA Intel Corp. (Mountain view Plant)
6C9 09 CA Raytheon Corp.
670 05 MN Agate Lake Scrapyard
671 03 VA Saitvilie waste Disposal Ponds
672 01 MA Snpack Landfill
673 03 PA Kifflberton Site
67U 0) MA Norwood PCBs
675 03 MO Middletown Road Dump
676 10 WA Pesticide Lab (Yakima)
677 05 IN Lemon Lane Landfill
678 05 IN Tn-State Plating
679 10 ID Arrcom (Orexler Enterprises)
600 01 NH Coakiey Landfill
681 03 PA Fischer & Porter Co.
68? 09 CA Jibboom Junkyard
683 02 NJ A. 0. Polymer
68U 05 wi wausau Ground Water Contamination
685 02 NJ Dover Municipal Well U
686 02 NJ Rockaway Township wells
687 05 wi Dei avan Municipal Well fU
688 07 MO North-u Drive Well Contamination
689 09 CA San Gabriel Valley (Area 3)
690 09 CA San Gabriel Valley (Area 4)
691 10 WA American Lake Gardens
692 10 WA Creenacres Landfill
693 10 WA Northside Landfill
69U 06 OK Sand Springs Petrochemical Cmpix
695 06 TX Pesses Chemical Co.
696 05 MN East Bethel Demolition Landfill
697 06 TX Triangle Chemical Co.
698 02 NJ PJP Landfill
699 03 PA Craig Farm Druai
700 03 PA voortman Far*
Moscow Ml I it
Loomis
Liberty County
Elyna
Siide11
Mountain View
Mountain View
Fa Irvi ew TownshIp
SaltviIle
Norton/Attleboro
Kimberton Borough
Norwood
Annapel Is
Yakima
Bloom ington
Columbus
Rathdrun
North Hampton
Warminster
Sacramento
Sparta Township
Wausau
Dover Township
Rockaway
Delavan
Springfield
Alhambra
La Puente
Tacoma
Spokane County
Spokane
Sand Springs
Fort Worth
East Bethel Township
Bridge City
Jersey City
Parker
Upper Saucon Twp
R
R
R F
F
F
R
R
R
R F
0
D
R
R S
F
R
R
R
R
R
R
R
R F
R
R
R F
R
R
R
D
0
STATES' DESIGNATED TOP PRIORITY SITES
" VOLUNTARY OR NEGOTIATED RESPONSE;
FEDERAL ENFORCEMENT;
ACTIONS TO BE DETERMINED.
0
C
R
S
FEDERAL AND STATE RESPONSE;
STATE ENFORCEMENT;
r« ACTIVIT* UNDERWAY. ONE OR MORE OPERABLE UNITS-
ONE OR MORE OPERABLE UNITS COMPLETED. OTHERS MAY BEUNOFRUAVI
IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UN??!
I
0
0
0
0
0
0
0
0
0
0
0
0
0
0
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2IOU8
Federal Register A Vol. 51. No. Ill / Tuesday. June 10. 1986 / Rules and Regulations
NPL EPA
RANK RC ST SITE NAME »
NATIONAL PRIORITIES LIST (BY RANK)
CI TV/COUNTY
RESPONSE CLEANUP
CATEGORY* STATUS*
CROUP IS
-'01 05 IL Belvidere Municipal Landfill
102 07 MO Bee Cee Manufacturing Co.
703 03 PA LansOovne Radiation Site
•: STATES' DESIGNATED TOP PRIORITY SITES
*: V s VOLUNTARY OR NEGOTIATED RESPONSE;
r a FEDERAL ENFORCEMENT;
Beividere
Maiden
Lansdowne
R « FEDERAL AND STATE
S « STATE ENFORCEMENT;
R
0
R
RESPONSE;
1
I
0 s ACTIONS TO BE DETERMINED.
9: I * IMPLEMENTATION ACTIVITY UNDERWAY, ONE OR MORE OPERABLE UNITS:
0 = ONE OR MORE OPERABLE UNITS COMPLETED, OTHERS MAY BE UNDERWAY;
C » IMPLEMENTATION ACTIVITY COMPLETED FOR ALL OPERABLE UNITS.
NUMBER OF NPL SITES: 703
IKR Doc. 86-12U03 Filed 6-ft^ft. &4S
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27674 Federal Register / Vol. 51. No. 148 / Friday. August l. 1986 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43CFRPart11
Natural Resource Damage
Assessments
AGENCY: Department of the Interior.
ACTION; Final rule. ^^
SUMMARY: This final rule establishes
procedures for assessing damages to
natural resources resulting from a
discharge of oil or a release of a
hazardous substance and compensable
under either the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1930
(CERCLA). also known as Superfund. or
under the Clean Watar Act (CWA).
F.espon ,i'n,!i!y for preparation of this
rule v;as d.-.lo-jated by the President to
the Department of the Interior by
Executive Order en August 14.1961.
Thia rule is for the use of authorized
FeiI-T3l and State officials referred to in
CERCLA =« "trustees" for natural
resources. Federal trustees are those
management agencies designated as
trustees in subpart C of the National Oil
and Ha7ardous Substances Contingency
Plan (NCP) Stale trustees are
authcnzed representatives of States
who may bring claims under sections
107 and ill of CERCLA, The procedures
in the rule will assist authorized officials
to perform natural resource damage
assessments for use in court actions or
administrative proceedings when
seeking compensation for injuries to
natural resources.
Section 301(c) of CERCLA requires the
promulgation of two types of
regulations, standard and simplified
"type A" procedures, and alternative
"type B" procedures to be used in
individual cases. This rule consists of
the alternative methodologies referred
to as the "type B" procedures. This rule
does not provide guidance for simplified
assessments referred to as the "type A"
procedures. The "type A" procedures
were proposed in a Notice of Proposed
Rulemaking on May 5.1986 (51FR
16636).
Natural resource damage assessments
are not identical to response or remedial
actions (cleanup) addressed by the
larger statutory scheme of CERCLA and
the CWA. Assessments are not intended
to replace response actions, which have
as their primary purpose the protection
of human health, but to supplement
them, by providing a process for
determining proper compensation to the
public for injury to natural resources.
DATES: The effective date of the final
rule is September 2.1966.
The incorporation by reference of
certain publications listed in this rule
was approved by the Director of the
Federal Register and is effective
September 2.1988.
ADDRESS: CERCLA 301 Project. Room
4351. Department of the Interior, 1801 C
Street NW.. Washington. DC 20240
(Regular business hours 7-45 a.m. to 4:15
p.m.. Monday through Friday.)
FOR FURTHER INFORMATION CONTACT:
Keith Eastin. (202) 343-5183: Alison Ling.
(415) 555-8807; David Rosenberger. (202)
343-1301: Willie Taylor (202) 343-7531.
SUPPLEMENTARY INFORMATION: This rule
was issued as a proposed rule on
December 20.1385 (50 FR 52128). with
comments requested by February 3.
1988. The comment period was extended
on February 4.1986 (57 FR 4307), to
February 18.1936. and extended a
second time to March 21.1986 (51 FR
5376).
Throughout this preamble, language
has been extracted from the preamble of
the proposed rule, where such language
is still apprppriate. in order to ensure a
clear understanding of the underlying
principles contained in this final rule.
The contents of this preamble are
listed in the following outline:
I. Background
A. Statutory Background
B. Regulatory Background
C. 'Type A" Regulation*
II. Overview of the Rule
A. Introduction
B. The Natural Resource Damage
Assessment Process
C. Concepts Embodied in the Rule
D. Resource Related Issues
E. Economic Issues
F. Glossary
III. Responses to Comments
A. Revisions to Subpart A
B. Revisions to Subpart B
C. Revisions to Subpart C
D. Revision* to Subpart D
E. Revisions to Subpart E
F. Revisions to Subpart F
C. Revisions to Appendix I
IV. Special Resources
A. The Concept of Special Resources
B. Comments Received
C. Responses to Comments
I. Background
A. Statutory Background
The Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA). 42 U.S.C. 9601 ot
seq.. requires in section 301(c) the
promulgation of rules for the assessment
of damages for injury to. destruction of.
or loss of natural resources resulting
from a discharge of oil or a release of a
hazardous substance for the purposes of
CERCLA and of section 311(f)(4) and (5)
of the Clean Water Act (CWA). also
known as the Federal Water Pollution
Control Act. 33 U.S.C. 1251 et seq.
Section 301(c) of CERCLA states:
(c) (1) The President, acting through
Federal officials designated by the National
Contingency Plan published under section
105 of this Act. shall study and. not later than
two years after the enactment of this Act.
shall promulgate regulations far the
assessment of damages for injury to.
destruction of. or loss of natural resources
resulting from a release of oil or a hazardous
substance for the purposes of this Act and
section 311(0(4) and (5) of the Federal Water
Pollution Control Act.
(2) Such regulations shall specify (A)
standard procedures for simplified
assessments requiring minimal field
observation, including establishing measures
of damages based on units of discharge or
release or units of affected area, and (B)
alternative protocols for conducting
assessments in individual cases to determine
the type and extent of short- and long-term
injury, destruction, or loss. Such regulations
shall Identify the best available procedures to
determine such damages, including both
direct and indirect injury, destruction, or lost
and shall take into consideration factors
including, but not limited to. replacement
value, use value, and ability of the ecosf stem
or resource to recover. •
(3) Such regulations shall be reviewed and
revised as appropriate every two years.
This rule is available for use by
F-jJeral and State authorized officials
acting as trustees of natural resources to
assess damages to natural resources for
purposes of sections 107(a) and lll(a)
and (b) of CERCLA and section 311(f)(4)
and (5) of the CWA. Use of this rule is
optional. The results of an assessment
performed in accordance with this rule
by a Federal authorized official acting
as a trustee will be given the status of a
rebuttable presumption. When injuries
occur to natural resources resulting from
a discharge of oil or release of a
hazardous substance, the Federal or
State agency acting in its role as trustee
may seek, from the responsible party.
damages for those injuries through a
CERCLA or CWA action, or may seek
restoration or replacement costs, in the
case of a release of a hazardous
substance, from the Hazardous
Substance Response Trust Fund.
Section 107(a) establishes liability for
". . . damages for. injury to. destruction
of, or loss of natural resources, including
the reasonable costs of assessing such
injury, destruction, or loss resulting from
such a release." This language is the
basis for seeking damages from
responsible parties. Section 107(0
describes the role of a trustee and
authorizes Federal and State agencies to
assume that role. Section lll(a) and (b)
permit the payi...-nt of claims asserted
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Federal Register / Vol. 51. No. 148 / triuay. .-.ugusi
for injury, destruction, or loss of natural
resources, including the cost of damage
assessments from the Hazardous
Substance Response Trust Fund. Section
311(0(4) of Ihe CWA establishes
responsible party liability for costs
incurred by the Federal or State
governments in the restoration or
replacement of natural resources injured
or destroyed as a result of a discharge of
oil or release of a hazardous substance.
Section 301 [c) of CERCLA specifies
two types of procedures to be
developed. The type A procedures are to
be standard procedures for simplified
assessments requiring minimal field
observation. The type B procedures are
to include alternative methodologies for
conducting assessments in individual
cases.
This rule does not include procedures
for the filing of claims for natural
resource damages against the
Hazardous Substance Response Trust
Fund. Rules for that purpose have been
promulgated by the Environmental
Protection Agency (EPA), at 40 CFR Part
308.
B. Regulatory Background
This rule has been developed under a
court-imposed deadline. Section 301 (c)
of CERCLA required its promulgation by
December 11.1982. By Executive Order
12316. August 14.1981 (46 FR 42237).
responsibility for preparation of the rule
was delegated to the Department of the
Interior. On January 10.1983 (48 FR
1084). the Department issued an
Advance Notice of Proposed
Rulemaking (ANPRM) seeking comment
from the public concerning how to
approach the development of the
regulations. A second Advance Notice
of Proposed Rulemaking appeared on
August 1.1983 (46 FR 34788)
summarizing the comments received
from the January notice. In December
1983. Ihe State of Montana filed suit
against the Department of the Interior
for failure to promulgate the regulations.
That suit was voluntarily withdrawn.
but was followed by two new cases, one
brought by the State of New Jersey and
the New Jersey Department of
Environmental Protection, and the other
brought by the New Mexico Health and
Environment Department, the State of
Louisiana. Public Citizen, the National
Wildlife Federation, and the
Environmental Defense Fund. The court
ruled on December 12.1984. in Store of
New Jersey et al. v. Ruckelshaus et al.
(now Thomas), Cir. No. 84-1668
(D.C.N.I-). that the Secretary had failed
to promulgate the assessment
regulations in a timely fashion. In u
consent order entered on February 5.
1985. the Secretary agreed to undertake
action to adopt the assessment
regulations as expeditiously as possible.
The Secretary agreed to the following:
(1) To publish a notice of proposed
rulemakmg for the "A regulations" on or
before April 4.19SS. and to promulgate
final "A regulations" on or before
August 7,1986.
(2) To publish a notice of proposed
rulemakmg for the "B regulations" on or
before December 20.1985. and to
promulgate final "B regulations" on or
before Aprii 22.1986.
The Department published a Federal
Register notice on January 11.1935.
inviting updated public comment and
suggesting meetings between interested
members of the public and
representatives of the Department
involved in preparation of the
regulations. Comments received in
response to this notice and the earlier
ANPRM's were discussed in the
proposed rule.
The proposed rule was published on
December 20.1985 (50 FR 52126). The
original comment penod was set at 45
days in order to comply with the court-
imposed deadlines cited earlier. The
Department first extended the comment
period to February 18 (51 FR 4397} and
later to March 21.1986 (51 FR 5376). On
February 3,1986. the court modified the
previously-established deadlines. The
modified schedule (51 FR 5376) required
the Secretary to:
(1) Submit to the Federal Register ihe
final type B regulations on or before
June 23.1986: and
(2] Propose for public comment the
type A regulations on or before May 5.
1986. and submit the final type A
regulations to the Federal Register by
October 7.1986. for publication.
This change in deadlines resulted
largely from numerous requests for
extension of time to provide public
comment on the type B proposed rule
and was agreed to by the parties to the
litigation. Comments on the proposed •
type B regulations are discussed at
length in section III of this preamble.
C. "TypeA"Regulations
This final rule establishes the overall
administrative process for conducting
natural resource damage assessments
and specifically provides the alternate
methodologies referred to as the tjpe B
procedures descnbed in section
301(c)(2)(B) of CERCLA. No guidance is
provided in this rule regarding type A
procedures or for choosing between a
type A and a type B assessment.
The Department proposed initial t> re
A procedures on May 5,1986 (51 FR
16636). The procedures are applicable
only to coastal and marine
en'.ironments At a later date, the
Department may expand these
procedures or develop new systerrs to
cover other ecosystems, natural
resources, and different types of
discharges and releases. Formulation of
the type A procedures was dependent
upon development of the concepts
generally applicable to all natural
resource damage assessments. As a
result, the type A procedures have
required more time lo develop than the
type B procedures. The proposed type A
procedures are also proposing to arr.ar.d
certain procedural sections of this final
rule. These proposed changes are to
allow the type A procedures to be
incorporated into the overall natu-.il
resource damage assessment proc-ss.
These proposed charges will be
incorporated as the type A regulations
are issued in final form.
II. Overview of the Rule
A. Introduction
The final rule provides a process for
determining proper compensation to tha
public for injury to natural resources. II
stresses the need for a planned
approach to natural resource damage
assessments and allows active
involvement of both the public and
potentially responsible parties
throughout the process. However, the
final authority for all decisions m the
assessment process rests with the
authorized official. The rule seeks a
balance between controlling the
potential costs of assessments and i
need for flexibility in designing the
assessments. The rule also specifics the
procedural steps to be taken in any
natural resource damage assessment
process peformed pursuant to this rule.
Although the rule provides objectives
and critena for selecting methodologies
for making injury and damage
determinations, it does not provide
specific procedures for implementing
these methodologies. A flexible rule is
necessary because of the multitude of
resources, ecosystems, and oils and
hazardous substances, as well as the
need to allow the use of evolving
scientific and economic methodologies.
An evaluation of currently available
techniques applicable to the various
phases of a natural resource damage
assessment is contained in various
technical information documents. These
technical documents are:
• Type B Technical Information
Document, tajury to Fish and Wildlife
Species:
• Tipe B Technical Information
Document: Aoplication of Air Mo-J.i-ls 10
Natural Resource l.-|ury Assessme-.i.
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27676
Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
• Type B Technical Information
Document: Guidance on Use of Habitat
Evaluation Procedures and Suitability
Index Models for CERCLA Application;
• Type B Technical Information
Document: Approaches to the
Assessment of Injury to Soil Arising
from Discharges of Hazardous
Substances and Oil; and
• Type B Technical Information
Document: Techniques to Measure
Damages to Natural Resources.
These technical information
documents are being prepared in
conjunction with this rule to ensure that
the steps and objectives outlined in the
rule are feasible and to provide more
specific technical information to those
performing assessments, interested
members of the public, and potentially
responsible parties. These documents do
not constitute regulatory guidance nor
are they required to be followed to
obtain the rebuttable presumption. The
documents may be obtained through the
CERCLA 301 Project office. Availability
of these information documents in final
form will be the subject of a future
notice in the Federal Register.
BILLING CODE 4310-10-M
-------
Chart I Icontlnied)
duct I
natural Resource Onto* Assessment
Subpart B - PKEASSESSMPff
In'tlatlon of process
{$ 11.201 Hotltlcatlon and
detection)
Decision on whether
emergency exists
(S 11.21: Bwigency
restorations)
Detenninatlon of
whether to proceed
witl) • damage assessment
(ff ll.2J-ll.25i
screen)
Suhpart C - ASSESSMMT PUN
planning for the assessment
(SS 11.30-11.32: Assessment Plan)
Decision on A or B
<$ 11.33: Dacidlnj between a
Type A or Type B assessment)
potential Injury to
Resource, Suspected
CCfCLA or OA Source
Motif
Bucgency
Yes
cation
Ha .
{•reassessment Screen
lit*
Conf I ni presence In resoirce
lIYU.34i Ctonf innatlon of exposure)!
ttot Conflraed
Restoration coot* or use
Era
Detec.ln.tlcn)
Assessment Plan
(Public Review
and
type Aor type B
Connotation of Exposure
Ccontnlc Methodology
Determination
Type B
(Sia^pert C)
(oontlrued)
t. - TWe
Datenlnt whether an injury
has occurred that Is linked
to ceROA or CtA release
(I 11.61i Central)
(f 11.621 Injury definition)
(f 11.63i Path-ay deteralnatlon)
(f 11.641 Ttstirg am) (anvllng w
'Review of planned wUiodologles,
espaclally Econcralc Hethodology
Dauiailnatlon. In light of results
of Injury Datecninetion phase
(f 11.32(f )i A»se«»»ent Plan)
Injury Deteo«inatlon
of
Assessment Plan
(Public Review
and Comment 1
CEBCLA or O» Injury
Hoe Continual
Quantification of effects
rf discharge or release (f 11.10: General)
(f 11.111 Service reduction
quantification)
IS ll.lli Baseline services
reooverablllty
Quantification
Estimate of diminution of value
or restoration or replacement costs
If 11.801 General)
D) ,| ii.Bli Restoration methodology)
If 11.82: Restoration Hathodoloay Plan:
public Review and Oonnnt)
(f 11.831 Use value mthodologles)
If 11.841 implementation guidance)
Subnart P -
Dnvaqe Datetnlnatlon
|| 11.90: Wport of Assessment)
IS 11.911 DeMnd)
IS ll-»2i Resioratlon account)
If ll.»J» tostoretlon Plan: )
I teoort ot Assessment I
I post-aascssront I
'Restoration Plan
(Public Review
and Correntl
BILLINQ CODE «»1»-1B-C
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27678 Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
B. The Natural Resource Damage
Assessment Process
Chart I provides an overview of the
natural resource damage assessment
process embodied in the rule. This
sdction will briefly discuss the major
steps m the process. A more detailed
discussion of the major issues pertaining
to this process is contained in Sections
C and D cf this overview of the rule
Initiation of Process—A. natural
resource damage assessment begins
with the process set forth in the NCR
The NCP. in 40 CFR 300.52(d) and
300.62(d), provides for notification by
the lead agency to Federal or State
agencies authorized to act as trustees
when a potential natural resource injury
may evst. In instances where a Federal
or State official first identifies a possible
iri|iicy to a resource for which a Federal
or S'ate agency may act as a trustee
under CERCLA. and suspects a CERCLA
or CWA covered discharge or release as
the source, the official is directed to the
procedures in the NCP for reporting the
discharge or release.
Emergency Restorations—Section
lll(i) of CERCLA provides authority for
emergency restorations. The rule:
defines an emergency: requires that the
emergency be reported to the National
Response Center allows for certain
emergency actions to be taken in the
event the lead response agency or
potentially responsible party is not
taking sufficient action: and upon
completion of the emergency
restoration, returns the authorized
official to the natural resource damage
assessment process.
Pivassessment Screen—Any
assessment actions, other than
emergency actions, begin with a
preassessment screen to determine
whether the discharge or release
lustifies a natural resource damage
assessment. This screen is viewed as a
"desk top" review of existing data with
a minimal amount of Held work and
should be capable of being completed in
a matter of days.
A determination is required upon
completion of this screen. The decision
to proceed beyond this screen must be
based upon a preliminary finding that
the discharge or release was covered by
CERCLA or the CWA: it could have
resulted in some injury to the resource:
the resource potentially injured and the
extent of potential injury are of concern
to the authorized official; and the
authorized official has reason to believe
that the potential benefits outweigh the
potential costs of performing an
assessment.
The preassessment screen proceeds in
steps from preliminary identification of
the substance discharged or released
and its source, to initial estimates of the
pathway for purposes of identifying any
resources that may be impacted, to
identifying important resources tli.it may
justify further assessment. This
preassessment screen should
coroplumpnt rather than duplicate any
equivalent procedure that may already
be used by Federal and Stale agencies
to screen for potential resource
damag<>s It should permit the authorized
official, based upon previous agency
experience or similar incidents involving
such resources, to begin the process of
identifying and deriving cost estimates
on a very preliminary basis. It should
not duplicate or repeat information
gathered by the (pad agency or by other
parties as part of the response action.
Existing and previously gathered
information is sufficient so long as it is
adequate to make the appropriate
determinations. Moreover, in conducting
assessments pursuant to this rule, all
activities of the authorized official
should be closely coordinated with the
lead agency undertaking response work.
If the preassessment screen results in a
determination that a natural resource
damage assessment is appropriate, the
next phase is to prepare an Assessment
Plan. However, if the preassessment
screen results in a determination that a
natural resource damage assessment is
not appropriate, no further assessment
actions are to be taken and no
assessment costs will be recovered.
Assessment Plan—All decisions on
the selection of the methodologies.
including, but not limited to, parameter
values and other assumptions used to
implement the methodologies provided
in subparts D or E, must be documented
This documentation must be set out in
the Assessment Plan. The Assessment
Plan should ensure that only the
reasonable costs of assessment will be
incurred. The authorized official should
refer to the definitions stated in the rule
for "reasonable costs" and "cost-
effectiveness" when preparing the
Assessment Plan.
This rule contains several
requirements that must be fulfilled in
developing the Assessment Plan. These
requirements relate to the involvement
of multiple agencies, potentially
responsible parties, and the public in the
assessment.
The authorized official should ensure
that other possibly affected agencies
have been contacted. The selection of a
lead authorized official is required in all
instances when multiple agencies are
conducting a Joint assessment.
Allowances are made for assessments
that can be-divided and conducted
separately. Divisions of responsibility
among agencies jointly conducting an
assessment should be documented in
the Assessment Plan. The rule provides
a division of responsibility in instances
where consensus cannot be reached.
Agencies should be aware of additional
requirements concerning designation of
lead tnistees in claims against the
Hazardous Substance Response Trust
Fund (CERCLA Fund) contained in 40
CFR 306.20(b). In claims against the
CERCLA Fund. 40 CFR 306.20(5) states.
"Should the trustees fail to agree on a
lead trustee. EPA in its sole discretion
shall appoint a lead trustee for the
purposes of asserting a claim against the
Fund on behalf of all tnistees."
The potentially responsible parties
should be identified at this phase. The
rule provides for a Notice of Intent to
Perform an Assessment to be sent to
any identified potentially responsible
parties.
The rule provides for public
involvement in the Assessment Plan
with at least a 30-day review and
comment period before implementing
the Plan or making significant
modifications. The rule also requires*
that comments and responses be
maintained as part of the administrative
process.
For a type B assessment there are
several additional requirements in the
Assessment Plan phase. The rule
provides for a mandatory review of the
Assessment Plan at the end of the Injury
Determination phase. The purpose of
this review is to ensure that the
selection of methodologies for the last
two phases of the type B assessment is
compatible with the findings of the
Injury Determination phase. Other type
B Assessment Plan requirements include
the confirmation of exposure, the
Economic Methodology Determination, a
Quality Assurance Plan, and the
objectives of testing and sampling for
injury or pathways. Guidance for the
confirmation of exposure and Economic
Methodology Determination is provided
in this rule. The Quality Assurance Plan
should be prepared following the same
requirements that apply to other
response actions taken under the NCP.
The testing and sampling objectives are
discussed in the testing and sampling
section of the rule ({11.64).
The confirmation of exposure is the
second screen in the assessment
process. It is intended to ensure that the
authorized official has confirmed that
the oil or hazardous substance has
actually come into contact with the
resource. If the authorized official
cannot confirm that the oil or hazardous
substance has actually come into
contact with the resource, no further
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rales and Regulations 27879
assessment actions are to be taken and
no assessment costs will be recovered.
The Economic Methodology
Determination is where the authorized
official must make a choice between
using: restoration or replacement costs;
or the diminution of use values as the
measure of damages. The decision will
affect the choice of methodologies to be
selected in the Quantification phai=e and
to a lesser extent in the Injury
Determination phase. Therefore, the rule
requires the decision at an early stage.
but provides that the decision may be
modified. Using "off-the-shelf data, the
Economic Methodology Determination
requires an "order of magnitude"
estimate of the relative costs and
benefits of restoration or replacement
versus the diminution of use. The
guidance on performing this
determination is described within the
rule.
The selection of: restoration or
replacement costs: or the diminution of
use values only affects the method of
damage determination. It does not imply
any decisions concerning whether the
resources will be restored. In fact, the
rule requires that all funds, regardless of
whether the basis of calculating the
damage was restoration'costs or
diminution of use, be used for
restoration, rehabilitation, replacement.
or acquisition of the equivalent. In
restoration or replacement, the costs can
include the diminution of use values
until the resource is restored or
replaced.
Type B Assessment—A type B natural
resource damage assessment involves
three major steps: establishing that an
injury has occurred and that the injury
resulted from the discharge or release:
quantifying the effects of the discharge
or release on the services provided by
the Injured resource: and determining
the damage.
Injury Determination—-This phase of
the type B assessment acts as the third
screen of the natural resource damage
assessment To assert a natural resource
damage claim, the authorized official
must establish that an injury occurred
and must link that injury to the
discharge or release. Otherwise, no
further assessment actions are to be
taken and no assessment costs will be
recovered.
To perform this phase, injury to one or
more natural resources must first be
established. The rule provides a general
definition of injury as a measurable
adverse change in the chemical or
physical quality or viability of a natural
resource. For example, an organism
need not die before that organism is
considered to have been injured by the
oil or hazardous substance. Conversely.
the mere presence of oil or a hazardous
substance in the organism may not
necessarily constitute an injury. All of
the natural resources specified by
CERCLA have been placed into one of
five groups: surface water, ground
water, air. geologic, and biological
resources. Specific definitions of injury
are provided for each of these resources.
These specific definitions focus on
inherent physical, chemical, or
biological properties of the resource that
enable it to provide one or more specific
services, such as habitat for aquatic
species or a water supply.
In addition ta satisfying the injury
definition, the pathway of the
discharged or released substance from
the source to the resource must be
demonstrated. Each of the five groups of
resources may also act as a component
of the pathway through which the oil or
hazardous substance may travel. For
example, biological resources can carry
the substance away from the site by
either direct physical contact or by
exposing other organisms through the
food chain. Oil or hazardous substances
contained in ground water resources
may move to a lake or stream thereby
exposing biological resources. The use
of transport and fate modeling in media
such as air or water may be useful in
many situations for demonstrating the
pathway. In other situations, sampling
may be required. The rule also provides
guidance on selecting testing and
sampling methodologies to determine
that an injury to the resource has
occurred and for pathway
determinations.
Review of the Assessment Plan—
Upon completion of the Injury
Determination phase, the authorized
official must review the methodologies
selected in the Assessment Plan. This
step allows the authorized official to
refine the restoration or replacement
alternatives and cost estimates initially
identified in the Assessment Plan phase
in order to select a cost-effective,
feasible restoration or replacement
alternative for comparison with
diminution of use. The distinction
between restoration and replacement
alternatives will, in most cases, depend
on the nature of the lost or disrupted
services previously provided by the
resource. If an injury, as defined in the
rule, cannot be determined or cannot be
linked to the discharge or release.
further assessment efforts should be
terminated and the results of the Injury
Determination phase documented in the
Assessment Plan. If an injury '
determination has been made.
methodologies for the next two phases
must be selected that are consistent
with the findings of the Injury
Determination. If the decision was not
previously made, the authorized official
must decide whether restoration or
replacement costs; or a diminution of
use values will form the basis of the
damage determination. The rule
provides that when significant
modifications occur to the Assessment
Plan, these modifications shall be made
available for public review and
comment
Quantification of Effects—Having
established that the resource was
injured by the discharge or release, the
next step in the type B procedure Is to
quantify the effects on the Injured
resource.
Because the purpose of the natural
resource damage assessment is to
determine compensation for injuries
rather than a decision on the level of
cleanup, this phase requires ascertaining
the baseline level of the services
provided by the resource prior to the
discharge or release. The baseline level
of services is then compared to the
existing level of services or the •
anticipated level of services upop the
completion of any response actions to
determine the residual change resulting
from the discharge or release. The
baseline level of services should include
consideration of the resource's natural
cyclical changes.
This rale provides that quantificatlor
of the change in the resource be
expressed in terms of the change In the
level of services that the resource
provides. These servlccB include such
ecological services as flood and erosion
control, habitat, and food chains as well
as such human uses as recreation.
Therefore, it is at this stage hi the
assessment that the selection Is made of
services that to a later phase will be
used to determine damages. The
selection of the services to be assessed
may vary based upon the economic
methodology selected. For restoration or
replacement the authorized official has
the discretion to select services
provided prior to the discharge or
release by the resource to humans and
to other natural resources. Fer a
diminution of use value, the authorized
official should select services for which
clear relationships to human uses
existed prior to the discharge or release
and for which dollar values can be
assigned.
Damage Determination Phase—The
next phase of the process is applying the
method of estimating th* damage, using
either the costs of restoration or
replacement or the diminutioB of use
value* that wes determined in the.
Assessment Plan.
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27680 Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
If restoration or replacement costs are
to be the measure of damages, a plan for
the restoration or replacement, referred
to as the Restoration Methodology Plan,
must be developed in the Damage
Determination phase. This plan must be
in sufficient detail to ensure that all
major elements of costs are included
and that these costs represent the most
cost-effective means of restoring or
replacing the services lost. This means
that the authorized official should take
considerable effort to detail the costs of
the specific restoration or replacement
actions selected, building wherever
appropriate upon remedial action data
available for CERCLA response actions.
This plan will also serve as the
foundation for the final restoration plan
that must be developed after the damage
award.
Using the diminution in use values as
the method for determining damages
will require that the authorized official
identify the human uses of the services
that were lost as a result of the
discharge or release. For an assessment
based upon the diminution in use
values, the lost uses being valued are
the committed uses supplied by the
injured resources. Committed uses must
be current public uses or public uses
that have been financially, legally, or
administratively documented.
The losses compensate to a Federal
or State agency acting as a trustee under
CERCLA are for the uses of the resource
by members of the public at large. They
do not include any direct or indirect
losses suffered by a private commercial
user of public resources. Direct private
commercial losses appropriately are not
recovered by a public body acting for
thepublic at large.
The rule provides guidance on
performing a damage determination
using either the restoration or
replacement cost method or the
diminution of use value method. A final
section in this portion of the rule
provides guidance, such aa selecting a
discount rate, that w applicable to either
method.
Report of Assessment—PA the
conclusion of either a type A or a type B
assessment, the authorized official must
document the results of the major steps
of the process. This documentation
includes the Preassessment Screen
Determination and the Assessment Plan.
with all comments and responses, for
either the type A or type B assessment.
The results of the assessment should be
included for the type A assessment. For
the type B assessment the Injury
Determination, the Quantification and
the Damage Determination, including
•he Restoration Methodology Plan if
ppropriate. should be included. This
document must be filed as the Report of
Assessment with a court or an
administrative body should the Federal
agency seek a rebuttable presumption.
Post Assessment—CERCLA requires
that funds recovered for damages must
be available for restoration.
rehabilitation, replacement, or the
acquisition of the equivalent of the
injured resource. To accomplish this
objective, the rule requires the
establishment of an account into which
all monies awarded pursuant to section
107 of CERCLA or section 311 (f) (4) and
(5) of the CWA for compensation for
damages must be placed. For Federal
authorized officials acting as trustees,
this account shall be located in the
United States Treasury. State authorized
officials acting as trustees are given the
choice of setting up an account in the
State treasury or having the potentially
responsible party set up a trust fund.
The purpose of these procedures is to
ensure that monies obtained for
restoration will be available for that use
without requiring, with one exception
discussed below, that the Federal or
State agency go through the normal
appropriations process.
Reimbursements of assessment and
administrative costs are not placed in
these accounts. Similarly, monies
awarded from the Hazardous Substance
Response Trust Fund as reimbursement
for assessment or restoration costs
pursuant to the natural resource claims
provision of CERCLA need not be
placed in a post-assessment account
because they are by definition
reimbursements of costs incurred.
Claims against the Hazardous
Substance Response Trust Fund must be
costs incurred as specified by the
Natural Resource Claims Procedures
promulgated by EPA (40 CFR Part 306).
These reimbursements must be returned
to the Federal or State general treasury
that incurred the costs.
Once a damage award is made, the
Federal or State agency acting as trustee
shall prepare a Restoration Plan. This
plan shall be based upon the decisions
made in the Restoration Methodology
Plan, if one has been prepared, modified
to the extent necessary to accommodate
new information, including the amount
of the award. Where the measure of
damages is determined using a use value
methodology, the Restoration Plan shall
describe those management actions
designed to restore, replace, rehabilitate.
or acquire the equivalent resources that
can be undertaken consistent with the
level of the damage award. The
accounts described above are to be used
to pay for the implementation of this
Restoration Plan.
In recognition of the fact that
restoration of some injured resources is
technically infeasible. replacement and
acquisition of the equivalent.are defined
to include acquisition of resources that
provide similar services to the injured
resource. However, there is a limitation
on use of the account. Where the
Restoration Plan would involve
acquisition of land for Federal
management, the award must be paid to
the general treasury. The appropriations
process must be used where private
land is being acquired that would
expand the total Federal landholdings.
C. Concepts Embodied in the Rule
1. Compensatory. Not Punitive
The rule takes into consideration
existing common law rules for
developing a theory of natural resource
damages. A fundamental principle of the
theory developed in the rule is that
natural resource damages are
compensatory, not punitive. CERCLA
itself calls for compensatory rather than
punitive damages. This principle is .
consistent with the common law. which
disfavors punitive damages, and is basic
to the theory underlying the common
law of damages, which is that money
can be used to provide substitutionary
relief.
The money awarded aa compensation
using common law principles represents
a rough measure that approximately
represents the value of the thing that is
lost. Rules have been developed by the
courts for the measurement of damages
so that cases can be resolved, and
perhaps more importantly, settled in
accordance with common law
principles. Settlements become possible
because the range of outcomes given a
particular set of facta is predictable.
The mandate to establish regulations
for the assessment of damages to
natural resources included a mandate to
develop methodologies that are based
upon the beat available procedures. This
directive implies that compensatory
damages were intended. The expensive
and complex process of itudyin)
existing injury measurement ant
economic compensation techniques
would have been unnecessary if
punitive damages were intended. The
procedures for determining punitive
damages could have involved the staple
publication of penalty fee tables.
Finally, it should be noted that a
variety of criminal or other punitive
statutes may apply to actions for which
natural resource damages may be
sought. Through those statutes, penalties
may be sought where appropriate.
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27681
2. Rebuttable Presumption
CERCLA provides for the recovery of
damages to natural resources, but it
does not establish the measure of those
ddmages. Instead, it requires the
President, acting through designated
Federal officials, to develop regulations
for the assessment of damages. Pursuant
lo CERCLA section lll(h). the dollar
figure representing the measure of
'Jiimages is determined through an
assessment performed using the
procedures specified in the rule. This
figure, when supported by the Report of
Assessment and based on an
assessment performed by a Federal
official, is entitled to a rebuttable
presumption in a court action or
administrative proceeding to determine
the measure of damages recoverable
under the statute. The rebuttable
presumption provides a significant
benefit. Accordingly, the methodologies
and criteria adopted in the rule have
been carefully selected.
In its pres'ent form, the rebuttable
presumption accorded by section
lll(h)(2) of CERCLA attaches only to
assessments performed by Federal
officials. The question of the
interpretation of the rebuttable
presumption provision in CERCLA arose
prior to the formulation of this rule in
the context of the Natural Resource
Claims Procedures. 40 CFR 306.
promulgated by EPA. A full discussion
of the resolution of this issue is
contained in section V(C) of the
preamble to that final rule (December
13.1985.50 FR 51212) for the Natural
Resource Claims Procedures. In brief.
^fier reviewing comments and
considering revisions to the NCP. EPA
concluded that the language of section
m(h)(2) of CERCLA. when read in
conjunction with section lll(h)(l) of
CERCLA. which refers only to
"damages . . . assessed by Federal
officials." only allowed the provision of
the rebuttable presumption to be
extended to Federal officials. The
Department of the Interior has adopted
a position on this issue that is consistent
vMlh the Executive branch's pnor
decision on the interpretation of
CF.RCLA in this matter.
The Department notes that claims
dgainst the Hazardous Substance
Response Trust Fund must be for costs
incurred as specified by the procedures
promulgated by EPA at 40 CFR 308
(December 13.1985. 50 FR 51205). As
mentioned in the EPA preamble, it may
be possible for Federal and State
trustees to work jointly on assessments
done pursuant to this rule. The results of
these joint assessments may then
qualify for a rebuttable presumption.
3. Relationship to Response Actions
An action for the recovery of damages
to natural resources is part of the larger
statutory scheme of CERCLA and the
CWA. Under those Acts discharges of
oil and releases of hazardous
substances are responded to by EPA
and the U.S. Coast Guard in accordance
with procedures set forth in the National
Contingency Plan [NCP). In some cases,
responses are also made by States or
other Federal agencies. The primary
purpose of response actions is to protect
human health. This rule supplements the
procedures in the NCP. It does not
replace response actions, but adds an
additional means of addressing
problems resulting from discharges of oil
and releases of hazardous substances.
In addition to taking removal and
remedial actions, compensation may be
sought and resources restored by use of
the procedures in this rule.
Injuries to natural resources should be
considered in the planning of a response
by the EPA or the U.S. Coast Guard. In
particular, natural resource concerns
should be included in the planning
process for remedial action. However, in
many cases, not all natural resource
concerns will be resolved by that
process alone. In some cases certain
actions, such as habitat management or
acquisition of an equivalent resource.
will be beyond the scope of the response
action. This rule provides that natural
resource damages are for injuries
residual to those injuries that may be
ameliorated in the response action. In
addition, these damages include
compensation for the loss of use from
the time of the discharge or release until
such injuries are ameliorated. This
concept of natural resource damages as
a residual should prevent the
development of two separate actions to
ameliorate the same situation.
encourage the inclusion of natural
resource concerns in the development of
remedial plans, and preserve the priority
order of remedial actions intended by
the creation of the National Priorities
List.
In some instances it may be necessary
to anticipate an eventual remedial
action in planning a natural resource
damage assessment. Ideally the natural
resource damage assessment would be
performed concurrently with the
remedial investigation/feasibility study
(RI/FS). When the statute of limitations
will not allow adequate time to
complete and coordinate the necessary
procedures, the rule does not preclude
filing of a nautral resource damage
claim against a responsible party before
completion of the assessment.
4. Cost-Effectiveness and Reasonable
Costs
Cost-effectiveness is defined in the
rule as achieving an objective with the
least expenditure of financial or other
assets. Thus, in order to achieve cost-
effectiveness, a well-defined objective
must be specified. For example, the
objective of restoration or replacement
is the return to the baseline level of
services provided by the resource. Once
an objective is defined, cost-
effectiveness means that the authorized
official must choose the least expensive
management or other actions that
achieve the objective.
The Department recognizes that in
many instances limited information may
be available to prepare an Assessment
Plan. The rule is flexible enough to
allow for revision of the Assessment
Plan. What may have been cost-
effective under the previous set of
circumstances may not be cost-effective
when new information is obtained.
Therefore, the plan should be modified
during the assessment as new
information is obtained. In this context.
the test of cost-effectiveness may
require consideration of new
management or other actions as
objectives become clearer and more
specific.
Section 107(a)(4)(C) of CERCLA states
that a responsible party is liable for the
"reasonable costs of assessing" injury.
The concept of reasonable cost implies
cost-effectiveness, but the term
reasonable cost is broader in scope.
Cost-effectiveness means that whenever
the same or similar benefit can be
obtained in several ways, the least
costly means of obtaining that benefit is
selected. The concept of reasonable cost
is more closely related to the economic
notion of cost-benefit analysis.
Reasonable cost while incorporating
cost-effectiveness, also allows
comparisons to be made across choices
of procedures involving very different
levels of benefits. A cost-effectiveness
criterion cannot be used as a measure to
select between alternatives that provide
very different levels of benefits at
different costs. A reasonable cost
criterion should be used for this
purpose.
The Department has defined the term
"reasonable cost." for the purposes of
this rule, to mean: that the Injury,
Quantification, and Damage
Determination phases of the Assessment
Plan have a well-defined relationship to
each other that the anticipated
increment of extra benefits in terms of
the precision or accuracy of estimates
obtained by using a more costly
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27682 Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
methodology for injury, quantification.
or damage determination outweigh the
anticipated increment of extra costs of
the more expensive procedure: and that
the anticipated costs of performing the
assessment are expected to be less than
the anticipated damage amount
In order to achieve the objective of
deriving a dollar figure to be used as the
amount of damage claimed, a three-
phased assessment must be performed
to- document the occurrence of an
injury; quantify the effects of the injury;
and determine damages. In almost all
cases, the achievement of reasonable
costs will require that these three
phases be planned concurrently. Since
these three phases will form the basis of
a damage claim, all analyses conducted
under this rule should be directed
toward the goal of obtaining a dollar
value for the injury to the resource. The
minimum amount of information
required to move from one phase to
another should be collected. During an
assessment, studies of injury or damage
that do not directly contribute to the
determination of a dollar value for the
injured resource should not be part of
the damage claim. However, nothing in
this rule precludes agencies from
performing general or related studies
with their own funds.
5. Involvement of the Public and
Potentially Responsible Parties
The rule uses an administrative
occss as its decisionmaking method.
.'anous methods exist for doing a
natural resource damage assessment.
No single answer can be given for the
t arious questions that arise in the
process. Every resource and affected
area has distinctive characteristics and
is managed by different agencies for
different purposes. Accordingly, the
flexibility of an adminstrative process is
desirable and fair, giving the public and
responsible parties protection against
arbitrary requirements. The rule requires
that an Assessment Plan be prepared
before an assessment is initiated. After
the plan is prepared, there is a period of
at least thirty days during which the
public and any potentially responsible
parties are to be given an opportunity to
review and comment on the plan. If a
Restoration Methodology Plan is
prepared, comment and review by the
potentially responsible party and the
public are also required for at least
thirty days. All comments on both the
Assessment Plan and the Restoration
Methodology Plan are included in the
Report of Assessment, which is part of
the administrative record. Therefore, the
views of the public and any potentially
-sponsible parties on 'he key elements
of the assessment will-be available in
any subsequent litigation. '
Public involvement and participation
by the potentially responsible party will
aid the authorized official seeking
natural resource damages in a number
of ways. First, it will ensure that
important resource concerns are not
omitted from the assessment. Second, it
will help ensure that the methodologies
are given an independent review and
that the appropriate methodologies are
chosen for the Assessment Plan. Third.
it will help ensure that the costs of
assessment are reasonable.
Early involvement of the potentially
responsible party is intended to
facilitate fair and speedy resolution of
damage actions. Just as the NCP process
encourages responsible parties to
undertake remedial actions and avoid
litigation, this process is intended to
encourage responsible parties to
undertake natural resource damage
assessments and restorations. If the
responsible parry is aware of the
proposed assessment efforts, it may be
encouraged to take the actions
necessary to do the assessment and
restoration. However, the Federal or
State authorized official is the ultimate
decisionmaker regarding the content of
the Assessment Plan, as well as all
restoration actions.
6. Emergencies
In accordance with section lll(i) of
CERCLA. the rule permits an emergency
restoration prior to development of an
Assessment Plan where genuine
emergency circumstances exist. Some
limited situations may require
immediate action in order to avoid
irreversible loss or to prevent or reduce
any continuing danger to natural
resources (e.g, where a continuing
discharge or release must be abated in
order to avoid the complete destruction
of a resource or where continuing
degradation threatens more and more of
the resource). Such emergency actions
would typically consist of the erection of
non-permanent barriers to prevent or
reduce the migration of the oil or
hazardous substance onto or into the
resource. The authorized official may
undertake only those actions necessary
to abate the emergency. Any additional
actions other than those necessary may
be performed only upon following
normal assessment procedures.
Emergency actions may only be taken
on lands or waters over which the
authorized official has existing authority
to act. This provision is not an
authorization to undertake response
actions on private property nor is it
meant as a substitute for response
actions. For example, if the discharge or
the release occurs in an area for which
the agency would not otherwise have
authority to act. emergency restoration
actions are limited to those actions that
would prevent or reduce the migration
of the oil or hazardous substance onto
or into the resource under their
authority.
If the discharge or release occurs in an
area for which the agency would have
the authority to act. the authorized
official should first consider using that
existing authority to undertake response
actions to abate the emergency. The cost
of such response actions would be
recoverable under section 107 (a) or (b)
of CERCLA. rather than as natural
resource damages. The burden of proof.
based upon information available at the
time, that irreversible harm would have
resulted if the emergency restoration
were not undertaken and that costs
associated with the emergency actions
were reasonable and necessary will rest
with the Federal or State agency acting
as trustee.
D. Resource Related Issues
l. Injury Determination—General
The definition of injury adopted in
this rule is fundamental to the
assessment process. Without injury to
one or more natural resources there is
no damage to recover. A general
definition of injury is provided in
§ 11.14(v). The rule clearly distinguishes
between the concepts of "damage" and
"injury." Following the statutory
division in use of the words, "damage"
is the amount of money sought in
compensation for an "injury." Injury is
the "injury to." "destruction of." or "loss
of the resource.
The injury definition has two parts.
First, there must be a measurable
adverse change in the resource. That is.
there must be a change for the worse, in
the resource that is detectable by
observation or scientific methods.
Specific definitions of injury are
provided for each resource in { 11.82.
The criteria for what constitutes a
measurable injury are strict This
stringency reflects the determination by
the Department that these criteria
provide for the best available
procedures and reflect the fact that
Federal trustees will receive a
rebuttable presumption for assessments
performed pursuant to this rule. By
establishing acceptance criteria for the
measurement methodologies for the
injuries to the resources, the rule
requires (hat the authorized official use
only quality evidence in measuring the
adverse change in a resource.
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27683
Second, the adverse change must be
tu the chemical or physical quality or in
the vidbilityof a resource. Since only
biological resources involve the aspect
of x lability, specific criteria for
mc-isunng such m|ury is bassd on a
n-L-asurdble biological response of the
organism. Water and air. for instance,
ure commonly evaluated in terms of
cst.ilihshcd water quality or air quality
sundards. Such standards have not
iiei-n established for biological
resources to determine when exposure
tu H specific contaminant level has
re'luccd the viability of the different
orjjdnisms. Further, no standards have
been established for biological
icsources adversely impacted by
if sidues of specific contaminants
resulting from such exposure.
Finally, to be compensate under
CERCLA or the CWA, the injury must
it-suit from a discharge of oil or release
or a hazardous substance, or from a
product of reactions resulting from the
discharge of oil or release of a
hazardous substance. This result is
ustdblished by the demonstration of a
link between the discharge or release
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986
27684
Rules and Regulations
injury. Many similar biological
responses are described in the rule.
Acceptance criteria in the rule provide
the means for evaluating whether a
^articular response will demonstrate
ijury in i specific case. These
acceptance criteria extensively broaden
past practice under which many
assessments relied almost exclusively
on body counts of dead organisms as the
onmary or sole evidence of injuiy to
those organism* and did not allow the
use of coinperioo';on for other kinds of
biological responses, such as sublethal
effects like egxt>r>f!l thinning. These
acceptance en ten a can be summarized
as requiring that the response is unlikely
to be due to factors other than the
exposure to oil or hazardous substances,
the response has" en demonstrated in
both the laborer. and the field, and
that testing for t».« response is practical
and reliable. Bom laboratory and field
demonstrations are required because
these two conditions can rarely provide
the same information. Laboratory
experiments can be carefully controlled
to prevent effects from factors other
than the substance under test, but may
use concentrations, exposure systems.
and other conditions unrelated to those
found in the field. Controlled laboratory
experiments cannot duplicate 'the
variety of foods, activities, potential
substance degradation, and other
factors found in the field. Field
xpenments or observations often rely
n correlations, and cause-and-effect
can rarely be documented as well as it
can be in the laboratory. There are
numerous instances where either
laboratory or field experiments have
failed to confirm conclusions drawn
from the other.
Categories of such responses are
provided in this rule, and certain
responses within these categones have
been identified for fish and wildlife
species as having met the acceptance
criteria. These specific responses are
identified based upon a review
contained in the type B technical
information document cited above, and
pertain to fish and wildlife. The
acceptance criteria are intended to be
applied to responses in all biological
resources, including plants, shellfish.
and other organ:.- • * The authorized
official may relv a? in other responses in
addition to the s..-i-i'ic responses
identified in the • •_ •• so long as the
other responses -.inJ upon can meet
the acceptance :-".• -H There has been
considerable wi v ,,n responses in other
organisms, espei •*• > plants, therefore.
other responses »h«iiiii meet the
acceptance critei
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27685
Strickland |UH i- i I K I'.rvini 'A
Prdiliid! lljnii'- "-ik ul SIMW-IVI A-inlysis."
Jnd i>d loimi) pul/i^i.-.-d Lv the fisheries
Rtbedrrh H-M.-rl of C.ui.i J.i >". 1 Supply and
Srrvii.fi ( .UHiU. Olldiv.» Ci:' i-ld. IW4
V.diUilefrnm t'n.pub 2'J^ E 4Jnd Street.
v.ew York \Y iikii- \.i »-.Si ~n ph (212)
416-lfiiO
S-.vHnbiin K<_. S.irrblr K\jinineiiion
\Unual Mpihniis .nil I v^.ur.r-un Series
\u 1. Airipni mi \avji i .-in 'H Petroleum
Otologists. 1SH1 Axjil.i' if t. :r.i the
American Ajviri<s fur Seining Buried
Wastes and Waste Migration ".
Environmental Monitoring Si stems
Laboratory l.os Vegdi. NV. EPA-60U/7-64-
064. June 19W Atfiildble from: National
Technical Information Sc'v . e 'NT1S). 5285
Port Royal Rodd Sppngficld. VA 22161. PB-
B4-198-449/LL ph (703) 487-4650
U S. Environmenl.il Protwtnm Agency.
"Guidance on Remedial Investigations under
CERCLA." Office of Solid Waste and
Emergency Response. Washington. DC. EPA/
540/G-85/002.1985. Avdildble from. NTIS,
S28S Port Royal Rodd. Springfield. VA 22161:
PD 85-238-616/LL ph (703| 487-MffiO.
U S Environmental Protection Agency.
"Manual of Individual W.il-r Supply
Systems." Office of Onnkms Writer EPA-
570/9-62-004.1982. Availablp from U S.
Environmental Protection Agency. Office of
Drinking Waler. WH-550.401 M Street. SW.
Washington. DC 204HO: or from NTIS. 5285
Port'Royal Road. Spnnglield. VA 22161: PB-
05-24Z-279/AS. ph (703) 4H7-4650.
U S Environmental Protection Agency.
'Test Methods for Ev.iljanna Solid Waste.
Physical and Chemiral Methods." 2nd
edition. |uly 1982. ds ampmied by Apnl 1984.
Update 1. and Apnl latia. I'pdate 2. Office of
Solid Waste and Emergency Response.
Washington. DC. SW-846. Atmlable from:
Superintendent oi Uonmenls. U S
Government Printing Office Washington. DC
2'402: Stock No 55-00'-rt 10X11-2. ph: (202)
733-3238.
U.S. Geological Survey "Niational
Handbook of Recommended Methods for
. Writer-Data Acquisition." Office of Water
Data Coordination. 1977. with updates.
Available from US Geolrww dl Service,
Office of Waler Data Coordination. MS-417
W.ional Center. Reston. VA 22092: ph. (703)
000-6931.
(b) Air. Testing and sampling may
include analytical methods or modeling.
Modeling should only be performed if
testing and sampling methods are
inappropriate. Testing and sampling for
air may be complex because of the wide
Mnge of conditions that may be
encountered, including conditions such
as: a massive short-term emission, as
might occur from a tank car accident:
episodic or intermittent releases, as
might be created by varying wind
conditions that distribute participates
from a tailing pile; and a long-term, low-
level release that may come from an
open disposal pond.
The rule lists factors to identify in
developing a sampling plan, including an
appropriate sampling schedule.
Objectives based upon the requirements
of the testing and sampling need to be
established, and the sampling plan
designed to meet those objectives.
The authorized official may use the air
testing methods listed in the
publications below. In addition, the
authorized official may use other
methods that have been accepted
following formal review and evaluation
by the U.S. Environmental Protection
Agency, the National Institute for
Occupational Safety and Health, the
American Society for Testing and
Materials, and the Amencan Public
Health Association. Some examples of
these are the following documents:
U.S. Environmental Protection Agency.
"Atmospheric Measurements of Selected
Hazardous Organic Chemicals."
Environmental Sciences Research Lab.
Research Triangle Park. NC EPA-800/53-81-
031. May 1981. Available from: NTIS. 5285
Port Royal Road. Springfield. VA 22161: PB
81-250-828/LL ph: (703) 487-4650.
U.S. Environmental Protection Agency.
"Characterization of Hazardous Waste
Sites—A Methods Manual: Volume II.
Available Sampling Methods. Second
Edition." Environmental Monitoring System*
Laboratory. Las Vegas. NV. EPA-flOO/4-84-
076. December 1984. Available from: NTIS.
5285 Port Royal Road. Springfield. VA 22161.
PB 85-166-771/LL: ph: (703) 487-4690.
U.S. Environmental Protection Agency.
"Characterization of Hazardous Waste
Sites—A Methods Manual Volume 111.
Available Laboratory Analytical Methods."
Environmental Monitoring Systems
Laboratory. Las Vegas. NV. EPA-60014-64-
038. May 1984. Available from: NTIS. 5285
Port Royal Road. Springfield. VA 22161. PB
84-191-048/LL: ph: (703) 487-J650.
U.S. Environmental Protection Agency,
"Compendium of Methods for the
Determination of Toxic Organic Compounds
m Ambient Air," Environmental Monitoring
Systems Laboratory. Office of Re«?=rch and
Development. Research Triangle Park. NC
EPA-600/4-84-041. Apnl 1984. Available
from: ORD Publications. U.S. EPA-CERL 26
W. St. Clair. Cincinnati. OH. 45268.
U.S Environmental Protection Agency.
"Digest of Ambient Paniculate Analysis and
Assessment Methods." Office of Air Quality
Planning and Standards, Research Triangle
Park. NC EPA 450/3-76-113. September 1978.
Available from: NTIS. 5285 Port Royal Road.
Springfield. VA 22161. PB 80-198-872/LL, ph:
(703)487-4850.
U.S. Environmental Protection Agency,
"Network Design and Site Exposure Criteria
for Selected Noncntena Air Pollutants."
Office of Air Quality Planning and Standards.
Research Triangle Park. NC. EPA-4SO/485-
022. September 1984. Available from: U S.
EPA, Library Services MD-35, Research
Triangle Park. NC 27711. ph. (919) 541-2777.
For further information on air
modeling, the "Type B Technical
Information Document: Application of
Air Models lo Natural Resource Injury
Assessment" is being prepared in
conjunction with this rule.4
(c) Geological resources.
Methodologies for testing and sampling
for injuries to soil and other geologic
resources are provided in the rule.
Specific procedures for implementing
the soil methodologies, the largest
portion of this resource group, are
discussed in the 'Type B Technical
Information Document: Approaches to
the Assessment of Injury to Soil Arising
from Discharges of Hazardous
Substances and Oil." which is being
prepared in conjunction with this rule.
The first three methodologies for
testing and sampling for injury to soil.
those involving pH. cation exchange.
and salinity, involve standard chemical
analyses. Some useful references for
performing these chemical analyses are
provided in:
U.S. Environmental Protection Agency.
•'Characterization of HazardousWaste
Sites—A Methods Manual: Volume Q.
Available Sampling Methods. Second
Edition." Environmental Monitoring Systems
Laboratory. Us Vegas. NV. EPA-600/4-44-
076.1984. Available from: NTIS, 5285 Port
Royal Road, Springfield. VA 22161: PB 65-
168-771/LL ph: (703) 487-4650.
U.S. Environmental Protection Agency.
"Guidance on Remedial Investigation* Under
CERCLA." Office of Solid Waste and
Emergency Reponse, Washington. DC EPA/
540/G-45/002.1985. Available from: MIS.
5265 Port Royal Road. Springfield, VA 22161;
PB B5-238-41B/LL ph: (703) 487-4850.
U.S. Environmental Protection Agency.
"Preparation of Soil Sampling Protocol:
Techniques and Strategies." Environmental
Monitoring System Laboratory. Las Vegas.
NV. EPA-600/4-63-020. August 1983.
Available from: NTIS. 5285 Port Royal Road.
Springfield. VA 22161: PB 83-208-079/11: ph:
(703) 487-4650.
U.S. Environmental Protection Agency.
"Soil Sampling Quality Assurance User's
Guide." Environmental Monitoring System
Laboratory. Las Vegas. NV. EPA-600/4-64-
043. May 1984. Available from: NTIS. 528S
Port Royal Road. Springfield, VA 22181; PB
84-196-621/0; ph: (703) 467-4650.
U.S. Environmental Protection Agency.
"Test Methods for Evaluating Solid Waste,
Physical and Chemical Methods." 2nd
edition. July 1862. as amended by April 1964.
Update 1 and Apnl 1965. Update 2. Office of
Solid Waste and Emergency Response,
Washington. DC SW-646, Available from:
Superintendent of Documents. U.&.
Government Printing Office. Washington. DC
20402: Stock No. 55-002-61001-2: ph: (292)
703-3238.
The fourth method of verifying an
injury to soil is by changes to soil
microbial respiration. Among the
available procedures are those found ir
-------
27686 Federal Register / Vol. 51. No 148 / Friday. August 1. 1986 / Rules and Regulations
'.i.derson. J P E.. Soil Respiration." in A L
I'.ige led ). Methods o'Soil Anal\ sis Part 2
Liu fiscal and Microbioloyical Properties
.'• cl E(li:.un pp 831-871. American Society of
.Aj;rc.ir.omv. Madison. Wl, 1982. Available
ironi An-.pncan Souely of Agronomy. 677
Svi'h SpgoE Road. Madison. W! 52711. ph
l;ib..labai M A.. "Soil Enzymes." in A L
P«ae !ed | Mi-thoiis of Soil Anal) sis. Pan 2
C '•! ii, 'cal and Mn.robioloyu.al Prop? •»;.•.
2nd Ed'tion. pp 903-945. American Sucietv of
Agronomy. M.idison. \\. I. 19II2. Avdiliiblp '
'•urn. American Society of Agrcnoirv. 6"
Soj'.h Segoe Road. M,idi
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Federal Register / Vol. 51. I'.o. 148 / Friday. August 1. 19fl6 / Rules and Regulations 27687
services the pond provided as fish
habitdt. The measure of change in
services might be numbers of fish.
varieties of fidh. or the services the fish
provide to another resource, such as
food for other animals. If the pond had
.ilao served as d source of drinking
w.j!ur the measure of charge in services
n.ahl be the volume of water formerly
I'^t'd for thai i-.pply In either case.
images vvr.ul.J be estimated on thi>
l)ji,is of lost use of the sen ices or of
i.hdRjiP m l!ic level of more ihiin one
service, and demonstrable changes in all
services mdv be counted when
estimating d>imj)
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2-688
Federal Register / Vol 51. Xo. 148 / Friday. August 1. 1986 / Rules and Regulations
if.tions under the NCR The objectives of
tPA under the NCP and the damage
i-sscssment process under this rale differ
BTl as such, different calculation points
a 'a inevitable.
FPA is not always concerned with
.' 'tcrning the site to its baseline
omdition when it determines a cleanup
••vel Rather, the goal of most response
actions is to remove and/or remedy the
''..zardous substances at a s:ie uniil ihey
-«> .onger represent an actual or
;• -ennal threat to public health.
•Aelfare. or the environment. The
particular cleanup level is driven by the
Application of applicable or relevant and
.ippropriate environmental standards
-"^d other site-specific considerations
When performing a natural resource
il-mcpe assessment, the objective is to
'Jetfitmine the value of the loss.
Standards may be used to determine
•'•.•I uii injury has occurred, but the
r \ier.t of effects for which the
responsible party may be found liable
•nay differ significantly from the
standard. In some instances, the
b.iseline condition was cleaner than the
"j.ndard. where in others the standard
w..s evcRcded before the discharge or
r ease. Therefore, in many situations
:s-e level of cleanup will be different
iron the baseline. The rule follows the
• immcn law principle that the injured
pv.r'y should be made whole again
Thus, quantification of ir.jury and
esumates of damages are based upon
!he change from baseline, rather than on
i innards.
The rule iilso requires that the
b.iselme reflect normal variation in the
f Jiource and service. For almost any
pjrameter being measured, variability is
expected, whether that parameter is a
physical measurement, such as
concentration of an ion in ground water.
«r a biological measure, such as
population levels of an animal species.
borne of those parameters may be
^.dtively constant, or vary on an annual
cj cle: others can be expected to vary
radically and dramatically, such as
' four-year cycles" of lemmings or "ten-
>ear c>cles" of lynx where populations
may vary from nearly zero to many
thousands in a given area over the
course of a fairly regular cycle. Other
parameters may change gradually in one
direction, as do population changes of
many species during ecological
succession, or show random and
unpredictable changes. Included in the
last category are extreme changes that
rr,.ght fall outside of "normal" variation.
but still be due to natural causes. An
example of extreme change is
destruction of a coastal marsh by
hurricane winds and seas
A baseline should allow for
comparison with the normal range of
variation, rather than being constrained
to d single measurement. For example, a
discharge or release may occur or be
studied at a time when a population is
normally absent or low, but may affect
the ability of the affected area to
s-jpport the population at times when it
would normally be high. A chemical
change in air or water may be mitigated
by dilution at certain ti.T.es of year, but
the sams quantity of materidl may reach
deleterious concentrations at other
times because of low water flow or
different wind conditions. A further
constraint is that data for the baseline
and for the assessment area should be
collected using comparable methods.
Unless identical or very similar
methodologies are used, different data
may simply reflect a difference in the
methodologies rather than in the
condition being measured.
The preferred method for establishing
baseline is to use historical data taken
from the assessment area before the
d-scharge or release. In many cases,
such historical data for an assessment
area may be missing or inadequate, so
the rule establishes an alternative
means for estimating baseline. In most
cases, estimating baseline requires data
tor similar areas ("control areas") near
the assessment area. Preferably, the
authorized official will use historical
data for the control area if available
after ensuring that the control and
assessment areas are similar except for
the discharge or release. If historical
data are unavailable for both the
assessment and control areas, then field
data must oe collected for the control
area following the guidance provided in
the rule.
The same materials used for literature
searches in performing research are
sources for locating baseline data. These
materials include general bibliographic
references as well as computer data
bases and specialized data bases that
contain compilations of resource-
specific data from many sources. In
addition, many parts of the United
States have been studied in
Environmental Impact Statements
(EIS's) or related documents for various
kinds of projects. These EIS's may
contain baseline data (or references to
sources) for the subject area. The Digest
of Environmental Impact Statements
summarizes all EIS's. and is published
by Cambridge Scientific Abstracts. S16I
River Road. Bethesda. MD 20816. A
number of Federal and State laws
require other planning documents that
may be useful. The Federal Government
carries out or sponsors research
nationwide on natural resources: the
National Technical Information Service
(NTISJ. in Springfield. Virginia, has a
computer searchable data base for
locating reports on this research, and
also can supply microfiche or paper
copies Local information may be
available through State agencies (e.g.
water resources, air quality control, fish
and game, public health, etc.). If the
discharge or release occurred on
publicly-held land, the agency managing
that land may have data available, and
private land owners may have similar
ddta. Nearby universities and colleges
may have data from studies done by
students or faculty members.
If historical data for both assessment
and control areas are inadequate, field
data must be collected from control
areas. Although each resource will
require techniques and procedures
specific to that resource, and local
conditions will require tailoring
procedures to the specific location, the
rule provides general guidelines that
apply to selection and use of control
areas. The general guidelines are to be
used together with the specific
guidelines for each resource, and are
designed to balance the needs for
flexibility and rigor.
Because of the importance of water as
a resource, extensive data on water
q uali ty have been collected by many .
Federal. State, and local agencies. Most
of those historical data deal with
traditional water quality measures, such
as inorganic ions and raicrobial content.
and only rarely include tests for man-
made organic contaminants. A
computerized data base that provides
access directly to certain large data
collections, such as EPA's STORET
water quality data base, or other data
bases, is available through the National
Water Data Exchange (NAWDEX).
headquartered at the U.S. Geological
Survey (USGS) in Reston. Virginia, and
also available through local assistance
centers. (For information, contact-
XAWDEX. U.S. Geological Survey. MS
421, National Center. 12201 Sunrise
Valley Park. Reston. VA 22092; ph: (703)
aeo-8871.) in addition, the Survey's own
water data are available from the
National Water Data Storage and
Retrieval System (WATSTORE);
inquiries may be sent to Reston, VA
(WATSTORE. U.S. Geological Survey.
MS 437. National Center. 12201 Sunrise
Valley Park. Reston. VA 22092: ph: (703)
860-fl87l) or to USGS officea in each
State. When determining baseline for
ground water, control wells may have to
be selected or drilled. Historical data
should be available to determine the
extent of the aquifers being studied or to
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 276C9
determine hydrolngic characteristics
other than the concentration of oil or
hazardous substances. Tests done on
the water and matrix from control wells
should parallel those done during the
Injury Determination phase, as for other
baseline procedures.
Establishing baseline for surface
water resources includes consideration
of effects due to low and high water
conditions. At high flow or stage
conditions, surface water samples will
provide information on material washed
from the land surface or tidally-
transported. Low water conditions will
reflect the potentially most concentrated
condition of the surface waters. The
range of normal concentrations should
be determined over the range of water
flows or stages, rather than depending
strictly on seasonal or annual cycles as
might be needed for biological
resources. Sediments in the water
bodies may represent the major
concentration of many contaminants,
may provide potential for future
releases, and may serve as a potential
source of injury for biological resources
via food chains. Establishing baseline
for marine and estuarine waters may
require procedures to account for tidal
and current effects on the movement of
substances.
Concentrations of materials in air can
change due to changing wind conditions,
diffusion, varying volatility of the
matenals. and changes in release rates.
Thus, establishing baseline conditions
for air presents problems for baselines
that differ from the other resources. The
rule imposes limitations on use of
historical data for an air resource
baseline. These limitations, in summary.
require that previous testing would have
detected the oil or hazardous substance.
and that the previous testing indicates
that historical levels have been
sufficiently predictable to be useful.
Detectable concentrations of oil or
hazardous substances are normally
extremely rare in air. so these
requirements are less restrictive than
they may seem. Otherwise, monitoring
at control sites will have to be
conducted by the authorized official
with consideration given to siting and to
sampling schedules that ensure
comparability to the assessment area
and conditions, and that avoid
interference from other potential
scurces.
Guidelines on basplme data for
geologic resources primarily reflect
factors important in determining
comparability between the assessment
and control areas and the need for
appropriate sampling from the control
areas.
Because quantification of injury to
biological resources will involve
habitats and populations, the sources of
historical information provided
emphasize these types of information.
Included among the appropriate habitat
maps would be the Wetland Inventory
maps prepared by the U.S. Fish and
Wildlife Service and by individual
States showing locations of specific
habitats and ecosystems (U S. Fish and
Wildlife Wetland Inventory Maps are
available from: U.S. Fish and Wildli'e
Service. National Wetlands Inventory,
Dade Building Suite 217.9620 Executive
Center Drive. St. Petersburg. FL 33702; •-
ph: (813) 893-3624). Many other kinds of
habitat and ecosystem maps are
available. The U.S. Geological Survey
maintains indices to and has available
series of aerial photographs for most
areas of the country, including not only
topographic photography, but also
photographs for studying agricultural
and other land uses. With professional
interpretation, these matenals can
indicate trends in habitat. Museum
collections also provide records of
species occurrence that may avoid
duplication of collection efforts:
specimens often are accompanied by
field notes that provide habitat
information. Both Federal and State
agencies maintain biological data bases
that often include distribution and
habitat data. Among these are data
bases for endangered species. Natural
Heritage data bases maintained by
many States, systematic data bases
often maintained by museums and
herbaria, and data bases for numerous
fish and game species maintained by
management agencies.
The requirement for species
identification is not intended to be a
major task. A comprehensive collection
of all or most species present is not
desirable. The authorized official
instead should confirm the identification
of species that figure most prominently
in the injury assessment and in the
selected restoration alternatives. For
species that should not be collected for
normal taxonomic studies because of
low populations or other reasons,
modem techniques that require only
small blood or other tissue samples from
live-trapped animals may be used, as
may other techniques that will not
create problems for species restoration.
These confirmed identities may prove
important in subsequent judicial or
administrative processes or in later
evaluating the success or failure of
restoration programs.
(d) Resource recoverability analysis.
Section 301(c)(2)(B) ofCERCLA requires
consideration of the "ability of the
ecosystem or resource to recover." This
consideration is provided for in § 11.73
of the rule. To satisfy this requirement.
the authorized official must estimate the
time necessary for recovery, both
without restoration efforts beyond the
removal of remedial action and
"normal" management practices, and
with proposed alternative restoration
plans. No single formula can be
designated for determining the recovery
time. Recovery will be considered
complete upon the determination that
natural resource services have been
effectively restored. This determination
does not require that the recovered
ecosystem or other resource necessarily
be identical to the one lost, but merely
that all important and measurable
services of the lost resource have been
restored. Once that point is reached.
restoration or replacement is considered
complete. The authorized official is
given the option of using a shorter
period because the costs of efforts
expended in estimating very long
recovery periods may not provide
sufficient benefits when subjected to
economic analysis.
The major source of information for
the authorized official to use in
determining recovey times is the
experience that has been gained during
other recoveries of similiar resources.
journals and published symposia on oil
and hazardous substance response, as
well as references found in these
sources, contain numerous case studies
that can be used as the basis for
calculating recovery times. EPA has
summarized some of these data in
Appendix D of their 'Technical Support
Document for Water Quality-based
Toxics Control." Office of Water
Enforcement and Permits and Office of
Water Regulations and Standards.
September 1985. Knowledge of local
conditions, including information on
ecosystems, organisms, and climate, can
be critical in adjusting the results of
published studies to particular
situations. Modeling may be useful for
air. water, and geologic resources, and
knowledge of degradation and natural
removal processes for the oil or
hazardous substance will be central to
all time determinations.
E. Economic Issues
1. Economic Methodology Determination
The method for determining damages
is. described in section 301(c)(2) of
CERCLA as considering, but not limited
to, "replacement value, use value and
the ability of the ecosystem to recover."
Replacement value (costs) and use val-
are concepts that have a history of
-------
27690 Federal Register/ Vol. 51. No. Kg/Friday. August 1. :986 / Rules and Regulations
cordingly. co/r.mon law
and economics provide cocs:dereb!p
guidance on selection of a rrethod or
.T.cthods to calculate d.imsces Ln
con?,on low. compensation ;s often
c!E'era;ned }•>• the lesser of the
d.mcjticn of market value or the cnsl of
- •,"Tot-on or replacement.
h 'n-.-nc r-f economics, ronppnfal i.n
! -r il.imf-ees would be '.he terser of she
• •ir. ij.-ion of use \ •> Vs or the cost of
, ••ist-i-ffp'-iive r5»torsr-fjld b« rrc.-e
•.i!ion:i! for socie'y ij be ronr-ensated
for :hp r«st to reslcre or -"place Lhe lost
resource than to be tonpe.-.salnd fer iSe
i'ist use. Conversely, if restoration or
rrplarement costs are higher than the
vi'.ue of uses forgone, it :s rational for
soae'y to compensate individuals fur
the.r lost uses rather than the cost to
ff-sture or replace Ihe injured natural
resource. Thus, economics and common
Utv agree on a principle cf
compensation. This rule hhs adopted iin
approach parallel to the general
common law and economic rule* for
compensation for damages. Damages jn
tl.is rule are the leaser of restoration or
replacement costs: or 'he d-Tiir.i-rion of
use values.
T!,e choice of a measure uf drtiruigps.
i.e.. restoration or renlacement costs, or
iSe diminution of use values, does not
iiffoct the actnal use of damage
amo-jnts. No matter which measure is
:hosen. the monies collected from the
settlement or award must be used for
rpstoranon or replacement. In addition.
Federal or State agencies are not
precluded from supplementing damage
funds with other monies to restore.
replace, or enhance the injured natural
resource.
The analysis required in the Economic
Methodology Determination. 51135. is
intended to be only a rough
approximation of the values derived
after the conclusion of the Damage
Determination phase. Original research
projects should not be conducted at this
early phase of the assessment Existing
studies to approximate use values
forgone resulting from the injury to the
natural resource should be relied upon.
Sources of data include journal articles.
government publications, such as the
documents produced by the Forest
Service to implement the Resource
Planning Act and work to progress at
many universities. Reftoraocn or
replacement costs should be
approximated through the use of unit
values for pest management practices or
resource acquisitions. If sufficient
information is not reedily available at
the bfne of the development of the
Assessment Plan, the determination of
en economic methodology can be
postponed until after the injury
Determination phase of the asuf-ssoutni
In addition, any aecessdiy refireme-ts
-.1 th? Economic Methodolgy
Oeienrinaticn can be nraJe as
to the Assessment Plan dl
•»ny
One cpj(..r.l issi-e in any quantitative
du-.nge asupssrct .it
-------
Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27691
ui-.vflil dh being of sufficient det.nl to
cjrrv out a restoiation. rather the lc\el
of dniail is driver, by the needs of the
ii.im.ige determination. The later post-
••i^v.ird Ros'oration Plan, when the level
ol finding is known, is expected to focus
on the selected altrrnathe dnd.
tlipnifuri' provide more dotail on the
ai tu-tl rnsioM1 on.
Thr ant1* inzflj ofuun! is enaiisr.iyid
tu oimnine thi- requirements for iS-
Restoration Methodology Plan with
other planning or analytical
riMjuirprm-nts that may apply to u
specif:c restoration or replacement
decision. Some examples of other such
n:quircmi:nis include a restoration plan
required under section I1l(i) of CERCLA
for claims against the Fund. Remedial
Investigation/Feasibility Studies (RI/FS)
required under the National
Contingency Plan, analyses required
under the National Environmental Policy
Act of 1969 (NEPA), or land use planning
documents required under the various
l.md management statutes. The
Restoration Methodology Plan is
designed, in particular, to satisfy the
requirements of NEPA without
additional analysis at this stage.
4 Use Value Methodologies
Si'f.tion 11.83 is divided into two
p.irts—one for resources that are traded
in markets and the other for resources
thiit are not traded in markets If the
injured resource is traded in a market,
the diminution of the market price
should be the measure of lost use value.
Tlie diminution of the market price will
not always coincide with the change in
the loss in social value, but this amount
is widely recognized by courts as the
measure of damages when a commodity
is injured.
When the injured resource is traded in
the market, the authorized official must
determine whether the market is
"reasonably competitive" in order to use
this methodology. While not defined in
the rule, reasonably competitive means
that the assumptions underlying a
competitive market are fulfilled to a
reasonable degree. This determination
may be made on a case-by-case basis.
If the injured resource is not traded in
j market, but similar or like resources
•ire traded in a market, the authorized
official should use an appraisal
technique to determine damages. To the
extent possible, all appraisals should be
in conformance with the "Uniform
Appraisal Standards for Federal Land
Acquisitions" (Uniform Appraisal
Standards) (see § 11.83(c)(2)(i)). In those
instances when State statutes may be at
variance with these standards, a State
authorized official acting as trustee
should follow the applicable State's
guidance on performing appraisals.
The Uniform Appraisal Standards
cover three general appraisal
approaches: the cost approach: the
income method: and the comparable
snles approach. The cost approach is
inappropriate in implementing the
•ippruisal method since the restoration
methodology (described in § 11.81)
explains how restoration costs are to be
(li.-'ermined. While the income me'hod in
the Uniform Appraisal Standards is
cippropnate. it should only be performed
in accordance with the "Factor Income"
method given in the rule. The diminution
of market price and the appraisal
method jointly comprise the marketed
resource methodology in the rule. Only
when the injured resource is not traded
in a market, or when that market is not
reasonably competitive, and no
comparable sales are available for use
in tn appraisal, may the authonzed
official use any of the nonmarketed
resource methodologies listed, or any
that meet the acceptance criterion.
CERCLA provides that a Federal or
State agency is acting as a trustee when
seeking recovery for a loss to a resource.
Accordingly, it is damage to the public
that may be recovered. The use values
that can be claimed by a Federal or
State agency are those associated with
the loss to the public in general because
of the discharge or release. These
include: losses in recreation and other
public uses: fees and other payments
made to the agency for the private use of
the public resource: and the economic
rent, that is. the excess of total earnings
of a producer of a good or service over
the payment required to induce that
producer to supply the same quantity
currently being supplied, accruing to
private individuals engaged in
commercial ventures because the
government does not charge the
producer a price or fee for the private
use of the public resource.
Under this rule, the Federal or State
agency acting as trustee cannot collect
for: taxes forgone, because these are
transfer payments from individuals to
the government; wages and other
income lost by pnvate individuals.
except for that portion of income that
represents economic rent, because these
values do not accrue to the agency and
may be the subject of law suits brought
by the individuals suffering the loss: or
any speculative losses. The costs
incurred by private individuals engaged
in commercial ventures may be
considered in performing the
nonmarketed resource methodologies
listed in the rule, but the purpose of this
use is to enable the authorized official to
assign a value to the resource, not to
collect that private cost.
The Federal or State agency acting as
trustee can claim all the net income lost.
not just the economic rent, from a
commence! venture when the agency is
the sole or majority owner of the
venture that is affected by the discharge
or release. For example, if the Federal or
State agency sells water and that water
supply is injured, that agency can claim
the change in net income as damages.
This procedure allows the agency to file
one claim to obtain all damages
associated with the discharge or release.
rather than two.
Nonmarketed resource methodologies
may be used to measure a diminution of
use values. The methodologies listed in
S 11.83 are examples of those that are
permitted under this rule. Discussions of
these methodologies can be found in
many natural resource or environmental
economics textbooks, such as in A.
Myrick Freeman III. "The Benefits of
Environmental Improvement: Theory
and Practice." Resources for the Future,
Inc. (Baltimore. MD: Johns Hopkins
University Press. 1979), available from:
Resources for the Future. Customer
Services, P.O. Box 4852. Hampden
Station, Baltimore. MD 21211: ph: (202)
328-5025.
Several of the nonmarketed resource
methodologies listed in § 11.84 are also
listed in the "Procedures for Evaluation
of National Economic Development
(NED) Benefits and Costa in Water
Resources Planning (Level C)"
[Procedures) (see 8 11.83(a)(3J). To the
extent practicable and applicable, the
authorized official should follow the
guidance in this document. The
discussion of unit day values in the
Procedures should be supplemented
with other sources of existing estimates
of use values, such as that in the
forthcoming Final Environmental Impact
Statement. "1985-2030 Resources
Planning Act Program." Appendix F
(Resources Program and Assessment
Staff. Forest Service. U.S. Department of
Agriculture. 3308 S. Agriculture Building.
P.O. Box 2417. Washington. DC 20013).
Other studies may also provide the
authorized official with more
background. One supplemental source is
W.H. Desvousages. V.K. Smith, and M.P.
McCivney. "A Comparison of
Alternative Approaches for Estimating
Recreation and Related Benefits of
Water Quality Improvement." U.S.
Environmental Protection Agency.
Office of Policy Analysis. Washington,
DC. EPA-230/OS-B3-C01. March 1983
[available from: Office of Policy
Analysis. U.S. EPA. 401 M St. SW.
Washington. DC 20480, or from NTIS). In
-------
27032 Federal Register / Vol. 51. No HO / Fudav. A'jyust 1. 1935 / Rules and Regulations
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.••'•' on farther iPr>>::.;b'.!:T er. '..IP ;TP
- n bc.'ci.-J ir. T>r.cE7.:.!"r.co'j -jrS. ' which is litir.5 prepared -T
•r: r.^iio-. vsith th.; : ,!*.
"he list -if •••irmi.ike'.id r.-M.., r.-.-
c-.lcnrsn ,a J T 34 :s J«r: >.r.:.Ji -. :/J-P
': : ••.e:h •iK.lus os :c:. >.<'.!.: ' "» "
r<.o::o:ruc :':e :n a cc:t-
effective manner.
F Glasssry
The folic/iving terms are defined using
gsnerclly accepted and applied
definitions. The defimtians proucled
here are simply for clarification and sro
rot included as regulatory language.
(a) "Assimilate" means to absorb a
substance into an organism's body.
tissues, or cellular structure and does
net refer to substances in the digestive
tract or respiratory system that have not
otherwise been absorbed across
membranes or epithelia.
(b| "Behavioral abnormalities" means
alteration of overt activities by an
animal including locomotor.
reproductive, care of young, food
gathering. or avoidance of predation.
(c) "Bioaccumulate" means the
.ocess whereby chemical substances
enter aquatic or terrestrial organisms
through both bioconcentration and
uptake of chemical residues from
dietary- sources.
(d) "Bioconcentrate" means the
process whereby either chemical
substances enter aquatic organisms
through gills or epithelial tissue directly
from water, or chemical substances
enter terrestrial organisms through
respiratory or epithelial tissues directly
from a in and the concentration of the
chemical substances in the tissue fluids
of the organism exceeds that of the air
or water.
(e) "Biomagnify" means the process
by which tissue concentrations of
boacc'Jimilated chemical substances
increase as they pass up the food chain
through two or more trophic levels.
(f) "Cancer" means z general terra
frequently used to ir.diccte sr.y of
various types of malignant neoplasm*.
most of which invade surrounding
tissues dnd may metastasize to several
sites.
[g) "Constant dollar" means inflation
udj'jstpd dollars at a specified basp
yenr.
!u) Controlled expenment" rrc-.ns
«.r.\ . .borblory pen cr field lest in
v." h -.?. tr..ei!:g3'or regulates'the
r» -,-• rr> of the BIO'^CIK" rpscurce to
I!." :•'. cr ha/;.-Jojs sj'.'sunces and
vxrii p •.rc'ui'-'* rcT.ptnso". to o:g-ir.i«rr«
trcri": *:^ j'arly c\c?p: Hr si-ch
e.^r-'.re
1 ! ."3 rn-st" r.ejir.s SP irrpoirrr.e": of
a \j £'•;•£ f=' :.£^jrre s ability to res.s: or
rp.(..•• f-oni ec "ifec1 ^js agent.
'•) "i.\ i'TCf •• dl'je" iren.ns tne doildr
r rnu".' of ths v-il'ingr^ss U: n«\ or
VM.' nc-css !o £?"ept of :r.di\:iJuols who
d:< "O1 plan to u'.iiz.' a resource now or
in (.> c futile, bi:! ure wiil.ng to pay to
kr.c-.v that the resource would continue
to e»st in a certain state of being.
(k| "Cxoected present value" means
the dollar amoun; denved by the period-
by-penod summation of the various
levels of benefits or costs associatpd
with alternative assumptions on
parameter values, where each level is
weighted by the probability of the
occurrence of the parameter value, and
discounted by period, using the discount
rate as determined in fi 31.83 of this part.
(1) "Free-ranging" means biological
resources in their natural habitat, in
contrast to biological resources
maintained in captivity.
(m) "Genetic mutations" means a
detectable chromosomal aberration that
can be correlated with a detrimental
effect on the survival or reproductive
success of the biological resource.
(nj "Neoplasm" means an abnormal
mass of tissue, the growth of which
exceeds and is uncoordinated with that
of the normal tissue and persists in an
excessive manner after cessation of the
stimuli that evoked the change.
(o) "Net expected present value"
means that costs are subtracted from
benefits in the definition of expected
present value.
(p) "Option value" means the dollar
amount of the willingness to pay or
willingness to accept of individuals who
are not currently using a resource, but
wish to preserve their option to use that
resource in a certain state of being in the
future,
(q) "Physical deformation" means
congenital or acquired alterations in
shape, size, and structure of an organism
or &r.y part of an organism, including
malformations.
(:) "Physiological malfunction" means
alterations in biochemical and
physiological processes necessary for
maintenance of homeostasis and
reproduction, including such processes
as fluid transport, digestion, metabolism.
excretion, respiration, locomotion, and
nervous and endocrine integration.
(s) "Willingness to accept" means the
f-.mount of monev an individual must be
g:\ en to be as well off as he v. as prior to
the occurrence of an e\ent.
(0 "Willingness to p<«y" means the
amount cf money an .^.dividual would
be wiling to pay to hfcwe avo.dcd the
orr.iirenre of an e\ent.
III. Responses to Comments
The Department rrce M-d numerot's
comrr.en'.s on the prr.pc&ed rvle. The
considereble time end effort expended
on the comments and the ihoughlfuiness
cf the comments are greatly appreciated
Most comments commended the
Depai tmeni's efforts in developing a
well-thought-out and logical assessment
process. The general approach of the
pioposed rule has been maintained in
the final rale. At the same time, the final
rule has benefited from many suggested
improvements in clarifying its intent and
improving the accuracy of the damage
assessment process. Changes made to
the proposed rule in response to
comments are explained in the sectiou-
by-section that follows. A number of
additional minor changes of a non-
substantive nature have been made la
ensure clarity of language, correct
errors, and to conform to proper Code of
Federal Regulations usage.
A. Revisions to Sabpart A—Introduction
General Comaeats—Relationship to
Response Actions
1 here may have been a
Misunderstanding among some
comments as to the purpose of a natural
resource damage assessment. Many
comments made reference to the use of
a damage assessment to effect a
"cleanup" or "remedy." Other comments
mainlamed that the natural resource
damage assessment process would
result in two remedial actions being
undertaken. This rule, however, is a
companion to other regulations under
CERCLA that are specifically intended
to deal with response and remedial
actions. As such, this rule is intended
only to assess the residual damages for
injuries to a natural resource that might
remain after remedial actions or other
response actions were completed.
The Department notes that while this
ru'.e does not provide fora "second
remedial action." it does provide for
add.tional measures when necessary to
compensate for residual injuries through
restoration, replacement, rehabilitation.
or acquisition of equivalent natural
resources, actions that may not lie
u ithin the scope of the remedial
alternative selected for the site in
question. In addition, this rule allows for
compensation for loss of use values
suffered from the time of the discharge
or release responsible for the injury tmtil
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27693
the lost services provided by the natural
resource are restored. The rule does.
however, encourage natural resource
damage concerns to be incorporated as
fully as possible in NCP response
actions.
One comment held the mistaken
impression that damages determined in
accordance with the rule were only
available on a reimbursement basis. The
comment also expressed concern as to
the proposed rule's reference to a
priority order for restoration work.
The Department notes that damages
may be awarded once a demand is
made. The damage award cannot be
spent until the Restoration Plan is
developed, but the Plan itself is based
on the amount of the award. The
Department points out, however, that
claims against the Hazardous Substance
Response Trust Fund must be for costs
incurred as specified by the Natural
Resource Claims Procedures
promulgated by EPA at 40 CFR 306
(December 13.1985. SO FR 51205). Also.
no pnonty order for restoration work is
included or intended in the rule.
Several comments expressed concern
over how the assessment process will be
integrated with the remedial
investigation/feasibility study (Rl/FS)
process, especially in light of the long-
term nature of some remedial actions.
Many comments requested further
practical guidance on how to effect this
coordination.
The Department is unable to provide
much additional guidance beyond that
already provided in thu rule and its
preamble until some practical
experience in the application of this rule
has been gained. The Department can
only emphasize the critical need for
authorized officials and lead agencies to
work closely together throughout the RI/
FS process. The Department does
believe thai to properly account for the
effects of remedial actions, the
Quantification phase generally should
not be initiated until the remedy has
been selected and ia being implemented.
The baseline, however, is determined as
the level of conditions prior to the
discharge or release under investigation.
not as the conditions after the remedy
has eliminated or mitigated the injury.
Measurement of the change from
baseline would account for the effects of
the remedial action. If a remedial action
is going to be significantly delayed, and
a damage claim must be brought
because of the statute of limitations, the
rule does allow for inclusion of the
"anticipated* effects of remedial
actions.
Another comment expressed concern
that the rule's concept of residual
damage may prove contrary to the
overall policy of the CERCLA program.
and that use of the residual damage
concept could lead to the establishment
of an unreasonably low action level to
limit residual damages, thereby
suggesting a preference for the remedial
action option of media removal with off-
site disposal. On-site contaminant
containment, the comment continued, is
often the most desirable remedial option
because it reduces adverse impacts at
the site and minimizes potential impacts
in otherwise unaffected areas. Finally.
the comment noted that, if the concept
of residual damages is not balanced
with the concept of overall benefits, it is
unlikely that cost-effective and
environmentally sound on-site
containment remedial options would be
considered viable for implementation at
CERCLA sites.
The Department agrees that on-site
containment may often be the best
remedial alternative and does not intend
that use of the residual damage concept
should increase the number of off-site
remedies. Federal and State agencies
acting as trustees must coordinate
closely with the lead agency under the
NCP to ensure that the remedy selected
for the site is balanced against the
overall impact on the environment, both
on- and off-site.
Finally, one comment correctly noted
that the current CERCLA case law
imposes liability for a natural resource
damage claim only if the release or the
threatened release causes response
costs to be incurred. However, the
comment then incorrectly concluded
that this interpretation suggests that if
no remedial action is deemed
appropriate, there is no cognizable
injury to natural resources that may be
assessed.
The Department notes that CERCLA
defines response costs to be much
broader than simply remedial action
costs. "Response" includes "remove and
removal" costs, which include
monitoring, assessing, and evaluating
the release (see section 101 (25] and (23)
of CERCLA).
General Comment*—Challenges to the
Rule
One comment expressed concern as to
the appropriate time to challenge
inappropnate applications of the
methodologies contained in the rule. The
comment stated that the appropriate
time to challenge a particular
application of any of the various
alternative methodologies that might be
used under this rule is when the
methodologies are applied in an actual
assessment
The Department agrees that the
specific application of an allowable
methodology in an assessment setting
can be challenged within the context of
the damage claim litigation. Such an
action, however, would not be a
challenge to the rule, nor a challenge ti
the inclusion of the methodology in the
rule. The provisions of the rule itself
cannot be challenged after the ninety-
day period provided for in section 113(a)
of CERCLA.
General Comments—Punitive Damages
One comment took issue with the
Department's statement that natural
resource damages under CERCLA are
intended to be compensatory, not
punitive. The cojnment stated that
CERCLA expressly provides for punitive
damages in some cases (section
107(c)(3)), and that CERCLA was
intended to preserve traditional tort
remedies, expressing no intent to cut off
punitive damages. The comment stated
that punitive natural resource damages
were especially important because of
section 114(b) of CERCLA. which
precludes compensation for damages
pursuant to CERCLA in addition to any
other Federal or State law. The
comment suggested that the rule should
be revised to provide that. In the case of
outrageous conduct by a responsible
party, the trustee may seek punitive
damages, reviewable in a subsequent
proceeding by a court.
The Department does not believe tl
Congress intended that the assessment
regulations should include provision for
punitive damages. Section 107(c)(3) of
CERCLA. by its language, applies only
to a refusal to comply with removal or
remedial action orders. The natural
resource damage assessment regulations
are intended to measure, a» accurately
as possible, the "lots" suffered by the
public for injuries to natural resources.
Any additional damages baaed on the
intent of the responsible party at the
time of the discharge or release would
be beyond the scope of this rule. and. in
the Department's interpretation of the
statute, not authorised by section 107(f)
of CERCLA.
General Comments—Administrative
Process
Several comments objected to the
level of discretion given to a trustee
agency to make the significant decisions
called for in the rule. The comments
suggested a national review panel, an
arbitration panel, or an administrative
appeals board to oversee the
assessment process.
The Department does not support the
establishment of any type of oversight
mechanism, since the nile contains an
administrative process to provide for
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27694
Federal Register / Vol 51. No. U8 / Friday. August 1. 1966 / Rules and Regulations
review of ihe authorized official's
exercise of discretion. While it is true
thai the rule commits many important
derisions to the discretion of the
authorized official, the rule provides
cnlpna by which the decision can be
evaluated and specifically subjects the
decisionmaWng process to review by
other affected trustee agencies, any
potentially responsible parties the
public, and ultimately the courts The
Uepnrtmer.l believes that review and
resolution of disputes on a case-by-case
bjsis by the parties directly involved is
more effective than imposition of the
ludgment of a national group.
Section-by-Section Comments
Serf in n 11. W Scope and applicability
in response to several comments, the
Department has changed the language of
§ 11.10 to clarify that the procedures
specified in the rule apply only to
"assessments initiated after the effective
d
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27695
assessment area" be distinguished. Ths
comments held that damage assessment
area should include areas directly or
indirectly affected by the injury. The
Department notes that the proposed rule
aid not define either of these terms, nor
does this final rule. The Department
bfil;e\es that sufficient flexibility has
been established in this final rule to
allov.- '.he Federal or State authorized
oiUidl acting as trustee to include all
areas of direct or indirect injury or
damages in the damage assessment.
§1l.l4(c!) "Authorized official"
In response to comments expressing
the concern thet the rule could be
construed as allowing potentially
responsible parties to be designated as
"authorized officials" or even as "lead
authorized officials." a revision has
been made to the definition of
"authorized official" and of "lead
authorized official," in § 11.14(w). to
clarify that only Federal or State
officials may act as authorized officials.
§ 1114(e) "Baseline" '
Some comments stated that the
concept of baseline should reflect all
pre-release conditions, rather than just
the condition of the assessment area
immediately preceding the release that
caused the injury for which damages are
being assessed. In addition, one
comment recommended that the concept
of cumulative effects of incremental
releases be incorporated into the
definition of "baseline" so that
restoration to conditions prior to the
first of several releases that
cumulatively caused the injury would be
required.
The Department disagrees with the
comments and has not made these
changes. Where there is a series of
releases, baseline is determined by
looking to the condition of the injured
resource in the absence of the release or
any number of releases that can be
included in the current assessment.
Whether cumulative releases can be
assessed will depend upon the
application of the liability provisions of
section 107 of CERCLA to the incident in
question in accordance with governing
case la vt.
Some changes were made to the
definition of the term "baseline." These
changes are discussed in the response to
comments on § 11.72 Quantification
phase—baseline determination.
§ 11.14(h] "Committed use".
One comment suggested that "diiother
party," as used in the definition of
"committed use." should include I'^cal
governments or private parties. Ti.e
Department has revised the definition to
clarify that the key issue is that the use
being measured is a public use and has
been documented as a public use. The
identity of the party documenting the
use is not controlling, so long as the
documentation is a matter of public
record.
Another comment maintained that the
definition of "committed uses" should
clarify that such uses are compensable
only if they are public uses. The
Department believes that this concept
was embodied in the proposed rule.
However, because of some confusion as
to the meaning of the definition, it has
been reworded to make the concept
explicit.
One comment recommended that the
definition of "committed use" be revised
to allow a trustee to commit a use at any
time to protect particularly important or
sensitive resources.
The Department disagrees with this
comment. In order to arrive at a fair
value of compensation, the commitment
to the use must be made prior to the
discovery of the injury.
Another comment stated that the
definition of "committed use" should be
revised to reflect natural resource uses
that are legal and consistent with uses
of similar public resources in compatible
areas. The comment asserted that the
current definition is too restrictive
because it includes only documented
past uses and excludes present uses.
Another comment correctly interpreted
and concurred with this definition.
However, the comment noted that more
than one interpretation is possible. This
comment requested that the definition of
"committed use" be revised to explicitly
include all current uses of an injured
natural resource, but only those future
uses that have been documented by the
trustee or another party as planned
future uses. The comment maintained
that this interpretation prevents
assessment of speculative resource uses
while allowing trustees to measure
accurately current and planned resource
uses.
Because of the confusion, the
Department has rewritten this definition
to explicitly clarify that only future uses
need to be documented and that these
uses are included as committed uses.
S I1.14(i) "Control area" or "control
resource"
One comment suggested that language
be added to the defini Jon of "control
area" to provide that if the control area
does not contain as diverse or vital a
population as existed at the assessment
area before the release, the baseline
should be adjusted to account for such
conditions. The comment held that such
a change would better protect biological
diversity. The Department believes that
this change is not required. The rule
defines and discusses the choice and
use of a control area and its relationship
to the baseline sufficiently to enable the
authorized official to use these terms as
is needed for the assessment
§ 11.14(j) "Cost-effective" or "cost-
effectiveness"
Several comments suggested that the
definition for "cost-effectiveness" be
expanded to apply whenever "the same
or similar" level of benefits are being
considered. The Department agrees and
has made this change. In many cases
benefits may not be exactly the same.
but may be similar in nature; cost-
effectiveness should hold in these cases.
While the reasonable cost test would
theoretically cover this problem, the
definition of cost-effectiveness was
changed to avoid confusion.
One comment argued that "cost-
effectiveness" is the appropriate
standard used in the assessment
process: that "reasonable costs" is not
needed to a substantial degree and is
inadequate. Another comment stated
that cost-effectiveness and reasonable
costs are clearly explained in the rule
and preamble, are well applied, and that
the rule does an excellent job of-
balancing the need for a fair and
defensible assessment of damages while
minimizing the cost of an assessment.
The Department points out that under
CERCLA the authorized official can
recover only the "reasonable costs" of
assessments. As such, both the
reasonable cost and coat-effective
criteria apply. The Department notes
that cost-effectiveness, as defined in this
part, refers only to actions taken
pursuant to the natural resource damage
assessment regulations. A cost-
effectiveness definition for actions taken
pursuant to the NCP was published at 40
CFR 300.68[i).
S 11.14(1) "Damages"
One comment recommended that the
definition of "damages" be revised to
provide that only lost public services
and public uses are compensable. and
that damages are to be measured by the
lesser of cost-effective restoration or
replacement and diminution of use
values.
The Department points out that this
rule limits the damages compensable to
authorized officials to the loss to the
general public, in 5 J 11.81 and 11.83. As
such, defining damages as the comment
suggests would be redundant
Consequently, this change was not
incorporated into this rule.
One comment noted that while the
definition of damages in this section
was reasonable, this definition was
effectively expanded in {{ ll.lS(a) and
11.80[f)(l) of the proposed rule. This
comment suggested that the definition c
damages, in 111.14(1). be expanded to
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27696
Federal Register / Vol. 51. No. 146 / Friday. August 1. 1986 / Rules and Regulations
incorporate the concepts in §§ 1115(3)
and 11.80(f)(l) The Department notes
that 8 11.14(1) provides the basic
definition of damages as compensation
for an injury. Sections 11.15(a) and
11.80(0(1). and other sections, elaborate
on hew this compensation is to be
measured. To incorporate all of this
elaboration into the definition section
would be unwieldy and unworkable
§ 1114(m) "Destruction"
One comment suggested thdt tissue
concentrations of hazardous substances
in animals, fish, or plants in excess of
FDA levels constitute a "total loss" of
these resources, wilhin the meaning of
the definition of "destruction." Several
comments believed that "destruction"
should be defined as "irreversible loss
of the services of a natural resource"
because a resource is not lost, even
when extensively damaged; only its
services are lost.
The Department has defined "injury"
to include the term "destruction" and
has provided specific injury definitions
in 8 11.62 for each category of natural
resources. These issues are discussed
further in thakesponses to comments on
S 11.62.
§ 11.14(o) "Drinking water supply"
Several comments asserted that the
definition of "drinking water supply" is
too broad or too vague. Comments
suggested that the proposed rule utilize
the Safe Drinking Water Act (SDWA)
definition of public water supply (40
CFR 141.2(e)) as a water supply that
provides 15 sen-ice connections and
serves 25 persons at least 60 days per
year.
The Department notes that the
definition of drinking water supply is
taken directly from the definition in
section 101(7} of CERCLA.
8 11.14(1) "Ground water resources"
Several comments suggested that the
definition of "ground water resources" is
too broad; one comment proposed to
limit such resources to aquifers because
those are the only such resources
"capable of providing some use."
The Department disagrees with these
comments. It is true that aquifers are
useful ground water resources and can
provide drinking water supplies and
irrigation. However, the Department
recognizes that "ground water
resources" has been defined broadly.
This definition recognizes that ground
water exists as a complex and
interrelated system. An injury to waters
in the saturated zone is an injury to
ground water resources. Such waters
may be extracted and used directly and/
or may migrate to and contaminate
aquifers.
One comment recommended that the
portion of the definitions of ground
water resources and surface water
resources relating to "rocks and
sediments" be explicitly stated to apply
only to this rule. The comment suggested
that these definitions would otherwise
establish undesirable precedents for
interpreting other regulations.
The Department does not believe that
the definitions are either unique or
confusing. The Department feels that
adequate guidance has been provided to
ensure that the definitions apply only to
this rule
8 ll.:4(v) 'Injury-
One comment stated that the
definition of "injury" be explicitly
limited to the change in services from
baseline less mitigation of those lost
services resulting from response actions.
The Department points out that the
defuv.tion. as well as the concept of
injury, has been discussed in detail
elsewhere in this preamble. The
comment is addressed further in the
response to comments on j 11.71 of the
rule.
§ M.14(w) "Lead authorized official"
(See discussion for 8 11.14[d).)
|ll.M(xJ "Loss-
One comment requested clarification
on whether a "measurable adverse
reduction." within the meaning of the
definition of "loss." includes a
statistically significant reduction at a
probability of P=0.05 from a control or
reference site.
The Department believes that the
measure of a "measurable adverse
reduction" would be determined in the
Assessment Plan phase of an
assessment, in accordance with the
stipulation that all assessments be
designed and planned to follow
appropriate scientific procedures. The
specific level of significance can only be
determined in conjunction with the type
of test being used and the case-specific
application of that test. Because of this.
the level of significance required is left
unspecified in this rule.
8 11.14(z) "Natural resources"
One comment suggested that the
Department provide a more detailed
definition of the term "natural
resources" to emphasize that only public
and not private resources are within the
scope of this definition.
Section 101(16] of CERCLA defines
natural resources as those resources
"belonging to. managed by. held in trust
by. appertaining to. or otherwise
controlled by the United States. . .. any
State or local government, or any foreign
government." The Department believes
that Congress has defined "natural
resources" with sufficient specificity to
leave no doubt that resources owned by
parties other than Federal. State, local.
or foreign governments (i.e.. privately-
owned resources) are not included. The
Department has therefore retained the
CERCLA definition of natural resources
in 8 1114(z) of this rule.
Another comment held that the rule
allowed the assessment of resources not
covered by CERCLA. because
throughout the rule, the term "resources"
is used instead of "natural resources."
The Department has amended the
definition of "natural resources" to
clarify that the term "resources" is
equnalent to the term "natural
resources."
One comment urged the Department
to state explicitly in the rule that only
two types of private losses are not
subject to trustee recovery, namely.
change in value of injured private
property and lost private business
opportunity. The comment further stated
that only when the potentially
responsible party demonstrates that a
private cause of action is available to
recover private losses should a trustee
be barred from recovering those losses
The Department notes, as stated
above, that section 101(16) of CERCLA
clearly indicates that damage to
pnvately-owned natural resources'are
not to be included in natural resource
damage assessments. Private resource
owners are free to pursue private
damage actions to recover for injuries to
their resources.
Several comments held that the
statement in the proposed rule that
"direct losses suffered by private users
of public resources" are not
compensable suggests that trustees'will
be precluded from recovering natural
resource damages under CERCLA.
The Department believes that these
comments have misinterpreted the
concept of public use embodied in the
proposed rule. "Private uses" are
essentially synonymous with for-profit
uses. For example, an enterprise that
rents boats for recreation at a public
lake is a private use. Those who pay a
fee for entry to the lake, by contrast
enjoy a public use. If the lake is injured
by a hazardous substance release, a
Federal or State authorized official may
recover the loss in fees from visitations
forgone due to the discharge or release.
However, the Federal or State
authorized official may not recover the
lost wages or income to those who
conduct a business there.
One comment recommended a limited
exception to the provisions of the rule
that private uses of public resources are
not compensable in order to protect the
public interest in resources that are the
subject of scientific studies being
conducted by research teams from
private educational institutions.
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Federal Register / Vol. 51, No. 148 / Friday. August 1. 1986 / Rules and Regulations 27697
The Department feels thafthere is no
need for such an exception. Non-profit
scientific research performed for a
public purpose by public or private
institutions is a public use and.
therefore, compensable under this rule.
§ 11.14(ee) "Reasonable cost"
Several comments objected to the
definition of "reasonable cost" in the
proposed rule because, according to the
comments, the increment of extra
benefits of one method over another
cannot be known until an assessment
has actually been performed using those
methods. Other comments asked for
clarification of "extra benefits" or
interpreted that phrase to mean "a
larger damage assessment."
In response to these comments, the
definition of reasonable cost has been
changed in three places. The phrase
"extra benefits" in the second part of
the definition has been modified by the
phrase "in terms of the precision or
accuracy of estimates." This explicit
statement has been added for clarity,
although most of the comments correctly
understood that the proposed rule
implicitly meant this.
The second change was to add the
term "anticipated" before, the phrase
"increment of extra benefits" and to add
the phrase "anticipated increment"
before the term "costs" in the second
part of the definition. This change
makes it clear that the authorized
official acting as trustee should make
the judgment on what is "reasonable."
based on estimates of costs and -
benefits, as suggested by the comments.
The third change was to add a third
part to the definition that states "the
anticipated cost of the assessment is
expected to be less than the anticipated
damage amount determined in the
Injury, Quantification, and Damage
Determination phases." This change is
also in response to comments that
correctly understood that this
requirement was one underlying the
entire assessment process outlined in
the proposed rule, but thought that this
concept should be stated explicitly.
§ H.14(ff) "Rebuttable presumption"
Comments on the definition of
"rebuttable presumption" have been
discussed with the comments on J ll.lt
of this rule.
S 11.14(gg) "Recovery period"
Some comments objected to the
discretion given to the trustee to select a
"lesser penod of time" for the recovery
period rather than the "longest length of
time required to return the services of
the injured resources to their baseline
conditions."
The Department agrees that a lesser
period of time snould not be selected
arbitrarily, but believes the rule should
provide this flexibility in order to allow
the authorized official to fit the
assessment to the analytical
requirements of the resource.
particularly where exceptionally long
recovery periods, while theoretically
correct, may have insignificant effects
on the damage assessment.
One comment requested clarification
on whether the recovery period extends
to injuries resulting from releases that
began prior to the enactment of
CERCLA and are continuing.
Specifically, the comment urged that the
rule be clarified to reflect Federal case
law that, in the comment's view,
establishes the retrospective nature of
sections 107(f) and lll(d) of CERCLA.
The Department notes in response
that the rule is intended to be applied
consistent with case law and believes
that no change is necessary to reflect
this in the text.
The comment also requested that the
concept of recovery period be clarified
to include future losses or diminution of
value, as some natural resources may
require a period of several years to
recover to pre-exposure viability. The
Department agrees with this comment,
but believes that the rule adequately
reflects this concept.
Another comment suggested that the
definition of "recovery period" be
modified to address the situation where
a resource can never return to its
baseline condition. The Department has
not added this discussion because it
believes that this situation is adequately
covered by the definition.
§ 11.14(11) "Restoration" or
"rehabilitation"
One comment suggested that the
definition of "restoration" be revised so
that "baseline condition" may be
measured in terms of a resource's
biological or chemical, as well as
physical properties. The comment
maintained that limiting the
measurement of baseline to the physical
properties of a resource would unduly
limit the injuries considered. The
Department agrees with this comment
and has modified the definition
accordingly.
S 11.14(nn) "Services"
One comment suggested that the
definition of "services" provide
explicitly that services are not limited to
human uses. The comment stated that
the legislative history is clear that
ecological services should be
considered. Several comments
recommended that the definition of
"services" include explicit references to
examples of intangible services.
The Department notes that the current
definition does not preclude the
consideration of non-human services
where the authorized official deems
consideration appropriate. Human uses
are a subset of services. As such, no
change in this definition has been made.
Further discussion of this issue can be
found in the discussion of the comments
to { 11.71.
§11.14(oo) "Site"
One comment recommended that the
definition of "site" be revised by
inserting the word "discharged" to
conform with section 311 of the Clean
Water Act. The Department agrees and
has so revised the definition.
S 11.14(pp) "Special resources"
See discussion of comments on
"special resources" in the responses to
comments in Section IV of this
preamble.
8 11.14(qq) (now (pp)) "Surface water
resources"
One comment suggested that the
definition of "surface water resources"
not be limited to "waters of the United
States" and offered instead the phrase
"waters on the surface of the earth
above the saturated zone." The .
Department believes that the definition
of "surface water resourcer* is adequate
as it was given in the proposed rule, and
has not changed the definition.
9 11.14(rr) (now (qq)) 'Technical
feasibility" or "technically feasible"
One comment suggested that an
Assessment Plan or Restoration
Methodology Plan, within the meaning
of the definition of "technical
feasibility." need not be "well known"
to be feasible. The comment offered the
alternative requirement that the Plan
"has been demonstrated to be possible
in at least one comparable project or in
a feasibility study." Another comment
suggested that there be some objective
standard for determining whether the
Plan is technically feasible: that simply
requiring the authorized official to use
his discretion in such a determination is
too subjective.
The Department has changed this
definition to delete the phrase "as
determined by the authorized official."
This modification was made because the
authorized official acting as trustee
makes the final determination on all
aspects of the assessment. As such, the
phrase was redundant. The Department
has made no other changes to this
definition. The determination of "well-
known" and "technically feasible" must
be made on a case-by-case basis.
Section 11.15 Actions against the
responsible party for damages
One comment stated that S ll.lS(a)
appears to limit recovery under section
107 of CERCLA to damages determined
in accordance with the rule, which
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
appears to be at a variance with the
stated purpose of the rule to allow for a
rfcbuttable presumpiion.
The Department did not intend to limit
;:ll recoveries under CERCLA to
damages determined in accordance with
this rule, and has revised the language
<;.' § 11.15 to clarify that it applies only
to assessments conducted pursuant to
Several comments on this section
*.vpressed concern as to the language
•.;.sf J to describe what damages and
• fu-ts a Federal or S*Me agency acting as
'.•^Mf.-s incy recover from a responsible
tr:ty. O."? commpnt held that
§ 1 l!l5fa)(l)(ii) should state thai
damages would be allowed for "any
increase in injuries that are reasonably
foreseeable as a result of response
Hctions" rather than "reasonably
unavoidable." because the reasonable
foreseeshility test is well established in
tr;rt law Conversely, another comment
wanted ihis section to disallow recovery
for damage from any increased injury
due to response actions by
governmental agencies.
The word "unavoidable" in
§ 1l.15(a)(l)(ii) was not changed to
"foreseeable" because the Department
br'.ifves that any response actions
undertaken by government agencies
should strive to avoid additional injury
lo natural resources whenever possible.
Damages from such "reasonably
unavoidable" increases in injury
resulting from response actions by
governmental agencies are not excluded
from damage actions, because they are
indirectly due to the discharge or release
and thus* included under section 301(c)
of CERCLA.
Several comments stated that
§ 11.15(a)(3)(i) should be changed so
that the costs of a preassessment screen
or any other part of the assessment
would not be recoverable unless injury
was actually found to have occurred.
As several comments pointed out.
however, and the Department agrees,
the responsible party is not liable for
damages or any assessment costs if
there is no injury. For this reason, a new
paragraph, now 511.15(c), was added to
clarify that assessment costs may not be
recovered if a~t any point in the
assessment process it is determined that
no injury has occurred.
Another comment maintained that the
language in 5 11.15(a)(3)(ii). which
allows for recovery of "administrative
costs and expenses reasonably
necessary for, and incidental to. the
assessment" might allow the recovery
of undefined and therefore unlimited
"incidental" costs.
The Department disagrees that the
language could be interpreted as
allowing undefined and unlimited costs.
The rule repeatedly states that all
assessment costs must be reasonable
and fully documented. This applies
equally to administrative and incidental
costs.
Several comments were received that
stated that 111.15 should be changed to
clearly provide that recovery of any
administrative, planning, or other cusu
necessary in the restoration or
replacement of natural resources is
.1!lowed under the Clean Water Act.
The Department agrees and has
changed §11.15 to make it clear that
section 3ll{f)(4) and (5) of the CWA
allows the recovery of the reasonable
and necessary costs or expenses
incurred in the restoration or
replacement of natural resources. ;
A number of comments stated that
language should be added to $ 11.15 to
make it clear that section 107(f) of
CERCLA prohibits recovery where the
damages and the release have occurred
wholly before the enactment of
CERCLA. Other comments suggested
that the applicability of this statutory
limitation to the determination of
baseline and recovery times be clarified,
especially in the cases where releases or
damages commenced before the
enactment of CERCLA but continued
afterwards. A few comments requested
that the ceilings to liability set forth in
section 107(cJ of CERCLA be repeated in
§ 11.15.
The Department agrees that CERCLA
prohibits recovery of damages where
such damages and the release of a
hazardous substance from which such
damages resulted, have occurred wholly
before the enactment of CERCLA. and
has added this exclusion under
S 11.24(b). Discussions of the
relationship between this exclusion and
the determination of baseline and
recovery times have been included in
this preamble in the responses to
comments on 5511.70 through 11.73. The
Department did not change 511.15 to
reflect the ceilings to liability given in
section 107(c) of CERCLA because those
ceilings on liability are included in. the
now, $ 11.15(b) of the rule.
One comment suggested that
CERCLA's three-year statute of
limitations be tolled on all natural
resource damage claims until the final
rule is promulgated, to ensure that
causes of action are not lost through
expiration of the limitations period. In
addition, the comment contended that
discovery cannot occur until the trustee
has completed the Injury Determination
phase of the assessment process
described in this rule.
The Department disagrees with this
comment Section 112[d} of CERCLA
provides that natural resource damage
actions be filed within three years after
er.actment of CERCLA (by December 11.
1953) or within three years of the date of
discovery of the loss, whichever is later.
The promulgation of natural resource
damage assessment regulations is not
required to initiate natural resource
damage actions under CERCLA (see
U.S. v. Reilly Tar and Chemical Corp..
545 F. Supp. 1100 (D. Minn. 1982)).
Shortly before expiration of the
December 11.1983. deadline, several
Federal and State trustees filed suit in
order to preserve their rights to recover
for damages discovered before the
e-r.ectment of CERCLA. Similarly, all
Federal and State agencies acting as
trustees who discover injury after the
enactment of CERCLA should institute
any damage actions within three years
cf the date of discovery of the loss. Of
course, the definition of "discovery" is
the key to determining the date by
which claims must be filed.
The Department believes that
discovery occurs when the authorized
official knows or should have known of
the injury and its relationship to the
discharge or release for which recovery
is sought This approach is consistent
with the prevailing common law rule
relating to statutes of limitation. The
underlying purpose of statutes of
limitation is fairness to the defendant in
precluding the plaintiff from bringing
stale claims. This concern does not
disappear in the context of natural
resource damage actions. If. as the
comment suggested, the statute of
limitations does not begin to run until
the Injury Determination phase is
completed, the authorized official could
preserve its cause of action indefinitely
by unduly delaying that portion of the
assessment process. The Department
notes that a regulatory definition of
"date of discovery" has been developed
under CERCLA by EPA for the purposes
of filing claims pursuant to the Natural
Resource Claims Procedures (40 CFR
306.12(fJ).
Section 11.17 Compliance with
f.ppiicable laws and standards.
One comment questioned why only
specific statutes were included in
§ 11.17. stating that restorations, etc.,
should comply with all applicable.
relevant and appropriate laws.
The Department notes that $ 11.17
docs require compliance with all
'applicable statutory consultation or
review requirements." The specific
statutes listed were intended only to
highlight the statutes thought most
relevant to natural resource damage
assessment and restoration actions.
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Federal Register / Vol. 51. No. 148 / Friday, August 1. 1986 / Rules and Regulations 27699
B. Revisions to Subpart B—
Preassessment Phase
•ection 11.20 Notification and
'election.
Several comments suggested that the
On-Sccne Coordinator (OSC) be
required to notify the potentially
responsible party at the same time as
i he agency acting as trustee in the evnt
nf a possible natural resource injury.
Other comments suggested that the
USC or lead agency should notify the
public as well as the trustee of potential
nr actual injuries to natural resources.
The Department notes that the
responsibilities of the OSC and the lead
agency in the response action are
dpfincJ by the NCP. The requirement in
§ ll.ZO(a) for notification is a
rnsta'.enent of the current NCP
guidance, not something generated by
this rule. The Department has no
authority under section 301(c) of
CERCLA to redirect the activities of the
OSC or lead agency.
Av.'.'on 11.21 Emergency rrtroratiuns.
One comment on this section
maintained that provisions for ,
emergency restorations in the rule are
redundant since emergency responses
are already established under specific
sections of both CERCLA and the CVVA.
nother comment stated that the
. eco\ ery of costs for emergency
restorations is improper because section
lll(i) of CERCLA does not make these
costs recoverable under section 107(f).
The comment held that such costs would
be covered by section 106(a), which
refers to removal and remedial actions.
As is stated in the rule, emergency
restorations are meant for those limited
situations where immediate action is
required to avoid or reduce danger to
natural resources, and where emergency
response actions are determined by the
trustee to be insufficient. No duplication
or redundancy of effort is involved. The
Department believes that emergency
restorations and recovery of costs for
such actions are authorized under
sections 107(f) and lll(i) of CERCLA.
Several comments noted that the rule
does not provide for notification or
involvement of the potentially
responsible party when emergency
restoration might be required, even if
that party has already been identified.
The Department agrees that, if
oossible under the circumstances.
potentially responsible parties should be
fontacted prior to the authorized
official's proceeding with emergency
••storation actions. Section 11.21(b) of
ie final rule has been revised to so
equire notification when the identity of
the potentially responsibfe party is
known.
A few comments suggested that the
distinction made in § 11.21 between on-
site versus off-site and restoration
versus emergency response actions be
el>minated in order to give trustees the
flexibility to take the most appropriate
action for each emergency situation.
One cum.T.ent stated that the tenns "on-
site" and "off-site" should be clearly
defined.
Another comment stated that the rule
should clarify that there is no restriction
on actions of Federal and State trustees
for any response or restoration actions.
whether off-site or on-aite, if such
actions are taken pursuant to existing
authority.
Also, one comment stated that the
trustee should be allowed to take off-
site emergency actions, even if on-site
response actions are ongoing, if such
actions are necessary to protect the
natural resources.
The Department notes in response to
these comments that if an agency has
independent authority to take action off-
site, the agency •should exercise that
authority. However, the emergency
restoration provision of CERCLA
provides no additional authority to take
actiors on lands or waters the agency
would not otherwise have authority to
take.
The Department also feels that the
term "site" has been sufficiently defined
in the rule to make the meaning of "off-
site" and "on-site" clear, and that the
distinction between these locations and
between emergency restoration and
response actions must be maintained to
delineate the different responsibilities of
responding authorities and authorized
officials.
Another comment on {11.21
disagreed with the requirement that
trustees prove that emergency
restoration was necessary and that
restoration costs were reasonable. Still
another comment requested that 811.21
be revised to clarify that private injuries
may not be included in damage
assessments because private injuries are
not compensable under CERCLA.
In response, the Department notes
that emergency actions are an exception
to the requirement that actions first be
set out in an Assessment Plan and
subjected to public and potentially
responsible party review and comment
Because of this exception, the rule
requires that the agency demonstrate
that the emergency restoration was
necessary and that the costs were
reasonable. The fact that private injuries
may not be included in assessments has
been adequately addressed elsewhere in
the rule.
A Hnal comment noted that the
preamble of the proposed rule refers to
emergency actions as only being
allowed on "land." and that this
restnction does not exist in CERCLA.
The preamble to the final rule has
been reworded to eliminate this
restriction. The rule itself does not
contain any such limitation.
Section 11.22 Sampling of potentially
in/urea" natural resources.
One comment on this section
suggested that 8 11.22(b)(2) should
require the authorized official to sample
randomly or obtain average
concentrations of ephemeral conditions
or materials, in order to ensure that the
suspected areas of exposure are
accurately represented. Another
comment recommended the early
identification and sampling of a suitable
control area to assist in establishing
baseline conditions in later phases. One
comment noted that sampling
requirements in 811.22 are particularly
applicable to biological resources. A
final comment suggested that the phrase
"that the evidence suggests have been
injured" in 8 11.22(b)(l) be changed to
the phrase "that the authorized official
believes may be injured." since little
actual evidence will be available at thir
point.
The Department does not believe that
any changes to the language of
6 11.22(b)(i) are necessary. The sampling
permitted in 811.22 is meant to be the
minimum necessary to prevent the loss
of data on conditions that are
ephemeral. Injured or dead biological
resources that are perishable certainly
fit into this category, as is stated in the
rule. In order to minimize costs prior to
the development of a clearly delineated
Assessment Plan, the rule does not
require potentially costly random
sampling techniques or sampling of
control areas during the preassessment
screen. Sampling done at this stage is
not intended to represent average
conditions but only to preserve some
evidence of contamination.
Section 1133 Preassessment screen—
general.
A majority of the comments approved
of the basic concept of the
preassessment screen, stating that it is
an important and useful step in the
assessment process. Most of the
suggestions were in the form of
recommended modifications to various
stages of the screen rather than
disagreements with the general concepts
involved. One comment endorsed the
idea of a preassessment screen, but
found the existing one to have a positive
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Federal Re"ister / Vol. 51, No. 148 / Friday, August 1. 1986 / Rules and Regulations
.ieterrrination threshold so low as to
•rake the screen meaningless.
A few comments mentioned that the
pr^jsnssnenl screen is one place in the
rule where the opportunity should be
?sken to encourage the authorized
-.•final and the responsible party to
;mc to a settlement and thus avoid the
oosts of litigation.
The Department concurs that a
mutually agreed jpon settlement is
preferable to expensive litigation, It h .mtiaHy responsible parties prior to
the development of the Assessment
Plan, and that all authorized officials
sharing responsibility for the affected
natural resources coordinate their
efforts at the beginning of the
Assessment Plan phase. A notice
requirement for the preassessment
screen itself would be inappropriate.
because it is the most preliminary stage
of agency involvement.
Another comment maintained that the
public should be informed at this stage
of the likelihood of injury to natural
resources and of the decision as to
whether an assessment will be
conducted.
Prior to the formulation of the
Assessment Plan, decisions on
proceeding with an assessment are
generally based on questions of
jurisdiction, statutory authority, and
internal agency authority and on the
severity of the potential for natural
resource injury. Public involvement is
best utilized at the Assessment Plan
phase when such administrative and
internal issues have been resolved, and
when preliminary decisions on the scope
ar.d extent of the assessment have been
addrsssed to somr degree.
Suggestions from the comments on
charges or additions to the criteria set
forth in § 11.23le) were numerous. Seme
comments held that the criterion that the
authorized official make a judgment 3S
to whether the planned or ongoing
response activities would sufficiently
remedy injury was either tao vag'.!,?. :c'o
difficult to do, or too restrictive.
The Department feels (hat it is n.:t
uKrcisonable to vsquira that the
authorized official take into account
efforts to remedy the injury prior to
preparing to do an assessment On the
other hand, the determination of
whether planned response actions will
"sufficiently remedy" any potential
injury is left to the discretion of the
authorized official to be decided on a
case-by-case basis, due to the wide
variety of situations that may arise.
Some comments maintained that
confirmation of exposure rather than
probability of exposure should be
required in the preassessment screen.
Others felt that a preliminary
determination of resources and services
impaired was appropriate at this point
with an emphasis on the identification
of the services provided by resources
rather than on the resources themselves.
The Department feels that requiring
the confirmation of exposure within the
preassessment screen would add
considerably to the scope and
complexity of the screen. The placement
of the confirmation of exposure as a
formal requirement early in the
development of the Assessment Plan
phase allows the results to be reviewed
sufficiently early enough to avoid any
costly assessments being initiated. In a
similar manner, a preliminary
identification of services in the
Assessment Plan phase, rather than the
preassessment screen, will direct those
performing an assessment toward cost-
effective decisions without
unnecessarily adding to the burden of
the information necessary for the
Preassessment Screen Determination.
A large number of comments on the
criteria in 511.23(e) had to do with
concerns that assessments not be
continued beyond the preassessment
screen where costs potentially exceeded
benefits. Some wanted a specific
weighing of potential costs versus
potential benefits at this point in the
assessment process. Others requested
that the type of preliminary economic
analysis required in the Assessment
Plan be moved up to the preassessment
screen. Conversely, some comments
objected to the criterion in the rule that
the authorized official determine that
data sufficient to pursue an assessment
are readily available or obtainable at a
reasonable cost, on the grounds that
neither the cost nor the availability of
data should prevent an assessment from
being performed. One comment pointed
cut that the definition of "reasonable
cost" provided in § 11.14(ee) is
if: Appropriate in the preassessment
screen, since it is too early in the
assessment to determine incremental
benefits.
The Department acknowledges the
concern that some emphasis be given in
the preassessment screen to the
•potential magnitude of the damages and
the question of whether it is worthwhile
to continue. On the other hand, the rule
purposely minimizes the cost of all
assessment related efforts that precede
the Assessment Plan. The
preassessment screen is not meant to
include extensive analysis, economic or
otherwise. Any decisions made in the
Preassessment Screen Determination
regarding reasonable costs will be
reevaluated in the Assessment Plan
phase and throughout the assessment. In
fact one of the purposes of the
Assessment Plan phase is to estimate
costs, as a truly accurate estimate
cannot be made until a plan is
established. However, the Department
has attempted to include an early
consideration of the costs of doing an
assessment versus the benefits by
requiring that the authorized official
look at the availability of data and the
costs of obtaining data. The Department
does not feel that this requirement at an
early stage of the assessment process is
overly restrictive. It has changed the
wording of } 11.23(e)(4) slightly, from
"Data sufficient to pursue an assessment
are readily available or can be obtained
at reasonable cost" to "Data sufficient
to pursue an assessment are readily
available or likely to be obtained e\
reasonable cost" in order to reflect the
fact that it may be too early in the
assessment process to decide with
absolute certainty whether such data
can be obtained at reasonable cost or
net.
A number of comments requested that
$ 11.23 include a provision that no
assessments be conducted beyond the
preassessment screen for "de minimus"
levels of discharges or releases, in order
to avoid trustees being placed in the
"difficult position of conducting data
collection merely to document the
nc ^.existence of a damage." Some
comments suggested that such "de
minimus" quantities be equated to
establishing a level for assessing
injuries in natural resource damage
assessments.
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27701
Th«: Department does no! ron'-der the
s •Ili-.s of "de mm.mus" qu.-ntiti«:s of an
••.!<•- hazardous subsume discharged
.•' -f.|i j-,cd &s either appropriate or
: ,".e.»;: cumpcr.s.ition fcr ir.pr.us to
•• •':—' r.-srj-cps re-suit:-^ fr:-«. .1
('.-.f hf- -?!• ur 'pleuse The :u!o iLf,;:<- s
: i;1 ••/ as n measurable :id-.f::se •, huner
•. :i:p 'J'.tmicsl or physsL.il ;i: ility tir
M .'ii:il/ of a resource. I: is
;r.;if propnaie to requirs a p.'iriicular
ifjiiniity of a dischargn or release :o
identify a potential injury in the
pvassessment phase as a criterion to be
met before proceeding with an
t ssc.-ssmenl. It cannot be determined
whether such a predetermined quantity
would result in a mensurable adverse
(.hange. The Departmpnt does not
ransider it necessary to provide
Additional guidance on the question of
the quantity of oil discharged or
hazardous substance released since
extensive guidance has already been
p-ovided in §| 11 24 and 11.25 to
fnollitdle a Reassessment Screen
Determination.
The authorized official acting as
'rustee is required to examine critically
nil aspects of the situation, including the
quantity and concentration of the
discharged oil or released hazardous
substance, in order to determine if the
potential for injury exists and can be
assessed at a reasonable cost. This
requirement will ensure that
assessments will not be done for
discharges or releases where the
potential for injury and reasonable
assessment costs are very low.
Additional comments on § 11.23 dealt
with coordination between this rule and
other response activities. Many
comments approved of the requirements
in 5 ll.23[f) that preassessment screen
activities be coordinated with response
actions and other similar processes
whenever possible. Some thought that
natural resource damage assessment
procedures should be combined with
currently existing Hazard Ranking
procedures, or in some other way be
even more closely coordinated with
remedial investigations and feasibility
studies. Others thought that the
preassessment screen should be delayed
until the Remedial Investigation is
complete.
The Department notes that natural
resource damage assessments and
response actions, while closely
coordinated, do serve different purposes
and thus cannot be fully combined.
However, the Department has attempted
to integrate these two activities to the
maximum extent practicable. As for
disa!!ow:r.g any activities from taking
place until remedial investigations are
complete, the Department feels that this
•.vou!d be cvcriy restrictive, given the
current sutuls nf :im:Mi;on3 in
CERCLA. The rule purposely avciJs
specifying particular dales hy wh»:h
specific s!r,-3 should l>e taken bec?u?o
of ihe wide tane'y of :»ipqsir>»nt
s;'unlinns that may br •Rcouninrnd.
A final group of comr-ients on § 11.23
recommended that this section be
dmended to include identification of the
reasonable and necessary costs that
nidy be incurred in the preessessment
phase. The Department agrees with this
comment and has clerified the issue of
allowable costs by adding { 11.23(g).
Section 11.24 Preassessment screen—
information on ihe site.
A number of comments pointed out
that damages occurring to natural
resources wholly before the enactment
of CERCLA on December 11.1980. are
specifically excepted from liability in
section 107(f) of CERCLA. and that this
exception should be listed with the
others given in S 11.24(b)(1) of the rule.
The Department concurs and has
revised 8 11.24(b) accordingly.
Another comment suggested that the
exception to liability for federally
permitted releases given in S 11.24(b)(l)
should clearly state that the meaning of
"federally permitted releases" is as it is
defined in CERCLA. The Department
agrees that this should be explicitly
stated, and has inserted a reference to
the CERCLA definition into this section
and into {ll.Tl(g).
One comment suggested that a new
subsection be added to 8 11.24 to
expressly state that injuries to natural
resources resulting from mining or ore
processing activities conducted in
compliance with a State-issued permit
or other applicable Federal or State law
are excluded from liability under
CERCLA. The Department responds that
the only exclusions to CDtCLA liability
are those specifically set forth in the
statute. Further discussions on how
mining activities may be treated under
this rule, particularly in terms of
establishing a baseline and discerning
damages that have occurred wholly
before the enactment of CERCLA. are
included in the responses to comments
on 5511.70 through 11.73.
Section 1135 Preassessment screen-
preliminary identification of resources
potentially at risk.
One comment stated that S 11.25
should explicitly state that the
potentially responsible party should not
be required to pay preassessment costs
if r:o natural resource injury is identified
(luring the preassessment screen.
As stated earlier, the Department
ogrtcs and has revised $ 11.15 to
explicitly slate that the potentially
rrspcr.sibie pam shall not be
responsible for any assessment costs if
i^r-ry is not demonstrated.
An additional comment on this
section held that the rule allowed the
assessment of resources not covered by
CERCLA. because in 8 11-25. and in
other places throughout the rule, the
term "resources" is used instead of
'natural resources." For the same
reason, the comment objected to the fact
that in 8 11.25(b) the authorized official
is directed to identify "areas where
exposure or effects may have occurred"
without a restatement of the limitation
that no damages may be recovered for
private losses.
The Department has amended the
definition of "natural resources." in
811.14(z). to clarify that the term
"resources" is equivalent to the term
"natural resources." Also, the
Department believes thai given the
emphasis throughout the rule and
preamble on the fact that "private"
losses are not within the scope of this
rule, further clarification as to the areas
where exposure or effects may have
occurred la unnecessary: therefore no
change in this regard has been made.
C. Revisions to Subpart C—Assessmt
Plan Phase
Genera/ Comments—Assessment Costs
Some comments stated that the
proposed rule did not sufficiently ensure
that trustees will use cost-effective
assessment methodologies, nor that the
final cost of the assessment will be
reasonably related to the damages being
assessed. One comment argued that
baseline condition measurement and
pathway analysis requirements in
particular will be too costly in many
circumstances. Some comments
recommended incorporating techniques
into the assessment process to evaluate
the need and practicability of each
subsequent step to ensure that only
appropriate measurements will be made.
In addition one comment suggested that
greater clarification is needed on what
costs associated with performing an
assessment a responsible party can be
required to pay.
The Department is committed to
ensuring that under this rale, each
assessment is conducted at a reasonable
cost, and that cost-effective assessment
methodologies are used. The language of
8 11.14(ee). the definition of "reasonaf
costs," has been revised to ensure tha.
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27702 Federal Register / Vol. 51. No. 148 / Friday, August 1. 1986 / Rules and Regulations
the cost of an assessment will be
reasonably related to the damages being
assessed. Also, { 11.31(u)(2] now states
that an Assessment Plan will be
sufficiently detailed to evaluate whether
the assessment will be conducted at a
reasonable cost. In addition. SS 11.23.
11.30. and 11.60 have been revised to
ensure that the preassessment.
Assessment Plan, Injury Determination,
Quantification, and Damage
Determination phases of an assessment
are undertaken in a cost-effective
manner. These sections now state that
dt each phase, the authorized official
will choose the cost-effective medns that
achieve the objective of that phase. In
addition, language has been added to
these sections clarifying what costs
associated with performing an
assessment can be part of a damage
claim.
One comment asserted that the first
several years of the implementation of
the rule will involve experimentation
regarding assessment methodologies.
and that assessment costs will therefore
be quite high. Government, rather than
responsible parties, the comment stated.
should pay at least part of assessment
costs during this learning period.
Conversely, several comments staled
that the cost of new research required to
meet the acceptance criteria, indeed any
research needed to assess injury and
determine damage, should be borne by
Ihe responsible party.
The Department points out that only
those costs directly associated with
deriving a dollar value for damages, as
provided in this rule, for a particular
injury are considered "reasonable
costs." CERCLA also mandates that the
"best available procedures" be used to
assess natural resource damages.
Responsible parties should not be
required to pay for new developmental
research necessary to meet the
acceptance criteria, or any other
research. On the other hand. CERCLA
does provide that the liability of a
responsible party includes assessment
costs, therefore, authorized officials
acting as trustees are statutorily
authorized to include all reasonable
costs of performing an assessment as
part of a damage claim.
Some comments suggested that the
assessment process be modified so that
a trustee could present a demand for Ihe
estimated costs of assessing damages
before the assessment began. These
comments argued that if such a
modification is not made, trustees may
be reluctant to determine, during the
preassessment screen, that an
assessment is justified, because the
trustee might fear having to assume
some or all of the assessment costs.
The Department notes that { ll.32(d)
allows potentially responsible parties to
participate in the implementation of all
or part of an approved Assessment Plan.
Where this participation is appropriate.
costs of performing the assessment can
be borne by potentially responsible
parties rather than the authorized
official acting as trustee. Aside from this
alternative, however, reasonable
assessment costs incurred by an
authorized official acting as trustee can
be recovered from a responsible party
only as part of a damage claim. A
damage claim must be presented dftcr
damages have been assessed. Therefore.
a responsible party cannot be required
to pay assessment costs prior to nn
assessment.
Seclion-by-Section Comments
Section 11.30 Assessment Pljn—
general.
In response to comments requesting
greater clarification of what assessment
costs a responsible party can be
required to pay, subsection (c) has been
added detailing the reasonable and
necessary costs that are eligible in the
Assessment Plan phase.
In response to comments requesting
that costs not specifically allocable to
the damage assessment not be borne by
the responsible party, paragraph (c) also
requires that regular activities of the
authorized official be excluded from the
assessment costs and that appropriate
records and documentation be provided
for eligible assessment costs.
Section 11.31 Assessment Plan—
content.
One comment stated that the
proposed text, in Sll.31(a)(l). implies
that only methods and approaches
specifically identified in the Assessment
Plan can be used, even though
subsequent information may suggest
that other methods are preferable. This
restriction, according to the comment,
would require that an Assessment Plan
cover all possible contingencies, and
thus would not convey information
about those methodologies that are most
likely to be used. The comment also
stated that { 11.31(a)(2] implies that the
trustee can demonstrate coat-
effectiveness within the Assessment
Plan. The comment recommended that
the language be changed because data
available during this stage of the
assessment are not sufficient to
demonstrate cost-effectiveness.
The Department agrees with the
comment, and for the purposes of
clarification both of Ihe recommended
textual changes have been made.
Section ll.31(a)(l) now reads: "shall
identify. . . methodologies that an
expected to be performed during the
Injurv Determination, Quantification.
«nd Damage Determination phases
. . ." Section 11.31(a)(2) has been
modified to read: "whether the appni.tch
LS^J for assessing the damage is lincty
la be cost effective . . . ."
Smeial comments stated that the
Q^ahiy Assurance Plan requirpmcnts in
§ 11.31(i:) are too limited in scope.
focusing almost exclusively upon
sampling and laboratory analysis. These
comments maintained that the Quality
Assurance Plan requirements fall to
provide standards to maintain quality
assurance in the many other aspects of
the assessment, such as modeling,
baseline determinations, service
quantification, and economic valuation.
One comment stated that the Plan failed
to provide expressly for a common
reviewer of all Quality Assurance Plans
as CPA requires in the NCP (40 CFR
M0.68(k)).
The Department does not intend to
mandate EPA approval of each Quality
Assurance Plan. However, authorized
officials are encouraged to seek advice
and assistance, when appropriate, front
EPA in the development of the Quality
Assurance Plan. The Assessment Plan
i (self is intended to function as a type of
"quality assurance plan" for the entire
Hssessment. Where specific Quality
Assurance Plan requirements have not
been previously developed for a phase
of the assessment, the Assessment Plan
should contain sufficient detail to allow
review, as mandated in fi 11.32(c)(l). of
the accuracy of all procedures expected
to be used in the assessment process.
Section 11.32 Assessment Plan-
development.
Several comments on this section
stated that a comment period of thirty
tljys may not always be sufficient to
respond to an Assessment Plan.
especially when Ihe Plan is unusually
complex.
The Department notes that the
proposed rule provided for a comment
period of "at least 30 calendar days."
The final rule has been modified to
explicitly allow the authorized official to
designate a comment period of longer
than 30 days when appropriate. In
general, however, the authorized official
should choose a time period that allows
adequate comment, yet still ensures that
the damage assessment process
proceeds in as timely a fashion as
possible.
One comment requested clarification
of the lead authorized official's identity
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27703
ci-.rl role. The comment maintained that
it was possible to construe § 11.32(d) as
s.i>:ng that a potentially responsible
pn,-i} could be designated as the lead
.' innnzed official.
The Department points out that
§ 11 o2!a) stdtes thdt the !tad abthor.zeri
i;f: 10! must be chtsen Kj:n u.v.o.is the
t Jsttrs wish nifisdirt.f.r. OH.T iir.c or
•-.me i.f the potent:-!^ . .(..n. 1 r...lurdl
i.-'••i TCCS. Th* L)rpjr:~( -t.--.;. , tJi.it
!h«=;e trustees are 1.1 all j.«srs
r":i't-,pi>elues »:f IVjcri'l :•.•• S:..T
«"--'L:os llbtiei'ei. !u a'.uid .ir.y
poss.Me confusioi. a ,-f v:-.'"r. S .s U-i.n
n 'u!. to Ihe dr-firuiicn of "iiLthorml
ci.'r.:iui" in S 11.14(d) !o clai.fy that only
Hut'iril or Stale ofTU.t recognized (see US. v
Vie!! Oil. 605 F. Supp. 1064 (D Colo
1085,!
The same comment requested
(unification of the lead authorized
official's role, claiming that as Pruil
;rl
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27704 Federal Register / Vol. 51, No. 148 / Friday. August 1. 1986 / Rules and Regulations
the request of the parties and with the
concurrence of the authorized official.
One comment expressed concern thai
the language of proposed § 11.32(a)(2)(ii)
••iggests that the trustee's ability to
-eed against one or several parties
inds on the number of potentially
xponsible parties or their
unavailability, rather than upon the
indivisibility of the harm.
The Department did not intend to
suggest any deviation from the case law
governing joint and several liability
under CERCLA. The language of
§ 11.32(a)(2)(ii) must be read in the
context of governing case law.
Some comments requested that the
Report of Assessment include not only
comments received on the Assessment
Plan, 511.32(c)(2), but all comments
received during all phases of the
assessment. Further, they requested that
the trustee be required to respond on the
record to those comments.
The Department notes that the
proposed rule required comments on the
Assessment Plan and any Restoration
Methodology Plan to be made part of the
Record of Assessment. Because
modifications to (he Assessment Plan
are subject to public review and are
considered part of the Assessment Plan.
any modifications to the Assessment
Plan would also be included in the
Report of Assessment. The Department
agrees that authorized officials should
' -equired to respond to all significant
••nts on the record and has
d 5 j H.32(c)(2) and ll.B2(e](2](ii)
,acl this requirement. Whenever
the rule requires public review and
comment, notice of availability of
documents to review should be
accomplished in the manner generally
used by the Federal or State agency to
provide for public notice. It is expected
thai this would include publication in a
paper of general circulation and use of
the Federal Register, where appropriate.
Many comments supported the
concept embodied in S 11.32 of allowing
potentially responsible parties to
participate in the implementation of the
Assessment Plan. Other comments,
however, were in disagreement with this
provision. Still others agreed that
potentially responsible parties should be
eligible for participation, but should not
be allowed to make the decision to opt
for participation. Apparently, there was
confusion over the phrase "At the option
of any potentially responsible party."
The Department meant to emphasize
that a potentially responsible party
could not be required to participate if it
were unwilling to do so. The
Department's intention has always been
thai the decision to allow or not allow
p -ntially responsible parties to
participate in the implementation of the
Assessment Plan should rest solely with
the authorized official, or the lead
authorized official, when appropriate.
Furthermore, a decision to allow such
participation should only be made when
the authorized official believes that a
fair and accurate damage assessment
will result from the potentially
responsible party's participation and
will be ensured through adequate
direction, guidance, and monitoring by
the authorized official. Section 11.32(d)
has been modified to clarify that the
authorized official, not the potentially
responsible party, makes this decision,
and that the decision and reasons
supporting it are documented in the
Assessment Plan.
The Department emphasizes that any
and all actions taken by potentially
responsible parties to implement an
Assessment Plan occur under the
ultimate approval and authority of the
authorized official acting as trustee. The
potentially responsible party functions
in a strictly ministerial role. The final
choice of methodologies rests solely
with the authorized official.
In addition to these comments, it was
requested that trustees share data with
potentially responsible parties as soon
as it is available and allow potentially
responsible parties the opportunity to
obtain split samples.
While the Department supports the
suggestion regarding split sampling, it
does not support an ad hoc approach to
sharing data. Section 11.31(a](4) has
been added to specifically provide that
data will be made available in a
standardized manner as part of the
Assessment Plan, providing sufficient
opportunity for all interested parties to
comment and review.
One comment stated that there are
several points in the assessment
procedures at which the trustee may end
the assessment, and that it should be
made clear that this decision to end the
assessment is intended to be the final
administrative action for the purposes of
administrative or judicial review.
The Department agrees that a
negative determination at any of the
crucial steps, properly reflected in the
Report of Assessment, would in most
cases constitute final agency action.
Comments requested that
administrative appeals processes and an
oversight function be incorporated into
the rule, particularly at the Assessment
Plan phase.
The Department believes that
CERCLA does not contemplate such
procedures and that regulatory
imposition of them is both unwise and
unnecessary. Proper adherence to the
requirements of this rule can only
appropriately be determined on a case-
by-case basis by the agencies acting as
trustees, the potentially responsible
parties, and the judicial system.
Section 11.33 Assessment Plan-
deciding between a type A or type B
assessment
This section was proposed on May 5.
1988 (51FR16636], in conjunction with
the type A rule. Comments on this
section will be discussed in the final
type A rule.
Section 11.34 Assessment Plan—
confirmation of exposure.
Several comments supported the
proposed rule's approach of making
confirmation of exposure an explicit
step of the Assessment Plan phase. The
Department has made no changes in this
section; but a further discussion on this
issue can be found in section 01-B of
this preamble.
Section 11.35 Assessment Plan-
Economic Methodology Determination.
One group of comments strongly
supported the rule that damages to
natural resources be valued at the leaser
of restoration or replacement costs; or
diminution of use valuea. These
comments supported this concept
because it represents on appropriate
adaptation of the common law rule and
it promotes a rational allocation of
society's assets. One comment stated
that damage amounts would be used to
compensate for the injury by restoring or
replacing the natural resources,
regardless of the method used to
determine the damages, and that until
society can determine more accurately
the value of natural resources and
quantify'their damage, using the lesser
of the two methods is the fairest
solution.
Another group of comments, however.
argued that the guidelines for choosing
valuation methodologies in the proposed
rule are inconsistent with both CERCLA
and its legislative history because both
section 107(f) and the Senate report (S.
Rep. No. 96-848.96th Cong., 2d Sess.
(1980)) state that the measure of natural
resource damages is not limited to
restoration or replacement costs. The
comments interpreted this statement to
mean thai restoration or replacement
costs are the minimum damages that
trustees may recover.
The Department believes thaf a more
reasonable interpretation of section
107(f) and the Senate report language ia
that the alternative methodologies for
measuring damages should not be
limited to restoration or replacement
costs, but may also include other
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27705
n-,6ihodc!og:es (i.e.. diminution of use
vnlues). Furthermore, it is clear that the
general common law measure of
cJemfiges is the lesser of diminution of
use values and restoration or
replacement costs. No comment
contended ihat this is not the general
common law rule In the absence of
clearly expressed Congressional inlcnl
to dei lute from (his common law j jle for
purposes of natural resource damage
rtsse'-srnenis. it must be presumed thai
Congress intended to incorporate
traditional notions of damage
measurement into the natural resource
damage assessment process. Congress
stated in section 301(cJ(2) of CERCLA
ihat natural resource damage
assessment regulations "shall take into
consideration' replacement value, use
value, and restoration value. Congress
did not indicate in this section how
these differing valuation methodologies
were to be considered.
Some comments further argued that
because diminution of use value will
nearly always be less than restoration
c; replacement costs, damage awards
will rarely be sufficient to enable
trustees to restore or replace injured
resources.
The Department notes that while the
diminution of use values may in some
instances be less than restoration or
replacement costs, it does not follow
that injured resources or the services
provided by the resources will not be
restored or replaced. Regardless of
which valuation methodology is chosen.
this rule requires that all funds collected
from the settlement or award must be
used for restoration or replacement. In
addition. Federal or State agencies are
not precluded from supplementing
damage funds with other monies to
restore, replace, or enhance the injured
natural resource. Also, it is important to
remember that the natural resource
damage assessment regulations are
intended to measure residual damages.
The natural resource at issue has. in the
majority of cases, already been the
focus of a cleanup or a remedial action.
This rule is intended only to assess what
compensation, if any. is necessary to
account for residual damages.
One comment noted that § 11.35(c)(lJ
requires the trustee to "estimate and
document the costs of restoration or
replacement and the benefits gained by
restoration or replacement . . ."The
comment questioned the need and
authority for requiring this analysis. The
Department notes that the analysis in
S 11.35 is required to allow the
authorized official acting as trustee to
determine whether restoration or
replacement costs: or the diminution of
use values will be the measure of
damages. As stated above, this final rule
follows the general common iaw
definition of damages, i.e.. that da magus
are the lesser of: restoration or
replacement costs, or a diminution of
use values. The Department believes
that because CERCLA does not change
this general common law definition of
damages. 'A has authority to require an
analysis to implement this definition.
Without the anausis required in S11-35.
the authorized official would not be able
to select the proper measure of damages
to use in the Damage Determination
phase of the assessment.
Several comments suggested that in
order to present depletion of resources
through injury-, restoration costs should
be fa\ ored ever replacement costs
whenever restoration is possible. There
is no indication in CERCLA or its
legislative history that Congress
intended to favor restoration costs over
replacement costs as a method of
valuation of natural resource injury.
Therefore, this rule contains no bias for
restoration costs or against replacement
costs as a measure of damages, other
than the requirement that the most cost-
effective measure be chosen.
Several comments objected to the
requirement in $11.35 that the
acquisition of replacement lands for
Federal management be selected only as
a last resort, arguing that in many cases
replacement could be the most direct
and cost-effective method.
The Department has retained this
provision as proposed because of the
need to restrict new Federal acquisitions
only to those absolutely necessary to
satisfy the mandates of the Federal
management agency. This issue is
discussed further in Section III E of this
preamble.
Some comments suggested that, while
it might be possible in some cases to
make the choice between restoration or
replacement costs and a diminution of
use values at this stage, it might not be
possible in all cases. In some instances.
the comments suggested, trustees might
have to perform the analyses required in
§§11.81 and 11.83 prior to making this
decision.
The Department notes that the
purpose of the Economic Methodology
Determination is to decide upon the
appropriate measure of damage, not the
exact amount of the damage claim. The
amount of the damage claim is
determined by the use of the methods
listed in §§11.81 and 11.83. The
Economic Methodology Determination is
meant to denve only an order of
magnitude estimate of restoration costs
and.lost use values. The purpose of this
rough estimate is to help structure the
Quantification and Damage
Determination phases of the assessmer
Selection of restoration costs or use
values based on the Economic
Methodology Determination in the
Assessment Plan phase rather lhan the
extensive analysis of each of the
methodologies in the Damage
Determination phase avoids the expense
of pei forming two major pieces of
expensive analyses, and is in keeping
with the statutory requirements allowing
only the reasonable costs of an
assessment to be claimed by authorized
officials acting as trustees. The
Department further notes that this initial
decision, or its underlying analysis, may
be modified as new information is
obtained. The authorized official is
given the explicit discretion to modify
the Assessment Plan at any point. This
includes modifications of the Economic
Methodology Determination.
The Department expects that the close
consultation between resource
specialists and economists required by
this final rule will mitigate the need for
frequent revisions to the Economic
Methodology Determination. Because of
the purposes served by the Economic
Methodology Determination and the
authorized official's ability to modify the
initial decision, this comment has not
been incorporated in the final rule.
One comment suggested that becaust
the Economic Methodology
Determination may not be completed, or
may be modified, before the Assessment
Plan has been developed and subjected
to public review and comment, that a
separate review and comment period
was necessary.
The Department agrees with the
comment's suggestion that when the
determination is made or is modified
after approval of the Assessment Plan,
that it should be considered a significant
modification of the plan, and thus be
subject to a formal review and comment
period. Section 11.3Z(f) has been revised
accordingly.
Special Resources
Many comments were received on
special resources. These comments are
addressed in Section IV of this
preamble.
D. Re\ isions to Subpart D—Type A
Assessments /Reserved]
E Revisions to Subpart E- -Type B
Assessments
General Comments
A number of comments were receivec
on the type B assessments in general.
Most of these have been covered in
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27706 Federal Register / Vol. 51. No. 146 / Friday. August 1. 1986 / Rules and Regulations
responses to comments on specific
sections of (he rule.
One rommnnt suggested specifying
the kinds of costs (hat are recoverable
for dctiur.es taking place throughout I he
fis^pssir.jnt. The Department concurs
.;nd h<33 addressed ihis issue by adding
,i new n-iragraph to $11 60. as well 13 to
jjll 23dr.dll JO.
Another comment asked thd> if thr:re
is no reponse action taken, can thiire h,?
C'.jR.pS'.ibj'ii.'n fur injuries that mieht
Kn e been t.iken core of if a iv-.p-j.nse
h.:d b*>pn luKen?
Tiie nils allows recovery for injuring
that are residual to any respnn.se jction.
plus dny loss of use of the resource from
the time of the discharge or release.
rSus. if ih^re is no remedial or other
rrspor.se action planned or tdken then
rejoiijry may tie based on the total
extent of injury
One comment expressed the opinion
thdt (hough permitted releases .ire
included from the quantification
proress. there is no guidance for the
si'.udtion in which a permitted retedse 's
d^oimpanted by the release of
unpermilted constituents.
In response, the Department agrees
t.'iat ihe rule excludes mjuncs resulting
f-om permitted releases Therefore, in
the situation dsscr.bed in the comment,
a damdge claim should only incfude ihe
injuries resulting from the unperr.iittcd
One comment recommended thdt tdch
•hdse of the assessment should be
ereded by an evaluation of the
yMcticdlity and nepd for the step about
to be periormed
The Department notes that such an
evaluation is ptosenl in each sti-p, with
the e^uhpncn of between the
Quantification ^nd Damage
Deiermmjtion phases. Since these
phases are expected to overlap m scope
and tine, there is no required review
between them.
Sr-ftiun U 61 Injury Determination
pnase — gfii-rcl.
Mjn\ rruninents on the Injury
De'.T.Ri: o,;on phase supported the
requirement 'hat injury be linked to the
release, dnd pointed out that the trustee
has no authority to "presume"
causation These comments concurred
with the Department's position that
speculative damages are not within the
scope of CERCIA.
Other comments agreed with the
determination, in § II 61(e}(3). thdt if
there is no injury, there will be no
further assessment actions taken. Thpse
comments asserted that the potentially
responsible party should not be liable
for assessment costs when there is no
finding of inj-iry.
To make sure that this position 13
clear, the Department has added
language in 5 11.15 to explicitly state
that there is no recovery of costs where
there is no injury.
One comment on the general
approach to injury determination stated
that methoiiobgies should be limited to
those that are most real.slic and that
•>n be best related to :he lost services
!u ensure that the methodology chosen
is :he one most scientifically
,:pprcpnate not just the cr.c trwt is the
The Department notes :n response
t']-;l bost-effccr.veness assumes a set
level of benefits to La derived from the
methcdoloBy to be used
Some comments stated thdt the rules
for determining injury are based only on
effects on humans, whereas effects on
other par's of the environment should
.i'so be considered
The Depai 'merit points out that many
of the measures of viability of a
b.ologicdl resource— one of the adverse
changes (hat can constitute a natural
[•-source injury — are independent of
effects on humans.
One comment asserted tha' the
definition of injury should include
.ntangible injuries, such as changes in
aesthetics of affected landscapes.
In general, the Department believes
thdt since '.he result of a damage
assessment for injury to a resource can
have the force and effect of a rebuttable
presumption, an injury should be
defined strictly as d measurable adverse
change in the physical, chemical, or
biological properties of a resource.
"Intangible injuries" would, by
definition, be impossible to measure
accurately, and the assessment of
damages for such 'in juries should
therefore not qualify for a rebuttable
presumption.
One comment stated that nowhere in
the rile is the injury caused by the
cumulative effects of oil and hazardous
sub&lance discharges or releases
discussed, and that responsible parties
should be required to compensate for
damages to natural resources that are
injured as a result of a seues of
discharges or releases. The comment
further stated that under the proposed
rule, each of the discharges or releases
will be evaluated separately, and if a
single discharge or release does not
injure resources, then no damages can
be sought.
The Department notes in response
that neither CERCLA nor the rile
defines "cumulative releases" apart
from other types of discharges or
releases. By using guidance provided in
this rule, the authorized official
determines the time, duration, and
frequency of any specific incident
involving a discharge or a release, and
also identifies "any potentially
responsible parties." The language used
in the rule allows assessment of
damages due to cumulative releases, if
the releases satisfy the statutory
requirements of CERCLA.
Suction 11.62 Injury Determnatian
phase—injury definition.
Ge»sro! Comments
One comment staled that the
proposed rule for the Injury
Determination phase was not
sufficiently tied to the requirement that
an injury is a "measurable adverse
change." and that many of the
"standards" and methods set forth in
§ S 11.82 and 11.63 do not require any
"real world" injury, but instead rely
upon hypothetical models or laboratory
testa. The comment stated that the law
does not award damages for remote or
speculative injury, and therefore urged
the Department to amend the rule and
the acceptance criteria to ensure that
only actual and not theoretical injury
will be measured.
The Department disagrees that the
rule for injury determination is not
sufficiently tied to the definition of
injury. The injury tests for non-
biological resources use established
standards that have been scientifically
tested and publicly evaluated prior to
adoption by health and environmental
agencies. The injury tests for biological
resources were determined after an
exhaustive literature search and review
that documented the "real world"
relevance of the biological responses
listed in this rule.
One comment felt that each test for
injury determination was written so
stringently that any change whatsoever
establishes an injury to the natural
resource in question.
The Department disagrees that this is
the case. The injury definitions do not
neasure insignificant changes. The
definitions rely on changes which have
been demonstrated to adversely impact
the resources in question, or services
provided by those resources.
One comment stated that some of the
(.nteria selected for determination of
injury—even though based on actual
measurement—may not be sufficient to
^stablish en actual injury. For example,
standards established under the Clean
Air Act and Clean Water Act are
intended to guard against injury to
human health and the environment. The
Clean Air Act requires (hat a margin of
safety be included in every standard.
Exceeding these standards, according to
-------
Federal Register / Vol. 51. No. HB / Friday. August 1. 1936 / Rules and Regulations 27707
the cummer.!, does not necessarily entail
ctn actual injury. This comment also
stdted ihat the use of these standards in
the assessment without reference to
baseline conditions at the site is
meaningless if the standards were
oNceeded before the rtlcase. the
comment stated, the) cannot useful!)
sen n as an indicator of an injury
••trmmi.ig from the release.
The Department recognizes thai theft-
standards have mcoiporatid a margin of
sufety. However, this margin of safrty
addresses the uncertainties involved in
determining the most sensitive use of
(he resource and to arcounl for the
National variability in the conditions of
the resource For these reasons the
Department believes that excrdenne of
tncse standards adequately retlects the
occurrence- of an injury to a natural
resource: however, the Department
notes that compensation for the injury is
bused on site-specific chanpr-s from
hnsclme
One comment stdtad that vxhrre no
standards or criteria e\is>l. the rulp
should include methods for. or
encourage the development of •'no
effect" levels based on existing data
Trustees could then compare existing
cur.dmor.s at the point of service
del-very to the "no effrct" level to
determine whether, and the extent to
ivhich. the service flow has been
ir 'inferred with.
The Department has not included
rr»:hods to determine " 'no effect' levels
ud«rd on existing data" in this final rule
Thss would be contrary- to the mandate
m § J0i[c) of CERCLA to determine the
'best available procedures" for
inclusion in this rule.
Srctuns n 62(b) Surface water
resources end 11 K,rc> Ground water
Many comments opposed the use in
* u 62(b)(l)(m) of water quality criteria
•lev eloped under section 304(aj[l) of the
Clean Water Act to define injury to
surface water. They argued that
5 11 62(b)(l)(iii) should be more explicit
ir. indicating that water criteria for
Salman health are not applicable when
the si.rface water is not used for a water
supply
The Department believes that these
rommnnts may have misinterpreted the
proposed rule. The injury definition
which is maintained in this final rule in
$ 1 l.62(b)(l);ni) states that injury occurs
when concentrations in excess of
"applicable criteria" are measured "in
surface water that before the discharge
or release met -t,e criteria and is a
committed use, ... as a habitat fur
aquatic life, water supply or recreation'
(emphasis added)
Several comments noted that under
§ 11 6^c](l)(in). applicable water
quality criteria ur.dor section 304(a)(1) of
tne OVA are cited. Comments
suggested that these criteria are not
fully applicable to ground water (the
ciquatic life criterion has no pertinenre
Ic ground vxuier since ground water
does no! support aquatic life), and thai
the human health criterion is
inapplicable to ground water with the
exception of the component accounting
for consumption of fish and shellfish.
The Department notes that the definition
given in § 11.62(c)(l)[ni) recognizes that
the base flow of streams
-------
27708 Federal Register / Vol. 51. No. 148 / Fr.ddy. August 1 y,q6 / Rules dnd Regulations
any belter determination of -rjury ......
would cost more The nepdrsr-.e.T. notes.
however, that the total number of
samples taken for the Quantification
phase of the assessment is the decision
of the ipjthonzed official. Consequently.
the rule retains the requirement that tvvo
sariDl-'s be used to measure
roncer.t.-itiuns of oil or a haznrdo'is
subsur.ce before the assessment of
ii.i:n.J3CS to surface water may continue.
Several comments stated lh.at the
requirement of 100/eet separation
between samples to determine injury to
water rcsouicus is inappropriate
The Department agrees that in seme
situations, this separation may be
inappropriate. Accordingly. S 11.62 (b)
and (c) have been revised to incorporate
instances when it may not be possible to
separate samples by less than 100 feet.
One comment stated that injury to
surface water resources and ground
'water resources f§ 11.62 (b) and (c))
should be defined to include any further
degradation of water quality for those
resources not used as a water supply.
The Department believes the rule
appropriately defines injury to water
resources that are not used as a water
supply.
One comment suggested that, for a
potable ground water resource, there be
a yield factor as well as a quality factor.
and that low yield aquifers do not merit
compensation. The Department notes
that yield has little to do with the
"quality" of the resource. In addition.
adoption of this comment's suggestion
would redefine the term "ground water"
as defined in Section 101(12) of CERCLA
and the definition of "ground water
resources" in § n.M(i) of the rule.
Consequently, this suggestion is not
incorporated into the final rule.
One comment stated that "duration."
in S 11.62 (b) and (c) is not part of the
SDWA standards. The Department
notes that the rule calls for use of
standards "established by ... SDWA.
or by other Federal or State laws or
regulations that establish such
standards." If duration is part of a
standard in State regulation or law. then
it should be applied whether or not
SDWA contains such language.
Another comment noted that Resource
Conservation and Recovery Act
characteristics do not have "duration"
as suggested in § ll.BZ(b)(l)(iv). The Act
cited in S ll.62(b)(l)(iv) is the Solid
Waste Disposal Act. The Department
agrees that "duration" is not a
characteristic of substances listed or
identified pursuant to Section 3001 of
that Act and has revised
! 11.62(b)(l)(iv) accordingly.
One comment stated that there is no
justification for requiring "more than
one" of the purposes listed in
§ 11.62(b)(l)(iii) to be included. T!:s
Department notes that the definition m
§ 11 62(b)(l)(m) does not require thdt
"more than one" of the listed uses be
made before injury is determined 'Ihn
language in the proposed rule, which h is
been repeated in this final rule, states
lu.jt if more than one use is made.' the
most stringent criterion shdll apply.'
The Department notes that
§ i:.62(bj(l)(v) has been changed to
mciade "Concentrations and durations
of substances sufficient to have caused
injury as defined in paragraphs (c). (d).
(e), or (f) of this section \oground water,
air. geologic, or biological resources . . ."
The inclusion of ground water in this
section is a correction of an unintended
omission, the Department also notes
that the phrase "was used" has been
deleted from the definition of injury to
surface water and ground water
resources, where the phrase was used in
reference to the committed use of these
water resources (§5 11.62 (b)[l)(ii) and
(iii). and 11.62(c)(l)(ii) and (iii)). The
Department considers the phrase
redundant to the defmtion of committed
use provided in S 11.14(h).
Section 11.62(d) Air resources.
Several comments were received on
the use of air modeling techniques.
which were described more fully in the
supplementary technical information
document on air models. One comment
expressed the view that the document is
valuable in identifying the thought
processes that must go into developing a
modeling approach, but that the modeler
should be advised that a thorough
understanding of the physical
phenomena requiring the modeling is
necessary, as well as a complete
familiarity with the model to be used.
Another comment stated that the
technical information document lists
only EPA's computer air models, leaving
out other credible models that may be
more accurate.
The Department, in response, points
out that the technical information
document is provided only for
information purposes and is not binding
for the assessment. Other models that
meet the requirements given in the rule
would be acceptable. In addition, the
Department notes that no model or
method is. in itself, adequate without
trained specialists to understand its
applicability, limitations, and results.
One comment recommended deleting
the reference to section 112 of the Clean
Air Act as defining an injury to air
resources in { 11.62(d)(l) and. in its
place, inserting reference to Section 109
of that ACL
The Department believes that the
proposed language was consistent with
Section 101(14) of CERCLA. which
specifically defines hazardous
substances to include those identified
under Section 112 of the Clean Air Act.
Therefore, this suggestion was not
incorporated into this final rule.
Section 1162(e) Geologic resources.
A few comments look issue with the
determination of injury to soil microbial
populations. The comments suggested
that impeded soil microbial respiration
and inhibited carbon mineralization,
two of the definitions of soil injury in
$ ll.S2(e). do not clearly indicate
resource injury. Both responses occur in
soil after oil or a hazardous substance is
added, but most organic chemicals.
including oil. cause the depressed rates
to be followed by a surge of higher than
normal rates before returning to the
original rate. The comments stated that
the surge is caused by the proliferation
of the fraction of the biota that thrives
on the new content of the soil; the return
to original rates occurs when the organic
chemicals have been consumed.They
also stated that this change in the
successful members of a soil community
is less an injury than a part of the
recovery process. In addition, the
comments stated that the relationship of
microbial respiration, carbon
mineralization, and other tests of injury
to soil or plant resources is not clear.
The Department agrees that oil or
other organic material spilled on soils
may cause a surge in microbial
respiration and carbon mineralization.
however, the rule states that injury
occurs when "[microbial] growth [is]
inhibited" by the oil or hazardous
substance (emphasis added). The
relation between microbial respiration.
carbon mineralization, and the other
tests of soil injury is that these tests are
all measures of physical or chemical
quality or viability of the resource.
One comment stated that the
technical information document seemed
to imply that models can be used to
estimate transport parameters in soils: a
misleading inference since models
should use physical measurements of
transport parameters to determine the
fate of oil and hazardous substances in
the soil. Another comment stated that a
discussion of appropriate, available
models of soil chemistry should be
included.
The Department notes that the
technical information document on soil
provides general information and is not
intended to have the force of regulation.
The fact that the document "implies"
models of contaminant transport in soils
-------
Feccral Register / Vol. 5'. N-J 1J.8 /' Fr.clay. Augi.&t 1. 1986 /' Rules and Regulations
27709
•U'.
:he
I L!,".i.iils aci.p.3 ub trusler?
t-cr. t.~ select croat'.s.
-••.-"rpr.is iHe.' '.hil '.l:c
.i.r-:-id-•:•(••£.. :-. \.e s.-i
:'.. r:.Ria.r.i.b ir
:-.:/ ..
'.i1 r-:
'» r'l.'i •
- . :• ..i..f r? v
. JtT.1 re 'o !..-i:i\\ 40 •*
-«c .? cv.c'rroe o! •'• . n
• '
s iri'icif:il 'o Ce use f .*• j c* •.-
p-v-'ive lfR;:nih.Ti c
U' 1.11 -••alum of. for f-x-j-r.^le three
IMI'I cr more en tr>p cH ctjje. ArftSfr
(.01:1 i.rnt »!i;(Eil ths<«. tr,f rile shcJ.d
n-lfccl the fad thai manv »oiJs ir. the
ucsii-rn pa:J of the ItaiietJ Sidles h-sve d
li.-ickgro'iod pi ! of &3 or higher.
Tlic Department disagrees thai a
chn-'ge of pM in soils of two units would
rocessardy be an isjur) 20 iAe »:/.
! Inwever. the OepaxLiteat threes that
plants or nlher biota of the soil may be
iidvrrsdy affected by such a nuiried pH
change. Toe Deparuneal believes thai
the definilions of injury to geologic
rnsourots contained in paragraphs {6).
('I. (9). {10). (11). and (12) of £ 11.62(u)
adequately u Jtlress the concerns of the
corr.ment. The Department agrees that
the pH of some soils may naturally
occur near 3-5. This factor will become
important during the determination of
baseline conditions and services
quantification.
One comment suggested that in
§ n.62[ep) the sodium adsorption ratio
would he a belter measurement to use
than the exchangeable sodium
percentage. The Department agrees with
the comment and has made the change.
The Department notes that the
conversion of an exchangeable sodium
percentage greater than 15 percent is
equivalent to a sodium adsorption ratio
of more than 0.176.
One comment stated that the use of
erosion m § I1£2(e) as a criterion of
injury to geologic tesomcn was ill-
defined and potentially difficult to
accurately apply, since it would be very
hnrd to link the occurrer.ce of erosion to
a particular dischaige or release. The
Department agrees wiih this comment
and has dropped erosion as a direct
criterion of injury to geologic resources
If erosion occurs when plant cover is
decreased because of a discharge or
release, the mpiry can be documented
by reference to the pare^aph in
§ 1 l.G2(e) that coven phytotoxic
response.
One corament stated that, by its very
nature. Dining is injurious in geologic
resources, and that once ore is removed
from the ground, the *rea .nay become
>. ii -w. 'o '-.lc.nses ' ir.to the gro'-n-J
, .'.: or s.irourfar.e a\s'-m The
, •. i J r?sait in l.^li !.;> ;-r lj ,f it -i,r,.rs
. '•.• CKRCLA dn' fi'li -r r c'
i TS-. ." L-f a "i'.aisrcoi;' «.'\sts~:?.
i: i ti.:" i.-r e\cs:p'.H b> '.he s'at: 12
L' L' ;> r . ;nl aiso 7. :-'s r—: tha* the
..-. • f.. -«the b'atu'orx e\ce?*iin by
ii.
'an i:rt\e:»:b!p ind
c-nus-.tment of natural
. and the CacJJity or proiect
u ,i« c:hsrv.-:se operating within the
trrrns of its |>ennit or licccse"
(S iU1(L. { !}...)).
Several comments pointed out that the
sai-rdUoc value in S 11.62(e)(4) (now
(j'i) should be corrected ID read "2
millur.hos per centimeter." not
"micromhm". The Department agrees
and has made the correction.
Section i J. 62(f) Biological resources.
Several cocmenJs requested that the
Department add an additional injury
definition to biologual resourc.es. in
§ 11.62(n(U to include specific tissue
concentrations of substances that pose a
threat to the health of biological
resources. One comment noted that
lung-term exposure to oil in tissu£S
coold potentially lead to less obvious
and less severe injuries than those
identified in the nile. Another comment
recommended eliminating all reference
to tissue concentrations that exceed
guidelines for human consumption,
staring that such concentrations do not
adversely affect the viability of the
biological resources.
The Department recognizes that
v arions criteria, standards, and
guidelines have been developed for the
presence of oil and hazardous
substances in water and air. Guidelines
have also been developed for biological
tissues that are directed towards
limiting human exposure to hazardous
chemicals and use of biological
resources. The Department was.
however, unable to identify the
existence of any checucal criteria.
Standards, or guidelines for tissue
concentrations that specifically address
prelection of the biological resource
from injury due to the presence of the oil
or hazardous substance. Ail established
criteria, s'andanris. and guidelines ore
based on protection from exposure to oil
and hazardous substance, not tissue
concentrations of substances that pose a
threat to the health of biological
resources.
The Department recognizes that, in
some instances, tissue concentrations of
oil and hazardous nuostances can pose a
threat to biological resources. The
definition of injury lo
l..-i!.,~ical resources includes
rr.i a«urahle adverse changes in the
\KI'-' I 'y of the resource that can result
fr.-..r. rwiih long-term exposure and the
a(c..v'jbstt:r.i.es n body
liS.ci.fo The Department h-is concluded
that •'-.::£ is ir:-»;;icient techiiic jl
i..fr.rrr.;.tion currently available to
slipiii'i'.e &pc:>Fic tissue conr.snirdf.ons
fur ir.v ir.a*.y ails and haurtlo-s
subati-.nccs as a definition of injury to
biological resource viability.
Varifibilities in species sensitivity.
age. sev and the general condition of an
ort(Hni«rc all influence the potential
long-tr-rm threat from such tissue
concentrations. As noted in Section n of
this preamble, many organisms can
carry low levels of foreign chemicals in
their tissues with no known measurable
adverse effects from these chemicals.
Although criteria, standards, or
guidelines have not been established as
yet. there is considerable technical data
developed that may be applicable on a
case-by-caee basis. Where such data
exists and no biological injury, as
defined in this rule, can be identified.
the authorized official is encouraged to
work within existing or planned
response actions to alleviate potential
threats to biological resources.
Numerous comments were received
on the acceptance criteria ™niaiii«rf u
§ 11.62(f)(2J for A.to»nJ«i^ injury lo
biological resources. Some conments
supported the concept of the acceptance
criteria for documenting injury to
biological ILBOIILLIL The cosvneais
viewed the criteria as technically sound
and agreed that all four criteria BIB! be
satisfied before aa acceptable
determination of inhuy can be aade.
Several of the casnents expressed
the view that the criteria were
extremely rigid ia view of the pautirj of
information conceniDg the transport.
'ate. and effects of ham doits
substances in me oataral environment.
One comment indicated that a liberal
test for m'rarf was necessary and that
the criteria should art require absolute
socnts&c c&rtBiniy* A&ovmGf OQsVBCDt
suggested that the Deportment shoold
allow expenmenlal results lo be jiitiflrd
by experts in the field to see if presented
results were deserving of merit and
consideration, and that research studies
should aiso be allowed to prove injury.
Yet another comment expressed the
view that the criteria could snake it
difficult or impossible to document
injury in some ciitaHatanees where it
would be reasonable to assmne injury
had actually tuiuncd as a retail of a
hazardous substance release. One
comment questioned the need for
-------
27770 Federal Register / Vol. 51. \'o. 118 / Friday. August 1. 1P86 / Rules and Regulations
n">etmg both the field and laboratory
r:!ti»rid.
Opposing comments concerning the
a .ceptance criteria stated that CERCLA
does not allow for damage awards for
remote or speculative injury. One
comment urged that assessments be
p Tfonned using critena and methods
that have been validated and. therefore.
are of established and accepted
s. lentific reliability. Another comm..-nt
s.-ggesled that the criteria be more
restrictive by requiring that the
application of the acceptance criteria be
chemical-specific for each oil and
hazardous substance. The comment
noted thiit a rebuttable presumption
cannot be attached to methods of
doubtful scientific validity. One
comment felt that the criteria are
d.fficult to apply and allow acceptance
of injuries that appear theoretical in
r.nture.
The principal means of identifying
injury to biological resources, as stated
ii. the rule, is by documenting a
measurable biological response, i e.,
thorn must be a measurable adverse
i hange to the viability of the biological
resource or its offspnng as a result of
the discharge or release. The acceptance
criteria in the rule provide the means for
evaluating the level of scientific
understanding and. thus, the validity of
documenting injury to biological
resources based on a particular
biological response measured in the
a jsessment area. Since a rebuttable
presumption is provided to assessments
performed by Federal officials pursuant
to this rule, the level of scientific
understanding for determining injury is
important.
The technical literature contains
extensive documentation for a vast
array of different types of biological
responses that can be exhibited by
organisms. Many of these biological
responses have, to differing degrees.
also been attributed to exposure to oil
and hazardous substances. The level of
scientific understanding can vary
greatly, ranging from those that have
been postulated by a single observer
incidental to a study to those considered
"classical" responses to oil or hazardous
substances. In recognition of these
different degrees of scientific
understanding pertaining to biological
responses, the Department continues to
require that all of the acceptance criteria
provided in { ll.62(f)(2] of this rule be
met to document injury.
The Department acknowledges that
the acceptance criteria are stringent.
The Department does not. however.
view the acceptance criteria as being
either unduly rigid or requiring
"absolute" scientific certainty as
suggested by one comment. The
Department docs not consider that
biological responses for which a paucity
of information exists in the technical
literature constitute sufficient scientific
understanding for documenting injury
pursuant to this rule. The acceptance
criteria do nut require absolute scientific
CTta:nty since no biological response is
caused exclusively by oil or hazardous
sjhstunces. The criteria require the
b.olcgical response to be predominantly
oaused b> oil or hazardous substances.
The Department recognizes the
technical merit of the peer review
process for publication of research
f.ndmgs. This merit is reflected in the
requirement that biological responses
n-.eet both field and laboratory criteria.
General research studies are not
ompensable under a damage
assessment performed pursuant to this
rule, since it is inappropriate that
experimental research studies to
advance general scientific
understanding be included as a part of a
specific natural resource damage claim.
The Department believes that the
r»quirement of meeting all four
acceptance criteria does eliminate the
potential for remote or speculative
injuries as cited by some comments. The
biological response must have been
previously documented under both field
and laboratory conditions, and the
methodologies used to measure the
biological response must produce
reproducable and venfiable results.
The recommendation of one comment
that the acceptance criteria be applied
to biological responses on a chemical
specific basis is considered by the
Department to be unduly restrictive.
There is considerable information
available in the published literature that
demonstrates that particular biological
responses are not necessarily unique to
specific chemicals. For example, the
similarity in the molecular structure of
certain classes of chemicals are known
to elicit the same biological response.
One comment stated that other
factors, such as nutrition and human
disturbances, must be considered before
a biological response can be attributed
to injury presumed to be caused by an
oil or hazardous substance. The
Department recognizes that such other
factors can also cause a particular
biological response. The acceptance
critena considers such factors. Further,
the design of the testing and sampling
program for documenting injury must
consider such factors when fulfilling the
requirement, in 9 11.62(0(3). that a
statistically significant difference be
shown in the biological response
observed between samples from
populations in the assessment area and
those in the control area.
One comment requested that further
definition of the term "statistically
significant difference." as used in
§ ll.62(f)(3). be provided and the
concepts (e.g.. significance) and
sijtistical methodology be included as
part of the final rule. The Department
considers that the guidance provided at
5 11 31(c)(3). which requires a Quality
Assurance Plan consistent with the
requirements of § 300.68(k] of the NCR
provides adequate definition and
guidance.
Several comments suggested that the
Department include additional
categories of injury in the rule. Floral
abnormalities, such as chlorosis.
abnormal growth, and reproduction.
were cited as examples. Another
comment requested that additional
species to that of fish and wildlife be
evaluated for types of biological injuries.
One comment requested clarification
that other biological responses beyond
those listed in { 11.62(0(4) could be
applied to document injury to biological
resources and that the authorized .
official is not restricted specifically to
this list. In response to these comments.
the Department reiterates that the
acceptance criteria provided at
§ 11.62(0(2) are intended to apply
broadly to all biological resources, not
to just the fish and wildlife species
provided in § 11.62(0(4). The authorized
official may select other biological
responses for other species to document
injury so long as the response relied
upon can meet the acceptance criteria.
In response to these comments.
S 11.62(0(4] has also been revised to
clarify that the authorized official may
designate other responses when
appropriate.
One comment correctly noted that
discharges or releases can provide the
opportunity for direct physical
observation of dead or dying organisms.
The rule allows for fish kill
investigations, but no comparable
investigations are provided for wildlife
resources. In response to this comment.
the final rule has been revised to
provide for wildlife kill investigations in
§ 1182(0(4J(i)(C). There are presently no
generally accepted procedures for
conducting wildlife kill investigations.
To the extent practicable, the authorized
official should conduct such wildlife kill
investigations in a manner comparable
to the procedures provided for
conducting fish kill investigations.
A comment stated that the absence of
a species in an area containing a known
concentration of an oil or hazardous
substance did not appear to be
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Federal Register / Vol. 51. No. 14B / Friday. August 1. 1986 / Rates and Regulations
27711
.idriwssed by the rult. The De;«a.1npr>l
purts out. however, that the absence of
.1 secies ir.ay have occurred due to
s,-.*ral ro-isoas. that is. the organisms
T::V !<« ribsenl because rhey have either
>• C'J o- 'hpy are adversely avoids the
:TCM conviining the substance. The
l)epdrirr.?r.t has irier.tifird ir. fhe
{•'."inosfed "Ae. scvofi! su^h pr^i-ciu-ps
'hat trsee'. 'he accep»--^re cr tor jf-"-
liouimrntingsuch ir.|-:r-« Pie'e
r roredures have been r^?-"?d -n !'«i<.
•••-ir-l rule.
Onp comment reuups««l j^a' th»rulp
s'i-tr rJotfly thbt the procedures
rrfp.-pnced in the AppMr-Ti Fi*h»r.i-s
Society Special Publication NiL-nbur 1.1.
Monetary Values of Freshwater Fish
••nil Fish-Kill Counting Guidelines."
:>prta:n oniy to the quantifying
procedures for determining numbers of
I'sh killed. Tbe Department agrees with
•'•is comment and has ohanged
§ n.62(0(4J(ij[BJ of the n!e to reflect
ihis concern.
One comment slated that \-,r m\ or
lM7ardoi» substance used in irtk>r.-,u.ry
i.ixicity testing, avoidance. dmJ reduced
fish reproduction shunid use the e\act
substance or a substance that is
reasonably comparable to the substance
c:-.sr.hp ctisessment area. tnould not be wed
ds a basis for injury determination. The
Opparaneot believes thai the ev-deoce
rn the sa«3rtj6c literature linking the
to\ic:iy of cheoucab in the laboratory to
toxic ODadtians in tbe field is
s-j'jsixnual. la fact all national water
Muujty regulation strategies and
s'andardt are baced on this well
Jiicunteated relationship. UK
Departaient's 'Type fi Tednrical
Information Dodaaeat Injury to Fish
.ind W-.ldltfcSpeoes" identifies a
number of tbe technical pabiicatioos
Jind EPA Iprhmcal support doeoir.ents
ih^t substantiate the extensive level of
scipn!;fic underalaaduf] linking tfae
iovir.ity of chemicals IB lie laboratory to
io\!c conditions in the field. Thf«
Drpartment further notes that the
requirements provided in 5 l\JS3 for the
pathway of contamination provide
pv.idance on the exposure.
One comment noted that fledgling
icress provided in 111 fiZ(f)
jr rr.easurmg reduced avian
'•eprodi-c.twn ua be affected by oAer
fjcto's, r.i; h as noise or other human
d starbaocDS during rprr.pd:al actions.
rnther than froni a par^icrjlar chemical
s.ibstanuc. The Department recrgnizes
tha! other fmlcirs car., at times. i!so
•:ffs-.i a\:«n rpproduction. It :s a'so
ren —.-ri'd rhct 3Lch fj -rtrs ntoa to be
"--• «.•:•• :H i?. is '"-.-Jy des-gn for
c: ' ~'f:;;.-.g such :nj:iry. ^--'td ig the
<.;!L- : c- 'As cjiapai£t'le cnntrol site
n.lri fC '•'uJ'JS'jr.Hj de: tT cf the
•Jdrrolirg pro^T. S; :'T''..:e.':: stjJics
h.:ve lit-nc.-r.Juited. hcwe\er. that
c-,cil'le >\iixed avuin rcprpd-jclion to
h<>i e L'.f:i!ed &11 the acceptan.x cntena
fi4j(iii)(A)has
bren rr'.ised to slate \fcat • statistically
.- gmficant difference cwat be measured.
One comment stated that-avoidance"
.:lone. as proposed in 5 V1.6Z(fH4)(in)(B).
did not constitute a biological response
reflecting in/try to die biological
ri-source. The comment noted the fact
that biota may avoid a specific
environmental condition does nol
indicate that the organism has been or is
likely to hare been banned. Avoidance
m&y actuaily benefit fte organnm. The
Department considers that avoidance
bahavior is an adverse response
exhibited by the organism. Such
avoidance of a geographical area may
preclude the organism's nw of the area
as habitat, or preclude migratory or
reproductive behavior. As wch. this
biological response has been retained m
the final rule.
One comment stated that the
limitation of one lype of injury for
cancer of neoplasm ia fish is too rigid.
Neoplasms in organisms other than fish.
particularly terrestrial fauna, should be
considered in determining injury by
coziparutg frequency of occurrence
between b.mp>es from populations in
the assessment area and in the control
area. This can be confirmed by
histologkal procedures. The Department
points out that, at tins time, there have
not been either field or laboratory
studies conducted on terrestrial fauna to
indicate that such injuries do occur
because of exposure to oil or hazardous
substances. There is. as yet. an
insufficient level of scientific
understanding of neoplasms in wildlife
that would allow such biological
responses to fulfill the acceptance
criteria.
One comment noted that for injury
dete"m:nat:on to biological resources
(§ 1142(0). the rule identifies the
following seven categories of adverse
ch
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27712 Federal Register / Vol. 51. No. 148 / Friday. August 1, 1986 / Rules and Regulations
resource (§ 11.63(b)(4)). and has retained
this discussion.
One comment stated that in making
"pathway determinations." current field
measurement and modeling techniques
will not prove adequate in certain
situations. The Department disagrees
with statements that current techniques
a.-s not adequate for certain "pathway
determinations." The guidance in
§ 11.63(a)(2) allows for either
demonstration of the presence of the oil
or hazardous substance or use of
appropriate models to determine
pathway.
One comment suggested that modeling
results must be required to demonstrate
the direct measurement of "sufficient
concentrations of hazardous
substances," and that the pathway
determination process should be linked
to the injury determination step. The
Department agrees that "sufficient
concentrations" are part of the
definitions of water resources injury, but
these are directly measured in the
injured resource. The pathway
determination (in § 11.63) establishes a
link between the discharge or release
and the injury.
Another comment felt that direct
measurements are more reliable than
models and therefore should be favored
in making the pathway determination.
The Department favors direct
measurement over the use of models
and notes that the rule requires detailed
technical explanation of physical-
chemical models used by the authorized
official (see § 11.94 (b)(6) and (c)(8)). In
general, the Department believes
guidance provided in this rule is
sufficient to enable the authorized
official to choose the appropriate
method for determining pathways.
One comment suggested that in
section 11.63(f)[4)(ii)[A)(5], the word
"cannot" appears to be an error. It
should be stated as "can be
detected . . . ." This comment is
mistaken. The paragraph is correct as
stated in the rule. The Department
stresses that a species should not be
used as an indicator species for
demonstrating a pathway of
contamination if that species readily
metabolizes the substance in question.
One comment stated that the rule
should allow for the use of wild-strain
organisms that have been reared in a
laboratory setting as indicator species in
i 1163(f)(4)(ii](C). The Department
accepts this comment and has so
amended the rule.
Section II64 Testing and sampling
methods.
One comment suggested that under
S 11.64(b](2). acceptable sampling
methods should include "User's Guide to
the U.S. EPA Contract Laboratory
Program" prepared by the EPA Sample
Management Office of the Contract
Laboratory Program. August 1982. The
Department agrees that the document
cited may provide useful technical
information on sampling methods, but
has moved this reference to Section II of
the preamble.
Several comments noted, under
§ 11.64(c)(3). that it is considered
appropriate practice with many
contaminants (e.g.. metals) to filter
samples of ground water. Unfiltered
samples are likely to contain materials
introduced by well construction.
whereas filtered samples are often more
typical of the actual ground water. The
Department agrees that both filtered and
unfiltered water samples may be
collected, as appropriate, and does not
now specify which one shall be used.
One comment stated that } 11.64 limits
trustees to six standard procedures for
chemical analysis of fresh- and salt-
water surface water resources. The
comment recognized the advantages of
establishing standard procedures in
case of future litigation, but expressed
concern that the specified procedures
may not be appropriate in all
circumstances. Several comments
suggested that trustees should be given
the opportunity to use other
scientifically valid procedures for
chemical analysis in the event that the
specified procedures are not
appropriate.
The Department agrees that specific
procedure manuals should not be
incorporated by reference, rather they
should be listed as references, to be
used by the authorized official, as
appropriate. The standard procedures
listed in {11.64 of the proposed rule now
appear as information manuals in
Section II of this preamble.
One comment stated that the
references listed in the proposed rule for
environmental testing methodologies are
not complete, yet the language on the
damage assessment procedures allows
only the listed methodologies to be used
(see § 11.64(b)). This could preclude use
cf other methodologies that may be
appropriate for determining the extent of
injury to the natural resource. The
comment stated that it also could
complicate efforts to avoid duplication
in tests conducted by the authorized
official and the lead agency.
The Department has reworded 511.64
to allow the authorized official to use
discretion in selecting appropriate
methods, including methods suggested
in documents listed in the preamble.
One comment recommended that a
new subsection be added to {11.64 to
read as follows: "All samples shall be
gathered at locations and times found
by the authorized official to be likely to
show positive results. All samples shall
be representative, and the data on the
samples shall be publicly available upon
request."
The Department agrees that all
samples should be representative of the
resource condition, and that the data
obtained from samples should be
available to the public at times and in a
format provided for in the Assessment
Plan. However, the Department
disagrees that the samples should be
chosen to increase the probability of
positive results.
Several comments suggested that
scientific testing methodologies used by
a trustee must be validated to ensure
that the results of the use of such
methodologies are reproducible.
The Department agrees that methods
of laboratory or field analysis should be
validated, reproducible, and subjected
to appropriate scientific scrutiny. The
Department believes the references
listed in Section II of the preamble to
this rule provide appropriate guidance to
the authorized official when developing
an Assessment Plan.
Section 11.70 Quantification phase-
general.
A number of comments reacted to the
variety of different ways to carry out
quantification with a concern that it
could turn out to be an excessively
expensive and tune-consuming process.
and suggested that some flexibility be
reduced.
The Department believes that the
variety of situations anticipated will
require considerable flexibility, as
allowed by the rule. The different parts
of the quantification phase contain
many options that are to be selected
only as appropriate to the situation. No
assessment would be expected to or
even be capable of using everything in
this section, and. as with other phases of
the damage assessment, compliance
with the reasonable cost definition is
required, and double counting is
prohibited. As recognized by some
comments, the Department agrees that
successful planning and execution of the
Quantification phase will require a high
level of cooperation between
economists and natural resource
specialists.
Section 11.71 Quantification Phase-
service reduction quantification.
One comment requested that the steps
set out in {11.71 (b) include a
preliminary estimate of services
affected, before the baseline step, in
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Federal Register / Vol. 51. No. 148 / Friday, August 1. 1986 /' Rules and Regulations
order to focus baseline studies on
services. The Department points out.
however, that such an estimate has
already been made as part of the
preassessment screen (511.25(e)(2J). At
numerous points, authorized officials are
already directed to focus on!} o?
resources that have been injured and for
••vhich damage claims MI!! likely be
maJe (i e.. those for which serv ices ha\ e
Keen affected by the discharge or
release, e.g.. §§ 11.70(a). ll 7l(aJ.
11.72(a). U.72(b)f4)). The Department
considers additional guidance on this
po.nt to be unnecessary.
Many comjntnts recognized and
supported the Department's emphasis on
services as the focus of quantification.
Sume asked that this emphasis be made
even stronger, and even recommended
:hat quantification be strictly limited to
determination of services reduced.
suggesting that measurements of
1 conditions" other than services are
irrelevant and unnecessary. A number
of other comments also requested that
extensive additional guidance be
provided on the nature of services tu be
measured, and on methodologies for
doing so A few suggested that the
discussion of services provided in
i U ?l conflicted with the definition of
services provided in § Il.l4(nn), or
provided an alternative definition. Some
dlso suggested that the term "committed
use" be incorporated in this section.
The Department acknowledges the
•support for its emphasis on services. It
continues, however, to believe that in
most cases it will be necessary for
'conditions" to form the basis for
service reduction measurements.
Ultimately, the level of change in human
uses will be dependent on the physical.
chemical, or biological changes resulting
from the discharge or release, as will
ar.y determination of recovery rates, so
•elenlion of the discussions of methods
for measuring "conditions" is
considered essential. In some cases, it
may be possible to measure services
d.rectly. and provision has been made
for such measurement ({11.7l(f)J, but
the Department does not believe total
reliance can always be placed on direct
•measurement.
The Department has not modified its
•realment of services from the proposed
rule. The discussion of sen-ices
contained in {11.71 does not redefine
'he term, but rather provides further
clarification of the term. The definitions
:n § n.14 are brief, and cannot describe
every aspect of each term as provided in
the rule itself: otherwise the definition
section would become unwieldy and no
Jnger useful. Also, the Department has
•ilreaay provided examples of services.
and does not consider it practical or
advisable to attempt an exhaustive list
of services. A major responsibility of
agencies acting as trustees, independent
of the damage assessment process, is to
manage the natural resources for which
they act as trustee, and in the process
;hey must be conversant with the
services prov ided by those resources. In
mapy cases, these responsibilities for
services are included in the basic
statutes establishing the agency, often
among its stated purposes. Because
continued provision of those services is
so basic and important for such
agencies, detailed listing of them here is
unnecessary. The Department also
believes that an overly detailed list here
could be misconstrued as constraining
agencies acting as trustees from
pursuing claims based on services for
which they have a major responsibility.
but which the Department may have
failed to list.
The Department also has not provided
additional guiddnce on methods for
measurement of services. Proper
measurement of services is inextncably
linked with the economic methodology
selected in the Damage Determination
phase, and the Department reiterates
here that natural resource specialists
must work closely with economists to
carry out a tellable damage assessment
Much of the guidance in the Damage
Determination phase applies to service
measurement, and is not duplicated in
the Quantification phase section. The
Department also has not inserted the
term "committed use" throughout the
Quantification phase for the same
reason: authorized officials are directed
to quantify only resources and services
for which they will claim damages, and
damages can only be claimed for natural
resources with "committed use" as
defined in this rule. Because the Damage
Determination and Quantification
phases are not independent, use of the
term throughout the Quantification
phase would add little, and would
reduce readability. Minor changes have
been made to 811.70 to clarify the
general purposes of the Quantification
phase, and make it more consistent with
other parts of the rule.
Two comments objected to allowing
direct quantification of services, on
grounds that to do so would rely on
speculative methodologies. On the other
hand, numerous comments raised
concerns that to require measurement of
physical and biological changes in
addition to measuring services could
contnbute to excessively expensive
assessments, and many suggested that
only human services be measured
directly.
The Department agrees that direct
quantification of services requires that
precautions be followed to ensure the
accuracy of any such assessment. It also
believes that flexibility is needed and
that both methods must be preserved as
written for several reasons. The
valuation methodology selected will
generally require different kinds of data
from the quantificai.cn phase. If lost use
value will be the primary valuation
method, then measurement of changes in
human uses will be the critical factor. In
some cases, it may be practical and
possible to measure these changes
directly, as allowed by $ 11.71(0- To
disallow such direct measurement
would reduce the flexibility to use some
reasonable-cost methods where those
methods can meet the restrictions
imposed by that section. If restoration is
to be the primary valuation method.
then measurement of biological,
physical, and chemical parameter
changes may be more critical, since
these will be essential to designing an
effective restoration and determining its
success.
Several comments pointed out that the
statutory exclusions in the proposed rule
did not include the provision for "no
recovery . . . where such damages and
the release of a hazardous
substance . . . occurred wholly before
the enactment of this Act." Other
comments interpreted this provision to
require "partitioning," such that if a
release and the resulting damages began
before the Act. and continued past the
date of its enactment, the authorized
official would be required to determine
which damages occurred in each period.
and to make a claim only for those
occurring after the date of enactment.
The Department has now added this
exclusion to the list of statutory
exclusions in § 11.71(g) to further clarify
that it applies as cited. The application
of this exception to a specific incident
would depend on the the governing
CERCLA case law.
One comment suggested that the word
"proper" be inserted before "application
of a pesticide . . ." in that exclusion.
The Department, however, has used the
exact language of the statute in this
exclusion.
Two comments referred to the
exclusion for permitted releases, and
argued that it should extend to
hazardous substances released
incidental to permitted substances, even
though those substances might not be
specifically identified or included on the
permit. One comment also argued that
"partitioning" of liability should be
done, so that liability would only extend
to damages due to quantities of released
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27711 Federal Register / Vol. 51, No. 148 / Friday. August 1. 1986 / Rules and Regulations
substances above permitted quantities.
Finally, one comment suggested that the
Depar'lmpnt extend the exclusion to
Slate-permitted releases.
The Department disagree? with these
Mimments The exclusion, as taken from
f. -statute, dearly states that to gain the
.M Union, the "facility [must he|
otherwise operating within the terms of
its permit or license " This exclusion
.•np! cs only to Fedrrolty pernii'.'i.d
r^i^jsps, if a rcltMSP is noi spoi ii" d!!v
l'uJeri!!\ pFnnitiod. it is not ex;'i.i:.ons (e.jj, contdmination) have or
.irc.predicted to mrrease contaminant
concentrations at the point of use. then
these concentrations must be compared
••gainst applicable drinking water
s\indaids to determine whether they
dimmish the service flow. If they do not
evceed Federal or State drinking water
standards (e g.. MCL's under 40 CFR
14111-16] at the point of use. and :i
they otherwise present no significant
drinking risks, then again there has been
no service flow reduction. The
Dpp.irtment disagrees that the only
appropriate measure of reduction in
service is made at the point of use. The
puipose of measuring reduction in
service is to estimate damages so that
the injured party may be made whole.
Any treatment required after a release
to make drinking water safe "at the
"oint of use" is only one potential
•ce of the water that can be
if.ed.
ie comment noted that
§ 11.71(t)(4)(i) discusses quantifying the
mlu'neof ground water pumped from
ueils as if it can be priced by volume
quantity, In fact, pumped ground water
on be sensibly discussed as volume per
' this point, the words ' for
estimating numbers of fish killed" have
been added after "guidelines" in
§ 11.71(l)(5)(iii)(A).
A number of comments recognized
that although improvements could be
made in the Habitat Evaluation
Procedures (HEP) as a method for
evaluating changes in habitat quality,
there are no better substitutes available
for certain purposes, and that at present
it represents the "best available
procedure" for those purposes. These
comments represent fairly the
Department's reasoning in including it
among the allowed methodologies, as
explained in more detail below.
Many comments raised concerns
regarding use of HEP, as suggested in
§ n.71(l)(8). These concerns included
questions about the rephcability of
results derived from HEP. the need for
modification of models derived
originally for other purposes, and the
degree of inappropriate discretion that
might be exercised by persons carrying
out a HEP analysis. In addition, one
comment cited a study that it suggested
"proved" that HEP produced invalid
results Still other comments were
concerned that HEP either did not
reflect all services potentially reduced
or lost due to a release or a discharge,
that other methods might be more
appropriate in a given situation, or that
it might result in double counting when
used in combination with other methods.
The Department believes most of the
above concerns can be explained by
providing further discussion of the HEP
process and its anticipated role in
damage assessment. The Department
previously stated, both in the preamble
and in the supplementary information
document, that the HEP matenal
produced for CERCLA damage
assessments is intended as a
supplement to the basic materials and
training provided by the Fish and
Wildlife Service for HEP: they do not
and cannot stand alone. Certification of
person* to carry out HEP involves a
week-long training course, and the basic
training and reference documents for
HEP encompass several hundred pages.
Although the Department can
summarize some of this material, the
basic training course and other
materials can provide a far better
understanding of the process. (One
comment questioned whether sufficient
numbers of people had been trained in
HEP. The Department had included in
the technical information document data
indicating that about 1.400 people have
been trained nationwide, of which 70
percent represent private and
government organizations other than the
U.S. Fish and Wildlife Service. Courses
are given frequently throughout the
country.)
HEP a normally carried out by a team
consisting of qualified persons who have
taken at least the basic training course
and who have training and experience
with ecological measurement in general.
The team generally will include at least
three persons, and normal practice, as
described in the HEP materials, is to
include on that team qualified
representatives of the principal parties
involved in the action leading to the
evaluation. For example, in planning
mitigation for a highway protect the
HEP team often incudes biologists from
the highway department the State
wildlife management agency, and the
U.S. Fish and Wildlife Service. In some
cases, where a project affects private
interests (e.g., a permit required from the
U.S. Army Corp* of Engineers for
dredging or filling for a private project)
or where a conservation group may have
standing and a strong interest in a
proiect (e.g.. one affecting a park or
recreation area), qualified biologists
representing tuch groups have also been
included on the HEP team. The
Department would expect a similar
arrangement to be followed when
performing natural resource damage
assessments: a team might include
qualified representatives from a Federal
and/or a State agency, from one or more
potentially responsible parties, and
possibly one representing other
interests, if appropriate, and as
determined by the authorized official
HEP teams composed In this way
provide a means for different viewpoints
to be heard and represented, yet each
representative must be qualified both by
background and by training in the HEP
process. Decisions made as the HEP is
carried out are generally by consensus
within the team, thus providing for an
internal conflict-resolution mechanism.
Records are maintained of decisions and
the reasons for these decisions, should
any question arise later. As in any other
part of a damage assessment no matter
who is actually carrying out the
assessment tUi agency acting m trustee
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Federal Register I Vol 51. No. 148 / Friday. August 1. 1986 / Rules and Regula lions 27715
i«, uK::u.i!c>!y rcsp'ins lilt: for the results
.iml Tor iT.surmg thsil procedures are
r.rni'd out properly.
A pormal component at the beginning
,,(any HEP is the choice of species for
.m.ilxsis. and modification of models as
rt'i'ili'd lu fit the local situation. Such .1
JI:D< ess is hardly different from any
,. hi-r c-Loiopical analysis method where
s;ir<,rs must be selected, and gencrv.Pv
st,nil..rd census or population
.".j-niiiing techniques other than HEP
,!'.*:> tisiiitllv need modifications for locfil
siH'.iuop.s For example, a "standard"
\-M\ MEP1' mark-and-recapture"
if, hniqiic fur estimating populations of
,
nwtlpil to oblum valid results. Thrsc
i\ II all vary according to local
• unditions for most population
r.sjirruiting techniques, and HEP will
rr-quire thrtt the "standard" Habitat
Siiii.ilnl.iy Index (HS1) models be
ID.! fird to some degree in most oases
\:P,>. «!«, detailed m the basic mpnuals
.•ii.l l.-nnsng for HEP. many sprcies
'•vij'.-'b exist besides the MSI models
ilt vt lojjrd by the L! S. Fis>h and Wildlife
Service s.nd o!hp"-s r>nd frequency these
limit-Is t.«in and should l>e u.««l for HEP
«,ih some moditicolion Further
n oilific.t'tiun for use in damage
.isvi'ssrnrT.ls requires skills additional lu
tliinu usually necessary for 1IEP
.i'i.''\.«is. and this and other piublems
ir.it nerd to be met fire c;irefully laid out
1:1 ;uiC IFchr.ir.bl information document
K£P measures, hnb'.Ut quai-'.y of a
-'ucK site or area b> use of an index to
•..in corning capacity of that area for
i u h t F one of more e\ nlua'.ton species
1 Vse evaluation species MP selected
'.-, :he HEP study team according to
i j-kna That include importance of those
••prcics both to man and to the
wp«vstem. and the degree to which
:h«se species can represent other
in.portdnt species in that ecosystem or
h.-.biut Basic to this selection is the
ecological concept of "guilds," where
i M ups of ecologically similar species.
siT.h as seed-eating birds, hole-nesting
ir.sectuorous birds, or terrestrial grazing
rrimmals. mighl be evaluated based on
d 'vpiuil or' representative" member of
ih.ii grid. The criteria for selection of
• \n'.u.,tion species are also embodied in
ibti selection criteria of § ll.71(l)(2).
uhich also adds other criteria specific to
A damage assessment. Although some
cumments were critical of potentially
pour choice of evaluation species, this
problem is not unique to HEP: it would
.ipplv to any technique for ecological
inclination, and merely points up the
need for careful woik by qualified
professionals, as in all other parts of the
cissessment process.
HEP is one of a number of methods
that may be used in quantify ing charges
in biological resources. Other methods
include population estimation, index
methods, and many otheis identified in
§ 11.71(1). An authorized official acting
Os trustee is given discretion in the rule
:o select from these methods when
deuci'.r.g how to proceed in a damage
.assessment. HEP may or may not be
considered appropriate to a particular
situLtion One factor that may weigh
heavily in that decision is the type of
economic analysis that will be done. IF
restoration costs will be the primary
method for measuring damages, then
HEP might be especially useful, if other
circumstances would allow its use. Use
v.ilups as the primary measure of
damages might be better determined
through other methods, such as
population measures or direct measures
of lost services. 1 IEP is a method for
quantifying biological resources only:
r.easures of other services of an areu.
such as provision of water for purposes
olher than habitat [e.g.. recreation.
drinking) would have to be done by
other means. A careful reading of th from our measurements.
only allow improvements in our
understanding of the degree of that
uncertainty. (The physical sciences also
ha; e such limits: quantum physics.
which deals w:th the most basic
particles of matter, can only give
probabilities, not '•certainties.")
One comment cited a study by Bart.
Petit, and Linscombe that was intended
to test the validity of two muskrat
(Ondatra zibethicus] HSI models, and
suggested that it proved that HEP was
an invalid method.
The Department has reviewed that
study This study compared calculated
HSI values with densities estimated by
other methods. However. HSI values t>~
an index of habitat quality as potent
carrying capacity, not of density, ani.
that difference is clearly spelled out in
alt materials pertaining to HEP. Many
factors be> ond carrying capacity can
affect the actual density present on a
given site. If it is important to an
aulhorized official to measure densities
or actual animal numbers (e.g.. as a step
in measuring services dependent on
such numbers), the rule provides for
such measurements by other means:
HEP is not nor has it been
represented as an appropriate measure
of actual numbers or densities, although
it may be an appropriate method in
some cases where restoration of wildlife
habitat is to be e primary component in
the measure of damages.
That same comment also suggested
alternative language for measurement of
habitat quality, to replace i 11.71(1)(B).
and would have omitted direct reference
to HEP. However, that language did not
provide more guidance as to what
methods would be suitable compared to
the present language, would not
preclude use of HEP as apparently
intended, and does not provide any
alternative methods, so it was not
adopted by the Department.
To provide for some additional
latitude in choice of habitat quality
measurement techniques, and to make
this paragraph more parallel to the
preceding two paragraphs, the
Department is changing the word
"should" to "may," but is retaining the
reference to HEP. It should be noted that
the rule refers to "techniques such as
[HEP]." thus allowing use of similar
methodologies, which are available and
can be adapted in ways similar to the
adaptations suggested for HEP. One
such review of other methods for habitat
evaluation is by T.tl. Roberts and LJ.
O'Neill ("Habitat Evaluation Methods-
Examples and Guidelines for Selection."
pp. 226-Z69. in Bell. J.F. andT.
Atterbury. eds.. 1983. Renewable
Resource Inventories for Monitoring
Changes and Trends. Proceedings of a
Conference in Corvallia, Oregon,
August. OSU College of Forestry.
Corvallis.). The Department notes that
paragraphs (1) through (4) of S 11.71(1)
provide more extensive guidance on
general criteria for selection of bioligical
quantification methods, including those
for habitat measurement. Paragraphs (5)
through (8) of 5 11.71(1) are essentially
supplementary to that guidance for
certain specific types of methods.
A number of additional comments
directly addressed the technical
information document for HEP or
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27716 Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
involved details of tu.r, implementation
of HEP. The Department is addressing
these in the revision of the technical
information document. The Department
notes that the technicalinfurmdiion
document on HEP provides general
information and is not intended to have
the force of regulation.
Section 11.72 Quantification phase—
baseline services determination
A number of comments were
supportive of the Department s concept
of baseline as a way to distinguish
between effects resulting from actions of
the responsible party and effects
resulting from other causes; these
comments encouraged retention of this
basic concept. The Department
acknowledges these comments and is
retaining the baseline concept in the
final rule.
Several concerns were raised in
comments discussing the question of
determining and using the "baseline."
Some comments suggested that the
concept might be unworkable fur the
mining industry, primarily because of
naturally existing contaminants or
because of long-term and widespread
effects of mining that might in some
instances have begun more than a
hundred years ago.
The Department believes many of
these concerns stem from apparent
misunderstandings of the proposed rule.
Baseline is not intended to represent
necessarily pristine conditions, nor is it
intended to represent conditions in the
absence of "any" discharge or release.
Rather, the rule specifically requires that
baseline represent conditions that
would have existed m the absence of
the specific discharge or release under
investigation. Thus, effects of other
discharges or releases, as well as any
other natural or human-caused effects,
are to be accounted for m determining
the baseline against which the effects of
the discharge or release under
investigation are measured The intent is
to restrict liability to those effects
resulting from the responsible party's
actions, as in any other liability
situation. Thus, in a mining district
where there may be a "background"
level of a particular hazadous substance
in all water collected, if it is clear that
the release under investigation is not
responsible for that background level,
that background level would likely be
an appropriate baseline level. Further.
experience of the Department with
restoration of mining sites does not
confirm the suggestion that adequate
baselines cannot be established for
mining sites. Federal and State permits
for nunmg frequently contain provisions
requiring restoration to pre-mining
conditions, and a process very similar to
the determination of baseline here is
commonly earned put to do so.
Several comments suggested that
using baseline as defined was too
stringent, or that it would require
excessive work to determine, possibly
requiring several years of work. Among
the suggestions was the use of
"standards" as a baseline, even tf
baseline as defined in the rule miijht
have involved lower concentrations of a
contaminant than a standard.
Arguments for such use included claims
that a standard used for baseline would
allow restoration of all services, and
that going beyond standards to establish
baseline often was technically not
feasible.
The Department disagrees. Standards
are used in determining the threshold of
whether or not an injury occurred for
many natural resources, but that ia a
different phase of a damage assessment,
although some commenten apparently
were confused to some degree about the
difference. In the Injury Determination
phase, a threshold lest is made to
determine whether or not an injury
occurred; no determination ia made at
that stage of how extensive the injury is.
No previously existing standards are
available for many resources, especially
for biological resources, so reliance on
standards for determining baseline
would leave a great many injuries
uncompensated. Also, the suggestion
that restoration to a standard would
compensate all lost service! it
unsupported by evidence. The
Quantification phase is where the extent
of service change is determined, which
is basic to determining the level of
compensation to be required. In common
law, the principle ia to make (he injured
party "whole" again. Measurement
merely to a standard would, in some
cases, not make the party whole again.
and in other cases would over-
compensate for the actual loss. Where a
resource previously had no
concentration of an oil or hazardous
substance, or a concentration
considerably lower than an established
standard, restoration only to "standard"
would leave uncompensated the service
provided by that resource of being able
to absorb low levels of that material
without exceeding standards or without
other effects. That capability is
extremely important, because otherwise
liability could fall to any party that later
released even a small quantity of a
substance, which would then raise
concentrations above the injury
threshold again. Thus, the Department
does not accept the suggestions to
change the definition of baseline.
On the other hand, the Department
recognizes that technical feasibility and
considerations of reasonable cost may
dictate use of a baseline that does not
fully represent the basel'ne as defined.
A new paragraph. {11.72(b](5), has been
added to give the authorized official
more flexibility in this regard, subject to
certain restrictions to ensure that (he
necessity far this modification has been
established, and that (he baseline used
ia conservative and does not lead to
assessments greater than what would
have been found if the change were not
made. As in all other phases of the
assessment process, this is a decision
ultimately of the authorized official
A small number of comments
suggested that the provision in {11.72(c)
for adjusting historical baseline data
•'[i]f a significant length of tame has
elapsed since the discharge or release
first occurred.. ..." be eliminated as a
condition for such an adjustment The
primary argument for such a change was
that any changes due to causes other
than the discharge or release under
investigation should be accounted for In
(he baseline determination.
The Department agrees with and has
repeatedly emphasized the point that
liability should be limited to changes
resulting from the discharge or release
under investigation. Generally, the
guidelines and methodologies provided
for the Quantification phase focus on
the rxtent of the injury caused by that
discharge or release. Adjustment of the
baseline to achieve this purpose is
already provided for in the general
requirements for quantification and in
the general guidelines for establishing
baseline, especially § 11.72(b)(l). The
intent of the sentence in § 11.72(c) was
to allow adjustment of historical AatB
for changes thai occurred over time,
snch as land use changes and biological
succession, that may be especially
important whan analyzing historical
data. It does not eliminate the
requirement to measure the extent of
injury due to the discharge or release,
which may involve other questions such
as alternative sources of contaminants.
The words "slgnficant lenght of time"
should also be understood as being
relative to the resource and normal ratea
of change in that resource. For some
resources, a few months or years may
be significant No change was
considered necessary or has been made
in the proposed language.
Some comments expressed concern
over the difficulty of finding historical
data that could meet necessary
standards for an assessment. One
problem cited was the recent
development of highly sensitive
detection methods for contaminants that
were unavailable previously.
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27717
The Department agress that historical
dota may not be readily available in all
cases, but leaves the option for cases
where it may be available. Also, in this
context, "historical" is used in a broad
sense, and may represent recently
collected data, even up to the point
immediately preceding a discharge or
release. The lack of sensitive detection
methods historically is not as critical as
characterized by some comments, useful
data may include population data.
sppcimans collected at some point in the
past, or other types of data that do not
rely on availability of those methods.
One comment stated that the
requirement of one full cycle in the
Quantification phase, baseline services
determination, should be flexible since
one full cycle can extend over many
years. It was recommended that specific
cycle requirements be established for
each general type of resource. The
Department notes that this restriction
applies to control areas if needed and is
modified by the general guidance given
§ 11.72(b) (2). (4) and the new (5).
One comment stated that $ 11.72 does
not contain adequate or appropriate
guidance for the selection of a control
area. The comment argued that a control
area should be selected that closely
approximates the background
contaminant level conditions at the
CERCLA site in question. The
Department believes the guidance
provided in the preamble and in § 11.72
is adequate to enable the authorized
official to select appropriate control
areas. The comment has misread the
guidance given in § 11.72(d)(l); the
guidance there specifies lack of
exposure "to the discharge or release
of (emphasis added). What is indicated
is that the discharge or release that led
to the assessment should not affect the
control area.
One comment stated that, while the
u.ie of control areas to establish
baselines may be adequate to a degree
for air and geologic resources, the
comparability of control areas to
assessment areas for surface and ground
water, and particulary. biological
resources will be extremely difficult to
demonstrate beyond reasonable doubt.
According to this comment, the
variabilities in the components of these
resources even within the same systems
are subject to the constant variations
and interactions of numerous ecosystem
elements, and experts invariably will be
divided on the adequacy of baseline
characterizations determined via rontrol
areas over pre-discharge data froiu the
s»me systems.
The Department disagress that
:umparabi!ity of control areas to
assessment areas will be extremely
difficult to determine: but agrees that
establishing comparability will take
effort. Although experts may disagree.
the Department believes that the
authorized official must make his
determination and proceed with the
assessment, so that a claim is made in a
reasonable time penod.
One comment stated that it agreed
with the proposed rule that the
restoration or replacement should be to
pre-release. or without-a-discharge or
release, condition where the natural
resources are not already depressed or
diminished below those levels found in
equivalent control areas. However, the
comment stated that the definition of the
"baseline" condition (§ 11.14(e)) and the
injury quantification as a departure from
baseline presented in the proposed rule
could present problems in the case of
repeated discharges or releases. The
comment stated that the proposed rule
should be amended to account for those
instances of repeated discharge or
release so that, after a second release.
the assessment does not yield the
determination that no injury occurred
because of a depression of the
"baseline" condition due to a previous
discharge or release.
The Department agrees that repeated
discharges or releases may affect the
baseline determination; however, the
Department believes that consideration
of repeated releases will depend upon
application of the liability provisions of
CERCLA to the facts of the situation
under investigation. All releases that
meet the statutory elements may be
considered. The authorized official
would determine the baseline or
"without-a-release" condition on the
discharges or releases that come within
the statute.
One comment suggested that the rule
needlessly requires thorough
characterization of a control area. The
comment suggested that the rigorous
examination of control areas should be
an unusual measure—required only
when unusual baseline conditions, i.e.,
not free of contamination, are expected
to prevail. The Department agrees that
establishment of baseline should not
employ control areas unless necessary.
Section 11.72(b) requires that all actions
are to be reasonable and appropriate.
One comment stated that the guidance
in section 11.72(g)(3)(i) for surface water
conrol areas, which is keyed to finding
areas "not . . . exposed to ... release
of a hazardous substance." is too broad.
The comment stated that a control area
should be comparable to the study area
except for the specific releases at issue;
it should therefore contain whatever
other hazardous substances were not
part of that release. The language
defining control areas for ground water
resources. § 11.72(h)(3)) should serve as
the model for modifying this section.
The Department believes that this
comment misquotes the guidance given
in § 11.72(g)(3(i) thai "The water and
sediments . . . have not [been] exposed
to the discharge or release" (emphasis
added). The Department notes that the
rule refers to the oil or hazardous
substances whose discharge or release
led to the assessment.
One comment noted that 9 11.72(h)(4)
indicate* that ground water wells should
be sufficient to estimate the
concentration of substances in the
unsaturated zone. The comment points
out that, by definition, ground water
wells sample only the saturated zone.
Field devices to collect water from the
unsaturated zone are notoriously
difficult to install and use.
Characterization of the unsaturated
zone should be limited in the rule to
information collected by analyzing soil
collected from soil borings or dunng
well installation. The Department notes
that the guidance in { 11.72(h)(4)
pertains to estimating vertical and
lateral variations in concentrations:
further guidance on sampling earth
materials is given in {11.72(h)(4)(ii).
One comment suggested that under
§ 11.72(g)(4)(iii)(A). "the range of
concentration" should be changed to
"the approximate range of
concentration." The Department agrees
and has made this change.
One comment stated that the methods
set forth in SW 846 are not reliable or
useful unless or until they are validated.
Further, the comment requested that the
Department grant a ruling of
equivalency to the comment alternative
for the analysis of Appendix VIII
compounds in ground water. The
alternative involves the use of Clean
Water Act Section 304(h) Gas
Chromatography/Mass Spectroscopy
("GC/MS") methods with more
extensive library searching a.nd the use
cf conventional methods for detection of
metals, cyanides, and sulfides. The
comment recommends that the
Department consider the inconsistencies
of the SW 846 methods before including
them in this rule. The Department agrees
that the GC/MS methods are reliable
and may be useful; however, it should
be noted that information references
here have been moved to Section II of
this preamble and are not incorporated
by reference in this final rule.
Section n.73 Quantification phase-
resource recoverability analysis.
Several comments were critical of
allowing authorized officials to use
-------
Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
27719
provided by the resource, pr:or to injury,
to both humans and other resources." In
reference to the comments concerning
services without clear human use, the
Department believes that only when a
service has a human recipient can it be
classified as a use per se. The
Department notes that ser.ices
dimpled d;? to injury tu dn ecosystem
may include those affecting human us,e
because of the indirect nature of the
human use, e.g., injury to lower biota
that works its way up the food chain can
potentially be measured by the "factor
income" method listed in $ 1183(d)(2) of
this final rule.
Several comments objected to the
restriction on land acquisition as a
means of restoration, except in those
cases where "acquisition constitutes the
only viable method of obtaining the lost
services."
The Department notes that the
restriction on expansion of the Federal
estate in the proposed rule has been
maintained in this final rule. This
restriction limits the Federal authorized
official in the acquisition of land unless
such acquisition is the only feasible
restoration or replacement alternative.
Even in this case, funds to acquire the
land must be placed in the general fund
of the Federal Treasury and requested
by the Federal agency through the
normal appropriations process. This •
restriction was placed in the proposed
rule after extensive consultation with
other Federal agencies. The purpose of
this limitation is to limit the acquisition
of private lands for Federal management
under CERCLA. by eliminating the
possibility of expanding the Federal
estate without Congressional approval.
Some comments expressed the
concern that the 30-day comment period
would not give sufficient time for
concerned parties to respond to the
Restoration Methodology Plan. These
comments suggested, instead, that the
comment period be 90 days. The
Department notes that { 11.82(e)(2](i)
has been modified to state that the
comment period will be for at least 30
calendar days, with reasonable
extensions granted, as appropriate. The
Department believes that the new
language will allow authorized officials
to tailor the review period to the
complexity and level of interest in the
Restoration Methodology Plan.
Section 11.83 Damage Determination
phase—use value methodologies.
Several comments supported the
inclusion of option and existence values
in the proposed rule. Many objected.
however, to the limitation on the use of
contingent valuation to measure these
values in situations where no other
valuation technique will be feasible
(§ 11.83(d)(5J). These comments
suggested tha» this limit.Ttion may
unduly hamper a trustee's abilitv to
accurately and cost-effectively measure
option and ex-srer.ce values Many other
comments stated that opfmn and
exhtenre values, i e.. non-use val j«s.
should be given weight dnd
consideration equdl to that a-von to use
vdiues
On ihe other hand, rrjny (.nminenls
expressed concerns about the option
and existence values discussed in this
section. Several comments contended
that the current contingent valuation
techniques for measuring option and
existence values are not appropriate foi
inclusion in natural resource damage
assessments. One comment stated that
contingent valuation techniques to
measure option and existence values
would be inaccurate and costly as well
as subjective and biased, therefore, not
appropriate for a litigative setting. In
addition, some comments stated that
option and existence values would lead
to speculative damages and. therefore.
should be deleted altogether from the
rule.
The Department notes that } 11.83(b)
has been changed to explicitly state that
option and existence values may be
estimated in lieu of use values only
when use values cannot be determined.
Ordinarily, option and existence values
would be added to use values. However
section 301(c) of CERCLA mentions only
use values. Therefore, the primary
emphasis in this section is on the
estimation of use values. The discussion
of option and existence values remains
in this final rule to take into account
those extraordinary circumstances when
the authorized official cannot determine
a use value for the resource. Only in this
very limited circumstance may the
'authorized official estimate option and
existence values.
Another related reason for this
limitation is that more is known about
the determination of use values than
option and existence values. Option and
existence values are less well-defined
and more uncertainty surrounds their
measurement. Because of these reasons
their current use. if the authorized
official acting as trustee wishes to
obtain a rebuttable presumption, is
limited.
In order to further reflect the intent of
the proposed rule, the discussion of
contingent valuation. § ll.B3(d)(5). has
been revised. This section now makes
clear that contingent valuation is just as
valid a method to estimate use values as
the other methods listed. However, the
use of contingent valuation to explicitly
measure option and existence values is
limited, in this final rule, to the situation
discussed above.
One comment stated that the three
use values listed in § 11.83(6) fail to
account for: consumer surplus to
consumers of the products from the
resource: producer surplus in industries
relidnt on resource use. such as sport
fishing: ddmsges to individuals put out
of work who rely on the use of iho
resource: and impacts beyond producer
surplus and income that occur in
industries that are impacted by
expenditures associated with resource
use.
The Department notes that consumer
surplus is specifically included in use
values, and that producer surplus is
included in economic rent, both
concepts are listed in 5 ll.83(b)(l). The
last two types of damages listed in the
comment are not losses compensable to
the authorized official acting as trustee
under CERCLA and therefore are
outside the scope of this rule.
One comment stated that "fees and
other payments." included in
S 11.83(b)(l). may not represent the full
and appropriate measure of natural
resource value. Another comment stated
that the words "because the government
does not charge a fee or price" should
be deleted from f 11.83(b)(l). because
the presence of a fee does not
necessarily eliminate economic rent, it
merely reduces it. The Department
agrees with these statements, but points
out that these fees are what the
government has determined to represent
the value of the natural resource and
represent an offer by a willing seller.
One comment noted that { 11.83(b)(3)
incorrectly implies that the economic
effects of damages incurred by
government enterprise are different from
those described in the previous
paragraph for values to the public of
recreational or other public uses of a
resource. The Department points out
that the clause in S ll.S3(b)(3) is only
meant to minimize the costs of collecting
damages that might result from having
to bnng two law suits for the
Government to recover all damages.
Some comments stated that it is
unclear why lost taxes, which are
payment to the public for use of a
common resource, are not recoverable.
but lost income from a commercial
venture is recoverable. As stated in
Section II of this preamble, lost taxes
are not recoverable by a Federal or
State agency acting on behalf of the
trustee because taxes are transfer
payments from an individual to the
government; they are not recovery for
real resource uses.
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c eral Kegister / Vol. 51. No 148 / Friday. August 1. 1986 / Rules and Regulations
comments »isscpted trvt the
;>•» fu.<-nr.e psifiblishtd in tr-e p'opnsed
' •-• lor ma-ket-brisod vocation Tethods
«' "".sistenl with the common law
?"".( p'p of providing recove^ for
c! -.in^iion in market value due to an
-.IJ.TJ Th's regulatory preference among
• ..'„•>!. ib'e valuation methods.
. .cording to or* comrrent fcducfs the
. aslir.ood thai co-npr n.j.C! nn fc.r
1 • fuersel1 r.any i/ihc-r comments
-scried ihf-t rornpf"i»n:,ur. bfcird sok-!\
• . markc' or ripprii.sul methods nay no!
•> :l?r.l the f-ii ulticof the resources.
'-eicral of these comments suggested
..-. .1 instead of the proposed rule's
•' *)ng presumption in favor of market
ii. ire and appraisal methodologies, the
' jMie should have the option to use
. dv assessment techniques listed in
••• 11 .83 under any circumstances.
( •".'!>. other comments suggested thai
r t -J!P should require the use of
r "T.a.-ke-ed resource methodologies
s- i Ions as double counting dors not
(.1 .-.I'.
The Dependent notes th-it S p, HI
t scribes an intentional hieuirchy
.tir.org various valuation methods with
•me group of methodologies for
r sources, or resources similar to I'p^e
••ijnrpd, that are traded in markets i>r,d
" c oiner methodologies for resouTes
, -at nre not traded in markets. lhn a choice among the damage
determination methodologies. However.
tti nbtain the rebuttable presumption,
,-t 'ho'ce must be made in accordance
.• " '.r-e hierarchy in this rule. If the
hierarchy were reversed or eliminated.
t'^e Department believes that the
would be towards more costly.
and less consistent damage
determinations.
One comment stated thai additional
£u:c!dnce is needed as to the meaning
and use of "similar or like resources"
traded in a market. The Department
oomis out that similar or like resources
c,ctn only be determined in the context of
the resource m question. Consequently.
the authorized official is given the
Pexibility to make this decision on a
case-by-case basis.
Several comments requested more
explicit guidance on determining when a
market is ''reasonably competitive."
Other comments asserted that methods
utilizing market price should not be
limited to the use of markets that are
' reasonably competitive." These
comments suggested that the only
necessary requirement is that the
market price and market quantity
represent a point on the demand curve.
Some comments claimed that the use of
market price to estimate damages to a
public resource is inappropriate and
would result in under- or over-
estimating the damages depending on
certain market conditions.
The Department notes that, in order to
use the marketed resource
methodologies (§ n,83.(c)fl|). the
authorized official must first determine
that the market in which the resource is
traded is reasonably competitive. While
not defined in this rule, reasonably
competitive means that the assumptions
underlying a competitive market are
fulfilled to a reasonable degree. Because
different markets may vary as to what
criteria must be met for the market to be
reasonably competitive, this
determination must be made on a case-
by-case basis, therefore further guidance
is not provided in this final rule. The
Department believes that the reasonably
competitive requirement is necessary to
ensure that a market price reflects the
value of the resource. The Department
believes that when markets are
reasonably competitive, the market
price is a reasonable approximation of
the marginal value of the resource
One comment stated that the
authorized official should not be
restricted to using nonmarketed
methodologies, where available, but
s1 culd have Ihe choice of either
substituting nonmarketed methodologies
or i:sin; a combination of marketed and
unmarketed methodologies. This
comment felt that marketed
methodologies may not reflect the full
societal value of the resource. Other
comments were concerned that
ncnmarketed methodologies, while well-
founded :n economic theory, are inexact
and are surrounded bv inherent
uncertainty with limited experience in
practical applications.
The Department points out that this
rule is not an attempt to totally
internalize the costs associated with the
use of oils and hazardous substances by
assessing the total value to society of
the resource. The final rule explicitly
does not estimate all losses to private
commercial enterprises or any
"multiplier" effects. These losses and
effects do not accrue to authorized
officials acting as trustees and therefore
are not considered compensatory to
Federal and State agencies under
CERCLA. Moreover, private commercial
users of the resource have private
causes of action.
The Department believes that, besides
being well-founded in economic theory.
these nonmarketed methodologies have
been tested and reviewed in many
professional journals and under a wide
variety of other circumstances. When
used correctly, e.g.. along the lines of the
Water Resources Council guidelines and
the guidance in 'Type B Technical
Information Document: Techniques to
Measure Damages to Natural
Resources." which is being prepared to
accompany this rule, these
methodologies work well and are valid
and appropriate measures for
determining damages.
One comment requested that an
additional handbook, including
checklists, be added to the final rule to
provide additional guidance on the
acceptance criteria for the "selection of
economic assessment techniques." The
Department believes, however, that the
guidance provided is not only adequate.
but that further specificity is
inappropriate at this time. The
authorized official acting as trustee
must, within the guidance provided, be
allowed to select the economic
methodologies on a case-by-case basis.
One comment stated that because
marketed resource and appraisal
methodologies are best suited to
evaluating the entirety of a resource.
further guidance was needed to use
these methodologies in assessing
damages when only a portion of a
resource is injured. The comment also
requested recognition that the
relationship between the portion of the
resource affected and the change in
v alue of the resource is not necessarily
linear
The Department does not contend.
and did not mean to imply in the
proposed rule or in Ihe final rule, that
the relationship specified above is
linear. In addition, the Department
believes that the guidance in "Uniform
Appraisal Standards for Federal Land
-------
Federal Register / Vol. 51. No. 148 / Friday. August 1. 1966 / Rules and Regulations
27721
Acquisition." referenced in this final
rule, is adequate for determining a
partial loss of a resource.
The same comment asserted that
sppraissls should not be based on the
income method. The Department agrees
dnd maintains that appraisnls performed
uniier this fin*! rule should be hdsed
criy on the comparable sales
methodology.
Some comments asserted thdt
ncn.iiurketed resource valuation
methodologies contain severe
deficiencies and that these
methodologies will not result in the
reliable, accurate assessments that
warrant a rebuttable presumption. In
particular, according to some comments.
these techniques have no basis m
CERCLA. present insurmountable
methodological challenges, and are
essentially "research techniques."
Another comment questioned the
validity of the nonmarketed resource
methodologies because of a lack of
CERCLA court decisions where these
irethods have been accepted.
Although the Department recognizes
the difficulty in determining the value of
nonmarketed resources, the
methodologies presented in the rule
provide a flexible and theoretically
sound approach to developing the most
accurate assessment possible. The
Department realizes that determining
damages for some nonmarketed
resources may be difficult in some
cases, but if injury is determined and
quantification is obtained, then some
economically sound method should be
available for determining damages. The
Department notes that section 301(c) of
CERCLA recognizes this need by
specifically requiring that this Pile
consider "replacement value, use value.
and the ability of the ecosystem to
recover" (emphasis added). As difficult
as the damage assessment process may
be. the methodologies outlined in the
rule provide a reasonable approach
which uses the "best available
procedures" to determine damages, as
required by CERCLA. By incorporating
the guidance in 9 11.84(d), the
authorized official can perform an
accurate dnd equitable damage
assessment where no market prire or
appraisal value is available.
In reference to the comment thdt
questioned the nonmarketed
methodologies because of the lack of
support in the courts, the Department
notes that very few court decisions have
been reached involving natural resource
damage assessments under CERCLA.
The fact that there may not be decisions
dffirmmg a particular methodology is
not reason enough to reject the "best
•"aiUble procedures." The Depdriment
maintains that noamdrketed resource
methodologies listed in § ll.83(d! (or
c'.hers that meet the acceptance
criterion) are valid, proven techniques
when properly structured and
professionally applied.
While acknowledging that the
treatment of uncertainty requites
reasonable alternative assumptions to
be examined, some comments requextf d
lhat when dealing with uncertain:}, the
authorized official acting as trustee
should avoid choosing a "wors'-case"
alternative rather than the reasonably
probable alternative. The Department
notes, however, that it cannot be
assumed a priori that a "worst case"
alternative is not among the range of
reasonable alternatives. Therefore.
when a worst case alternative is a
reasonable alternative, it should be
documented dnd included in the
analysis along with an appropriate
estimate of its probability, as required
by the rule.
Several comments asserted that the
"willingness-to-pay" measure is
inadequate for use as an acceptance
criterion for nonmarketed natural
resource methodologies. A willingness-
to-pay test, according to these
comments, tends to undervalue the
resource and therefore the "willingness-
to-accept" measure should generally be
used as the basis for valuation. The
majority of comments, however.
asserted that the willingness-to-accept
method should not be used as a way of
measuring use value. According to
several of these comments, research has
suggested that the willingness-to-accept
measure distorts the value of a resource
and may exceed by three or four times
an assessment using the willingness-to-
pay criterion. The comments pointed out
that less is known about methods to
implement the willingness-to-accept
criterion than the willingness-to-pay
criterion. These comments also pointed
out the increased uncertainty that
accompanies methodologies that
estimate willingness to accept.
The Department maintains that
willingness to pay and willingness to
accept are both theoretically valid
critena for estimating damages to
nonmarketed natural resources. In
addition, the Department continues to
maintain that willingness to accept may
be the criterion most germane to natural
resource damages, since the public has
the property right to the injured natural
resource. However, the Department also
agrees with many of ihe comments that
r-srogmze that the application of the
willmgness-to-accept criterion can lead
to more technical difficulties and
uncertainties than the willingness-to-
pay criterion. In recognition of these
difficulties and of the fact that the
authorized official will obtain a
rubuttable presumption, the Department.
therefore, is modifying the acceptance
fuena in § 11.83(d)(7) to include only
ir.p -.villmgness-to-pay criterion.
Several comments approved of the
general listing of use value
methodologies, one stating that the
legislative history emphasizes the neeJ
for flexible rules that offer trustees a
i-huice of acceptable assessment
techniques. Other comments, however.
suggested that the list of measurement
techniques for nonmarketed resources in
§ ll.83(d) should be expanded to include
methodologies not listed in the rule.
Some comments asserted that any list
was too restrictive and that the trustee
should be free to choose any
methodology believed to be appropriate.
The Department believes that no list
of nonmarketed resource methodologies
would be comprehensive. The rule
expands the types of methods that can
be used to calculate use values by
including nonmarketed methodologies.
These methodologies correctly measure
the loss of use. The acceptance criterion
in 911.83 is designed to ensure that
methodologies consistent with economic
theory, yet not specifically listed in the
rule, are available for use in estimating
damages. The Department has carefully
selected the methodologies in the rule
because: this rule increases the scope of
tools available to authorized officials.
and Federal authorized officials will
obtain a rebuttable presumption by
using this rule.
One comment asserted that for
damage determination the analysis
"must recognize that the level of injury
may vary over time, specify the time
period during which injury occurs, and
compute damage in relation to both
factors as well as the supply and
demand for the uses affected." The
Department agrees and notes that these
factors are already incorporated in
§511.64.11.71. and 11.84.
One comment suggested that guidance
should be given as to how choices
should be made between cost-
effectiveness and theoretical soundness
in the use of nonmarketed resource
methodologies. The Department
recognizes that the trade-off between
extra costs and increased precision or
accuracy in estimation is a concern in
all aspects of a damage assessment.
Guidance to help authorized officials
make this decision is given in the
definitions of "cost-effectiveness" and
"reasonable cost" (911.14(j). (ee)J.
One comment stated that guidance
provided by the Water Resources
Council (the Principles and Guidelines
-------
/ rnday. August 1. 1986 / Rules and Regulations
tiled m J1183(a|l3))isno; r.e<.-ss.,:ily
iipprr>priatc for the measiire~ient jf
tlnir.figes from relfc?.s»*s o.r hd2»'d-jui
substances. The commer.! asseiVJ iVrt
is. no indication the! these maicrMU
|-*ae been or are current!) Jwsng
"•ecjfically reviewwj for vT«p\\rjt'm\"\
.ifid Hint the tent should therefore be
chanced from "shall be fulimvd ' !o
".T.c-y Le followed."
The Department disdgrtes srii ha' ru
t-.T.rt::'rattcl this susgestius :rto :^c
finiil rule. The Dep-jr'irtn! .ert.a:..:. s
l1-. I rol ail guidance in the Pr.iic!^!«-s
cirid Guidelines will be applicable :u a!i
discharges and releases; however, ihe
procedures were reviewed prior to
incorporation. Authorized officials
iir.'.ing as trustees are given explicit
iliMrelion in } U.83(a)(3) to determine
the guidance applicable to the specific
nrcamstances of the discharge or
release. The "Principles and Guidelines"
referenced in the rule lay down
generally accepted "good practices" that
Ihe Department believes are the best
publicly available at this time. The rule.
rind the technical information document.
referenced above, also provides general
guidance to help authorized officials
acting as trustees tailor the use of
nonmarketed methodologies to the
particular circumstances of Ihe
discharge or release.
One comment noted that various
rVderal and State agencies are
developing agency-specific manuals or
guides for use in resource damage
t'siimation. This comment stated that the
nt-ed exists to validate these manuals
and to promote comparable techniques.
The Department agrees that such a need
c MSIS. However, at this time, none of
the agency-specific materials mentioned
by this comment have been validated.
nor have they received the inter-agency
mtiiication of the Principles and
Guidelines or the Uniform Appraisal
Standards. Consequently, these
documents have not been referenced in
tl.is final rule.
One comment noted that the
Department should require the trusts* to
ranks known any assumptions regarding
p. onomic methodologies. The
Department agree* that all assumptions
and data for all elements of the damage
jssessment should be made known. The
Post-assessment phase of the rale now
clarifies, in i lt.90(c]. thai this
documentation will be part of the
Record of Assessment
Section 11.84 Datrafe Determination
p^cse—implementation guidance.
Several comments suggested that the
Department clarify the language tn
§ 11 S4{b)(3)(i) so that its applicability is
restricted to "committed uses" as
defined in the rule. Other comments
stated that no gjid^nce is giver as to
bo.v *o base damages on actual and
quantrfiubls economic losses, rather
than speculative losses. The Department
heiw-ves that clarification of
§ 11 C4!bi(3)(»)" unnecessary. Section
1-. S4(bl(2| apphps to all of S 11.84 and
evp!ic::!y sts'es lha1 only committed
uses ran be used IP determine damages.
tken-by precluding consideration of
.epectjeiivt uses, in addition, the
definition of committed use explicitly
siit'es the conditions required for any
i'se to be considered a committed use.
The Department believes that further
guidance on this issue is not required.
Several comments were received on
the non-mutually exclusive services
language in i ll.M(b](3] (!) and (ii).
Meny individuals found this language
confusing. The intent of this section was
to incorporate potential congestion or
crowding out effects, if any. This
language has been changed to explicitly
state this intention.
Several comments raised concerns
about quantifying uncertainties, such as
uncertain or incorrect information
regarding the resource, in the Damage
Determination phase of the assessment.
One comment noted that the proposed
rule attempts to deal with the problem
of uncertainty by requiring that net
expected present value be calculated for
\arious damage estimate*, this comment
suggested that the rule should provide
guidance as to how the trustee or
potentially responsible parry can
develop realistic estimates of the
probabilities of that calculation.
The Department notes that the rule
provides a broad framework for
incorporating uncertainty into the
damage determination methodologies.
Section 11.84{d) requires that when there
are significant uncertainties concerning
the implementation of a damage
methodology, uncertainty should be
examined explicitly in the assessment
annlysis and the assumptions used in
the methodology should be documented.
Section ll.M(d) has been revised to
make explicit that quantitative
uncertainties in ail aspects of the
damage assessment can be reflected in
the Damage Determination phase. This
was the original intent of the proposed
rule: however, the comments received
on this section made it clear that this
purpose was not explained well in the
proposed rule. Because the sole purpose
of a damage assessment is to denve a
dollar value for compensation for injury
to a natural resource, the Damage
Determination phase is the proper place
to explicitly incorporate uncertainties in
the analysis. The requirement to select
the net expected present value of
dairages wilt incorporate the
uncertainty while allowing the
di.ihonzed official the ability to present
to the potentially responsible party a
specific damage claim In this regard it
should be remembered that Congress
defined a claim in section 101(4) of
CEP.CI.A as "a demand tn writing for a
sum certain " The requirements in
S11 84[d) of this rule allow the
authorized officials to use alternative
assumptions in all phases of the damage
assessment and still derive a single sum
to present to '.he potentially responsible
party. The Department is aware that the
guidance for incorporating uncertainty
(using net expected present value) is not
specific however, more specific
guidance cannot be set forth, given the
variety of assumptions used in the
different Assessment Plan
methodologies.
Several comments were received on
the discount rate procedure specified in
the proposed rule. The discount rate in
the proposed rule, $ 1l.M(e), is given in
OMB Circular A-M as a real rate of 10
percent. Some comments stated that the
10 percent real rate was too high. Others
thought that the rate was appropriate for
discounting damage*. One comment
suggested that 10 percent is a
reasonable discount rate for determining
damages under the proposed rule, but
that if pre-judgment interest is charged.
within the context of the rule, this rate
would be too high. The 10 percent rate
was selected after extensive inter-
agency consultation and has been
retained in this final rule.
It should be noted that the
Department has not specified whether
prejudgment interest should be included
in any court award, and consequently
has not specified a rate of interest for
determining this amount The award of
pre-judgment interest is a determination
to be made in the courts, not in this rule.
Another comment interpreted the rule
to say that natural resource damages are
not recoverable unless they can be
strictly and thoroughly quantified and
qualified. This comment pointed out that
damage determination ia not an exact
science, therefore the rule is not precise.
The Department believes that this rale
provides the "best available
procedures" to determine injury,
ouantify the effects of that injury, and
determine damages baaed upon that
injury as required under CERCLA. As
such, the final rule does provide for the
quantification of injury and the
assignment of a monetary value of
compensation for the injury. Tha
Department recognizes that damage
determination is not an exact science:
no science is exact However. CERCLA
-------
Federal Register / Vol
51. N'o. 148 / Friday. August 1. 1986 / Rules anH Regulations
provides for recovery of a "sum certain."
The rule attempts to derive this "sum
certain" by incorporating the
uncertainty and by determining the
expected net present value of the
damages (i.e.. a quantification of the
measurement of inexactness), as
discussed above.
Several comments disagreed with the
language of proposed § 11.84(f). which
requir°s ;hat estimates of the ability of
the pub'ic to substitute uses for those of
the mjur-u services should be
rncorp'irfit*»d in calculating the
diminution of use values. These
comments suggnsted that the
substitution provision would result in an
inadequate assessment of damages.
The Department believes that the
substitutduility provision in 5ll.84(f)
should not be changed, because it
improves the accuracy of the
assessment of damages for nonmarketed
resources. The mdrket price of a
resource already takes into
consideration the ease with which
another resource may be substituted for
the damaged resource. For nonmarketed
resource methodologies, the
substitutability provision captures this
variable, and thus the assessment better
reflects the value of the resource. The
effect of the provision may be to
"lower" or "raise" the estimated value
depending on the relative availability of
•ubstitute services. Moreover, an
imate of substitutability need not be
.luded in all nonmarketed resource
methodologies: the rule states: 'This
substitutability shall be estimated, only
if the potential benefits from an increase
in accuracy are greater than the
potential costs."
One comment stated that, in
determining a compensatory level of
damages, the rule must account for the
net dimmishment in the flow of services
from the type of natural resource that
has been injured.
The Department agrees with this
comment, but believes no additional
language change is required. The
language in 511.84(fl. on substitutability.
encompasses this concept.
Several comments felt that 8ll.B4(i)
(1) and (2) preclude the authorized
official acting as trustee from assessing
damages on a local level and should be
deleted. Other comments felt that
S I1.84(i) should be revised to expressly
include direct, indirect, and induced
regional economic impacts.
The Department does not feel
§11.84(1) (i) and (2) should be deleted
since the scope of the assessment
depends upon the trusteeship involved
Also, these sections explicitly do not
e
S->a.MI 190 Pis: --ssessmentphase—
A or,.,,, „,. Aa-sea-sms.it.
One c-jmmept suggested that
§S il.30|h) and 11 9i(C) be modified so
that the references to the
"rtummistrative record" are consistent.
In the proposed rule. § 11.9i(c) indicated
ihdt .he adrrmistrative record may
cons.st of more than the Report of
Assessment, whereas § ll.90(b) stated
that the Report of Assessment
constitutes the administrative record
Section 11 30 has been revised to"
delete pangraph (b) of the proposed
rule. The Report of Assessment shall
contain all the elements listed in
SH90(nJ. however, the full
administrate e record of assessment
could contain other documents relating
to the performance and circumstances of
the assessment.
Comments suggested that all other
agencies acting as trustees and the
public be provided an opportunity to
review dnd comment upon the damage
detfirmmdtion and the Report of
Assessment before the lead authorized
official presents the demand to the
responsible party.
The Department believes that the rule
already requires close coordination and
review among all agencies acting as
trustees at every step of the assessment.
Public review and comments, however.
would not be appropriate, immediately
before the demand is presented. Public
availability of the demand and the
Report of Assessment after it is
presented would certainly be
appropriate. The Restoration Plan for
the use of monies awarded is subject to
public review and comment
One comment held that the rule
should explicitly provide that natural
resource damage assessments will not
be reviewed under an "arbitrary and
capricious" standard of judicial review.
The Department believes that it is
beyond the scope of this rule to
establish the judicial standards for
review.
Section 11.91 Post-assessment phase-
Demand.
section 107[a)(4)(C) of CERCLA. The
nnal rule, however, does provide
dddit-onsl guidance on what would be
considered reasonable costs.
One comment recommended that the
word "reasonable." in J 11.91(a). either
be omitted from the discussion of
reimbursement for the cost of
conducting assessments or be
accompanied by regulatory guidelines
for interpreting the term. The
Department notes that "reasonableness"
is a statutory requirement, found in
on account
Several comments opposed the
requuement that darniges awirdeJ ds
ihe result of an assessment be used
solely /or restoration or replacemeni
purposes, and challenged the
Department's authority to impose such ,i
requirement. One comment expressed
the concern that since damages may
often be recovered on the basis of the
diminution of use value, the requirement
that damages awarded be used solely
for restoration or replacement might be
sufficient only for partial restoration or
replacement.
The Department believes that the
language of CERCLA requires that all
sums recovered as damages either
through court awards or negotiated
settlements be used for restoration or
replacement of the resource. If
restoration or replacement of the
specific resource injured is not feasible.
the funds may be used to restore or
replace similar or like resources. If
damages were determined on the basis
of lost use value, those sums should still
be used for restoration or replacement
efforts. The Department notes thdt a
trustee agency is always free to restore
beyond an amount representing lost use
values if desired by supplementing the
damage award. The Department has
added language to clarify that claims
against the Hazardous Substance
Response Trust Fund must be for those
expenses specified in EPA's Natural
Resource Claims Procedures 40 CFR
306.
One comment suggested that the rule
include a method for dividing the
damage award when natural resources
under the jurisdiction of two or more
trustees are injured. Because the
circumstances where co-trustees are
involved could be so varied and
numerous, the Department believes that
it would be inappropriate for the rule to
govern how the damage award should
be apportioned between trustees.
One comment recommended that
§ 1192(b) be deleted entirely. The
comment felt that the requirement that
funds for land acquisition be deposited
into the U.S. Treasury rather than into a
trust authorized to acquire land violates
section 107(f) of CERCLA.
The Department-does not agree that
§ 11.92(b) of the rule violates section
107(f) of CERCLA. It merely requires
Federal authorized officials to use
existing Federal appropriations
-------
pro( cdures when a'.\KVf.'.iZ£ to
;idv,! licr.rti land fnt l-Klfrsl r
One (.ornTieni ni.iitsi.ii'd !hdi ihe
f-:.-iri!.«h.Te:v. of * r.-stLtf.tion account
;.-•! i! Restoration TLn infnr^jes on ll»»
i ,ifcfjr'!y of Siatt trustees to recover
ddPMjsth from poltT.'.i&iix re&vun:>ibie
ii i''"" Another corrtnent ril,,fctet] to
ir-;> reciuiremom lhat u'.l diiTtagi! awards
(•\rryi ihose for Lr.a af j .. s.vn •>» hc!a
i"1 ^ Depurate acr.our.t. p-.-"j :y
•4f uirdiicn plar.r. r-ij The » c *...:\r\.\
t'iE-;ps!ed lhat dorr- ,;<-r I >• i.jJe
'!irpt.t!y available to thft ir.iv.tp fur
n <-'.oriitioii ralhpr than bung held in r
i t'-nnlctton of Restoriii.nn r\«n dcCniii
could vary to an extent ih< lerid Fedt-rai d:id Stdte
t-i, -if's monies r.eressan to perform
1 .i:.->ii..hmLT.t of such a fund is beyond
ihf scope of th:s rule.
Sertioa H.92{dJ. At/;as--niw:«. has
li«-n rewntten. The proposed r.:le
.'.nt;npj;ed that a potentially
responsible party vtuuld set up an
'.'.'.trcst 'jeanng account from which the
« .ithonzed official acting as trustee
would draw to effectuate the restoration
or repbcemcnt. Because the account
i-rcrued i.iierest. there was no need to
explicitly adjust for inflationary effects.
1 he majority of these effects would be
d. minuted by the accrued interest over
(r,e period of time required lo complete
ihe restoration or rppUcemenL After
(.".tensive interajtency consultation, it
wds oetermincd that all monies
i'v. iirded to the Federal Covemnent
bhuuld go into non-interest bearing
accounts in the Federal Treasury. This
procedure requires an adjustment to the
rjle to !ike mto consideration
anticipated inflationary effects. The
adjustment in-this final rule requires
ihht the carnage amount going into non-
•nte-i-'St bearing accounts be adjusted by
the r.ite psyable OR Federal notes and
bonds with e maturity that
^pprnximales the length of time i
to c^nrplete the restoration. This
p';icec''.re ;s not meant to provide a
vMr.jfhl! for autiiorized officials, but
o-rnpiv meant to adjust for effects of
.nf^iiuii when the restoration or
rrpiarnienl is expected to occur over a
loig period of time.
C rttfv .iiofw a Appendix I to Part 11
Numerous comments noted the
typographic^! errors thai appeared in
the Appendu to the proposed rule.
Rather ihan detailing the corrections.
the Department is reprinting a corrected
version of the Appendix.
The Department also notes lhat the
aj.honzed official may use the methods
::i Appendix 1 only "for estimating, as
required in § 11.25 of this part, the areas
cf exposure of ground water or surface
water . ." (emphasis added). Any other
usr of the methods or factors listed in
Appendix 1 is inappropriate for natural .
resource damage assessments (see
Several comments suggest that in
Tjbie t of Appendix 1 the flow units are
tco Vyh and would result tn predicUra ,\
mi'ch larger area of contamination thnr.
Mould really exist. The comments
o'jRKesl that an average value, rather
than a WOTST case value, would be more
appropriate. The Department does no*
agree that the flow units of this factor
are too high: the values are mean values
der.ved from data presented in
"Groundwater" by Freeze ft Cherry .
(1979). tables 2.2 and 2.4. Because the
factors are mean values (i.e.. averages)
the Department agrees that the factors
given may over- or underestimate the
atea of contamination.
IV. Special Resources
AT/ip Concept of Special Resources
In the December 20.1965 Notice of
Proposed Rulemalcing (50 FR 52128) the
Department proposed that on exception
lo the general common law rule that
damages are the lesser of: restoration or
replacement costs: or the diminution of
use values. This exception covered a
narrow das* of resources called
"special resources." This exception was
set forth in J 11.35(d) of the proposed
rule. The authorized official acting as
trustee could elect to use restoration or
replacement costs as the measure of
damages when a special resource was
injured so long as the restoration or
replacement costs were not "grossly
disproportionate to the benefits gained."
Special resources were defined in the
proposed rule. 5 11.14{pp), as:
thoie resources that have been set ai
and committed lo a specific use by law
before the discharge cf oil or release of a
raraidous substance was detected. The terra
includes resources ihat were set aside
primarily Ir preserve uildlife habitat or other
unique and sensitive environments It does
not include resources that have been let
aside but are committed to multiple-use
management, nor does It include resourcea
listed an administratively determined lists for
special protection, or resources protected by
regulatory statutes.
The intent of this concept was to create
a very narrow exception to the general
common law definition of damages to
address situations where Congress or
State legislatures have determined that
certain natural resources are worthy of
protection even if their use values are
relatively low. The Department
reasoned that if agencies were held to
the strict rule of the lesser of: restoration
or replacement costs: or a diminution of
use values, some of these resources
could be left unrestored or unnplaced to
the level of their original protection.
thereby being contrary to Congressional
or a State legislature's intent.
B. Comments Received
Many comments on the proposed rule
expressed strong objections to the
definition of special resources as
proposed, others objected to the
existence of the exception altogether.
Several comments stated that the
proposed definition of "special
resources" was too narrow, and would
unduly restrict the trustee's authority to
choose which resources would warrant
damages for full restoration or
replacement coats. These comments
suggested that the definition be
broadened to include marine and
esluarine sanctuaries, multiple-use
lands, areas of critical environmental
concern, and other resources designated
by trustees.
A number of comments argued that
species that are listed as threatened or
endangered pursuant to the Endangered
Species Act as well as their critical
habitats, should be treated as special
resources. The comments asserted that
the exclusion of these species from the
special resources category would be
both unwise and. because of the
provisions of section 7 of the
Endangered Species Act unlawful.
Other comments maintained that the
provisions relating to special resources
were too vague, and would give trustees
loo much discretion in determining what
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
a special resource is and what would be
reasonable costs for the restoration or
replacement of a special resource.
Still other comments argued that there
is no provision in CERCLA or its
legislative history that allows such a
departure from the normal common-law
standard of damage calculation. In
addition, the comments argued that
allowing State law to determine what
are special resources would result in
inconsistent application of CERCLA on
a State-by-State basis.
C. Response to Comments
Because of the diversity of the
comments received, the Department has
determined that it would be best to take
a closer look at the concept of special
resources before making it a part of this
final rule. Therefore, the Department has
decided at this time that the special
resources exception should be deleted
from this final rule. The Department
takes this action after reviewing the
public comments received on this issue
and deciding that there is a need to
reexamine the special resources concept
generally as well as the appropriate
scope of the exception. Further, there is
no real "on the ground" experience in
the use of these rules. The Department ia
uncertain as to how this exception
would function with the more general
iles for assessing damages, whether
a exception would result in
inappropriate cost shifting, or whether
the exception would actually result in
the further protection of these resources.
The Department has concluded that the
concept deserves further consideration.
To assist in the Department's
reconsideration of the special resources
exception, the Department is requesting
additional public comment concerning
the exception in conducting type 8
natural resource damage assessments.
The comments should address three
major issues. First, should there be an
exception to the general common law
definition of damages for special
resources? Second, if there is an
exception for special resources what
natural resources should be included in
the definition of special resources?
Third, what is the rational basis for
including some natural resources and
excluding others from the classification
of special resources?
The Department, if necessary, will
implement any changes as a result of the
review and consideration of public
comments received on this issue by
amending this final rule.
Comments on this issue will be
-cepted for a period of 60 days after
date of publication of this rule.
;nur.ents should be sent to Keith
Eastm. CERCLA 301 Project Director.
Department of the Interior. 1801 "C"
Street NW. Room 4354. Washington. DC
20240.
Authorship
The primary authors of this
rulemakmg are Keith Eastm. Deputy
Under Secretary. Alison Ling. Office of
the Solici»or. David RoSenberger and
Peter Escherich. U.S. Fish and Wildlife
Service. Stan Coloff. Bureau of Land
Management. Willie Taylor. Office of
Policy Analysis, and Craig Sprinkle. U.S.
Geological Survey, all with the
Department of the Interior. Sheryl Katz
formerly with the Office of the Solicitor.
and Richard Aiken. formerly with the
Bureau of Land Management.
Department of the Interior. Significant
contributions to this rulemakmg were
made by Linda Burlington. Office of the
Solicitor, and Karla Jamir. Office of the
Assistant Secretary for Policy. Budget.
and Administration, both with the
Department of the interior.
NEPA. E.0.12291. and Paperwork
Reduction Act Requirements
The Department has determined that
this rule is eligible for a categorical
exclusion under the National
Environmental Policy Act [NEPA).
Departmental NEPA procedures
(516DM2. Appendix 1.10) provide for a
categorical exclusion for regulations of
an administrative, financial, legal.
technical, or procedural nature; or for
regulations for which the environmental
effects are too broad, speculative, or
conjectural to lend themselves to
meaningful analysis, or when those
effects will be subject later to the NEPA
process, whether collectively or case by
The promulgation of this rule does not
constitute a significant Federal action
affecting the environment in and of
itself. The rule only applies to natural
resources potentially injured by
discharges or releases of oil or
hazardous substances. Except in
emergencies, before any restoration
action could be taken relevant to the
natural resources that are the subjects
of this rule, a damage assessment must
be conducted, a claim must be filed, an
award must be made, and a Restoration
Plan or comparable planning document
with public input must be approved.
Requirements that encompass the
kinds of information the authorized
official acting as trustee must provide in
the course of the restoration planning
activity are described in this rule in
§ 11.82. This information has been
designed to fulfill the same information
requirements as NEPA. with equivalent
opportunities for public input. Thus if an
EA or EIS were determined to be
necessary for any particular restoration
or other activity planned in satisfaction
of a particular claim, appropriate and
timely information would be available.
No comments addressing this matter
were received during the public
comment penod on the proposed rule.
The Department of the Interior has
determined that this document is not a
major rule under Executive Order 12291
and certifies that this document will not
have a significant economic effect on a
substantial number of small entities
under the Regulatory Flexibility Act (S
U.S.C. 801 et seq.). The rule provides
technical and procedural guidance for
the assessment of damages to natural
resources. Therefore, the rule does not
directly impose any additional cost. In
addition, estimates of per unit
assessment costs times the potential
numbers of assessments total well
below $100 million annually. The rule
applies to Federal and State agencies
acting as trustees for natural resources
and is thus not expected to have an -
effect on a substantial number of small
entities.
It has been determined that this rule
does not contain information collection
requirements that require approval by
the Office of Management and Budget
under 44 U.S.C. 3501 et seq.
List of Subjects in 43 CFR Part 11
Continental shelf. Environmental
protection. Fish. Forests and forest
products. Grazing land. Incorporation by
reference, Indian lands, Hazardous
substances. Mineral resources. National
forest. National parks. Natural
resources. Oil pollution. Public lands.
Wildlife. Wildlife refuges.
Under the authority of the
Comprehensive Environmental
Response. Compensation, and Liability
Art of 1980. and for the reasons set out
in the preamble. Title 43. Subtitle A of
the Code of Federal Regulations is
amended by adding a new Part II as set
forth below.
Dated. June 23.1986.
Keith E. Eason,
Deputy Undersecretary.
PART 11-NATURAL RESOURCE
DAMAGE ASSESSMENTS
Subpart A—Introduction
Sec
1110 Scope and applicability.
H.ll Purpose.
11.12 Biennial review of regulations.
11.13 Overview.
11.14 Definitions.
1115 Actions against the responsible party
for damages.
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Federal Register / Vol. 51. No 148 / Friday. August 1. 1986 / Rules and Regulations
1116 Claims against the Hazardous
Substance Response Trust Fund
U 17 Compliance with applicable laws and
standards.
1118 Incorporation by reference
Subpart B—Reassessment Phase
11 31 Notification and detection
tl i\ Emergency reslorat'ons
n :; Sampling of potM'«ally ini.red nai'jrdl
resources.
r. :3 Preassess.7Tc.it saver*—c"n«"nl
n 24 Prejssessment screen—information on
'he sue.
11 25 Pa-assessment screen— preliminary
identification of resources potentially di
risk
Subpart C—A*sessm«nl Plan Phase
It 30 Assessment Plan—general
1131 Assessment Plan—conicnt
U 12 Assessment Plan—developmeni
n 13 Assessment Plan—deciding between a
type A or type B assessment JResen ed|
1134 Assessment Plan—confirmation of
exposure.
n 33 Assessment Wan—Eccnnmir
Methodology Determination
Subpart D—Type * Assessments—
I Reserved]
Subpart E—Type B Assessments
11.60 Ti pc B aisesir.-.cnts—general
1161 Ir.jury Deterawniii'On pha'se—general
11 62 Iniury Delernir«dtion phase—injury
definition.
1163 Ir.iury Determination phase—pathway
determination.
11 64 Injury Determination ph«tse—testing
«no sampling meihods.
II *0 Quantification phase—general
il Tl Quantification phase—spruce
reduction quantification.
tt~2 Quantification phase—baseline
services determination.
1173 Quantification phase—resource
recoterabiliry a lalysis
11 BO Damage Determination phase—
general.
11 81 Damage Determination phase-
restoration methodology
\\ 82 Damage Determination phase-
Restoration Methodology Plan
11 83 Damage Determmalion phase—use
value methodologies.
1184 Damage Determination phase—
implementation guidance.
Subpart F-Post-AsMSSimnt Phaw
11.90 Post-assessment phase—Report of
Assessment.
11.91 Post-assessment phase—demand
1192 Post-assessment phase— restoration
account.
1193 Past-assessment phase—Restoration
Plan.
Appendix I to Part 11—Methods for
Estimating the Areas of Ground Water
and Surface Water Exposure During the
Preassessment Screen
Authority: 42 U.SC.9651|c|
Subpart A—Introduction
§ 11.10 Scope and applicability.
The Comprehensne Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA). 42 U.S.C. 9601-
9657. and the Clean Water Act (CWA).
33 U.S C. 1251-1376. provide that
Federal and State agencies who are
authorized to act as trustees of natural
resources may assess damages to
natural resources resulting from a
discharge of oil or a release of a
hazardous substance covered under
CERCLA or the CWA and may seek to
recover those damages. This part
supplements the procedures established
under the National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP). 40 CFR 300. for the identification,
investigation, study, and response to a
discharge of oil or release of a
hazardous substance, and it provides a
procedure by which a Federal or State
agency acting as trustee can determine
compensation for injuries to natural
resources that have not been nor are
expected to be addressed by response
actions conducted pursuant to the NCP.
The assessment procedures set forth in
this part are not mandatary However.
they must be used by Federal officials
acting as trustees in order to obtain the
rebuttable presumption contained in
section lll(h) of CERCLA. This part
applies to assessments initiated after
September 2.19G6.
§11.11 Purpose.
The purpose of (his part is to provide
standardized and cost-effective
procedures for assessing natural
resource damages. The results of an
assessment performed by a Federal
official according to these procedures
shall be accorded the evidentiary status
of a rebuttable presumption as provided
in section lllfh) of CERCLA.
§11.12 Biennial review of regulations.
The regulations and procedures
included within this part shall be
renewed and revised as appropriate 2
years from the effective date of these
rules and every second anniversary
thereafter.
§11.13 Overview.
(a) Purpose. The process established
by this part uses a planned and phased
approach to the assessment of natural
resource damages. This approach is
designed to ensure that all procedures
used in an assessment, performed
pursuant to this part, are appropriate;
necessary, and sufficient to assess
damages for injuries to natural
resources.
(b) Preassessment phase. Subpart B of
this part, the preassessment phase,
provides for notification, coordination.
and emergency activities, if necessary.
and includes the preassessment screen.
The preassessment screen is meant to
be a rapid review of readily available
information that allows the authorized
official to make an early decision on
whether a natural resource damage
assessment can end should be
performed.
(c) Assessment Plan phase, it the
authorized official decides to perform an
assessment, an Assessment Plan, as
described in Subpart C of this part, is
prepared. The Assessment Plan ensures
that the assessment is performed in a
planned and systematic manner and
that the methodologies chosen
demonstrate reasonable cost.
(d) Type A assessments. The
simplified assessments provided for in
section 301(c)(2)[A) of CERCLA are
performed using the standard
procedures specified in Subpart D of this
part.
(e) Type B assessments, Subpart E of
this part covers the assessments
provided for in section 301{c){2)(B] of
CERCLA. The process for implementing
type B assessments has been divided
into the following three phases.
(1) Injury Determination phase. The
purpose of this phase is to establish that
one or more natural resources have been
injured as a result of the discharge of oil
or release of a hazardous substance.
The sections of Subpart E comprising
the Injury Determination phase include
definitions of injury, guidance on
determining pathways, and testing and
sampling methods, These methods are to
be used to determine both the pathways
through which resources have been
exposed to oil or a hazardous substance
and the nature of the injury.
(21 Quantification phase. The purpose
of this phase is to establish the extent of
the injury to the resource in terms of the
loss of services thnt the injured resource
would have provided had the discharge
or release not occurred. The sections of
Subpart E comprising the Quantification
phase include methods for establishing
baseline conditions, estimating recovery
periods, and measuring the degree of
service reduction stemming from an
injury to a natural resource.
(3) Damage Determination phase. The
purpose of this phase is to establish the
appropriate compensation expressed as
a dollar amount for the injuries
established in the Injury Determination
phase and measured in the
Quantification phase. The sections of
Subpart E comprising the Damage
Determination phase include guidance
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
on acceptable economic methodologies
for estimating compensation based on:
the costs of restoration or replacement:
or a diminution of use value.
(f) Post-assessment phase. Subpart F
of this part includes requirements to be
met after the assessment is complete.
The Report of Assessment contains the
results of the assessment, and
documents that the assessment has been
carried out according to this rule. Other
post-assessment requirements delineate
the manner in which the demand for a
sum certain shall be presented to a
responsible party and the steps to be
taken when sums are awarded as
damages.
§11.14 Definitions.
Terms not defined in this section have
the meaning given by CERCLA or the
CVVA. As used in this part, the phrase:
(a) "Acquisition of the equivalent" or
"replacement" means the substitution
for an injured resource with a resource
that provides the same or substantially
similar services, when such
substitutions are in addition to any
substitutions made or anticipated as
part of response actions-and when such
substitutions exceed the level of
response actions determined
appropriate to the site pursuant to the
NCP. 40 CFR 300.65 and 300.68.
(b) "Air" or "air resources" means
those naturally occurring constituents of
the atmosphere, including those gases
essential for human, plant, and animal
life.
(c) "Assessment area" means the area
or areas within which natural resources
have been affected directly or indirectly
by the discharge of oil or release of a
hazardous substance and that serves as
the geographic basis for the injury
assessment.
{dj "Authorized official" means the
Federal or State official to whom is
delegated the authority to act on behalf
of the Federal or State agency acting as
trustee to perform a natural resource
damage assessment As used in this
part, authorized official ia equivalent to
the phrase "authorized official or lead
authorized official." as appropriate.
[e) "Baseline" means the condition or
conditions that would have existed at
the assessment area had the discharge
of oil or release of the hazardous
substance under investigation not
occurred.
(f) "Biological resources" means those
IUSS?,1 rf 9/?urces referred to to 8ection
101(16] of CERCLA as fish and wildlife
and other biota. Fish and wildlife
include marine and freshwater aquatic
and terrestrial species; game, nongame.
and commercial species; and threatened.
endangered, and State sensitive species.
Other biota encompass shellfish.
terrestrial and aquatic plants, and other
living organisms not otherwise listed in
this definition.
(g) "CERCLA" means the
Comprehensive Environmental
Response. Compensation, and Liahiliti
Act of 1980.42 U S.C. 9601 et seq.
(h) "Comnitted use" means either: a
current public use; or a planned public
use of a natural resource for which there
is a documented legal, administrative.
budgetary, or financial commitment
established before the discharge of oil or
release of a hazardous substance is
detected.
(i) "Control area" or "control
resource" means an area or resource
unaffected by the discharge of oil or
release of the hazardous substance
under investigation. A control area or
resource is selected for its comparability
to the assessment area or resource and
may be used for establishing the
baseline condition and for comparison
to injured resources.
(j) "Cost-effective" or "cost-
effectiveness" means that when two or
more activities provide the same or a
similar level of benefits, the least costly
activity providing that level of benefits
will be selected.
(k) "CWA" means the Clean Water
Act. as amended. 33 U.S.C. 1251 et sea.
also referred to as the Federal Water
Pollution Control Act
(1) "Damages" means the amount of
money sought by the Federal or State
agency acting as trustee as
compensation for injury, destruction, or
loss of natural resources as set forth in
section I07(a) or lli(b) of CERCLA.
(m) "Destruction" means the total and
irreversible loss of a natural resource.
(n) "Discharge" means • discharge of
oil as defined in section 311(a)(2] of the
CWA. as amended, and includes, but is
not limited to. any spilling, leaking.
pumping, pouring, emitting, emptying, or
dumping of oil.
(oj "Drinking water supply" means
any raw or finished water source that is
or may be used by a public water
system, as defined in the SDWA. or as
drinking water by one or more
individuals.
(p) "EPA" means the United States
Environmental Protection Agency.
(q) "Exposed to" or "exposure of
means that all or part of a natural
resource is. or has been, in physical
contact with oil or a hazardous
substance, or with media containing oil
or a hazardous substance.
(r) "Fund" means the Hazardous
Substance Response Trust Fund
established under section 221 of
CERCLA.
(s) "Geologic resources' means those
elements of the Earth's crust such as
soils, sediments, rocks, and minerals.
including petroleum and natural gas,
that are not included in the definitions
of ground and surface water resources.
(t) "Ground water resources" means
water in a saturated zone or stratum
beneath the surface of land or water and
the rocks or sediments through whi<:h
ground water moves. It includes ground
water resources that meet the definition
of drinking water supplies.
(u) "Hazardous substance" means a
hazardous substance as defined in
section 101(14) of CERCLA. ,
(v) "Injury" means a measurable
adverse change, either long- or short-
term, in the chemical or physical quality
or the viability of a natural resource
resulting either directly or indirectly
from exposure to a discharge of oil or
release of a hazardous substance, or
exposure to a product of reactions
resulting from the discharge of oil or
release of a hazardous substance. As
used in this part, injury encompasses the
phrases "injury." "destruction." and
"loss." Injury definitions applicable to
specific resources are provided in
S 11.62 of this part.
(w) "Lead authorized official" means
a Federal or State official authorized to
act on behalf of all affected Federal or
State agencies acting as trustees where
there are multiple agencies affected
because of coexisting or contiguous
natural resources or concurrent
jurisdiction.
(x) "Loss" means a measurable
adverse reduction of • chemical or
physical quality or viability of a natural
resource.
(y) "Natural Contingency Plan" or
"NCP" means the National Oil and
Hazardous Substances Contingency
Plan and revisions promulgated by EPA,
pursuant to section 105 of CERCLA and
codified in 40 CFR Part 300.
(z) "Natural resources" or "resources"
means land. fish, wildlife, biota, air.
water, ground water, drinking water
supplies, and other such resources
belonging to. managed by. held in trust
by, appertaining to, or otherwise
controlled by the United States
(including the resources of the fishery
conservation zone established by the
Magnuson Fishery Conservation and
Management Act of 1078). any State or
local government or any foreign
government. These natural resources
have been categorized into the following
five groups: surface water resources.
ground water resources, air resources.
geologic resources, and biological
resources.
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27728 Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
(aa) "Natural resource damage
assessment" or "assessment" means the
process of collecting, compiling, and
anaUzing information, statistics, or data
through prescribed methodologies to
determine damages for injuries to
natural resources as set forth In this
part.
(lib) "Oil" means otl as defined in
section 31t(a)(l) of the CWA. ss
amended, of any kind or in any form.
including, but not limited to. petroleum.
Fuel oil, sludge, oil refuse, and oil mixed
•A ith wastes other than dredged spoil
(cc) "On-Scene Coordinator" or
OSC" means the On-Scene Coordinator
js defined in the NCP. 40 CFR 300.6.
(ad) "Pathway" means the route or
medium through which oil or a
hazardous substance is or was
transported from the source of the
discharge or release to the injured
resource.
(ee) "Reasonable cost" means (he
a.r.ount that may be recovered for the
cost of performing a damage
assessment. Costs are reasonable when
the Injury Determination.
Quantification, and Damage
Determination phases have a well-
defined relationship to one another and
are coordinated: the anticipated
increment of extra benefits in-terms of
•he precision or accuracy of estimates
obtained by using a more costly injury,
quantification, or damage determination
methodology are greater than the
ar.rcipated increment of extra costs of
that methodology: and the anticipated
cost of the assessment is expected to be
'.ess than the anticipated damage
amcd.it determined in. the Injury.
Quantification, and Damage
DfctPTn.nation phases.
iff)' Rdbuttable presumption" means
the procedural device provided by
iec'.iun lll[h) of CERCLA describing the
e\ .eentiary weight that a court, or EPA
in a clnim against the Fund, is required
to g-ve a damage assessment performed
by a Federal agency acting as trustee in
accordance with the regulations
provided in this part.
i?Sl "Recovery period" means either
the longest length of time required to
return the services of the injured
resource to their baseline condition, or a
lesser period of time selected by the
authorized official and documented in
the Assessment Plan.
(hh) "Release" means a release of a
hazardous substance as defined in
section 101(22) of CERCLA.
(li) "Replacement" or "acquisition of
the equivalent" means the substitution
for an injured resource with a resource
that provides the same or substantially
similar services, when such
Institutions are in addition to any
substitutions made or anticipated as
part of response actions and when such
substitutions exceed the level of
response actions determined
appropriate to the site pursuant to the
NCP, 40 CFR 300.65 and 300.68.
(}'}} "Response" means remove.
removal, remedy, or remedial actions as
those phrases are defined in sections
101(23) and 101(24) of CERCLA.
(kk) "Responsible party or parties"
and "potentially responsible party or
parties" means a person or persons
described in or potentially, described in
one or more of the categories set forth in
section 107(a) of CERCLA.
(11) "Restoration" or "rehabilitation"
means actions undertaken to return an
injured resource to its baseline
condition, as measured in terms of the
injured resource's physical chemical, or
biological properties or the services it
previously provided, when such actions
are in addition to response actions
completed or anticipated, and when
such actions exceed the level of
response actions determined
appropriate to the site pursuant to the
NCR 40 CFR 300.65 and 300.68.
(mm) "SDWA" means the Safe
Drinking Water Act, 42 U.S.C. 300f-300j-
;o.
(nn) "Services" means the physical
and biological functions performed by
the resource' including the .human uses nf
those functions. These services ere the
result of the physical, chemical, or
biological quality of the resource.
(oo) "Site" means en area or location.
for purposes of response actions under
the NCP. at which oil or hazardous
substances have been stored, treated,
discharged, released, disposed, placed.
or otherwise came to be located.
(pp) "Surface water resources" means
the waters of the United States.
including the sediments suspended in
water or lying on the bank, bed, or
shoreline'and sediments in or
transported through coastal and marine
areas. This term does not include ground
water or water or sediments in ponds.
lakes, or reserviors designed for waste
treatment under the Resource
Conservation and Recovery Act of 1976
(RCRA1,42 U.S.C. 6901-«B87 or the
CIV A. and applicable regulations.
(qqj "Technical feasibility" or
"technically feasible" means that the
technology and management skills
necessary to implement an Assessment
Plan or Restoration Methodology Plan
are well known and that each element
of the plan has a reasonable chance of
successful completion in an acceptable
period of time.
(IT) "Trustee" means any Federal
natural resources management agency
designated in the NCP. 40 CFR Subpart
C. and any State agency that may
prosecute claims for damages under
section 107(0 or lll[b) of CERCLA.
(ssj "Type A assessment" means
standard procedures for simplified
assessments requiring minimal field
observation to determine damages as
specified in section 30l(c)(2)(A] of
CERCLA.
(tt) "Type B assessment" means
alternative methodologies for
conducting assessments in individual
cases to determine the type and extent
of short- and long-term injury and
damages, as specified in section
301(c)(2)(B) of CERCLA.
S 11.15 Actions against the responsible
party fof dsrra^M,
(a) In an action filed pursuant to
section 107{fj of CERCLA or section
311(f) (4) and (S) of the CWA. a Federal
or State agency acting as a trustee who
has performed an assessment in
accordance with this rule may recover:
(1) Damages as determined in
accordance with:
• (i) Subpart D: or
(n) Ai determined in accordance with
55 11.60 through 11.84 of this part and
calculated based on injuries occurring
from the onset of the discharge or
release through the recovery period, less
any mitigation of those injuries by
response actions taken or anticipated.
plus any increase in injuries that are
reasonably unavoidable as a result of
response actions taken or anticipated;
(2) The costs of emergency restoration
efforts under § 11.21 of this part; and
(3) The reasonable and necessary
costs of the assessment, to include:
(i] The cost of performing the
preasseasment and Assessment Plan
phases and the methodologies provided
;n Subpart D or E of this part and
(ii) Administrative costs and expenses
necessary for, and incidental to, the
assessment, assessment and restoration
planning, and any restoration or
replacement undertaken.
(b) The determination of the damage
amount shall consider any applicable
limitations provided for ia section 107(c)
of CERCLA.
(c) Where an assessment determines
that there is. in fact, no injury, as
defined in 9 11.82 of this part, the
Federal or State agency acting aa trustee
may not recover assessment costs.
$11.16 Claims against the Hazardous
Substance Response Trust Fund.
Claims against the Fund shall be filed
in accordance with the Natural Resource
Claims Procedures, 40 CFR Part 306.
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Federal Register /' Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27729
§ 11.17 Compliance with applicable laws
and standards.
(»} Worker health and safely All
worker health and safety considerations
specified in the NCP, 40 CFR 300 38.
!>hdll be observed, except that
requirements applying to response
notions shall be taken to apply to the
assessment process.
(b| Resource protection. Before taking
any actions under this p.irt. particulnrly
ueiure taking supples or making
determinations of restoration or
rpplarement. compliance is required
with any applicable statutory
consultation or review requirements,
such as the Endangered Species Act; the
Migratory Bird Treaty Act; the Marine
Proteciion, Research, and Sanctuaries
Act: and the Marine Mammal Protection
Act. that may govern the taking of
samples or in other ways restrict
alternative management actions.
5 11.18 Incorporation by reference.
(a) The following publications or
portions of publications are
incorporated by reference:
(1) Part II only (Fish-Kill Counting
Guidelines) of "Monetary Values of
Freshwater Fish and Fish-Kill
Guidelines." American Fisheries Society
Special Publication Number 13.1082:
available for purchase from the
American Fisheries Society. 5410
Grosvenor Lane. Bethesda, MD 20414,
pK: (301) 897-8618. Reference is made to
this publication in JS 11.62(f)(4)(i)(B)
and 11.71(l)(5)(iii|(A) of this part.
(2) Appendix 1 (Travel Cos,. Method).
Appendix 2 (Contingent Valuation
(Survey) Methods), and Appendix 3
(Unit Day Value Method) only of
Section VIII of "National Economic
Development (NED) Benefit Evaluation
Procedures" (Procedures), which is
Chapter II of Economic and
Environment's! Principles ar.d
Guidelines for Water and Related Land
Resources Implementation Studies. U.S.
Department of the Interior. Water
Resources Council, Washington. DC.
1984. DOI/WRC/-64/01; available for
purchase from the National Technical
Information Service (NTIS), 5285 Port
Royal Road. Springfield VA 22161; PB
No. 84-199-405; ph: (703) 487-4650.
Reference is made to this publication in
ill.83(a)(3) of this part.
(3) "Uniform Appraisal Standards for
Federal Land Acquisition" (Uniform
Appraisal Standards). Interagency Land
Acquisition Conference. Washington.
DC. 1973; available for purchase from
the Superintendent of Documents. U.S.
Government Printing Office,
Washington. DC 20402; Stock Number
052-059-00002-0: ph: (202) 783-3238.
Ref{"-er., e is made to tnis publication in
5n33(c)(2)(i)ofthispart.
(bj The publications or portions of
publications listed in paragraph (a) of
liMs section are available for inspection
at the Office of the Federal Register.
1100 L Street. NW.. Washington. DC
201C8. These incorporbtions by
refi rence werp approved by the Director
of the Federal Register in acrcH^r.re
with 5 U.S.C. 552(a). Thpse materials are
mrnrnorated as they exist on the elate of
the anproval and a notice cf any change
in these materials will bp published in
the Federal Register.
Subpart B—Preassessment Phase
« 11.20 Notification and detection.
(a) NCP responses. The NCP at 40
CFR J00.52(d) and 300 64(d) provides for
the OSC or lead agency to notify the
Federal or State agency acting as trustee
when natural resources have been or are
likely to be injured by a discharge of oil
or a release of a hazardous substance
being investigated under the NCR
(b) Previously wireported discharges
ur reliasea. If a Federal or State agency
acting as trustee identifies or is
informed of apparent injuries to natural
resources that appear to be a result of a
previously unidentified or unreported
discharge of oil or release of a
hazardous substance, he should first
make reasonable efforts to determine
whether a discharge or release has
taken place. In tea case of a discharge or
release not yet reported or being
investigated under the NCP. the Federal
or State agency acting as trustee shall
report that discharge or release to the
appropriate authority as designated in
the NCP. 40 CFR 300.51(b) and 300.83(b).
(c) Identification of co-trustees. The
Federal or State agency acting as trustee
should assist the OSC or lead agency, as
needed, in identifying other Federal or
Stats agencies whose resources may be
affected aa a result of shared
responsibility for the resources and who
should be notified.
$11.21 Emergency restorations.
(a) Reporting requirements and
definition. (1) In the event of a natural
resource emergency, the Federal or State
agency acting as trustee shall contact
the National Response Center (800/424-
8802) to report the actual or threatened
discharge or release and to request that
an immediate response action be taken.
(2) An emergency is any situation
related to a discharge or release
requiring immediate action to avoid an
irreversible loss of natural resources or
to prevent or reduce any continuing
danger to natural resources, or a
situation in which there is a similar need
for emergency action.
(b) Emergency actions. If no
immediate response actions are taken at
(he s:te of the discharge or release by
the EPA or the U.S. Coast Guard within
the lime that the Federal or State agency
acting as trustee determines is
reasonably necessary, or if such actions
are insufficient, the Federal or State
agency acting as trustee should exercise
any existing authority it may have to
take on-site response actions. The
Federal or State agency acting as trustee
shall determine whether the potentially
responsible party, if his identity is
known, is taking or will take any
response action. If no on-site response
actions are taken, the Federal or State
agency acting as trustee may undertake
limited off-site restoration action
consistent with their existing authorities
to the extent necessary to prevent or
reduce the immediate migration of the
oil or hazardous substance onto or into
the resource for which the Federal or
State agency may assert trusteeship.
(c) Limitations on emergency actions.
The Federal or State agency acting as
trustee may undertake only those
actions necessary to abate the
emergency situation. The normal
procedures provided in this part must be
followed before any additional
restoration actions other than those
necessary to abate the emergency
situation are undertaken. The burden of
proving that emergency restoration was
required and that restoration costs were
reasonable and necessary based on
information available at the time rests
with the Federal or State agency acting
as trustee.
$11.22 Sampling of pottntfaBy Injured
natural resource*.
(a) General limitations. Until the
authorized official has made the
determination required in {11.23 of this
pai to proceed with an assessment
field sampling of natural resources
should be limited to the conditions
identified in this section. All sampling
and field work shall be subject to the
provisions of 811.17 of this part
concerning safety and applicability of
resource protection statutes.
(b) Early sampling and data
collection. Field samples may be
collected or site visits may be made
before completing the preassessment
screen to preserve data and materials
that are likely to be lost if not collected
at that time and that will be necessary
to the natural resource damage
assessment. Field sampling and data
collection at this stage should be
coordinated with the lead agency under
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the NCP to minimize duplication of
sampling and data collection efforts.
Such field sampling and data collection
should be limited to:
(1) Samples necessary to preserve
perishable materials considered likely to
have been effected by. and contain
t-vidence of. the oil or hazardous
substance. These samples ge.-.erelly will
be biological materials that a,-» e.ther
dead or visibly injured and that
evidence suggests have been iniurod by
oi! or a hazardous substance:
(2] Samples of other ephe.-nerel
conditions or material, such as surface
water or soil containing or likely to
contain oil or a hazardous substance.
where those samples may be necessary
for identification and for measurement
of concentrations, and where necessary
samples may be lost because of factors
such as dilution, movement
decomposition, or leaching if not taken
immediately; and
(3) Counts of dead or visibly injured
organisms, which may not be possible to
take if delayed because of factors such
as decomposition, scavengers, or water
movement Such counts shall be subject
to the provisions of § 11.71(l)(5)[iii) of
this part.
§11-23 Preassessment screen-general.
(a) Requirement. Before beginning any
assessment efforts under this part.
except as provided for under the
emergency restoration provisions of
§ 11.21 of this part, the authorized
official shall complete a preassessment
screen and make a determination as to
whether an assessment under this part
shall be carried out.
(b) Purpose. The purpose of the
preassessment screen is to provide a
rapid review of readily available
information that focuses on resources
for which the Federal or State agency
may assert trusteeship under section
107(f) of CERCLA. This review should
ensure that there is a reasonable
probability of making a successful claim
before monies and efforts are expended
in carrying out an assessment
(c) Determination. When the
authorized official baa decided to
proceed with an assessment under this
part the authorized official •hall
document the decision in terms of the
criteria provided in paragraph [e) of this
section in a Preassessmeat Screen
Determination. This Preassessment
Screen Determination shall be included
in the Report of Assessment described
in { 11.90 of this part
(d) Content The preassessment
screen shall be conducted in accordance
with the guidance provided in this
*ection and in } 11.24—Preassessment
:reen—information on the site and
§ n.25—Preassessment screen-
preliminary identification of resources
potentially at nsk. of this part.
(e) Criteria. Based on information
gathered pursuant to the preassessment
screen and on information gathered
pursuant to the NCP. the authorized
official shall make a preliminary
determination that all of the following
criteria ere met before proceeding with
an assessment:
(1) A discharge cf oil or a release of a
hazardous substance has occurred:
fZ) Natural resources for which the
Federal or State agency may assert
trusteeship under CERCLA have been or
are likely to have been adversely
affected by the discharge or release:
(3) The quantity and concentration of
the discharged oil or released hazardous
substance is sufficient to potentially
cause injury, as that term is used in this
part to those natural resources;
(4) Data sufficient to pursue an
assessment are readily available or
likely to be obtained at reasonable cost
and
(S) Response actions, if any. carried
out or planned do not or will not
sufficiently remedy the injury to natural
resources without further action.
(f) Coordination. (1) In a situation
where response activity is planned or
underway at e particular site.
assessment activity shall be coordinated
with the lead agency consistent with the
NCP.40CFR300.33(b).
(2) Whenever, as part of a response
action under the NCP. a preliminary
assessment. 40 CFR 300.52 and 300.64. or
an OSC Report 40 CFR 300.40. is to be.
or has been, prepared for the site, the
authorized official should consult with
'he lead agency under the NCP. as
necessary, and to the extent possible
use information or materials gathered
for the preliminary assessment or OSC
Report unless doing so would
unnecessarily delay the preassef ssient
screen.
(3) Where a preliminary assessment
or an OSC Report does not exist or does
not contain the information described in
this section, that additional information
may be gathered.
(4) If the Federal or State agency
acting as trustee already has a process
similar to the preassessment screen, and
the requirements of the preassessment
screen can be satisfied by that process,
the processes may be combined to avoid
duplication.
(g) Preassessment phase costs. (1) The
following categories of reasonable and
necessary costs may be incurred in the
preassessment phase of the damage
assessment
(i) Release detection and
identification costs:
(iil Trustee identification and
notification costs:
(i:i) Potentially injured resource
identification costs:
(iv) Initial sampling, data collection.
and evaluation costs:
(v) Site characterization and
preassessment screen costs: and
(v:) Ar.y other preassessmcr.t costs for
activities authorized by §5 11.20 through
11.25 of this part.
(*} The reasonable and necessary
costs for these categories shall be
limited to those costs incurred by the
authorized official for. and specifically
allocable to. site-specific efforts taken
during the preassessment phase for
assessment of damages to natural
resources for which the agency is acting
as trustee. Such costs shall be supported
by appropriate records and
documentation and shall not reflect
regular activities performed by the
agency in management of the natural
resource. Activities undertaken as part
of the preassessment phase shall be
taken in a manner that is cost-effective.
as that phrase is used in this part.
(11.24 Pr
Information on ttw eft*.
(a) Information on the site and on the
discharge or release. The authorized
official shall obtain and review readily
available information concerning:
[1] The time, quantity, duration, and
frequency of the discharge or release:
(2) The name of the hazardous
substance, as provided for in Table
302.4—List of Hazardous Substances
and Rcportable Quantities, 40 CFR 302.4;
(3) The history of the current and past
use of the site identified as the source of
the discharge of oil or release of a
hazardous substance;
(4) Relevant operations occurring at or
near the site;
(5) Additional oil or hazardous
substances potentially discharged or
released from the site; aad
(8) Potentially responsible parties.
(b) Damages excluded from liability
under CERCLA. (I) The authorized
official shall determine whether the
damages:
(0 Resulting from the discharge or
release were specifically identified as
an irreversible and irretrievable
commitment of natural resources in an
environmental impact statement or
other comparable environmental
analysis, that the decision to grant the
permit or license authorize* such
commitment of natural resources, and
that the facility or project was otherwise
operating within the terms of its permit
or licensee or
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Federal Register / Vol. 51. No. 148 / Friday, August 1, 1986 / Rules and Regulations 27731
(n) And the release of a hazardous
substance from which such ddmdges
resulted hdve occurred wholly before
-nactment of CERCLA: or
(MI) Resulted from the applicdtion of a
ppstir.ide product registered under the
Fecpral Insecticide. Fungicide, and
Rodenticide Act 7 USC. 135-115k. or
(iv) RMu'te.l :"i ;:n dny oihe: feiiBr.illy
pormi'tea limated by using the methods
described in Appendix I of this part.
(d) Estimates of concentrations. An
estimate of the concentrations of oil or a
hdzardous substance in those areas of
potential exposure shall be developed.
(e) Potentially affected resources. (1)
Bused upon the estimate of the areas of
potential exposure, and the estimate of
concentrations in those areas, the
authorized official shall identify natural
resources for which he may assert
trusteeship that are potentially affected
by the discharge or release. This
preliminary identification should be
used to direct further investigations, but
it is not intended to preclude
consideration of other resources later
tound to be affected.
(2} A preliminary estimate, based on
information readily available from
resource managers, of the services of the
resources identified as potentially
affected shall be made. This estimate
vbill be used in determining which
resources to consider if further
assessment efforts are justified.
Subpart C—Assessment Plan Phase
9 11.30 Asseaament Plan—general
(a) Assessment Plan requirement.
Before initiating any assessment
methodologies provided in Subpart D for
a type A assessment or in Subpart E for
a type B assessment, the authorized
official shall develop a plan for the
assessment of natural resource
damages. The Assessment Plan shall be
developed in accordance with the
requirements and procedures provided
in this subpart.
(b) Purpose. The purpose of the
Assessment Plan is to ensure that the
assessment is performed in a planned
and systematic manner and that
methodologies selected from Subpart 0
for a type A assessment or from Subpart
E for a type B assessment, including the
Injury Determination. Quantification.
and Damage Determination phases, can
be conducted at a reasonable cost, as
that phrase is used in this part
(c) Assessment Plan phase costs. (!)
The following categories of reasonable
and necessary costs may be incurred in
the Assessment Plan phase of the
damage assessment:
(i) Methodology identification and
screening costs;
(ii) Potentially responsible party
notification costs:
(ni) Public participation costs:
(ivj Exposure confirmation analysis
costs;
(v) Economic Methodology
Determination costs: and
(vi) Any other Assessment Plan costs
for activities authorized by §§ 11.30
through 11.35 of this part.
(2) The reasonable and necessary
costs for these categories shall be
limited to those costs incurred or
anticipated by the authorized official
for. and specifically allocable to. site-
specific efforts taken in the development
of an Assessment Plan for a resource for
which the agency is acting as trustee.
Such costs shall be supported toy
appropriate records and documentation,
and shall not reflect regular activities
performed by the authorized official in
management of the natural resource.
Activities undertaken as part of the
Assessment Plan phase shall be taken in
a manner that is cost-effective, as that
phrase is used in this part.
§11.31 Assessment Plan—content
(a) General content and level of
detail. (1) The Assessment Plan shall
identify and document the use of all of
the scientific and economic
methodologies that are expected to be
performed during the Injury
Determination. Quantification, and
Damage Determination phases of the
type B assessment or the specific type
A procedure that will be performed.
(2) The Assessment Plan shall be of
sufficient detail to serve as a means of
evaluating whether the approach used
for assessing the damage is likely to be
cost-effective and meets the definition of
reasonable costs, as those phrases are
used in this part The Assessment Plan
shall include descriptions of the natural
resources and the geographical areas
involved. In addition, for type B
assessments, the Assessment Plan shall
include the sampling locations within
those geographical areas, sample and
survey design, numbers and types of
samples to be collected, analyses to be
performed, preliminary determination of
the recovery period, and other such
information required to perform the
selected methodologies.
[3] The Assessment Plan shall contain
information sufficient to demonstrate
that the damage assessment has been
coordinated to the extent possible with
any remedial investigation feasibility
study or other investigation performed
pursuant to the NCP.
(4) The Assessment Plan shall contain
procedures and schedules for sharing
data, split samples, and results of
analyses, when requested, with any
identified potentially responsible parties
and other Federal or State agencies
acting as trustees.
(b) Decision on type A or type B
assessment. The Assessment Plan shall
include documentation of the authorized
official's decision as to whether to
proceed with a type A or a type B
assessment. This determination shall be
based upon the guidance provided in
§ 11.33 of this part.
(c) Specific requirements for type B
assessments. When the Assessment
Plan includes type B methodologies, the
Plan shall incorporate the following, in
addition to the material identified in
5ll.31(a) of this part
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27732 Federal Register / Vol. 51. No. 146 / Friday. August 1. 19C6 / Rules and Regulations
(1) The results of the con?rmalion of
exposure performed in accordance with
the requirements of 111.34 of th-.s part:
(2) The Economic Methodology
Determination performed in accordance
with the guidance provided :n 5 11.35 of
this part:
(31A Quality Assurance Plan thai
satisfies the requirements listed in
S 300.68(k) of the Nf.P and app^ble
EPA guidance for ijuaMy cortrcl nnd
quality assurance plens: bud
(4) The objectives, as required in
3 11.64(n}(2) of this part, of any testing
and sampling for injury or pathway
determination.
J11.M A*»««an»ntPtan—development
(a) Pre-developmenl requirements
ThH authorized official shall fulfill thn
following requirements before
developing an Assessment Plan.
(1) Coordination. (!) If the authorized
official's responsibility is shared with
other Federal or State agencies acting as
trustees as a result of coexisting or
contiguous natural resources or
concurrent jurisdiction, the authorized
official shall ensure that all other known
affected Federal and State agencies are
notified that an Assessment Plan is
being developed. This notification shall
include the results of the Preassessment
Screen Determination.
Jii) Authorized officials from different
agencies are encouraged to cooperate
and to coordinate any assessments that
involve coexisting or ccr.t:guuus natural
resources or concurrent jurisdiction.
They may arrange to divide
responsibility for implementing the
assessment in any manner that is agreed
to by all of the affected Federal and
State agencies acting as trustees with
the following conditions:
(A) A lead authorized official shall be
designated to administer the
assessment The lead aulhonzed official
shall act as coordinator and contact
regarding all aspects of the assessment
and shall act as final arbitrator of
disputes if consensus among the
f athorized officials cannot be reached
regarding the development.
implementation, or any other aspect of
the Assessment Plan. The lead
authorized official shall be designated
by mutual agreement of all the Federal
or Slate agrnciea acting as trustees If
consensus cannot be reached as to the
designation of toe lead authorized
official, the lead authorized official shall
be designated in accordance with
paragraphs (a)(l)(ii) (B1,. (C). or (D) of
this section:
(B) When the natural resources being
assessed are located on lands or waters
subject to the administrative jurisdiction
of a FedT&l agency, the Federal agency
shall act as the lead authorized official
{C) For ail other natural resources for
which the State may assert trusieeslvp.
the State shull act as thf> leati authonred
official.
[D) When there is a natural resourrr
claim against the Fund pursu*:il to
section 11110(3) of CERCLA. the lend
a'j'honieri official vtiil be designated i.n
ar.cordi.nce w.ih the \H'ural Pes^nrcp
CUitrs l>rocedures. 40 CKR iOfs.CiHll
;m) If (here is a reasonable basis (or
d.x icJ.r.g the assessment, the Federal or
State agencies acting as trustees may
act independently and pursue separate
assessments, actions, or claims so long
as the claims do not overlap. In ihcse
instances, the agencies shall coordinate
their efforts, particularly those
concerning the sharing of data and the
development of the Assessment Plans.
(2) Identification and involvement of
the potentially responsible party, (i) If
the lead agency under the NCP for
response actions at the site has not
identified potentially responsible
parties, the authorized official shall
make reasonable efforts to ider.lify any
potentially responsible parries.
(li) In the event the number of
potentially responsible parties is large
or if some of the potentially responsible
pprucs cannot be located, the
authorized official may proceed against
an> one or more of the parties identified.
The authorized official should use
reasonable efforts to proceed against
most known potentially responsible
parties or at least against all those
potentially responsible parties
responsible for significant portions of
the potential injury.
(in)(A) The authorized official shall
send a Notice of Intent to Perform an
Assessment to all identified potentially
responsible parties. The Notice shall
invite the participation o: 'he potentially
responsible party, or. if several parties
are involved and if agreed to by the lead
authorized official, a representative or
representatives designated by the
parties, in the development of the type
and scope of the assessment and in the
performance of the assessment The
Notice shall briefly descnbe. to the
extent known, the site, vessel, or facility
involved, the discharge of oil or release
of hazardous substance of concern to
the authorized official, and the resources
potentially at risk.
(B| The authorized official shall allow
at least 30 calendar days, with
reasonable extensions granted as
appropriate, for the potentially
responsible parry or parties notified to
respond to the Notice before proceeding
with the development of the Assessment
Plan or any other assessment actions.
(ul Flan approval. The authorized
official shall have final approval as to
the appropriate methodologies to
include in the Assessment Plan and any
mocJi'ications to the Assessment Plan.
(c) i'ub'.ic 'firolvement in the
^sexsmrrt Plan. (l)The Assessment
Plcn s.hd!l be made av?ilaole for review
b> any identified potentially responsible
parties, other Federal or Stale agencies
acting as trustees, other affected Federal
or Suite agencies, and any other
interred members of the public for a
period of at least 30 calendar days, wiih
reasonable extensions granted as
appropriate, before the performance of
any methcdologies contained therein
(2} Any comments concerning the
Assessment Plan received from
identified potentially responsible
parties, other Federal or State agencies
acting as trustees, other affected Federal
or State agencies, and any other
interested members of the public.
together with responses to those
comments, shall be included as part of
the Report of Assessment, described in
§11.90 of this part.
(d) Plan implementation. At the option
of the authorized official and if agreed
to by any potentially responsible party.
or parties acting jointly, the potentially
responsible party or any other party
under the direction, guidance, and
monitoring of the authorized official
may implement all or any part of the
Assessment Plan finally approved by
the authorized official. Any decision by
the authorized official to allow or not
allow implementation by the potentially
responsible party shall be documented
in the Assessment Plan.
(R) Plan modification. (1) The
Assessment Plan may be modified at
any stage of the assessment as new
information becomes available.
(2)(i] Any modification to the
Assessment Plan that in the judgment of
the aulhonzed official is significant shall
be made available for review by any
identified potentially responsible party.
any other affected Federal or State
agencies acting as trustees, and any
ether interested members of the public
for a penod of at least 30 calendar days.
with reasonable extensions granted as
appropriate, before tasks called for in
the modified plan are begun.
(ii) Any modification to the
Assessment Plan that in the judgment of
the authorized official is not significant
shall be made available for review by
any identified potentially responsible
party, any other affected Federal or
Stale agencies acting as trustees, and
any other interested members of the
public, but the implementation of such
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations
not-u no) be delated as d
" suit of such review.
(!") P.'un review. (1) After the Injury
I)rtprr:im!f velopment stege. and to ensure that
;iiu SB lection of methodologies for the
Uji.niincation ard Damage
Ji-teimination phases is consistent w:th
icr results of the Injury Delemumition
;ihnse.
(3j Any revision or determination of
4"t> Economic Methodology
Determination shall be deemed
significant for the purposes of
S 11 32(e)(2)(i) of this part.
; 51.33 Assessment Plan— deciding
between a type A or type B assessment
i Reserved I
S 11 34 Assessment Plan— confirmation of
exposure.
. i| i." .iccorddnce
an the requirements provided in this
•>eUion. the uuthurizcd oTicia! shall
'.uiifirm that at least one of the natural
(•••sources identified ns potentully
.r.jj-tn! in ihe preassessnent screen hds
in fact bet»n exposed to >he oil or
n.-zaruoussubstdnie
Ul lype B assessment methodologies
-•h.v! be included in the Assessment
I Uin OR!> upon mw:ir.g Ihe
requirements of th.s section
(b! Procedures. (1) Whenever
posiiiile. exposure shall be confirmed by
MMr.i; existing dita. such as these
(.cillc ted for response act.or.s by :he
OSC. or uther available studies or
sjn i vs of the assessment area
Cl Where sampling has been done
tu fore the completion of the
pn .i=sessmenl screen, chemical
..n,.i vi-9 of such samples may be
p.'rl'1-nif-d to confirm that exposure has
( r t .iired. Such analyses shall be limited
in sh«! number and t>pe required for
vm.V'nation of exposure
("i Where existing data are
•inaifiu'dble or insufficient to confirm
"xpoeure. one or more of the analytical
T.t thodologies provided in the Injury
rVienmnation phase may be used. The
(.ollbUmn and analysis of new data
sh..!l be limited to that necessary to
i unfirm exposure and shall not include
lasting for baseline levels or for injury,
••s these phrases are used in this part.
§ 11.35 Assessment Plan—Economic
Methodology Determination.
{&} Requirements. Based upon the
guidance provided in this section, the
authorized official shall determine
whether restoration or replacement
rests, or a diminution of use values w;il
form the basis of the measure of
tnaaes This determination, referred to
hi the Ecnroir.'c Methodology
Determination, shall be used in
de\e!cpmg the Assessment Plan for a
:\ pe B assessment.
{bj Determination. (1) The Economic
Methodology Determination shall be
used to ascertain whether restoration or
replacement costs; or a diminution of
use v alues M :!! form the basis of further
economic analysis in the Damage
Determination phase.
(2) The authorized official shall select
the lesser of: restoration or replacement
tests: or diminution of use values as the
measure of damages, except as specified
in paragraph (b)(3) of this section.
(3) When restoration or replacement
of the injured resource is not technically
feasible, as that phrase is used in this
part, the diminution in use values, as
determined by using the methodologies
listed in § 11.83 of this part or other
methodologies that meet the acceptance
criterion in fi U 83 of this part, shall
constitute the measure of damages.
(c) Costs and benefits. (1) The
Economic Methodology Determination
shall estimdte and document the costs of
restoration or replacement and the
benefits gained by restoration or
replacement of the resource or the
resource services.
(2! The costs of restoration or
replacement as determined in
paiagraph [d] of this section, shall be
measured by the anticipated
management actions and resource
acquisitions required to return the
resource services lost as a result of the
injury. In determining the costs of
restoration or replacement, the costs of
acquiring land for Federal management
should be used only if this acquisition
\\nuld represent the sole viable method
of Staining the lost services.
(3) The benefits of restoration or
replacement as deterrr.inFd in
paragraph (d) of this section, shall be
the \*\\ie of the restored uses associated
wish the anticipated management
dC':ons and resource acquisitions as
determined in paragraph (c)(2) of this
section
(d) Content, (l) In performing the
F.conoimc Methodology Determination.
e.\:st,p.g ddta and studies should be
relied upon. Significant new data
collection or modeling efforts should not
be performed at this stage of the
assessment process to complete this
determination.
(2) If existing data are insufficient to
perform the Economic Methodology
Determination, this analysis may be
postponed until the Assessment Plan
review stage at the completion of the
h|ur> Determination phase of the
assessment.
(3) Each Economic Methodology
Determination should estimate the
following benefits and costs:
(i) The expected present value, if
possible, of anticipated restoration or
replacement costs, expressed in
constant dollars, and separated into
capital, operating, and maintenance
costs, and including the timing of the
costs;
(li) The expected present value, if
possible, of anticipated use values
gained through restoration or
replacement expressed In constant
dollars, specified for the same base year
as the cost estimate, and separated into
recurring or nonrecurring benefits.
including the Hming of the benefit
(4) Any estimates of costs andr
benefits shall make explicit all
assumptions pertaining to costs and
benefits and shall specify all sources of
information. Any effects that cannot be
expressed In monetary terms should be
listed.
(5) The discount rate to be used in
developing estimates of the expected
present value of benefits and costs shall
be that determined in accordance with
the guidance in S ll.B4(e) of this part
Subpart D—Type A Assessments
[Reserved)
Subpart E—Type B Assessments
§11.60 Type B assessment*—general.
(a) Purpose. The purpose of the type B
assessment is to provide alternative
methodologies for conducting natural
resource damage assessments in
individual cases.
(b) Steps in the type B assessment.
The type B assessment consists of three
phases: S 11.61—Injury Determination:
§ 11.70—Quantification; and fi 11.80—
Damage Determination, of this part
(c) Completion of type B assessment.
After completion of the type B
assessment a Report of Assessment as
described in § 11.90 of this part, shall be
prepared. The Report of Assessment
shall include the determinations made in
each phase.
(d) Type B assessment costs. (1) The
following categories of reasonable and
necessary costs may be incurred in the
assessment phane of the damage
assessment:
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27734 Federal Register / Vol. 51, No. 148 / Friday. August 1, 1988 / Rules and Regulations
(i) Sampling, testing, and evaluation
costs for injury and pathway
determination:
(>i) Quantification costs (including
baseline service determination and
resource recoverability analysis];
(ni) Restoration Methodology Plan
development costs including:
(A] Development of alternatives:
(B) Evaluation of alternatives;
(C) Potentially responsible party.
Hgency. and public reviews;
(D) Other such costs for activities
authorized by $ 11.82 of this part;
(\v) Use value methodology
circulation costs, and
(v) Any other assessment costs
authorized by 9$ 11.60-11*4 of this part.
(2) The reasonable and necessary
costs for these categories shall be
limited to those costs incurred or
anticipated by the authorized official
for. and specifically atlocable to, site
specific efforts taken in the assessment
of damages for a natural resource for
which the agency is acting as trustee.
Such costs shall be supported by
appropriate records and documentation.
and shall not reflect regular activities
performed by the agency in management
of the natural resource. Activities
undertaken as part of the damage
assessment phase shall be taken in a
manner that is cost-effective, as that
phrase is used in this part.
$11.61 Injury Determination phaac—
(a) Requirement. [1] The authorized
official shall, in accordance with the
procedures provided in the Injury
Determination phase of this part.
determine: whether an injury to one or
more of the natural resources has
occurred: and that the injury resulted
from the discharge of oil or release of a
hazardous substance based upon the
exposure pathway and the nature of the
injuiy.
(2) The Injury Determination phase
consists of 911.81—general; 811.62—
injury definition; $ 11.63—pathway
determination; and 911.04—testing and
sampling methods, of this part
(b) Purpose. The purpose of the Injury
Determination phase is to ensure that
only assessments involving well
documented injuries resulting from the
discharge of oil or release of a
hazardous substance proceed through
the type B assessment.
(c) Injury Determination phase steps.
(l] The authorized official shall
determine whether the potentially
injured resource constitutes a surface
water, ground water, air, geologic, or
biological resource as defined in 911.14
of this part. The authorized official shall
then proceed in accordance with the
guidance provided in the injury
definition section, i 11.62 of this part, to
determine if the resource is injured.
(2) The authorized official shall follow
the guidance provided in the testing and
sampling methods section, § 11.64 of this
part, in selecting the methodology for
determining injury. The authorized
official shall select from available
testing and sampling procedures one or
more procedures that meet the
requirements of the selected
methodologies.
(3) The authorized official shall follow
the guidance provided in the pathway
section. S 11.63 of this part, to determine
the route through which the oil or
hazardous substance is or was
transported from the source of the
discharge or release to the injured
resource.
(4) If more than one resource, as
defined in { H.14[z) of this part, has
potentially been injured, an injury
determination for each resource shall be
made in accordance with the guidance
provided in each section of the Injury
Determination phase.
(d) Selection of methodologies. (1}
One of the methodologies provided in
9 11.64 of this part for the potentially
injured resource, or one that meets the
acceptance criteria provided for that
resource, shall be used to establish
injury.
(2) Selection of the methodologies for
the Injuiy Determination phase shall be
based upon cost-effectiveness as that
phrase is used in this part.
(e) Completion of Injury
Determination phase. (1) Upon
completion of the Injury Determination
phase, the Assessment Plan shall be
reviewed in accordance with the
requirements of 911.32(f) of this part.
(2) When the authorized official has
determined that one or more of the
natural resources has been injured as a
result of the disc.iarge or release, the
authorized official may proceed to the
Quantification and the Damage
Determination phases.
(3) When the authorized official has
determined that an injury has not
occurred to at least one of the natural
resources or that an injury has occurred
but that the injury cannot be linked to
the discharge or release, the authorized
official shall not pursue further
assessment under this part.
511.62 Injury Determination phase—Injury
definition.
(a) The authorized official shall
determine that an injury has occurred to
natural resources based upon the
definitions provided in this section for
surface water, ground water, air,
geologic, and biological resources. The
authorized official shall test for injury
using the methodologies and guidance
provided in {11.04 of this part. The test
results of the methodologies must meet
the acceptance criteria provided in this
section to make a determination of
injury.
(b) Surface water resources. (1) An
injury to a surface water resource has
resulted from the discharge of oil or
release of a hazardous substance if one
or more of the following changes in the
physical or chemical quality of the
resource is measured:
(i) Concentrations and duration of
substances in excess of drinking water
standards as established by sections
1411-1416 of SDWA, or by other Federal
or State laws or regulations that
establish such standards for drinking
water, in surface water that was potable
before the discharge or release;
(ii) Concentrations and duration of
substances in excess of water quality
criteria established by section 140l(l)(D}
of SDWA, or by other Federal or State
laws or regulations that establish such
criteria for public water supplies, in
surface water that before the discharge
or release met the criteria and is a
committed use. as the phrase is used in
this part, as a public water supply;
(iii) Concentrations and duration of
substances in excess of applicable
water quality criteria established by
section 304(a)(l) of the CWA, or by
other Federal or State laws or
regulations that establish such criteria,
in surface water that before the
discharge or release met the criteria and
is a committed use, as that phrase is
used in this part as a habitat for aquatic
life, water supply, or recreation. The
most stringent criterion shall apply
when surface water is used for more
than one of these purposes;
(iv] Concentrations of substances on
bed. bank, or shoreline sediments
sufficient to cause the sediment to
exhibit characteristics identified under
or listed pursuant to section 3001 of the
Solid Waste Disposal Act 42 U.S.C.
6921; or
(v) Concentrations and duration of
substances sufficient to have caused
injury as defined in paragraphs (c], (d),
(e), or (f) of this section to ground water.
air, geologic, or biological resources.
when exposed to surface water.
suspended sediments, or bed. bank, or
shoreline sediments.
(2)(i) The acceptance criterion for
injury to the surface water resource is
the measurement of concentrations of
oil or a hazardous substance in two
samples from the resource. The samples
must be one of the following types.
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FederalRegister / Vol. 51. No. 148 / Friday. August 1. 1986 / R^a and Regulations
27735
i s< «•!•! «s specified in j 11 62 |t.;;".| of
:- :• part.
(A) Two water samples {mm differed
'.'..:.• tions. separated by a straight-Imp
'i.s'.-in'.e of not less than 100 fee!, or
(!)) Two bed. bank, or short-line
•jciliment samples from different
k.Ldlions separated by s straigh:-.' :-,B
i!i.'..nre ot not less titan 100 lett- or
(C) One -.\dler s.irple and vr.u li«J.
li.-nk. or sKorelmr scd-inml sample, or
;f)i Tv.o water samplrs from the sane
.. • jt'on collected a: different timrs.
i'i. I In those uislanr.es when injury is
J'/iLrmincd and no cil or hazardous
substances are delected in sample; fro.-.i
ihc surface water resource, it mus! be
demonstrated that the substance
uiusing injury occurs or has occurred in
:i'C surface water resource as a result of
physical, chemical, or biological
reflations initiated by the discharge of
(>.! or release of a hazardous substance
!3) If the maximum straight-line
('.•stance of the surface water resource is
Itsi than 100 feet, then the samples
required in S 11.62(b)(2|(i) (A) and (BJ of
this part should be separated by one-
half the maximum straight-line distance
of the surface water resource.
(c) Ground water resources. [1J An
i-'iurj to the ground water resource has
rrsulted from the discharge of oil or
rtlpdse of a hazardous substance if one
or more of the following changes in the
physical or chemical quality of the
.-pMjurte is measured:
fi) Concentrations of substances in
h\CPSS of drinking water standards.
established by sections Hll-1416 of the
Si/WA. or by other Federal or Stale
l.iv. s or regulations that ebldblish such
b'jndards for dnnkmg \vater. in ground
Mater that was potable before the
il.scruT-ge or release;
(:ij Concentrations of substances in
f\cess of v.-ater quality criteria.
established by section 1401fl)(d) of the
SUWA. or by other Federal or State
I r.vs or regulations that establish such
criteria for public water supplies, in
ground water that before the discharge
or release met the criteria and is a
committed use. as the phrase is used in
this part, as a public water supply:
(M!) Concentrations of substances in
uxreas of applicable water quality
criteria, establishpd by section 304(a)(l)
of the CWA. or by other Federal or State
Ijws or regulations that establish such
criteria for domestic water supplies, in
g-ound water that before the discharge
or release met the criteria and is a
committed use as that phrase is used in
this part, as a domestic water supply: or
(ivj Concentrations of substances
sufficient to have caused injury as
defined in pLragraphs (b). (d). (e). or (0
of this section to surface water, air.
geologic, or biological resources, when
p \pcsed to ground water.
(-) The acceptance criterion for injury
(o ground water resources is the
measurement of concentrations of oil or
hazardous substance in two ground
v.uter samples. The water samples must
bp fiom the same gechydrologic unit and
.T-jrt oe obtained from one of the
ff;i.-jwinjj pairs of sources, except as
•oecif.ed in S n.82(c)(3) of this part:
(i) Two properly constructed wells
separated by a straight-line distance of
r.o« less than 100 feet; or
(M) A properly constructed well and a
natural spring or seep separated by a
stra:ght-line distance of not less than
100 feet: or
{.u| Two natural springs or seeps
separated by a straight-line distance of
not less than 100 feet
(3) If the maximum straight-line
distar.ce-of the ground water resource is
less than 100 feet, the samples required
in § 11.62(r|j2) of this part should be
separated by one-half of the maximum
straight-line distance of the ground
water resource.
(4) In those instances when injury is
determined and no oil or hazardous
substance is detected in samples from
(tie ground water resource, it must be
demonstrated that the substance
causing injury occurs or has occurred in
the ground water resource as a result of
physical, chemical or biological
reactions initiated by the discharge of
oil or release of hazardous substances.
(d) Air resources. An injury to the air
resource has resulted from the discharge
of oil or release of a hazardous
substance if one or more of the
following changes in the physical or
chemical quality of the resource is
measured:
(1) Concentre bons of emissions in
excess of standards for hazardous air
pollutants established by section 112 of
the Clean Air Act. 42 U.S.C, 7412. or by
other Federal or State air standards
established for the protection of public
welfare or natural resources: or
(2) Concentrations and duration of
emissions sufficient to have caused
injury as defined in paragraphs (b). (c).
(e). or (f) of this section to surface water.
ground water, geologic, or biological
resources when exposed to the
emissions.
(c) Geologic resources. An injury to
the geologic resource has resulted from
the discharge of oil or release of a
hazardous substance if one or more of
the following changes in the physical or
chemical quality of the resource is
measured:
(1) Concentrations of substances
sufficient for the materials in the
geologic resource to exhibit
characteristics identified under or listed
pursuant to section 3001 of the Solid
WdSte Disposal Act 42 U.S.C. 6921:
(2) Concentrations of substances
sufficient to raise the negative logarithm
of the hydrogen ion concentration of the
soil jpH) to above 8.5 (above 7.5 in
humid areas) or to reduce it below 4.0;
(3) Concentrations of substances
sufficient to yield a salt saturation value
greater than 2 millimhos per centimeter
in the soil or a sodium adsorption ratio
of more than 0.17ft
(4) Concentrations of substances
sufficient to decrease the water holding
capacity such that plant. microbiaL or
invertebrate populations are affected:
(5) Concentrations of substances
sufficient to impede soil mlcrobial
respiration to an extent that plant and
microbial growth have been inhibited:
(6) Concentrations in the soil of
substances sufficient to inhibit carbon
mineralization resulting from a
reduction in soil microbial populations;
(7) Concentrations of substances
sufficient to restrict the ability-to access.
develop, or use mineral resources within
or beneath the geologic resource
exposed to the oil or hazardous
substance;
(8) Concentrations of substances
sufficient to hava caused injury to
ground water, as defined in paragraph
(c) of this section, from physical or
chemical changes in gases or water from
the unsaturated zone:
(9) Concentrations in the soil of
substances sufficient to cause a toxic
response to soil invertebrates:
(10) Concentrations in the soil of
substances sufficient to cause a
phytotoxic response such as retardation
of plant growth: or
(11) Concentrations of substances
sufficient to have caused injury as
defined in paragraphs (bj\ {c). (d). or (f).
of this section to surface water, ground
water, air, or biological resources when
exposed to the substances.
(f) Biological resources. (1) An injury
to a biological resource has resulted
from the discharge of oil or release of a
hazardous substance if concentration of
the substance is sufficient to:
(i) Cause the biological resource or its
offspring to have undergone at least one
of the following adverse changes in
viability: death, disease, behavioral
abnormalities, cancer, genetic
mutations, physiological malfunctions
(including muHJnyfttflns to reproduction),
or physical deformations; or
(ii) Exceed action or tolerance levels
established nnder section 402 of the
Food, Drug and Cosmetic Act. 21 U.S.C.
342. in edible portions of organisms; or
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era, egister / Vol. 51, No. 148 / Friday, August 1, 1986 / Rules and Regulations
(tii) Exceed levels for which an
appropriate State health agency has
issued directives to limit or ban
consumption of such organism.
(2) The method for determining injury
lu a biological resource, as defined in
perugraph (f)(l)0) of this section, shall
be chosen based upon the capability of
ihe method to demonstrate a
measurable biological response. An
injury can be demonstrated if the
authorized official determines that the
biological response under consideration
can satisfy all of the following
acceptance criteria:
(i) The biological response is often the
result of exposure to oil or hazardous
substances. This criterion excludes
biological responses that are caused
predominately by other environmental
factors such as disturbance, nutrition.
trauma, or weather. The biological
response must be a commonly
documented response resulting from
exposure to oil or hazardous substances.
(ii) Exposure to oil or hazardous
substances is known to cause this
biological response in free-ranging
organisms. This criterion identifies
biological responses that have been
documented to occur in a natural
ecosystem as a result of exposure to oil
or hazardous substances. The
documentation must include the'
correlation of the degree of the
biological response to the observed
exposure concentration of oil or
azardous substances.
(iiil Exposure to oil or hazardous
substances Is known to cause this
biological response in controlled
experiments. This criterion provides a
quantitative confirmation of a biological
response occurring under
environmentally realistic exposure
le\ els that may be linked to oil or
hazardous substance exposure that has
been observed in a natural ecosystem.
Biological responses that have been
documented only in controlled
experimental conditions are insufficient
to establish correlation with exposure
occurring in a natural ecosystem.
(iv] The biological response
measurement is practical to perform and
produces scientifically valid results. The
biological response measurement must
be sufficiently routine such that it is
practical to perform the biological
response measurement and to obtain
scientifically valid results. To meet this
criterion, the biological response
measurement must be adequately
documented in scientific literature, must
produce reproducible and verifiable
results, and must have well defined and
accepted statistical criteria for
interpreting as well as rejecting results.
(3) Unless otherwise provided for in
this section, the injury determination
must be based upon the establishment
of a statistically significant difference in
the biological response between
samples from populations in the
assessment area and in the control area.
The determination as to what
constitutes a statistically significant
difference must be consistent with the
quality assurance provisions of the
Assessment Plan. The selection of the
control area shall be consistent with the
guidance provided in S 11.72 of this part.
(4) The biological responses listed in
this paragraph have been evaluated and
found to satisfy the acceptance criteria
provided in (0(2) of this section. The
authorized official may. when
appropriate, select from this list to
determine injury to fish and wildlife
resources or may designate another
response as the determiner of injury
provided that the designated response
can satisfy the acceptance criteria
provided in (f}(2) of this section. The
biological responses are listed by the
categories of injury for which they may
be applied.
(i) Category of injury—death. Five
biological responses for determining
when death is a result of exposure to the
discharge of oil or release of a
hazardous substance have met the
acceptance criteria.
(A) Brain cholinesterase (ChE)
enzyme activity. Injury has occurred
when brain ChE activity in a sample
from the population has been inhibited
by at least SO percent compared to the
mean for normal brain ChE activity of
the wildlife species. These enzymes are
in the nervous system of vertebrate
organisms and the rale of ChE activity is
associated with the regulation of nerve
impuUe transmission. This biological
response may be used to confirm injury
when anti-ChE substances, such as
organophosphonu and carbamate
pesticides, are suspected to have
resulted in death to bird and mammal
speciea.
(B) Fish kill investigations. Injury has
occurred when a significant increase in
the frequency or numbers of dead or
dying fish can be measured in
accordance with the procedures for
counting dead or dying fish contained in
Part II (Fish-Kill Counting Guidelines) of
"Monetary Values of Freshwater Fish
and Fish-Kill Counting Guidelines,"
American Fisheries Society Special
Publication Number 13,1982
(incorporated by reference, see i 11.18].
(C) Wildlife kill investigations. Injury
has occurred when a significant increase
in the frequency or number of dead or
dying birds or mammal species can be
measured in a population sample from
the assessment area as compared to a
population sample from a control area.
Wildlife kill investigations may be used
when acute mortality has occurred to
multiple wildlife species, or when
detectable quantities of oil or hazardous
substances have adherred to. bound to,
or otherwise covered surface tissue, or
had been ingested or inhaled by dead or
dying bird or mammal species.
(D) In situ bioassoy. Injury has
occurred when a statistically significant
difference can be measured in the total
mortality and/or mortality rates
between population samples exposed in
situ to a discharge of oil or a release of
hazardous substance and those in a
control site. In situ caged or confined
bioassay may be used to confirm injury
when oil or hazardous substances are
suspected to have caused death to fish
species.
(E) Laboratory toxicity testing. Injury
has occurred when a statistically
significant difference can be measured
in the total mortality and/or mortality
rates between population samples of the
test organisms placed in exposure
chambers containing concentrations of "
oil or hazardous substances and those (n
a control chamber. Published
standardized laboratory fish toxicity
testing methodologies for acute flow-
through, acute static, partial-chronic
[early life stage), and chronic (life cycle)
toxicity testa may be used to confirm
injury. The oil or hazardous substance
used in the test must be the exact
substance or a substance that is
reasonably comparable to that
suspected to have caused death to the
natural population offish.
(ii) Category of injury—disease. One
biological response for determining
when disease is a result of exposure to
the discharge of oil or release of- a
hazardous substance has met the
acceptance criteria.
(A) Fin erosion. Injury has occurred
when a statistically significant
difference can be measured In the
frequency of occurrence of fin erosion
(also referred to as fin rot) in a
population sample from the assessment
area as compared to a sample from the
control area. Fin erosion shall be
confirmed by appropriate histological
procedures. Fin erosion may be used
when oil or hazardous substances are
suspected to have caused the disease.
(lii) Category of injury—behavioral
abnormalities. Two biological responses
for determining when behavioral
abnormalities are a result of the
exposure to the discharge of oil or
release of a hazardous substance have
met the acceptance criteria.
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Federal Register / Vol. 51. No. H8 / Friday. August l. 1966 / Rules and Regulations 27737
(A) Clinicalbeho\ lorals:gns of
to\icity Injury has occurred when a
stylistically significant difference can be
measured in the frequency of occurrence
of clinical behavioral signs of toxicity in
3 oopu'ation sample from the
assessment area as compared to a
sample from the control area Chrical
behavioral signs of toxicity are
characteristic behavioral svmptoms
expressed by an organism in reponsc in
exposure to an oil or hazardous
substance. The clinical behavioral signs
of toxicity used shall be those that have
been documented in published
literature.
(B) Avoidance Injury has occurred
when a statistically significant
difference can be measured in the
frequency of avoidance behavior in
population samples of fish placed in
testing chambers with equal access to
water containing oil or a hazardous
substance and the control water The oil
or nazardous substance used in the test
must be the exact substance or H
substance that is reasonably
comparable to that suspected to hd'.e
caused avoidance to the natural
peculations of fish, This biological
response may be used to confirm ir.jury
when oil or hazardous substances are
suspected to have resulted in avoidance
behavior in fish species.
(u) Category of injury—career One
logical response for determining
.hen cancer is a result of exposure to
Ihs discharge of oil or release of a
hazardous substance has met (he
j:ccptance criteria.
(A) Fish neoplasm. Injury has
occurred when a statistically significant
difference can be measured >.n the
frequency of occurrence of the fish
neoplasia when comparing population
samples from the assessment area and a
control area. Neoplasms are
characterized by relatively autonomous
growth of abnormal cells that by
proliferation infiltrate, press upon, or
i-naJe healthy tissue (hereby causing
licj'nicMon of cells, interference with
phvsiclogical functions, or death of the
y?ar.ism. The following type of fish
neoplesia may be used to determine
:nj jry: liver neoplasia and skin
neoplas ia. The neoplasms shall be
confirmed by hisiological procedures
and such confirmation procedures may
also include special staining techniques
for specific tissue components, ultra-
sir uctural examination using electron
r..icrcscopy to identify cell origin, and to
r Je out or confirm viral, protozoan, or
olher causal agents. Fish neoplasm may
1 ~ used to determine injury when oil or
•rdous substances are suspected to
'. been the causal agent.
(v) Category of injury—physiological
ci.jns. Five biological responses
for determining when physiological
malfunctions are a result of exposure to
the discharge of oil or release of a
hazardous substance have met the
acceptance crileria
(A) Eggshell
contribute to this measurement include
egg fertility, hatching success, and
survn.il of young. This biological
response may be used when oil or
hazaidous substances are suspected to
have reduced the nesting success of
avian species.
(C) Cholmesterase (ChE) enzyme
inhibition. Injury has occurred when
brain ChE activity in a sample from the
population at the assessment area
shows a statistically significant
inhibition when compared to the mean
activity level in samples from
populations in a control area. These
enzymes are in the nervous systems of
vertebrate organisms and the rate of
ChE acti\ ity is associated with the
regulation of nerve impulse
transmission. This biological response
may be used as a demonstration of
physiological malfunction injury to
birds, mammals, and reptiles when anti-
CliE substances, such as
organophosphorus and carbamate
pesticides, have been discharged or
released.
(D) Delta-aminolevulinic acid
dehydraiase IALAD) inhibition. Injury
has occurred when the activity level of
whole blood ALAD in a sample from the
population of a given species at an
assessment area is significantly less
then mean values for a population at a
control area, and ALAD depression of ai
least 50 percent can be measured. The
ALAD enzyme is associated with the
formation of hemoglobin in blood and in
chemical detoxification processes in the
liver This biological response is a
measure of the rale of ALAD activity.
This biological response may be used to
determine injury to bird and mammal
species that have been exposed to lead.
(E) Reduced fish reproduction. Injury
has occurred when a statistically
significant difference in reproduction
success between the control organisms
and the test organisms can be measured
based on the use of published
standardized laboratory toxicity testing
methodologies. This biological response
may be used when the oil or hazardous
substance is suspected to have caused a
reduction in the reproductive success of
fish species. Laboratory partial-chronic
and laboratory chronic toxicity tests
may be used. The oil or hazardous
substance used in the test must be the
exact substance or a substance that is -
reasonably comparable to that
suspected to have caused reduced
reproductive success in the natural
population of fish.
(vi) Category of injury—physical
defommct,un. Four biological responses
for determining when physical
deformations are a result of exposure to
the discharge of oil or release of a
hazardous substance have met the
ir.|i:ry acceptance criteria.
(A) Overt external malformations.
Injury has occurred when a statistically
significant difference can be measured
in the frequency of overt external
malformation, such as small or missing
eyes when comparing samples from
populations of wildlife species from the
assessment area and a control area.
This biological response may be used as
a demonstration of injury when such
physical deformations are observed in
wildlife species exposed to oil or
hazardous substances.
[B] Skeletal deformities. Injury has
occurred when a statistically signficant
difference can be measured in the
frequency of skeletal deformities, such
as defects in growth of bones, when
comparing samples from populations of
wildlife species from the assessment
area and a control area. This biological
response may be used as a
demonstration of injury when such
physical deformations are observed in
wildlife species exposed to oil or
hazardous substances.
(C] Internal whole organ and soft
tissue malformation. Injury has occurred
when a statistically signficant difference
can be measured in the frequency of
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e era Register / Vol. 51. No. 148 / Friday, August 1. 19B6 / Rules and Regulations
malformations to brain, heart, liver.
kidney, and other organs, as well as soft
tissues or the gastrointestinal tract and
vascular system, when comparing
samples from populations oE wildlife
species in the assessment area and a
control area. This biological response
may be used as a demonstration of
injury when such physical deformations
jre observed in wilrilife species exposed
to oil 01 hazardous substances
ID) H.slapatJiolugical lesic.is. Injury
h.is orcurr»cl when
-------
release. The characteristics of concern
include:
(i) Local geographical extent of
aquifers and confining units:
(n) Seasonal depth to saturated zone
beneath the site:
(in) Direction of ground water flow m
aquifers:
(iv) Local variation in direction of
ground water now resulting from
seasonal or pumpage effects;
M Elevation of top and bottom of
aquifer and confining units:
(vi) Lithology, mineralogy, and
porosity of rocks or sediments
comprising the unsaturated zone.
aquifers, and confining units;
(vii) Transmissivity and hydraulic
conductivity of aquifers and confining
•inits: and
(viii) Nature and amount of hydraulic
connection between ground water and
local surface water resources.
(•») (i) Using available information and
such additional tests as necessary, the
mobihty.of the oil or hazardous
substance within the unsaturated zone
and in the exposed ground water
resources should be estimated. This
estimate should consider local recharge
rales and such physical and chemical
characteristics of the oil or hazardous
substance as aqueous solubility.
aqueous miscibility. density, volatility
potential for chemical degradation.
chemical precipitation, biological
degradation, biological uptake, and
adsorption onto solid phases in the
unsaturated zone, aquifers, and
confining units.
(nj Previous studies of the
fhi?nr,tei2Sf.ics discus«d m paragraph
(c)(4)(i) of this section should be relied
upon if geohydrologic. physical, and
chemical conditions in the exposed
ground water resource are similar to
experimental conditions of the previous
studies. In the absence of this
information, field and laboratory studies
may be performed as necessary to
estimate the mobility of the oil or
hazardous substance within the
unsaturated zone and in ground water
flows.
(5) (i) The rate of transport of the oil
or hazardous substance in ground water
should be estimated using available
information and with consideration of
the site hydrology, geohydrologic
properties of the exposed resource, and
the physical and chemical
characteristics of the oil or hazardous
substance.
(ii) Transport rates may be estimated
using:
(A) Results of previous studies
conducted with the same or similar
chemical substance, under experimental
Seohydrological. physical, and chemical
conditions Similar to the ground water
resource exposed to the oil or hazardous
substance:
(B) Results of field measurements thai
allow computation of arrival times of
the discharged or released substance at
downgradient iveMs. so that an empirical
transport rate .-nay be derived: or
[C] ResJis of simulation studies.
including analog or numerical modeling
of the ground water sjstem.
(d) Air pathway. (1) When air
resources are suspected as the pathway
or a component of the pathway the
authorized official shall determine, using
guidance provided in this paragraph.
whether the air resources either solely
or in combination with other media.
served as the exposure pathway for
injury jo the resource.
(2) Using available information, air
modeling, and additional Held sampling
and analysis, it should be determined
whether air resources have been
exposed to the discharge of oil or
release of a hazardous substance.
(3) [i) If an air resource is or has likely
been exposed, available information
and such additional tests as necessary
should be used to estimate the areal
extent of exposure and the duration and
frequency of exposure of such areas to
emissions from the discharge of oil or
release of a hazardous substance
(n) The .areal extent of exposure is
defined as the geographical surface a-n
or space where emissions from the
source of discharge or release are found
or otherwise determined to be present
for such duration and frequency as to
potentially result in injury to resources
present within the area or space.-
(4) Previous studies of the
MH^!enr8!!" dl8Cussedi" paragraph
(d)(3)(i) of this section should be relied
upon if the conditions m the exposed air
resource are similar to experimental
conditions of the previous studies. In thp
absence of this information, air sampling
and analysis methods identified in
§ 11.64(d) of this part, air modeling
methods, or a combination of these
methods may be used in identifying the
air exposure pathway and in estimating
the areal extent of exposure and
duration and frequency of exposure.
(5) For estimating the areal extent.
duration, and frequency of exposure
from the discharge or release, the
following factors shall be considered as
may be appropriate for each emissions
event.
(i) The manner and nature in which
trie discharge or release occurs.
including the duration of the emissions
amount of the discharge or release, and
emergency or other time critical factors:
I") The configuration of the emitting
source, including sources such as ponds
lagoons, pools, puddles, land and water
surface spills, and venting from
containers and vessels:
(in) Physical and chemcia! properties
of substances discharged or released.
including volatility, toxicity. solubilitv
and physical state;
(iv) The deposition from the air and
re-emission to the airof gaseous iind
paniculate emissions that provide
periodic transport of the emissions: and
(v) Air transport and dispersion
factors, including wind speed and
direction, and atmospheric stabilitv and
temperature.
(e) Geologic pathway, (l) When
geologic resources are suspected as th«
pathway or a component of the
pathway, the authorized official shall
determine, using guidance provided in
this paragraph, whether geologic
resources, either solely or in
combination with other media, served as
the exposure pathway for injury to the
resource.
(2) (i) Using available information and
the methods listed in § li.B4(eLof this
part, it should be determined whether
any element of the geologic resource has
been exposed to the oil or hazardous
substance. If a geologic resource is or
has likely been exposed, the area!
extent of the exposed geologic resource
including the lateral and vertical extent'
of the dispersion, should be estimated
(n) To determine whether the
unsaturated zone served as a pathway
the guidance provided in paragraph fc]
of this section should be followed.
(0 Biological pathway. (1) When
biological resources are suspected as
the pathway or a component of the
pathway, the authorized official shall
determine, using the guidance provided
m this paragraph, whether biological
resources, either solely or in
combination with other media, served as
the exposure pathway for injury to the
resource.
(2) Biological pathways that resulted
from either direct or indirect exposure to
the oil or hazardous substance, or from
exposure to products of chemical or
biological reactions initiated by the
discharge or release shall be identified
Direct exposure can result from direct
physical contact with the discharged oil
or released hazardous substance
Indirect exposure can result from food
chain processes.
(3) If the oil or hazardous substance
adhered to. bound to. or otherwise
covered surface tissue, or was ingested
or inhaled but not assimilated, the area
of dispersion may be determined based
upon chemical analysis of the
appropriate tissues or organs (such as
leaves, lungs, stomach, intestine, or their
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27740
Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rde, and Regulations
contents) that were directly exposed to
the oil or hazardous substance.
(4] If the oil or hazardous substance
was assimilated, the areal dispersion
may be determined based upon one or
more of the following alternative
procedures:
[i] If direct exposure to the biological
resource has occurred, chemical
analysis of the organisms that have
been exposed may be performed.
(:i) If indirect exposure to the
biological resource has occurred, either
chemical analysis of free-ranging
biological resources using one or more
indicator species as appropriate, or
laboratory analysis of one or more in
si!u placed indicator species as
appropriate may be performed.
(A) "Indicator species." as used in this
section, means a species of organism
selected consistent with the following
faciors to represent a trophic level of a
food chain:
(1) General availability of resident
organisms in the assessment area:
(-) Potential for exposure to the oil or
hazardous substance through ingcstion,
assimilation, or inhalation:
(J) Occurrence of the substance in a
chemical form that can be assimildted
by the organism:
N) Capacity of the organism to
ssamilale. bioconcentrate.
btoaccumulate. and/or biomagnify the
substance:
[.') Capacity of the organism to
metibohze the subs'ance to a form that
Cd.TT.ot be delected through available
chemical analyl.cal procedures: and
(6) Extent lo which the organism is
renrosenialive of the food chain of
cor.
13'. Collection of the indicator species
sh.vJd be limited to the number
neccsc iry to define the areal dispersion
and to provide sufficient sample volume
for chemical analysis.
1C) When in situ procedures are used
indicator spenies that behave
comparably lo organisms existing under
free-ranging conditions shall be
collected. The indicator species used in
this procedure shall be obtained either
from a control area selected consistent
w;th provisions of S 11.72 of this part or
obtained from a suitable supply of wild-
strain organisms reared in a laboratory
setting. Appropriate chemical analysis
shall be performed on a representative
subsample of the indicator species
before in situ placement.
(iii) In situ placement procedures shall
be used where the collection of samples
would be inconsistent with the
provisions of $ VL17(b) of this part.
(5) Sampling sites and the number of
replicate samples to be collected at the
sampling sites shall be consistent with
the quality assurance provisions of the
Assessment Plan.-
(6) Chemical analysis of biological
resource samples collected for the
purpose of this section shall be
conducted in accordance with the
quality assurance provisions of the
Assessment Plan.
§ 11.64 injury Determination phase-
testing and sampling methods.
(a) General. (1) The guidance
provided in this section shall be
followed for selecting methodologies for
the Injury Determination phase.
(2) Before selecting methodologies, the
objectives to be achieved by testing and
sampling shall be defined These
objectives shall be listed in the
Assessment Plan. In developing these
objectives, the availability of
information from response actions
relating to the discharge or release, the
resource exposed the characteristics of
the oil or hazardous substance, potential
physical, chemical, or biological
reactions initiated by the discharge or
release, the potential injury, the
pathway of exposure, and the potential
for injury resulting from that pathway
should be considered.
(3) When selecting testing and
sampling methods, only those
methodologies shall be selected:
(0 For which performance under
conditions similar to those anticipated
at the assessment area has been
demonstrated;
(ii) That ensure testing and sampling
performance will be cost-effective;
.(iii) That will produce data that were
previously unavailable and that are
needed to make the determinations; and
(iv) That will provide data consistent
with the data requirements of the
Quantification phase.
(4) Specific factors that should be
considered when selecting testing and
sampling methodologies to meet the
requirements in paragraph (a)(3) of this
section include:
(i) Physical state of the discharged or
released substance:
(ii) The duration, frequency, season.
and time of the discharge or release:
(iii) The range of concentrations of
chemical compounds to be analyzed in
different media:
(iv) Detection limits, accuracy,
precision, interferences, and time
required to perform alternative methods;
(v) Potential safety hazards to obtain
and test samples;
(vi) Costs of alternative methods: and
(vii) Specific guidance provided in
paragraphs fb). (c). (d). (e). and (f) of this
section.
(b) Surface water resources. (1)
Testing and sampling for injury to
surface water resources dull be
performed using methodologies
described in the Assessment Plan.
(2) Chemical analyses performed to
meet the requirements of the Injury
Determination phase for surface water
resources shall be conducted in
accordance with methods that are
generally accepted or have been
scientifically verified and documented.
(3) The term "water sample" shall
denote a volume of water collected and
preserved to represent the bulk water
and any dissolved or suspended
materials or microorganisms occurring
in the surface water resource.
(4) Sampling of water and sediments
from surface water resources shall be
conducted according to generally
accepted methods.
(5) Measurement of the hydrologic
properties of the resource shall be
conducted according to generally
accepted ""»thqdn.
(6) (i) Interpretation of surface-water
flow or estimation of transport of oil or
hazardous substance in surface water
through the use of models shall be based
on hydrologic literature and current
practice.
(ii) The applicability of models used
during the assessment should be
demonstrated induding citation or
description of the following:
(A) Physical, chemical, and biological
processes simulated by the model;
(B) Mathematical or statistical
methods used in the model; and
(C) Model computer code (if any), test
cases proving the code works, and any
alteration of previously documented
code made to adapt the model to the
assessment area.
(iii) The validity of models used
during the assessment should be
established including a description of
the following:
(A) Hydraulic geometry.
physiographic features, and flow
characteristics of modeled reaches or
areas;
(B) Sources of hydrological, chemical
biological, and meteorological data used
•n the model:
(C) Lists or maps of data used to
describe initial conditions:
(D) Time increments or time periods
modeled
(E) Comparison of predicted fluxes of
water and solutes with measured fluxes;
(F) Calibration-verification procedwes
and results; and
(G) Types and results of sensitivity
analyses made.
(c) Gfovnd water resources. (1)
Testing «nd Aampiing for injury to
ground water resources ahall be
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and Regulations 27741
performed using methodologies
described in the Assessment Plan.
(2) Chemical analyses performed to
meet the requirements of the Injury
Determination phase fur ground water
resources shell be conducted in
accordance with rr.c-thods that are
severally accepted or have been
"-•tr.'.fically verified and documented.
(3) (i) The lerm "water sample" shall
•Jefiote a volume of water collected and
preserved to represent the bulk water
^nd any dissolved or suspended
materials or microorganisms occurring
in the ground water resource.
(nj The source of ground water
samples may be from natural springs, in
•seaps. or from wells constructed
according to generally accepted
methods.
(4) Sampling of ground water or of
geologic materials through which the
ground water migrates shall be
conducted according to generally
accepted methods.
(5) Measurement of the geohydrologic
properties of the resource shall be
conducted according to generally
dccepted practice.
(G) Description of lUhologies. minerals.
cements, or other sedimentary
characteristics of the ground water
-•source should follow generally
accepted methods.
(?) Interpretation of the
(.-eohydrological setting, including
identifying geologic layers comprisir.g
aquifers and any confining units, shall
he based on geohydrologic and geologic
literature and generally accepted
practice.
[8) (i) Interpretation of ground-water
flow systems or estimation of transport
of oil or hazardous substances in ground
water through the use of models shall be
b?sed on geohydrologic literature and
current practice.
(li) The applicability of models used
during the assessment should be
demonstrated, including citation or
description of the following.
(A) Physical, chemical and biological
processes simulated by the model:
(B) Mathematical or statistical
methods used in the model; and
(C) Model computer code (if anyj, test
cases proving the code works, and any
alteration of previously documented
code made to adapt the model to the
essessment area.
(lii) The validity of models used
Junng the assessment should be
established, including a description of
the following:
(A) Model boundary conditions and
stresses simulated:
(B) How the model approximates the
gcohydrological framework of the
assessment area:
(C) Grid size and geometry;
(D) Sources of geohydrological.
rhemical. and biological data used in
the model;
V'E) Lists or maps of data used to
inscribe initial conditions:
(F) T:me increments or time periods
rpodeled:
(G) Comparison of predicted fluxes of
wuter and solutes with measured fluxes.
(H) Calibration-verification
procedures and results; and
(I) Type and results of sensitivity
analyses made.
(d) Air resources. (1) Testing and
sampling for injury to air resources shall
be performed using methodologies that
meet the selection and documentation
requirements in this paragraph. Methods
identified in this section and methods
meeting the selection requirements
identified in this section shall be used to
detect identify, and determine the
presence and source of emissions of oil
or a hazardous substance, and the
duration, frequency, period of exposure
(day. night, seasonal, etc.). and levels of
exposure.
(2) The sampling and analysis
methods identified in this paragraph are
the primary methods to be used for
determining injury to the air resource.
Air modeling methods may be used for
injury determination only when air
sampling and analysis methods are not
available or the discharge or release
occurred with no opportunity to monitor
or sample the emissions.
(3] (i) Methods developed, evaluated.
approved, and published by the U.S.
Environmental Protection Agency may
be used for sampling and analysis to
determine injury to the air resource.
(ii) Methods selected for air sampling
and analysis may include those methods
that have been formally reviewed.
evaluated and published by the
following government and professional
organizations: the National Institute for
Occupational Safety and Health, the
American Society for Testing and
Materials, and the American Public
Health Association.
(iii) Methods selected for air sampling
and analysis shall be methods that are
documented for each of the following:
(A) The range of field conditions for
which the methods are applicable:
(B) Quality assurance and quality
control requirements necessary to
dciiiiive the data quality the methods are
capable of producing:
(C) Operational costs of conducting
the methods; and
(D) Time required to conduct the
methods.
(:v) The determination of
concentrations in excess of emission
standards for hazardous air pollutants
established under section 112 of the
Clean Air Act. 42 U.S.C. 7412. shall be
conducted in accordance with the
primary methods or alternative methods
as required m "National Emission
Standards for Hazardous Air Pollutants.
Source Test and Analytical Methods."
40 CFR 61.14. and as may be applicable
to the determination of injury to air
resources.
(4) In selecting methods for testing
and sampling for injury to air resources.
the following performance factors of the
sampling and analysis methods and the
influencing characteristics of the
assessment area and the general vicinity
shnll be considered;
(i) Method detection limits, accuracy.
precision, specificity, interferences, and
analysis of time and cose
(ii) Sampling area locations and
frequency, duration of sampling, and
chemical stability of emissions: and
(iii) Meteorological parameters that
influence the transport of emissions and
the spatial and temporal variation in
concentration.
(e) Geologic resources. (1) Testing and
sampling for injury to geologic resources
shall be performed using methodologies
described in this paragraph.
(2) Testing pH level in soils shall be
performed using standard pH
measurement techniques, taking into
account the nature and type of organic
and inorganic constituents that
contribute to soil acidity: the soil/
solution ratio; salt or electrolytic
content; the carbon dioxide content: and
errors associated with equipment
standardization and liquid junction
potentials.
(3) Salinity shall be tested by
measuring the electrical conductivity of
the saturation extraction of the soil.
(4) Soil microbial respiration shall be
tested by measuring uptake of oxygen or
release of carbon dioxide by bacterial
fungal, algal, and protozoan cells in the
soil. These tests may be made in the
laboratory or in situ.
(5) Microbial populations shall be
tested using microscopic counting, soil
fumigation, glucose response, or
adenylate enegry charge.
(6) Phytotoxidty shall be tested by
conducting tests of seed germination.
seedling growth, root elongation, plant
uptake, or soil-core microcosms.
(7) Injury to mineral resources shall be
determined by describing restrictions on
access, development, or use of the
resource as a result of the oil or
hazardous substance. Any appropriate
health and safety considerations that
led to the restrictions should be
documented.
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27742 Federal Register / Vol. 51. No. 148 / Friday. Auguat 1. 1986 / Rules and Regulations
(F) Biological resources. (1) Testing
drd sampling for injury to biological
resources shall be performed using
methodologies provided for in this
prtr-igraph.
(2) (i) Testing may be performed For
biological responses that have satisfied
the iicorsptance criteria of 9 11.62(0(2) of
tills pjrt.
HO Tesung methodologies thai have
l,e>iR documented and are applicable to
the btoiogirdl response being tested may
\IK used.
f J] Injury to biological resources, as
such injury is defined in 5 11.82(f)(1)(ii)
of this part, may be determined by using
method acceptable to or used by the
Food and Drug Administration or the
appropriate State health agency in
determining the levels defined in that
> 1 1.70 Quantification phase— general
[f.\ Requirement. (1) Upon completing
i.1!-" Injury Determination phase, the
.liilhorized official shall quantify for
e-ich resource determined to be injured
find for which damages will be sought.
t!:e cr'fect of the discharge or release in
I.THIS uf the reduction from the baseline
condition in the quantity and quality of
sen ices, as the phrase is used in this
pirt provided by the injured resource
us-pg :.ue guidance provided in the
Quantification phase of this part
(2} The Quantification phase consists
of § it. 70— general: { 11.71— service
reduction quantification: § 11.72—
base line services determination: and
§ 11.73— resource recoverability
rin.ilysis. of this part.
(u) Purpose. The purpose of the
Quantification phase is to quantify the
effects of the discharge or release on the
injured natural resources for use in
determining the appropriate amount of
compensation.
(c) Steps in the Quantification phase.
In the Quantification phase, the extent
of the injury shall be measured, the
baseline condition of the injured
resource shall be estimated, the baseline
scrv ices shall be identified, the
recoverability of the injured resource
stall be determined and the reduction
in services that resulted from the
discharge or release shall be estimated.
Id) Completion of Quantification
;^ase. Upon completing the
Quantification phase, the authorized
official shall make a determination as to
'.he reduction in services that resulted
from the discharge or release. This
Quantification Determination shall be
used in the Damage Determination
phase and shall be maintained as part of
the Report of Assessment described in
i 11.90 of this part
$11.71 Quantlftcatton.phaae—service
reduction quantlftcatlon.-
(a) Requirements. (1) The authorized
official shall quantify the effects of a
discharge of oil or release of a
hazardous substance by determining the
extent to which natural resource
services have been reduced as a result
of the injuries determined in the Injury
Determination phase of the assessment.
(2) This determination of the reduction
in services will be used in the Damage
Determination phase of the assessment,
and must be consistent with the needs
of the economic methodology selected in
the determination required in 511.35 of
this part.
(3) Quantification will be done only
for resources for which damages will be
sought.
(b) Steps. Except as provided In
S 11.71(f) of this part the following steps
are necessary to quantify the effects:
(1) Measure the extent to which the
injury demonstrated in the Injury
Determination phase has occurred in the
assessment area:
(2) Measure the extent to which the
injured resource differs from baseline
conditions, as described in { 11.72 of
this part to determine the change '
attributable to the discharge or release:
(3) Determine the services normally
produced by the injured resource, which
are considered the baseline services or
the without-a-discharge-or -release
condition as described in } 11.72 of this
part:
(4) Identify interdependent services to
avoid double counting in the Damage
Determination phase and to discover
significant secondary services that may
have been disrupted by the injury, and
(5] Measure the disruption of services
resulting from the discharge or release.
which is considered the change in
services or the with-a-diacharge-or-
release condition. •
(c) Contents of the Quantification.
The following factors should be included
in the quantification of the effects of the
discharge or release on the injured
resource:
(1) Total area, volume, or numbers
affected of the resource in question;
(2) Degree to which the resource is
affected, including consideration of
subunits or subareas of the resource, as
appropriate:
(3) Ability of the resource to recover,
expressed as the time required for
restoration of baseline services as
described in 511.73 of this part
(4) Proportion of the available
resource affected in the area:
(5) Services normally provided by the
resource that have been reduced as a
result of the discharge or release; and
(6) Factors identified in the specific
guidance in paragraphs (h). (i], (j), (k).
and (1) of this section dealing with the
different kinds of natural resources.
(d) Selection of resources, services.
and methodologies. Specific resources
or services to quantify and the
methodology for doing so should be
selected based upon the following
factors:
(1) Degree to which a particular
resource or service is affected by the
discharge or release:
(2) Degree to which a given resource
or service can be used to represent a
broad range of related resources or
services;
(3) Consistency of the measurement
with the requirements of the economic
methodology to be used;
(4) Technical feasibility, as that
phrase is used in this part, of quantifying
changes in a given resource or service at
reasonable cost; and
(5) Preliminary estimates of services
at the assessment area and control area
based on resource inventory techniques.
(e) Services. In quantifying changes in
natural resource services, the functions
provided in the cases of both with- and
without-a-discharge-or-release shall be
compared. For the purposes of this part
services include provision of habitat
food and other needa of biological
resources, recreation, other products or
services used by humans, flood control.
ground water recharge, waste
assimilation, and other such functions
that may be provided by natural
resources.
(f) Direct quantification of services.
The effects of a discharge or release on
a resource may be quantified by directly
measuring changes in services provided
by the resource, instead of quantifying
the changes in the resource itself, when
it is determined that all of the following
conditions are met:
(1) The change in the services from
baseline can be demonstrated to have
resulted from the injury to the natural
resource;
(2) The extent of change in the
services resulting from the injury can be
measured without also calculating the
extent of change in the resource; and
(3) The services to be measured are
Anticipated to provide a better
indication of damages caused by the
injury than would direct quantification
of the injury Itself.
(g) Statutory exclusions. In
quantifying the effects of the injury, the
following statutory exclusions shall be
considered, as provided in section 107
(f). (i). and (j) of CERCLA, that exclude
compensation for damages to natural
resources that were a result oft
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Federal Register / Vol. 51. No. 148 / Friday, August 1. 1986 / Rules and Regulations
27743
[1) An irreversible and irretrievable
commitment of natural resources
identified in an environmental impart
statement or other comparable
environmental analysis, and the
decision to grant the permit or license
Authorizes such a commitment, and the
fdciiity was otherwise operating within
t'le terms of its permit or license: or
[2] The damages and the release of a
h;izardous substance from which such
damages resulted have occurred wholly
before the enactment of CERCLA: or
(3) The application of a pesticide
product registered under the Federal
Insecticide, Fungicide, and Rodenticide
Act. 7 U.S.C. 135-135fc or
(4) Any other federally permitted
release, as defined in secton 101(10] of
CERCLA.
.(h) Surface water resources. (1) The
area where the injured surface water
resource differs from baseline shall be
determined by determining the areal
extent of oil or hazardous substances in
the water or on the sediments.
(2) (i) Areal variation in
concentrations of the discharged or
released substances dissolved in or
floating on water, adhering1 to suspended
sediments, or adhering to bed. bank, or
shoreline sediments from exposed areas
should be determined in sufficient detail
to approximately map the boundary
separating areas with concentrations
above baseline from areas with
concentrations equal to or less than
baseline.
(ii) The size, shape, and location of
the plume may be estimated using time
of travel and dispersion data obtained
under 911-63 of this part, since plumes
of dissolved or Boating substances may
be rapidly transported and dispersed in
surface water.
• (3) Water and sediment samples may
be collected and chemically analyzed
and stage, water discharge, or tidal flux
measurements made, as appropriate, to
collect new data required by this
section.
(4) (i) Within the area determined in
paragraph (h)(2) of this section to be
above baseline, the services provided by
the surface water or sediments that are
affected should be determined. This
determination may include computation
of volumes of water or sediments
affected, total areas of water or
sediment affected, volume of water used
From the affected surface water
resource, or other appropriate measures.
(ii) The services should be determined
with consideration of potential effects
on downstream or downcurrent
resources during die recovery period, as
determined in 911.73 of this part.
resulting from transport of dissolved
substances and of substances adhering
to sediments.
(i) Ground water resources. (1) The
fcrea where the injured ground water
resource differs from baseline should be
determined by determining the areal
extent of oil or hazardous substances in
water or geologic materials in the
iir.saturated zone and identified
geohydrclogical units, which are
aquifers or confining layers, within the
assessment area.
(2) (i) The lateral and vertical extent
of discharged or released substances in
the unsaturated zone, if it is known to be
exposed, should be determined.
(ii) The lateral and vertical extent of
plumes within geohydrologic units
known to be exposed should be
determined. Concentrations of
substances within and adjacent to each
plume should be determined in sufficient
detail to approximately locate the
boundary separating areas with
concentrations above baseline from
areas with concentrations equal to or
less than baseline.
(3) Water or geologic materials may
be sampled and chemically analyzed, or
surface-geophysical techniques may be
used for collecting new data required by
this section, General verification of the
plume boundaries by chemical analysis
of selected water samples should be
done if boundary locations are initially
determined by surface-geophysical
measurements.
(4] (i) Within the area determined in
paragraph (i)[2)(ii) of this section to be
above baseline, the services provided by
the ground water that is affected should
be determined This determination may
include computation of the volume of
water affected, volume of affected
ground water pumped from wells.
volume of affected ground water
discharged to streams or lakes, or other
appropriate measures.
(ii) The services should be determined
with consideration of potential
enlargement of the plume during the
recovery period, as determined in 811.73
of this part resulting from ground water
transport of the substances.
(iii) The effects on the ground water
resource during the recovery period
resulting from potential remobilization
of discharged or released substances
that may be adhering, coating, or
otherwise bonding to geologic materials
should be considered.
(j) Air resources. The area where the
injured air resource differs from
baseline should be determined by
determining the geographical area
affected, the degree of impairment of
services, and the period of time
impairment occurred.
(k) Geologic resources. The area
where the injured geologic resource
differs from baseline should be
determined by determining:
(1) The surface area of soil with
reduced ability to sustain the growth of
vegetation from the baseline level:
(2) The surface area or volume of soil
with reduced suitability as habitat for
biota from the baseline level;
(3) The volume of geologic resources
that may act as a source of toxic
leachate;
(4) The tonnage of mineral resources
whose access, development or use is
restricted as a result of the discharge or
release.
(1) Biological resources, (l) The extent
to which the injured biological resource
differs from baseline should be
determined by analysis of the
population or the habitat or ecosystem
levels. Although it may be necessary to
measure populations to determine
changes in the habitats or ecosystems.
and vice vena, the final result should be
expressed as either a population change
or a habitat or ecosystem change in
order to prevent double counting in the
economic analysis. This separation may
be ignored only for resources that do not
interact significantly and where it can
be demonstrated that double counting is
being avoided.
(2) Analysis of population changes or
habitat or ecosystem changes should be
based upon species, habitats, or
ecosystems that have been selected
from one or more of the following
categories:
(i) Species or habitats that can
represent broad components of the
ecosystem, either as representatives of a
particular ecological type, of a particular
food chain, or of a particular service:
(ii) Species, habitats, or ecosystems
that are especially sensitive to the oil or
hazardous substance and the recovery
of which will provide a useful indicator
of successful restoration; or
(iii) Species, habitats, or ecosystems
that provide especially significant
services.
(3) Analysis of populations, habitats.
or ecosystems shall be limited to those
populations, habitats, or ecosystems for
which injury has been determined in the
Injury Determination phase or those that
can be linked directly through services
to resources for which injury has been
so determined. Documentation of the
service link to the injured resource must
be provided in the latter case.
(4) Population, habitat, or ecosystem
measurement methods that provide data
that can be interpreted in terms of
services must be selected. To meet this
requirement, a method should:
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Federal Register / Vol. 51. No. 148 / Friday. August 1. MM / Rules and Regulations
^^^^^^^^^^^^^^^*^*^™'^"^^^*^^*'^^^^^^**^^^"^^^^»«»^™^—
i (i) Pro* idc numsriudl ddU that will
allow comparison between the
assessment area data ar.d the control
area or baseline data:
(ii) Provide data that will be useful in
planning restoration or replacement
efforts and in later measuring the
success cf those efforts, or that will
sllcw calculation of use values: and
|iii) Allow correction, as applicable.
for factors such as dispersal of
organisms in or out of the assessment
ar»d. differential susceptibility of
different age classes of organisms to the
analysis methods and other potential
systematic biases in the data collection.
(5) When estimating population
differences of animals, standard and
widely accepted techniques, such as
census, mark-recapture, density, and
index methods, and other estimation
techniques appropriate to the species
and habitat shall be used. Frequencies
of injury observed in the population
shall be measured as applicable.
(i) In general, methods used for
estimates of wildlife populations should
follow standard and widely accepted
techniques such as those
recommendations provided in the
"Wildlife Management Techniques
Manual" (4th edition. Wildlife Society.
1980, available from the Wildlife
Society. 5410 Grosvenor Lane. Bethesda.
MD 20814). including references cited
and recommended in that manual. The
specific technique used need not be
cited in that manual, but should meet its
recommenddtions for producing reliable
estimates or indices.
(ii) Measurement of age structures, life
table statistics, or age structure models
generally will not provide satisfactory
measurement of changes due to a
discharge of oil or release of a
hazardous substance unless there is
clear evidence that the oil or hazardous
substance has differentially affected
different age classes and there are
reliable baseline age structure data
available for the population being
assessed.
(iii) Mortality from single incidents
may be used to estimate changes in
populations only when there are
available baseline population data for
the area, so that the proportion lost can
be estimated, and when corrections nan
be made for potential sampling biases.
such as natural mortality and factors
influencing distribution of carcasses and
ability of investigators to find them.
Specific techniques for measuring
mortality include the following:
(A) Fish mortality in freshwater areas
may be estimated from counts of
carcasses, using methods and guidelines
for estimating numbers of fish killed
Contained in Part II (Fish-Kill Counting
Guidelines] of the "Monetary Values nf
Freshwater Fish and Fish-Ki!l Counting
Guicilmes," American Fisheries Society
Special Publication Number 13.1982
(incorporation by reference, see 9 1118).
including use of appropriate random
SHirpling methods and tjgged carcasses
as identified and discussed in Part II of
that publication.
(D) The authorized offictil may adapt
the techniques discussed in paragraph
(!,' (5) (iii) (A) of this section for counting
dyad aquatic birds or for count'ng
marine or estuarine fish or birds. Such
adaptation wil! require the
documentation of the methods used to
avoid sampling biases.
(C) Fish mortality may also be
estimated by use of an in situ bioassay
technique that is similar to that
identified in 9 11.62(f)(4)(i)(C) of this
part if the oil or hazardous substance is
still present at levels that resulted in
injury and if appropriate instream
controls can be maintained at control
areas.
(0) Plant populations may be
measured using standard techniques.
such as population density, species
composition, diversity, dispersion, and
cover.
(7) Forest and range resources may be
estimated by standard forestry and
range management evaluation
techniques.
(8) Habitat quality may be measured
using techniques such as the Habitat
Evaluation Procedures (HEP) developed
and used by the U.S. Fish and Wildlife
Service.
§ 11.72 Quantification phase—baseline
service* determination.
(a) Requirements. The authorized
official shall determine the physical.
chemical, and biological baseline
conditions and the associated baseline
services for injured resources at the
assessment area to compare that
baseline with conditions found in 8 11.71
of this part.
(b) General guidelines. Baseline data
shall be selected according to the
following general guidelines:
(1) Baseline data should reflect
conditions that would have been
expected at the assessment area had the
discharge of oil or release of hazardous
substances not occurred, taking Into
account both natural processes and
those that are the result of human
activities.
(2) Baseline data should include the
normal range of physical, chemical, or
biological conditions for the assessment
area or injured resource, as appropriate
for use in the analysis in 9 11.71 of this
part, with statistical descriptions of that
variability. Causes of extreme or
unusual value in baseline data should be
identified and described.
(3) Baseline data should be as
accurate, precise, complete, and
representative of the resource as the
data used or obtained in 9 11.71 of this
part. Data used for both the baseline
and services reduction determinations
must be collected by comparable
methods. When the same method is not
used, comparability of the data
collection methods must be
demonstrated.
(4) Baseline data collection shall be
restricted to those data necessary for a
reasonable cost assessment. In
particular, data collected should focus
on parameters that are directly related
to the injury quantified in 911.71 of this
part and to data appropriate and
necessary for the economic methodology
selected in 9 11.35 of this part
(5) The authorized official may use or
authorize for use baseline data that are
not expected to represent hilly the
baseline conditions, subject to the
following requirements:
(i) The authorized official shall
document how the requirements oFthls
paragraph are met
(ii) These substitute baseline data
shall not cause the difference between
baseline and the conditions in the
assessment area to exceed the
difference that would be expected if the
baseline were completely measured; and
(iii) The authorized official has
determined that it is either not
technically feasible or not cost-effective.
as those phrases are used in this part to
measure the baseline conditions fully
and that these baseline data are as close
to the actual baseline conditions as can
be obtained subject to these limitations.
(t) Historical data. If available and
applicable, historical data for the
assessment area or injured resource
should be used to establish the baseline.
If a significant length of time has
elapsed since the discharge or release
first occurred, adjustments should be
made to historical data to account for
changes that have occurred as a result
of causes other than the discharge or
release. In addition to specialized
sources identified in paragraphs (g)
through (k) of this section, one or more
of the following general sources of
historical baseline data may be used:
(l) Environmental Impact Statements
or Environmental Assessments
previously prepared for purposes of the
National Environmental Policy Act
(NEPA), 42 U.S.C. 4321-4381. similar
documents prepared under other Federal
and State laws, and background studies
done for any of these documents;
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Federal Register / Vol. 51. No. 148 / Friday. .August 1. 1985 / Pules and Regulations
27745
(1) Standard scientific and
-nanegcment literature sources
expropriate to the resource:
(3) Computerized data bases for the
resource in question:
(4) Public or private landholders in the
-"pssment area or in neighboring areas:
(5) Studies conducted or sponsored by
Federal or State agencies acting as
trustees for the resource in question:
(6) Federally sponsored research
J^uified by the National Technical
([•formation Service;
[7) Studies carried out by educational
•istitutions; and
(8) Other similar sources of data.
(d) Control areas. Where historical
data are not available for the
assessment area or injured resource, or
do not meet the requirements of this
section, baseline data should be
collected from control areas. Historical
data for a control area should be used if
-i\ailab!e and if they meet the guidelines
of this section. Otherwise, the baseline
shall be defined by field data from the
control area. Control areas shall be
selected according to the following
guidelines, and both field and historical
uata for those areas should also conform
:o these guidelines:
(l) One or more control areas shall be
selected based upon their similarity to
the assessment area and lack of
c \posure to the discharge or release.
(2) Where the discharge or release
pcc'jrs in a medium flowing in a single
d rection. such as a river or stream, at
least one control area upstream or
jpcurrent of the assessment area shall
be included, unless local conditions
ir.'iicate such an area is inapplicable as
a control area:
(3) The comparability of each control
t!-e2 to the assessment area shall be
demonstrated, to the extent technically
fe?s:ble. as that phrase is used in this
pail:
(4) Data shall be collected from the
ccntrol area over a period sufficient to
estimate normal variability in the
characteristics being measured and
should represent at least one full cycle
normally expected in that resource:
(5) Methods used to collect data at the
control area shall be comparable to
those used at the assessment area, and
snail be subject to the quality assurance
oro\ isions of the Assessment Plan:
(6) Data collected at the control area
should be compared to values reported
in the scientific or management
literature for similar resources to
demonstrate that the data represent a
normal range of conditions; and
(") A control area may be used for
determining the baseline for more than
one kind of resource, if sampling and
data collection for each resource do not
interfere with sampling and data
collect'on for the other resources.
(e) Baseline services. The baseline
services associated with the physical.
chemical, or biological baseline data
shall be determined.
(f) Other requirements. The
methodologies in paragraphs (g) through
(k) of this section shall be used for
determining baseline conditions for
specific resources in addition to
following the general guidelines
identified in paragraphs (a) through (e)
of this section. If a particular resource is
not being assessed for the purpose of the
Damage Determination phase, and data
on that resource are not needed for the
assessment of other resources, baseline
data for the resource shall not be
collected.
(g) Surface water resources. (1) This
paragraph provides additional guidance
on determining baseline services for
surface water resources. The general
guidance provided in paragraphs (a)
through (f) of this section should be
followed before beginning any work
described in this paragraph.
(2) Applicable and available historical
data shall be gathered to determine
baseline conditions for the surface
water resource at the assessment area
If deemed inadequate for determining
baseline conditions, such data shall be
used to the extent technically feasible.
as that phrase is used in this part in
designating the control areas described
in paragraph (g)(3J of this section for the
surface water resource determined to be
injured.
(3) Control areas shall be selected for
the surface water resource subject to the
general criteria in paragraph (d) of this
section and additional criteria as
follows:
(il For each injured stream or river
reach, a control area shall be designated
consisting of a stream or river reach of
similar size, that is as near to the
assessment area as practical and, if
practical, that is upstream or upcurrent
from the injured resource, such that the
channel characteristics, sediment
characteristics, and streamflow
characteristics are similar to the injured
resource and the water and sediments of
the control area, because of location.
have not been exposed to the discharge
or release.
(ii) For each injured standing water
body, such as a marsh, pond, lake, bay.
or estuary, a control area shall be
designated consisting of a standing
water body of similar size that is as near
to the assessment area as practical, such
that the sediment characteristics and
inflow-outflow characteristics of the
control area are similar to the injured
resource and the water and sediments of
the control area, because of location.
have not been exposed to the discharge
or release.
(4) (i) Within the control area
locations shall be designated for
obtaining samples of water and
sediments.
(n) The water discharge, stage, or tidal
flux shall be measured and
representative water and sediments
collected as follows:
(A) Measure stage, water discharge,
and tidal flux as appropriate at the same
time that water and sediment samples
are collected; and
(B) Obtain comparable samples and
measurements at both the control and
assessment areas under similar
hydraulic conditions.
(iii) Measurement and samples shall
be obtained as described in this
paragraph in numbers sufficient to
determine:
(A) The approximate range of
concentration of the substances in water
and sediments;
(B] The variability of concentration of
the substances in water and sediments
during different conditions of stage.
water discharge, or tidal flux; and
(C) The variability of physical and
chemical conditions during different
conditions of stage, water discharge, or
tidal flux relating to the transport or
storage of the substances in water and
sediments.
(5) Samples should be analyzed from
the control area to determine the
physical properties of the water and
sediments, suspended sediment
concentrations in the water, and
concentrations of oil or hazardous
substances in water or in the sediments.
Additionel chemical, physical, or
biological tests may be made, if
necessary, to obtain otherwise
unavailable data for the characteristics
of the resource and comparison with the
injured resource at the assessment area.
(6) In order to establish that
differences between surface water
conditions of the control and
assessment areas are statistically
significant, the median and interquartile
range of the available data or the test
results should be compared using the
Mann-Whitney and ranked squares
tests, respectively.
(7) Additional tests may be made of
samples from the control area, if
necessary, to provide otherwise
unavailable information about physical,
chemical, or biochemical processes
occurring in the water or sediments
relating to the ability of the injured
surface water resource to recover
naturally.
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27746 Federal Register / Vol. 51. No 148 / Friday. August 1. 1966 / Rules and Regulations
(h) Ground water resources. (I) This
paragraph provides additional guidance
on determining baseline services for
ground water resources. The general
guidance provided in paragraphs (a)
through (f) of this section should be
followed before beginning any work
described in this paragraph.
(2) Applicable end available historical
ddta shall be gathered to determine
baseline conditions for the ground water
icsource at the assessment area. If
deemed inadequate for determining
baseline conditions, such data shall be
u:,ed to the extent technically feasible.
as that phrase is used in this part, in
designating the control areas described
in paragraph (h)(3) of this section for the
ground water resource determined to be
injured.
[3) A control area shall be designated
subject to the general criteria in
paragraph |d) of this section and as near
to the assessment area as practical, such
that, within the control area, geological
materials, geohydrological units, and
hydrologic conditions are similar to the
assessment area, and ground water
resources are not exposed to substances
from the discharge or release.
(4) Within the control area, wells shall
be identified or drilled, designated as
control wells, to obtain representative
ground water samples for analysis. The
location, depth, and number of control
wells and the number of ground water
samples collected should be sufficient to
estimate the vertical and lateral
variation in concentration of the
substances in both the unsaturated zone
and in ground water from geohydrologic
units similar to units tested in the
assessment area.
(!) Representative water samples from
each control well shall be collected and
analyzed. The analyses should
determine the physical and chemical
properties of the ground water relating
to the occurrence of oil or hazardous
substances.
(ii) If the oil or hazardous substances
are commonly more concentrated on
geologic materials than in ground water.
representative samples of geologic
materials from aquifers and the
unsaturated zone as appropriate should
be obtained and chemically analyzed.
The location, depth, and number of
these samples should be sufficient to
determine the vertical and lateral
variation in concentration of the oil or
hazardous substances absorbing or
otherwise coating geologic materials in
the control area. These samples may
also be analyzed to determine porosity,
mineralogy, and lithology of geologic
materials if these testa will provide
otherwise unavailable information on
storage or mobility of the oil or
hazardous substances in the ground
water resource.
(5) In order to establish that
differences between ground water
conditions of the control and
assessment areas are statistically
significant, the median and interquartile
range of available data or the test
results from similar geohydrologic units
should be compared using the Mann-
Whitney and ranked squarps test,
respectively
(6) Additional tests may be made of
samples from the control area, if
necessary, to provide otherwise
unavailable information about chemical,
geochemical. or biological processes
occurring in the ground relating to the
ability of the injured ground water
resource to recover naturally.
(i) Air resources. (1) This paragraph
provides additional guidance on
determining baseline services for air
resources. The general guidance
provided in paragraphs (a] through (f) of
this section should be followed before
beginning any work described in this
paragraph.
(Z) Applicable and available historical
data shall be gathered on ambient air
quality and source emissions to
determine baseline conditions for the air
resource. These historical data may be
used to determine baseline conditions if
the data satisfy the general guidelines :n
paragraph (d) of this section and if all
the following criteria are met:
(i) The methodology used to obtain
these historical data would detect the o-l
or hazardous substance at levels
appropriate for comparison to the
concentrations measured in {11.71 of
this part
(ii) The effect of known or likely
emission sources near the assessment
area other than the source of the
discharge or release can be identified or
accounted for in the historical data: and
(iii) The historical data show that
normal concentrations of the oil or
hazardous substance ere sufficiently
predictable that changes as a result of
the discharge or release are likely to be
detectable.
(3)4f historical data appropriate to
determine baseline conditions at the
assessment area are lacking, one or
more control areas, as needed, shall be
designated subject to the general criteria
of paragraph (d) of this section and the
following additional factors, which shall
also be considered in establishing a
monitoring schedule:
(i) Applicable and available historical
data shall be used to the extent
technically feasible, as that phrase is
used in this part, in designating control
areas or, lacking historical data, the
factors in paragraph (i)(3)(iii] of this
section shall be considered:
(ii] Control areas shall be spatially
representative of the range of air qua)'
and meteorological conditions likely
have occurred at the assessment area
during the discharge or release into the
atmosphere; and
(iii) The following additional factors
shall be considered:
(A) The nature of the discharge or
release and of potential alternative
sources of the oil or hazardous
substance, including such factors as
existing sources, new source*.
intermittent sources, mobile sources,
exceptional event*, trends, cycles, and
the nature of the material discharged or
released;
(B) Environmental conditions affecting
transport, such as wind speed and
direction, atmospheric stability,
temperature, humidity, solar radiation
intensity, and cloud cover, and
(C) Other factors, such as timing of
the discharge or release, use patterns of
the affected area, and the nature of the
injury resulting tram the discharge or
release.
(4) (1] The preferred measurement
method is to measure air concentrations
of the oil or hazardous substance
directly using the same methodology
employed in 111.71 of this part
(ii) Nonspecific or chemical compound
class methodologies may be used to
determine baseline generically only in
situations where H can be demonstrated
that measuring indicator substances will
adequately represent air concentrations
of other components in a complex
mixture.
(j) Geologic resources. (I) This
paragraph provides additional guidance
on determining baseline services for
geologic resources. The general
guidance provided hi paragraphs (a)
through (f] of this section should be
followed before beginning any work
described in this paragraph.
(2) Applicable and available historical
data shall be gathered to determine
baseline conditions for the geologic
resource at the assessment area. If
deemed inadequate for determining
baseline conditions, such data ihaU be
used to the extent technically feasible.
as that phrase is osed In thia part, in
designating the control exeat described
in paragraph 0)0) of this section for the
geologic resource determined to be
injured.
(3) Control area* shall be selected for
geologic resources subject to the general
criteria in paragraph (d) of thia section
and additional criteria a* follows:
(i) Similarity of exposed soil or
geologic material in the assessment area
-------
with the geologic resource in the control
area should be the primary factor in
selecting the control area. Other factors.
including climate, depth of ground
water, vegetation type and area
cohered, land slope and land area, and
hvdraiilic gradients and spatial relation
to source should be comparable to the
assessment area.
(») The control area shall be selected
such that the geologic resource in the
control area is not exposed to the
discharge or release.
(4)[i) A sufficient number of samples
from unbiased, randomly selected
locations in the control area shall be
obtained in order to characterize the
areal variability of the parameters
measured. Each sample should be
analyzed to determine the physical and
chemical properties of the geologic
materials relating to the occurrence of
the oil or hazardous substance.
Additional chemical, physical, or
Jiiological tests may be made, if
necessary, to obtain otherwise
unavailable data for the
characterization and comparison with
:he injured resource at the assessment
area
(ii) The mean and standard delation
01 each parameter measured shall be
i.sed as the basis of comparison
between the assessment and control
areas.
(k) Biological resources. (\) This
paragraph provides additional guidance
on determining baseline services for
biological resources. The general
guidance provided in paragraphs (a)
through (f) of this section should be
10! lowed before beginning any work
described in this paragraph.
(2) Applicable and available historical
aua shall be gathered to determine
baseline conditions for the biological
resource at the assessment area and
should include both population and
habitat data if available. These data
may be derived from the data sources
identified in paragraph (c) of this
section, as well as from the following:
(i) Aerial photographs or maps
showing distribution and extent of
habitat types or other biological
resources before the discharge or
release:
(ii) Biological specimens in systematic
museum or herbarium collections and
associated records, including labels and
collectors' field notes: and
(Hi) Photographs showing the nature
of the habitat before the discharge or
release when the location and date are
well documented.
(3)(i) Control areas shall be selected
for biological resources subject to the
jeneral criteria in paragraph (d) of this
section and additional criteria as
follows:
(A) The control area shall be
comparable to the habitat or ecosystpm
at the assessment area in terms of
distribution, type, species composition.
plant cover, vegetative tjpes. quantity.
and relationship to other habitats:
(B) Physical characteristics of the
control and assessment areas shell be
similar and
(CJ If more than one habitat or
ecosystem type is to be assessed.
comparable control areas should be
established for each, or a control area
should be selected containing those
habitat types in a comparable
distribution.
(ii) To the extent they are available.
historical data should be gathered and
used for the control area. Lacking
adequate historical data for both the
control and assessment areas, the
control areas shall be used for the
following purposes, as appropriate to
the quantification:
(A) To measure baseline biota
population levels or habitat or
ecosystem quality, as discussed in
§ 11.71(1) of this part: and
(B) To measure the natural frequency.
if any, of the injury being assessed in
unaffected populations or to
demonstrate the lack of that injury in
unaffected populations if these have not
been done for purposes of the Injury
Determination, and if needed for
purposes of the Quantification.
(4) In addition, a control area should
be used to collect control specimens, as
needed, for the Injury Determination
procedures.
(S) The identity of species for which
Damage Determinations will be made or
that play an important role in the
assessment shall be confirmed except in
the case where collecting the specimens
of a species is likely to compromise the
restoration of the species. One or more
of the following methods shall be used:
(i) Specimens of the species shall be
provided to an independent taxonomist
or systematic biologist, who has access
lo a major systematic biology collection
for that taxon. and who shall provide
written confirmation of their identity to
the species level;
(ii) A reference collection of
specimens of the species, prepared and
preserved in a way standard for
SLS!fmatlc collecti°ns for that taxon.
shall be maintained at least through
final resolution of the damage action at
which time it should be transferred to a
major systematic biology collection: or
m) In the case of a species where
collecting specimens is likely to
compromise the recovery or restoration
of that species population, the
authorized official shall determine and
use an alternative method for confirming
species identity that will be consistent
with established management goals for
that species.
§ 11.73 Quantification phase—resource
recovarablllty analysis.
(a) Requirement. The time needed for
each injured resource lo recover to the
state that the authorized official
determines services are restored to
baseline levels shall be estimated. The
time estimated for recovery or any
lesser period of time as determined in
the Assessment Plan shall be used as
the recovery period for purposes of
§ 11.35 and the Damage Determination
phase. §§ n.BO through 11.84. of this
part
(l) In all cases, the amount of time
needed for recovery if no restoration
efforts are undertaken beyond response
actions performed or anticipated shall
be estimated. This time period shall be
used as the "No Action-Natural
Recovery" period for purposes of 11182
and §11.84(gK2)(ii) of this part.
(2) pie estimated time for recovery
shall be included in any alternatives for
restoration, as developed in S 11.81 of
this part, and the data and process by
which these recovery times were
estimated shall be documented.
(b) Restoration not feasible. If the
authorized official determines that
restoration will not be technically
feasible, as that phrase is used in this
part, the reasoning and data on which
this decision is based shall be
documented as part of the justification
for any replacement alternatives that
may be considered or proposed.
(c) Estimating recovery time, (i) The
time estimates required in paragraph (a)
of this section shall be based on the best
available information and where
appropriate may be based on cost-
effective models. Information gathered
may come from one or more of the
following sources, as applicable:
(i) Published studies on the same or
similar resources;
(ii) Other data sources identified in
9 11.72 of this part
(iii) Experience of managers or
resource specialists with the injured
resource;
(iv) Experience of managers or
resource specialists who have dealt with
restoration for similar discharges or
releases elsewhere; and
(v) Field and laboratory data from
assessment and control areas as
necessary.
(2) The following factors should be
considered when estimating recovery
times:
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27748
Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rules and
(i) Ecological succession patterns in
the area;
(ii) Growth or reproductive patterns.
life cycles, and ecological requirements
of biological species involved, including
their reaction or tolerance to the oil or
hazardous substance involved;
(in) Bioaccumulation and extent of oil
or hazardous substances in the food
chain:
(iv) Chemical, physical, and biological
removal rates of the oil or hazardous
substdnce from the media involved.
especially as related to the local
conditions, as well as the nature of any
potential degradation or decomposition
products from the process including;
(A) Dispersion, dilution, and
volatilization rates in air. sediments.
water, or geologic materials;
(B) Transport rates in air. soil, water.
and sediments;
(C) Biological degradation,
depuration, or decomposition rates and
• residence times in living materials;
(D) Soil or sediment properties and
adsorption-desorption rates between
soil or sediment components and water
or air;
(E) Soil surface runoff, leaching, and
weathering processes; and
(F) Local weather or climatological
conditions that may affect recovery
rates.
§ 11.80 Damage Determination phase—
general.
(a) Requirement. (1) The authorized
official shall estimate the damages
(•"suiting from the discharge of oil or
release of a hazardous substance based
..pon the information provided in the
Quantification phise and the guidance
provided in the Damage Determination
phase.
(2) The Damage Determinntion phase
consists of i 11.80—general: } 11.81—
restoration methodology; J 11.82—
Restoration Methodology Plan: § 11.83—
USH value methodologies; and § 11.84—
implementation guidance, of this part
(b) Purpose. The purpose of the
Damage Determination phase is to
estimate the amount of money to be
sought for compensation for injury to
natural resources resulting from a
discharge of oil or release of a
hazardous substance.
(c) Steps in the Damage
Determination phase. Based upon the
decisions arrived at in the Economic
Methodology Determination prepared in
5 11.35 of this part, as part of the
Assessment Plan concerning the
appropriate measure of damages to be
employed during the Damage
Determination phase, the authorized
official shall use either the restoration
methodology provided in 5 11.81 of this
part or one of the use value
methodologies provided in § 11.83 of this
part to calculate damages. For
assessments that use the restoration
methodology, a Restoration
Methodology Plan described in § 11.82
of this part shall be prepared. The
guidance provided in § 11.84 of this part
shall be followed in implementing either
the restoration methodology or one of
the use value methodologies, as
appropriate.
(d) Completion of the Damage
Determination. Upon completion of the
Damage Determination phase, the type B
assessment is completed. The results of
the Damage Determination phase shall
be documented in the Report of
Assessment described in { 11.90 of this
part.
§ 11.81 Damage Determination phase—
restoration methodology.
(a) Requirement, The guidance
provided in this section shall be
followed when estimating damages
based upon the restoration or
replacement of the public services as
identified in 8 11.72 of this part.
(b) Diminution of uses. Damages
based on restoration or replacement
costs may include any diminution of use
values, as described in S 11.84. of this
part, occurring during the recovery
period as determined in § 11.73 of this
part.
(c) Measurement, (l) Restoration or
replacement measures are limited to
those actions that restore or replace the
resource services to no more than their
baseline, that is. the without-a-
discharge-or-re!ease condition as
determined in § 11.72 of this part.
(2) The resource services previously
provided by the injured resource in its
baseline condition shall be identified m
accordance with i 11.72 of this part and
compared with thoae services provided
by the injured resource, that is. the with-
a-discharge-or-release condition. All
estimates of the with-a-discharge-or-
release condition shall incorporate the
ability of the resource to recover as
determined in § 11.73 of this part
(d) Alternatives, (l) Alternative
methods to achieve the restoration or
replacement of the resource services
shall be developed. Alternative methods
may range from the replacement of
individual resources to modification or
restoration of a habitat or other
resource.
(2) Selection of the cost-effective
—.
methods developed in paragraph (d) of
this section shall be evaluated. When an
alternative requires the replacement of a
resource, local prices should be used
when available for those resources.
(2) In determining the costs of
restoration or replacement, the
acquisition of land for Federal
management should be used only if this
acquisition would represent the sole
viable method of obtaining the lost
services.
(f) Damages. (1) The damage amount
as measured by restoration or
replacement is the cost to accomplish
the cost-effective alternative that
provides the lost services.
(2) All restoration or replacement
techniques, management methods, and
methodologies must be technically
feasible, as that phrase is used in this
part.
4—j ««.WM»«WU Wl IIIC MJBl-CllBCllVc
restoration or replacement methodology
shall be documented in the Restoration
Methodology Plan as required in § 11.82
of this part.
(e) Evaluation, (l) The costs of the
alternative restoration or replacement
{ 11-82 Damage Determination phase-
Restoration Mettwdotogy Ftan.
(a) Requirement. In instances where
the authorized official has determined.
based upon the Economic Methodolgy
Determination in 11U5 of this part.
that restoration or replacement-costs
will form the basis of the measure of
damages, a Restoration Methodology
Plan shall be developed in accordance
with the requirements of this section.
(b] Purposes. The purposes of the
Restoration Methodology Plan are to
ensure that the restoration or
replacement alternative that forms the
basis of the measure of damages is cost-
effective and to serve as a basis for the
more detailed restoration or
replacement plan that shall be
completed after a damage award.
(c) Uses of the Plan. (1) The expected
present value of the costs of the
restoration or replacement alternative
selected shall be used as the measure of
damages in any action or claim for
damages under CERCLA or the CWA.
(2)(i) The Restoration Methodology
Plan, updated and otherwise revised to
reflect new information, shall be used as
the basis of any restoration or
replacement decision or plans that may
be developed after the damage award
has been made.
(ii) For purposes of submitting claims
against the Fund, the requirements of 40
CFR 306.22 will need to be fulfilled
before restoration work is authorized.
(d) Plan content. (1) The Restoration
Methodology Plan shall describe all
management actions or resource
acquisitions to be taken consistent with
the restoration or replacement decisions.
(2](i) The Restoration Methodology
Plan shall indude a range of restoration
and replacement alternatives that
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 f Rules and Regulation 27749
restore the tost services to no more than
their baseline level. These alternatives
shall include a "No Action-Natural
Recovery" alternative and other
alternatives that reflect varying rates of
recovery, management actions, and
resource acquisitions.
(li) The "No Action-Natural Recovery"
alternative shall be based upon the
determination made in } 11.73(a)[1) of
this part concerning the ability of the
resource to recover without additional
actions beyond those response actions
taken or anticipated under the NCP and
normal management actions.
(iii) The development of the
alternatives should be consistent with
the requirements of any Federal or State
statute concerning the injured resource,
should consider techniques currently
available in the biological and physical
sciences, engineering, or economic and
other management sciences, and should
consider the long-term and indirect
impacts of the restoration or
rppla cement on other resources.
(iv](A) An alternative that requires
the acquisition of land for Federal
management shall not be developed
unless in the judgment of the Federal
agency acting as trustee-such
acquisition constitutes the only viable
method of obtaining the lost services.
(B) If the acquisition of land for
Federal management constitutes the
only viable method of obtaining the toat
services, the appropriation process must
be included in the scheduling of such
acquisition since funding for such
acquisition will have to be jbtained
through appropriations.
(3)(i) The Restoration Methodology
Plan shall be of sufficient detail to
evaluate the alternatives for the purpose
of selecting the cost-effective method of
restoring or replacing the lost services.
(11) The coat-effective alternative shall
be determined in accordance with the
following:
[A] The description of the alternatives
shall include cost and timing of
expenditures;
(B) The guidance provided for
discount rates in S HM(e) of this part
shall be used; and
(C) The guidance provided for
calculating the diminution of use values
over the period of time required for
restoration or replacement in { Il.B4(g)
of this part
(e) Plan development. [I] In
developing the Restoration Methodology
Plan, the guidance provided in {11.81 of
this part shall be followed.
[2)(i] The Restoration Methodology
Plan shall be made available for review
by any identified potentially responsible
party, other Federal or State agencies
acting as trustees, other affected Federal
or State agencies, and any other
interested members of (he public for a
period of at least 30 calendar days, with
reasonable extensions granted as
appropriate, before the authorized
official's final decision on selection of
the alternative.
(u) Comments received from any
identified potentially responsible party.
other Federal or State agencies acting as
trustees, other affected Federal or State
agencies, or any other interested
members of the public, together with
responses to those comments shall be
included as part of the Report of
Assessment described in {11.90 of this
part
(3] The Restoration Methodology Plan
may be combined with other similar
plans or may be expanded to
incorporate requirements from
procedure! required under other
portions of CERCLA or the CVYA or
from other Federal or Slate statutes
applicable to restoration or replacement
of the injured resource, so long as the
requirements of this section are fulfilled.
(f) Selection of alternative, (l) The
cost-effective alternative shall be
selected as the basis for the measure of
damages from among those evaluated in
the Restoration Methodology Plan.
(2) The authorized official has the
responsibility for the final approval of
selection of the appropriate restoration
or replacement alternative.
(g) Costs of management actions.
Costs of management actions within the
Restoration Methodology Plan may
include:
(1) Net present value of capital costs
for restoration and replacement; and
(2) Net present value of operating
costs for restoration and replacement
511.83 Damage Determination phase
us* value methodologies.
(a) Requirement. (1) The
methodologies listed, or other
methodologies that meet the acceptance
criterion provided in this section, shall
be used to estimate damage* based an a
diminution of use values.
(2) In estimating use values, either a
marketed or nonmarketed resource
methodology, as described in
paragraphs (c) and (d) of this section
shall be used.
(3) In using the nonmarketed resource
methodologies in paragraph (d) of this
section, the applicable guidance on the
travel coat contingent valuation, and
unit value methodologies found in
"National Economic Development (NED)
Benefit Evaluation Procedures"
(Procedures], in Economic and
Environmental Principles and
Guidelines for Water and Related Land
Resources Implementation Studies,
Chapter II, Section VTU. Appendices 1-3,
U.S. Department of the Interior. Water
Resources Council. Washington. DC.
1983 [incorporated by reference, see
S 11.18), shall be followed.
(4) Nothing in this part precludes the
use of different methodologies for
separate damage estimates for different
resources.
(b) Use values. (1) For the purposes of
this part, use values are the value to (he
public of recreational or other public
uses of the resource, as measured by
changes in consumer surplus, any fees
or other payments collectable by the
government for a private party's use of
the natural resource, and any economic
rent accruing to a private party because
the government doea not charge a fee or
price for the use of the resource.
(2) Estimation of option and existence
values shall be used only if the
authorized official determines that no
use values can be determined.
(3) In instances where the Federal or
State agency acting u trustee ia the
majority operator or controller of a for-
or not-for-profit enterprise, and the
injury to die natural resource results in a
loss to such an enterprise, that portion
of the lost net income due the agency
from this enterprise resulting directly or
indirectly from the injury to the natural
resource may be included as a measure
of damages under this part
(c) Marketed resource methodologies.
(1) A determination shall be made as lo
whether the market for the resource is
reasonably competitive. Unless the
authorized official determines that the
market for the resource is not
reasonably competitive, the diminution
in the market price of the resource shall
be used to estimate the damages lo the
injured resource. This methodology shall
be referred to as the market price
methodology.
*2) When the authorized official
determines that the market price
methodology is not appropriate, the
appraisal methodology shall be used if
sufficient information exists. Damages
should be measured, to the extent
possible, in accordance with the
applicable sections of the "Uniform
Appraisal Standards for Federal Land
Acquisition" (Uniform Appraisal
Standards), Interagency Land
Acquisition Conference. Washington,
DC, 1973 (incorporated by reference, see
S 11.18). The measure of damages under
this appraisal methodology shall be the
difference between the with- and
without-uijury appraisal value
determined by the comparable sales
approach as described in the Uniform
Appraisal Standards.
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Federal Register / Vol. 51. No. 148 / Friday. August 1. 1986 / Rule, and
(d) Nonmarketed naturalresource
methodologies. (I) Only when the
authorized official has determined that
neither the market price nor the
appraisal methodology is appropriate
shall the methodologies listed in this
section or those that meet the
acceptance criterion in paragraph (d)[7)
of this section be used to estimate a
diminution of use value for the purposes
of this part.
(2) If the lost resource is an input to a
production process, which has as an
output a product with a well-defined
market price, the factor income
methodology can be used. This
methodology should be used to estimate
the economic rent associated with the
use of a resource in the production
process and is sometimes referred to as
the "reverse value added" method. The
factor income methodology should be
used to measure the in-place value of
the resource.
(3) The travel cost methodology may
be used to estimate a value for the use
of a specific area. An individual's
incremental travel costs to an area are
used as a proxy for the price of the
services of that area. Damages to the
iirea are the difference between the
value of the area with- and without-a-
discharge-or-release. When regional
travel cost models exist, they should be
used if appropriate.
(4) Hedonic pricing methodologies
may be used to estimate the value of a
resource. These methodologies can be
used to determine the value of
nonmarketed resources by an analysis
of private market choices. The demand
for nonmarketed natural resources is
thereby estimated indirectly by an
analysis of commodities that are traded
in a market.
(5) (i) The contingent valuation
methodology includes all techniques
that set up hypothetical markets to elicit
an individual's economic valuation of a
natural resource. This methodology can
determine use values and explicitly
determine option and existence values
(11) The use of the contingent
valuation methodology to explicitly
estimate option and existence values
should be used only if the authorized
official determines that no use values
can be determined.
(61 Unit values are preassigned dollar
values for various types of nonmarketed
recreational or other experiences by the
public. Where feasible, regional unit
values and unit values that closely
resemble the recreational or other
experience lost should be used.
(7) Other nonmarketed resource
methodologies that measure use values
in accordance with willingness to pay
in a cost-effective manner, are
acceptable methodologies to estimate
damages under"this part
§ 11.84 Damage Determination phase—
implementation guidance.
(a) Requirement. The damage
estimation methodologies in § 11.81 and
§ 11.83 of this part should be
implemented following the appropriate
guidance in this section and that in
§11.35 of this part.
(b) Determining uses. (1) Before
estimating damages based on the
diminution of use values under § 11.83 of
this part the uses made of the resource
services identified in the Quantification
phase should be determined.
(2) Only committed uses, as that
phrase is used in this part, of the
resource or sen-ices over the recovery
period will be used to measure the
change from the baseline resulting from
injury to a resource. The baseline uses
must be reasonably probable, not just in
the realm of possibility. Purely
speculative uses of the injured resource
are precluded from consideration in the
estimation of damages.
(3) (i) When resources or resource
services have mutually exclusive uses.
the highest-and-best use of the injured
resource or services, as determined by
the authorized official, shall be used as
the basis of the analyses required in this
part. This determination of the highest-
and-best use must be consistent with the
requirements of paragraph (b)(2) of this
section.
(ii) If the uses of the resource or
service are not necessarily mutually
exclusive, the sum of damages should be
determined from individual services
However, the sum of the projected
damages from individual services shall
consider congestion or crowding out
effects, if any. from the resulting
Pr°if cted total use of those services.
(c) Double counting, (l) Double
counting of damages should be avoided.
Double counting means that a benefit or
cost has been counted more than once in
the damage assessment.
(2) Natural resource damages are the
residual to be determined by
incorporating the effects, or anticipated
effects, of any response actions. To
avoid one aspect of double counting, the
effects of response actions shall be
factored into the analysis of damages If
response actions will not be completed
until after the assessment has been
initiated, the anticipated effects of such
actions should be included in the
assessment.
(d)i Uncertainty. (1) When there are
significant uncertainties concerning the
assumptions made in all phases of the
assessment process, reasonable
alternative assumptions should be
examined. In such cases, uncertainty
should be handled explicitly in the
analysis and documented. The
uncertainty should be incorporated in
the estimates of benefits and costs.
(2) To incorporate this uncertainty, a
range of probability estimates for the
important assumptions used to
determine damages should be derived.
In these instances, the damage estimate
shall be the net expected present value
of: restoration or replacement costs: or
diminution of use values.
(ej Discounting, (l) Where possible.
damages should be estimated in the
form of an expected present value dollar
amount In order to perform this
calculation, a discount rate must be
selected.
(2)i The discount rate to be used is that
yeafied in "Office of Management and
?.ud«et (OMB) Circular A-94 Revised"
(dated March 27.1972. available from
UKi Executive Office of the President
Publications. 726 Jackson Place. NW.
Washington. DC 20503; ph: (202) 395-
73/2J*
(f) Substitutability. In calculating the
diminution of use values, the estimates
of the ability of the public to substitute
uses for those of the injured services
should be incorporated. This
substirutability shall be estimated only
if the potential benefits from an increase
in accuracy are greater than the
potential costs.
(g) Diminution of use in restoration or
replacement, (I) If restoration or
replacement is to form the basis of the
measure of damages, the diminution of
use values during the period of time
required to obtain restoration or
replacement may also be included in the
measure of damages.
(2) To calculate the diminution of use
values during the period of time required
to obtain restoration or replacement, the
procedures described below should be
followed. It is not necessary that they be
followed in sequence.
(i) The ability of the resource to
recover over the recovery period should
be estimated. This estimate includes
estimates of natural recovery rates as
well as recovery rates that reflect
management actions or resource
acquisitions to achieve restoration or
replacement
(») A recovery rate should be selected
for this analysis that is based upon cost-
effective management actions or
resource acquisitions, including a "No
Action-Natural Recovery" alternative.
After the recovery rate is estimated, the
diminution in use values should be
estimated.
(iii) The rate at which the uses of the
injured resource will be restored through
-------
the restoration or replacement of the
services should be estimated. This rate
may be discontinuous, that is. no uses
are restored until the services are
restored, or continuous, that is.
restoration of uses will be a function of
the level and rate of restoration or
replacement of the services. Where
practicable, the supply of and demand
for the restored services should be
analyzed, rather than assuming that the
services will be utilized at their full
capacity at each period of time in the
analysis. These use values should be
discounted using the rate described in
paragraph (e)(2) of this section. This
estimate is the expected present value of
uses obtained through restoration or
replacement.
(iv) The uses of the resource that
would have occurred in the absence of
the discharge or release should be
estimated. This estimate should be done
in accordance with the procedures in
§ 1172 of this part. These uses should be
estimated over the same time period
using the same discount rate as that
specified in paragraph (e)(2) of this
section. This amount is the expected
present value of uses forgone.
(v) Subtraction of the present value of
uses obtained through restoration or
replacement from the expected present
value of uses forgone gives the amount
of compensation that may be included, if
positive, in a measure of damages.
(h) Incorporating natural recovery in
use values. If use values will form the
measure of damages, the natural ability
of the resource to recover as determined
in § 11.73 of this part shall be used to
estimate the diminution of use values.
The,same procedures as those in
paragraph (g)(2) of this section should
be followed to determine the diminution
of use values, except that only the
natural rate of recovery, as determined
by the analysis required in § 11.73 of
this part and any normal management
actions, shall be used.
(i) Scope of the analysis. (1) The
authorized official must determine the
scope of the analysis in order to
estimate a diminution of use values.
(2) In assessments where the scope of
analysis is Federal, only the diminution
of use values to the Nation as a whole
should be counted.
(3) In assessments where the scope of
analysis is at the State level, only the
diminution of use values to the Stale
should be counted.
Subpart F—Post-Assessment Phase
§ 11.90 Post*ssessment phase-Report
ol Assessment
la) Requirement. At the conclusion of
either a type A or type B assessment, the
authorized official shall prepare a
Report of Assessment that shall consist
of the Reassessment Screen
Determination, the Assessment Plan,
and the requirements of paragraphs (b)
or (c) of this section as appropriate.
(bj Type A assessments. For a type A
assessment conducted in accordance
with the guidance in Subpart 0 of this
part, the Report of Assessment shall
include the results of that assessment.
(c) Type B assessments. For a type B
assessment conducted in accordance
with the guidance in Subpart E of this
part, the Report of Assessment shall
consist of all the documentation
supporting the determinations required
in the Injury Determination phase, the
Quantification phase, and the Damage
Determination phase, and specifically
including the teat results of any and all
methodologies performed in these
phases. Where the basis for the measure
of damages is restoration or
replacement costs, the Restoration
Methodology Plan shall also be included
in the Report of Assessment
§ 11.91 Post-Msessment phase—demand.
(a) Requirement and content. At the
conclusion of the assessment the
authorized official shall present to the
responsible party a demand in writing
for a sum certain, representing the
damages determined in accordance witn
the requirements and guidance of } 11.80
of this part, including the reasonable
cost of the assessment, and as adjusted,
if necessary, by the guidance in
S 11.92(d) of this part, delivered in such
a manner as will establish the date of
receipt. The demand shall adequately
identify the Federal or State agency
asserting the claim, the general location
and description of the injured resource,
identification of the type of discharge or
release determined to have resulted in
the injuries, and the damages sought
from that party.
(b) Report of Assessment, The
demand letter shall include the Report
of Assessment as an attachment
(c) Rebuttable presumption. When
performed by a Federal official in
accordance with this part, the natural
resource damage assessment and the
resulting damage determination
supported by a complete administrative
record of the assessment including the
Report of Assessment as described in
§ 11.90 of this part shall have the force
and effect of a rebuttable presumption
on behalf of any claimant in any judicial
or adjudicatory administrative
proceeding under CERCLA or section
311 of the CWA.
(d) Responsible party response. The
authorized official should allow at least
60 days from receipt of the demand by
the responsible party, with reasonable
extensions granted as appropriate, for
the responsible party to acknowledge
and respond to the demand.
§11.92 Post-assessment phase-
restoration account
(a) Disposition of Recoveries. (1)
Except as provided in paragraphs (b)
and (c) of this section, all sums awarded
pursuant to section 107(a)[4)[C) of
CERCLA or section 311(f) (4) and (5) of
the CWA to the Federal government
acting as trustee shall be placed in a
separate account in the United States
Treasury.
(2) Except as provided in paragraph
(c) of this section, all sums awarded
pursuant to section 107(a)(4)(C) of
CERCLA or section 311(0 (4) and (5) of
the CWA to a State government acting
as trustee shall either
(i) Be placed in a separate account in
the State treasury; or
(ii) Be placed by the responsible party
or parties in an interest bearing account
payable in trust to the State agency
acting as trustee.
(b) Land acquisition. Any monies
awarded for the purpose of acquiring
land for Federal management shall be
deposited in the general fund of the
United States Treasury. Federal
agencies shall acquire land for Federal"
management solely with monies
appropriated for that purpose.
(c) Reimbursement for costs. Sums
awarded as reimbursement for the
reasonable costs of conducting the
assessment shall be payable to the
appropriate treasury of the Federal or
State agency that incurred the costs.
(d) Adjustments. (I) In establishing the
account pursuant to paragraph (a) of this
section, the calculation of the expected
present value of the damage amount
should be adjusted, as appropriate.
whenever monies are to be placed in a
non-interest bearing account. This
adjustment should correct for the
anticipated effects of inflation over the
time estimated to complete expenditures
for the restoration or replacement.
(2) In order to make the adjustment in
paragraph (djflj of this section, the
authorized official acting as trustee
should adjust the damage amount by the
rate payable on notes or bonds issued
by the United States Treasury with a
maturity date that approximates the
length of time estimated to complete
expenditures for the restoration or
replacement
(e) Payments from the account.
Monies shall be paid out of the account
established pursuant to paragraph (a) of
this section only for those actions
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27752
Federal Register / Vol. 51. No. 148 / Friday. August i. i986 / Rules and Regulations
described in the Restoration Plan
required by § 11.93 of this part.
(f) Hazardous Substance Response
Trust Fund Claims. Claims against the
Hazardous Substance Response Trust
Fund must be for costs incurred as
specified by the procedures promulgated
by EPA at 40 CFR 306.
§11.93 Post-assessment phase-
Restoration Plan.
(a) Upon determination of the amount
of the award of a natural resource
damage claim as authorized by section
107(a)(4)(C) of CERCLA. or section 311(f)
(4) and (5) of the CWA. the authorized
official shall prepare a Restoration Plan
as provided in section lll(i) of CERCLA.
If the measure of damages was
determined in accordance with the
guidance in 511.81 of this part the plan
shall be based upon the Restoration
Methodology Plan described in § 11.82 of
this part. If the measure of damages was
determined using any of the
methodologies described in 911.83 of
this part the plan shall describe how the
monies will be used to address natural
resources, specifically what restoration.
replacement, or acquisition of the
equivalent resources will occur. The
Restoration Plan shall be prepared in
accordance with the guidance set forth
in §11.82 of this part.
(b) No restoration activities shall be
conducted by Federal agencies that
would incur ongoing expenses in excess
of those that would have been incurred
under baseline conditions and that
cannot be funded by the amount
included in the separate account
established pursuant to § 11.92(a) of this
part unless such additional monies are
appropriated through the normal
appropriations process.
(c) Modifications may be made to the
Restoration Plan as become necessary
as the restoration proceeds. Significant
modifications shall be made available
for review by any responsible party, any
affected Federal or State agencies acting
as trustees, and any other interested
members of the public for a period of at
least 30 days, with reasonable
extensions granted as appropriate
before tasks called for in the modified
plan are begun.
Appendix I to Part 11—Methods for
Estimating the Areas of Ground Water
and Surface Water Exposure During the
Preassessment Screen
This appendix provides methods for
estimating, aa required in {11.25 of this part.
the areas where exposure of ground water or
surface water resources may have occurred
or are likely to occur. These methods may be
used in the absence of more complete
information on the ground water or surface
water resources.
Ground Water
The longitudinal path length (LPL) factors
in table 1 are to be applied in estimating the
area potentially exposed downgradient of the
known limit of exposure or of the boundary
of the site. Estimates of lateral path width
(LPW) are to be used when the LPW exceeds
the width of the plume as determined from
available data, or when the width of the
plume at the boundary of the site is estimated
as less than the LPW. In the absence of data
to the contrary, the largest values of LPL and
LPW consistent with the geohydrologic data
available shall be used to make the estimates
required in the preassessraent screen. An
example computation using the LPL and LPW
factors follows table 1.
Table 1-Factore for Estimation of Areas Potentially Exposed Via the Ground Water Pathway
Aquifer Ijpp
Sand
Sand + silt
Gravel
Sandstone .. _...
Shale
Karat Limestone or Dolomite
Limestone or Dolomite . _„...„....„. ... .' """"" "
Fractured Crystalline Rocks
Dense Crystalline Rocks ••••-••-•
Hyd.
conductiv-
ily/porosity
factor (miles/
year)
50
0.5
fWafl
001
3X10"e
10
0.01
0.3
1X10-*
Hydraulic
gradient
estimate (feet/
mile)
X ......M..M.
X
x .._
x ..._
x
X .............
X ....................
Time since Longitudinal
re ease began path length (in
(in yean) feel)
X a
X o
x . „
X ._.__ a
X ..... . o
X ..................... o
X .............. s
X .................. =
Lateral path
width (lo feel)
LPW=0.2LPL
LPW.0.3LPL
LPW-0.2LPL
LPW-0.4LPL
LPW=0.8LPL
LPW=0.2LPL
LPWo0.4LPL
LPW=03LPL
LPW=ttBLPL
Example of Computation for Estimating the
Area Potentially Exposed via Ground Water
Pathway
A release of hazardous substances occurs
from a facility located in a glacial valley.
Available data indicate the release may have
occurred intermittently over a period of
almost i year, although only one well about
300 feet downgradient of the facility
boundary had detectable quantities of
contaminants. The contaminated well is
screened in the water table aquifer composed
of gravelly sands. The facility boundary
nearest the contaminated well is almost 3.000
feet in length, but a review of available data
determined the release is probably localized
along a 500-foot section of the boundary
where a stream leaves the facility. Available
water table data indicate hydraulic gradients
in the valley range from 0.005 feet/mile up to
0.25 feet/mile near pumping wells. No
pumping wells are known to be located near
the release, and a mean hydraulic gradient of
0.1 feet/mile is estimated in the vicinity of the
release site. Using the gravel factor from
table 1. the LPL and LPW are estimated:
6000X0.1X1=600 feet (LPL)
and
600X0.2=120 feet (LPW).
Since the estimated LPW (120 feet) is less
than the plume width (500 feet) determined
from other available data, the greater number
is used to compute the area potentially
exposed:
(1) 600 feet x 500 feet=300.000 square feet
(about 6.9 acres). The available information
allows an initial determination of area
potentially exposed via the ground water
pathway to be estimated:
(2) 300 feetx 500 feet=l50.000 square feet
(about 3.5 acres).
The total area potentially exposed is the
sum of (1) and (2):
6.9+3.5=10.4 acres.
Surface Water
The area of surface water resources
potentially exposed should be estimated by
applying the principles included In the
examples provided below..
Example 1—A release occurs and most of
the oil or hazardous substance enters a creek.
stream, or river instantaneously or over a
short time interval (pulse input ia assumed).
The maximum concentration at any
downstream location, past the initial mixing
distance. Is estimated by:
C.=25(WJ/(T«'Q)
where C, is the peak concentration, in
milligrams/liter (mg/L).
W, is the total reported (or estimated) weight
of the undiluted substance released, in
pounds.
Q is the discharge of the creek, stream, or
nver. in cubic feet/second, and
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Federal Register / Vol. 51. No. 148 / .Friday, August 1. 1986 / Rules and Regulations 27753
T ii the time, in hours, when the peak
concentration u estimated to reach a
downstream location L in miles from the
entry point.
The lime T may be estimated from:
T=1.5(L)/V,
where T and L are defined as above and
V, is thp mean stream velocity. In Tent per
second.
The mean stream velocity may be estimated
from available discharge measurements or
from estimates of slope of the water surface S
(foot drop per foot distance downstream) and
estimates of discharge Q (defined above)
using the following equations:
for pool and riffle reaches V,=0.38(Qa4a)
(S»1. or
for channel-controlled reaches V,=2.69lQ»1
IS'").
Estimates of S may be made from the slope of
the channel If necessary.
As the peak concentrations become
attenuated by downstream transport, the
plume containing the released substance
becomes elongated. The time the plume might
take to pass a particular point downstream
may be estimated using the following
equation:
T.=9.2SX10«WI/(QC.)
where
T, is the time estimate, in hours, and W,. C,.
and Q are defined above.
Example 2—A release occurs and most of
the oil or hazardous substance enters a creek,
stream, or river very slowly or over a long
time period (sustained input assumed). The
maximum concentration at any downstream
location, past the Initial mixing distance. Is
estimated by:
C.=C(q)/[Q+q)
where C. end Q are defined above.
C is the average concentration of the released
substance during the period of release, in
mg/L, and
q is the discharge rate of the release into the
streamflow, in cubic feet/second.
For the above computations, the initial
mixing distance may be estimated by:
Lnl=(I.7xi)V1BV(DlsS--')
where
U, is the initial mixing distance, in miles.
V, is defined above.
B is the average stream surface width, in ft,
D is the mean depth of the stream, in ft. and
S is the estimated water-surface slope, in ft/
ft.
Example 3—A release occurs and the oil or
hazardous substance enters a pond, lake.
reservoir, or coastal body of water. The
concentration of soluble released substance
in the surface water body may be estimated
by:
C,=CV«/(V.+VJ
where
C. end C are defined above,
V, is (he estimated total volume of substance
released, in volumetric units, and
V. ts the estimated volume of the surface
water body, in the same volumetric units
usedforVr
PR Doc. 86-14442 Filed 7-31-88: ft4S am]
Mima COM 4iio-ie-«
-------
-------
Monday
September 29, 1986
Part II
Environmental
Protection Agency
40 CFR Parts 117 and 302
Superfund Programs; Reportable Quantity
Adjustments; Final Rule
-------
Federal Register /
that the need for a federal removal or of r,
SSSTMSSKK? 5
ssass^ssr^sS' a
all reported releases, but will not «c
necessarily initiate a removal or JJ
remedial action in response to all *
reported releases, because the release of FR
^portable quantity of a hazardous P™
substance will not necessarily pose a ad|
hazard to public health or welfare or the sul
"sSHnW authorizes penalties «
including criminal sanctions, for persons ad
in charge of vessels or facilities who fail ha
to report releases of hazardous ««
substances which equal or exceed J»
reportable quantities. Any person in rei
charge of a vessel or facility who. as ex
soon as that person has knowledge of a g
reoortable release, fails to report the I •
refease pursuant to section 103(a) or (b) ac
shall, upon conviction, be fined no more d.
than S10.000 or imprisoned for not more bi
£" * e^ar. or both. Notifications pr
received under section 103(a) or hr.
information obtained by such nofcce re
cannot be used against any reporting N
person in any criminal case, except a
frosecution for perjury or for giving a tt
false statement ^*
B. Background of this Rulemaking b
On May 25. 1983. EPA proposed a rule h
(48 FR 23552) to clarify procedures for 3
' reporting releases of CERCLA ,
hazardous substances and to adjust p
reportable quantities for 387 of Ae then ,
- 696 CERCLA hazardous substances.
^,e May 25. 1983 NPRM also listed, for
the first time, the "hazardous
discussed in detail the CERCLA
notification provisions^ M
persons required to notify the N
release, the hazardous '^stances r
which notification is required, the types
ny Z5. 1983 NPRM. 21 .ddlHonal
'. indFOBS
2* N™ of the Bbove-IMed «*•»•*£**?
SKS3S53K-S*
in future rulemakings.
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34534
Federal Register / Vol. 51. No. 188 / Monday. September 29. 1988 / Rules and RegulatioM
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 117 and 302
[SWH-FRL 3032-9]
Superfund Programs; Reportable
Quantity Adjustments
AOENCY: U.S. Environmental Protection
Agency (EPA).
ACTION: Final rule.
' SUMMARY: Sections 103(a) and 103(b) of
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 ("CERCLA"] require that ,
persons in charge of vessels or facilities
from which hazardous substances have
been released in quantities that are
equal to or greater than the reportable
quantities ("RQs") immediately notify
the National Response Center ("NRC")
of the release. Section 102(b) of-CERCLA
establishes RQs for releases of
designated hazardous substances at one
pound, unless other reportable
quantities were established pursuant to
section 311(b)(4) of the Clean Water Act
("CWA").
Section 102(a] authorizes the
Administrator of the U.S. Environmental
Protection Agency ("EPA") to adjust
these RQs. and to designate as
hazardous substances, substances
which when released into the
environment may present substantial
danger to the public health or welfare or
theienvironment A final rule published
. on April 4.1985 (50 FR13456) adjusted
RQs for 340 hazardous substances. In a
Notice of Proposed Rulemaking
("NPRM") also published on April 4.
1985. the Agency proposed adjusted RQs
for 105 additional hazardous substances
(50 FR 13514). This rule finalizes the RQ
adjustments proposed in the April 4.
1985 NPRM.1 By making these
adjustments, the Agency will be able to
focus its resources on those releases
which are most likely to pose potential
threats to public health, welfare, and the
environment In addition, these
adjustments will relieve the regulated
community of the burden of reporting
releases which are unlikely to pose such
threats. Today's rule adjusts not only
the statutory one-pound RQs. but also
' the RQs established pursuant to section
311(b)(4)oftheCWA.
When there is a release of a
hazardous substance in a quantity equal
to or greater than its RQ as listed in 40
CFR 302.4 (as amended by today's final
rule], the person in charge of the vessel
or facility must immediately notify the
NRC. The toll-free number of the NRC is
listed below under "ADDRESSES."
EFFECTIVE DATE December 29.1986. •
ADDRESSES: The toll-free telephone
number of the National Response Center
is 1-800/424-8802: in the Washington.
DC metropolitan area, the number is 1-
202/426-2875.
Docket
Copies of materials relevant to this
rulemaking are contained in Room LG at
the U.S. Environmental Protection
Agency. 401M Street, SW, Washington.
DC 20460. The docket is available for
inspection between the hours of 8:00
ajn. and 4:00 pjn.. Monday through
Friday. As provided in 40 CFR Pan 2. a
reasonable fee may be charged for
copying services.
FOR FURTHER INFORMATION CONTACT:
Dr. K. Jack Kooyoomjian. Senior Project
Officer. Response Standards and
Criteria Branch. Emergency Response
Division (WH-54BB), U. S.
Environmental Protection Agency, 401M
Street SW, Washington, DC 20460. or
the RCRA/Superfund Hotline at 1-600/
424-6346. in Washington, DC. at 1-202/
382-3000.
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
L Introduction
A, Statutory Authority
B. Background of This Rulemaking
D. Key Issued Not Addressed in This Rule
A. Continuous Releases
B. Federally Permitted Release*
C. Radionuclide RQi
D. Potential Carcinogen RQs
UL Reportable Quantity Adjustments
A. Introduction
• B. Summary of the Methodology
Underlying the Reportable Quantity
Adjustments
C Substances for Which RQs Are Adjusted
D. ICR Substances
IV. Reportable Quantity Adjustments Under
Section 311 of the Clean Water Act
V. Summary of Supporting Analyses
L Introduction
' The Agency has decided to retain the statutory
one-pound RQs for lead, pentachloroethane. and
methyl chloride, pending analysis of their potential
carcmogenicity. Therefore, today's rule admits RQi
for 102 of the IDS hazardous substances for which
the April 4 1985 NPRM proposed adjusted RQs. For
further discussion of this uuue. see Section Itl.C of
th» preamble.
A. Statutory Authority
• The Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (Pub. L 96-510). 42 U.S.C.
9601 et seq. ("Superfund." "CERCLA." or
"the Act"), enacted on December 11.
1980. establishes broad federal authority
to deal with releases or threats of
releases of hazardous substances from
vessels and facilities. The Act defines a
set of "hazardous substances" chiefly by
reference to other environmental
statutes (see section 101(14)): currently.
there are 717 CERCLA hazardous
substances. The Administrator of the
U.S. Environmental Protection Agency
("EPA") may designate additional
hazardous substances pursuant to
section 102 of CERCLA.
The Act requires that the person in
charge of a vessel or facility
immediately notify the National
Response Center ("NRC") as soon as
that person has knowledge of a release
of a hazardous substance in an amount
equal to or greater than the reportable
quantity ("RQ") for that substance
(sections 103 (a) and (b)).* In certain
limited situations, when direct reporting
to the NRC is not practicable, the
release: may report to the nearest Coast
Guard- or EPA-predesignated On-Scene
Coordinator ("OSC"). If it is not possible
to notify the NRC or predesignated OSC
immediately, reports may be made
immediately to the nearest Coast Guard
unit, provided that the releaser notifies
the NRC as soon as possible (40 CFR
300.63(b)). Section 102(b) of CERCLA
establishes RQs for releases of
designated hazardous substances at one
pound, unless other reportable
quantities were assigned under section
311 of the Clean Water Act ("CWA").
Section 102(a] authorizes EPA to adjust
all of these reportable quantities by
regulation.
A major purpose of the section 103(a)
and (b) notification requirements is to
alert the appropriate government
officials to releases of hazardous
substances that may require a federal
response action to protect public health
and welfare and the environment Under
CERCLA section 104. the federal
government may respond whenever
there is a release or a substantial threat
of a release into the environment of a
hazardous substance. Response
activities are to be taken, to the extent
practicable, in accordance with the
National Contingency Plan (40 CFR Part
300). which was originally developed
under the CWA, and which has been
revised pursuant to section 105 to reflect
the responsibilities and authority
created by CERCLA. EPA emphasizes
that a hazardous substance release
notification is merely a trigger for
informing the government of a release BO
• A ideate into the environment of a substance
which is not listed as a CERCLA hazardous
substance but which rapidly forms s CERCLA
hazardous substance upon release, is subiecl to the
notification requirements of section 103. If the
amount of the hazardous substance formed as such
a reaction product equals or exceeds the RQ for that
substance, the release must be reported 10 the NRC
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Federal Register / Vol. 51, No. 188 / Monday, September 29. 1986 / Rules and Regulations 34535
that the need for a federal removal or
rer I action can be evaluated by the
a( ate federal personnel and any
np • action undertaken in a timely
ft ideral personnel will evaluate
ah jd releases, but will not
necessarily initiate a removal or
remedial action in response to all
reported releases, because the release of
a reportable quantity of a hazardous
substance will not necessarily pose a
hazard to public health or welfare or the
environment.
Section 103(b) authorizes penalties,
including criminal sanctions, for persons
in charge of vessels or facilities who fail
to report releases of hazardous
substances which equal or exceed
reportable quantities. Any person in
charge of a vessel or facility who. as
soon as that person has knowledge of a
reportable release, fails to report the
release pursuant to section 103(a) or (b)
shall, upon conviction, be fined no more
than $10.000 or imprisoned for not more
than one year, or both. Notifications
received under section 103(a) or .
information obtained by such-notice
cannot be used against any reporting
person in any criminal case, except a
prosecution for perjury or for giving a
false statement.
B. Background of this Rulemaking
O" "iy 25.1983, EPA proposed a rule
(4{ 552) to clarify procedures for
rej eleases of CERCLA
ha: , substances and to adjust
repoiuruie quantities for 387 of the then
696 CERCLA hazardous substances.'
The May.25.1983 NPRM also listed, for
the first time, the "hazardous
substances" identified under section
101(14) of CERCLA. In the NPRM. EPA
discussed in detail the CERCLA
notification provisions (including the
persons required to notify the NRC of a
release, the hazardous substances for
which notification is required, the types
• Since the May 25. 1983 NPRM. 21 additional
hazardous substances ban been Identified
pursuant to liitingi under RCRA and the CAA:
Wait* Dream F024 under section 3001 of the
Resource Conservation and Recovery Act (RCRA)
(49 PR 5108): coke oven emissions under section 112
of the dean Air Act (CAA) (48 PR 38660): waste
•mama F020. F021. F022. F023. FO28. F027. and FIBS
under section 3001 of RCRA (SO FR 1078): waale
streams Kill. K112, KlU Km K11S. and KH6
under section 3001 of RCRA (SO FR 42936): o-
loluidins and p-loluldine under section 3001 of
RCRA (SO FR 42936): waste streams K117. KllS. and
K138 under section 3001 of RCRA (61 FR S327); and
Z-ethoxyethanol under section 3001 of RCRA (51 FR
S537). None of the above-Hated substances, with the
exception of two (waste strum F034 and coke oven
emissions), have been previously listed in Tafala
302.4. These 19 substances are therefore listed in the
table in today's rule. The RQs for these substances.
however, ere not adjusted by today's rule and will
retail*:/ ..talutoiy one-pound RQs undl adjusted
''
of releases subject to the notification
requirements, and the exemptions from
these requirements), the methodology
and criteria used to adjust the RQ levels,
and the RQ adjustments proposed under
section 102 of CERCLA and under
section 311 of the CWA. On April 4.
1985. EPA promulgated a final rule (50
FR 13456). that clarified reporting
procedures and finalized RQ
adjustments for 340 hazardous
substances, including 21 waste streams.
The April 4,1985 Federal Register also
contained an NPRM proposing RQ
adjustments for 105 additional CERCLA
hazardous substances, including seven
waste streams (50 FR 13514). In addition,
the April 4,1985 NPRM clarified
reporting requirements for substances
exhibiting the RCRA characteristics of
ignitabihty. corrosivity, and reactivity
("ICR'T (40 CFR 261.21-261.23).« The
adjusted RQ for ICR substances,
discussed below in Section OLD.,
becomes effective with today's rule* In
preparing today's final rule, the Agency
has considered carefully the comments
received in response to the April 4,1985
NPRM. -
In finalizing these RQ adjustments,
today's rule amends Table 302.4 of 40 .
CFR 302.4 and. consistent with 40 CFR
117.3, applies not only to CERCLA RQs.
but also to the RQs established for
hazardous substances under section
311(b)(4) of the CWA. Both Table 302.4
and Table 117.3 are revised and
published as a part of this rule. Section
0 of this preamble discusses key issues
relating to RQ adjustments and CERCLA
notification requirements that are not
resolved in today's final rule. Section III
discusses the RQ adjustments and the
methodology used in making these •
adjustments. Section JV addresses RQ
adjustments under section 311 of the
Clean Water Act. Section V provides a
summary of the analyses supporting this
rule.
It is important to note that other
provisions of CERCLA may apply even
where the statute does not require
notification. Therefore, nothing in this
rulemaking should be interpreted as
reflecting Agency policy or the
applicable law with respect to other
provisions of the Act For example, a
party responsible for a release (except
federally permitted releases and
specifically exempted substances or
entities), is liable for the costs of
cleaning up that release and for any
natural resource damages caused by the
nakings.
4 Substances exhibiting the characteristic of
'extraction procedure (EP) loxicity wen not at lasue
because the chemicals for which the EP toxldty test
Is designed are all assigned specific RQs under 40
CFR 3024.
release, even if the release is not subject
to the notification requirements of
sections 103 (a) and (b). Similarly.
proper reporting of a release in
accordance with sections 103 (a) and (b)
does not preclude liability for cleanup
costs. The fact that a release of a
hazardous substance is properly
reported or that it is not subject to the
notification requirements of sections
103(a) and (b) will not prevent EPA or
other government agencies from taking
response actions under section 104,
seeking reimbursement from responsible
parties under section 107, or pursuing an
enforcement action against responsible
parties under section 106. Note also that
this rule does not affect hazardous
substance reporting requirements
imposed by other regulations and
statutes (except the CWA—see Section
IV below).
Neither today's final rule nor the April
4,1985 final rule addresses the
designation of hazardous substances
which are not designated under the
statutes listed in CERCLA section
101(14). The Agency has conducted
several preliminary economic and
technical analyses on this subject (see
48 FR 23603), and in an Advance Notice
of Proposed Rulemaking (ANPRM). also
published on May 25.1983. invited
public comment EPA has carefully
reviewed the comments received. The
Agency's designation policy may lie the
subject of a future rulemaking.
IL Key Issues Not Addressed In this
Rule
A. Continuous Releases
Under sections 103 (a) and (b) of
CERCLA. no distinction is made
between episodic and continuous
releases. Section 103(f)(2). however,
provides reduced reporting requirements
for certain "continuous" releases.
Releases may be reported less
frequently than under sections 103 (a)
and (b) if they are "continuous." "stable
in quantity and rate." and notification
has been given under sections 103 (a)
and (b) "for a period sufficient to
establish the continuity, quantity, and
regularity" of the release. Notification
must still be given "annually, or at such
time as there is any statistically
significant increase" in the quantity of
the hazardous substance being released.
Thus, instead of reporting every release
as it occurs, certain continuous releases
may be reported less often.
In the May 25.1983 proposal.. EPA
noted that enforcement efforts would be
focused on episodic rather than
continuous releases. The Agency
presented alternative interpretations of
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Federal Register / Vol." 51. No. 188 / Monday. September 29. 1986 / Rules and Regulations
which releases could be included within
the continuous release definition, and
discussed a possible notification scheme
for releases determined to be within the
definition.
The Agency received more than 40
comments in response to the discussion
of continuous releases in the May 25.
1983 NPRM. EPA is in the process of
developing continuous release reporting
regulations to clarify this reduced
reporting requirement
Although the continuous release
reporting issue was not within the scope
•of the April 4,1985 NPRM. the Agency
received one additional comment on this
issue. The commenter argued that
because the scope of the definition for
continuous releases relates directly to
whether certain RQs are appropriate.
the comment period for RQ adjustments
in the.April 4.1985 NPRM should be
• reopened when the continuous release
reporting issue is finally resolved. EPA
has rejected this argument, however.
because the Agency considers the issues
of appropriate RQ levels aad the scope
of the reduced reporting requirement for
continuous releases to be unrelated.
Whether a given release qualifies as
"continuous" has no. bearing on the
appropriate RQ for a hazardous
substance determined according to a
specific set of scientific criteria.
B. Federally Permitted Releases
One of the exemptions from section
103(a) reporting requirements is for
"federally permitted releases." The
definition of "federally permitted
release" in CERCLA section 101(10)
specifically identifies releases permitted
under certain other state or federal
programs.
In the May 25.1983 NPRM. EPA
explained its interpretation of each type
of release exempted by the definition of
"federally permitted release." The
Agency received many comments on the
scope of the federally permitted release
exemption, most of which urged a broad
interpretation of one or more of the
federally permitted releases. Due to the
complexity of the issues involved, the
Agency decided to examine further the
scope of the federally permitted release
exemption.
Although the April 4.1985 NPRM did
not address the issue of federally
permitted releases, we received a
comment on this issue which was
analogous to the comment received on
continuous releases. The commenter
argued that the comment period for RQ
adjustments proposed in the April 4,
1985 NPRM should be reopened when
•he issue of federally permitted releases
ie finally resolved. The Agency has
ejected this argument for the same
reason it rejected the commenter's
argument as it applied to continuous
releases. Whether the release of a
hazardous substance that exceeds an
RQ will, under certain prescribed
circumstances, be exempt from reporting
requirements because it is "federally
permitted." has no bearing on the
objective determination of the
appropriate RQ level for the substance.
The Agency is evaluating the federally
permitted release definition and intends
to address the issue in a future '
rulemaking.
C. Radionuclide RQs
Radionuclides are hazardous
substances under CERCLA because they
ere designated as a hazardous air
pollutant under section 112 of the CAA.
The preambles to the May 25.1983
NPRM and the April 4.1985 final rule
recognize that the statutory RQ of one
pound may not be appropriate for
radionuclides. Radionuclides are also
not addressed in today's final rule. The
Agency will address the comments
received in response to the earlier
rulemaking efforts, as well as other
radionuclide RQ issues, in a future >
rulemaking when our analysis, now
ongoing, is completed.
D. Potential Carcinogen RQs
As discussed in Section HI below,
today's final rule proposes no RQ
adjustments for substances with one-
pound statutory RQs which will be
ranked for the primary criterion of
potential carcinogenicity. The ranking
methodology for such substances will be
discussed in detail in an upcoming
NPRM In which the Agency will propose
to adjust RQs for potentially
carcinogenic substances.
. I1L Reportable Quantity Adjustments
A. Introduction
Until adjusted by regulation under
section 102(a). CERCLA section 102(b)
establishes a importable quantity of one
pound for hazardous substances other
than those hazardous substances with
RQs established under section 311 of the
Clean Water Act (CWA); for these latter
substances, section 102(b) adopts the
established CWA RQs. This rulemaking
adjusts the statutory RQs based upon
s'pecific scientific and technical criteria
that relate to the possibility of harm
from the release of a hazardous
substance in a importable quantity.
These RQ adjustments, therefore, enable
the Agency to focus its resources on
those releases which are most likely to
pose potential threats to public health
and welfare and the environment Such
RQ adjustments will also relieve the
regulated community and emergency
response personnel from the burden of
•making and responding to reports of
releases which are unlikely to pose such
threats.
In this rule. RQs for 102 hazardous
substances are adjusted, including seven
of the waste streams that were not
assigned adjusted RQs in the April 4.
1985 final rule. In today's rule. EPA .
raises the RQs of 31 specific hazardous
substances, lowers the RQs of 30
specific hazardous substances, and
leaves the RQs of 34 specific hazardous
substances at the levels originally
established by CERCLA (or by CWA
section 311). This rule also raises the
RQs of the seven waste streams. In
addition, today's final rule adjusts to 100
pounds the RQ for releases of RCRA
unlisted solid wastes (as defined in 40
CFR 261.2). which exhibit the RCRA
characteristics of ignitability,
corrosivity. or reactivity but which are
not "wastes" (and thus not CERCLA
hazardous substances) until after they
are released and are not cleaned up for
repackaging, reprocessing, recycling, or
reuse (see 40 CFR 302.4(b]). The
remaining 275 hazardous substances not
addressed by today's final rule are being
evaluated for potential carcinogenicity
and/or chronic toxicity. Analyses of
these hazardous substances are nearly
complete and adjusted RQs based on
potential carcinogenicity and/or chronic
toxicity will be proposed in an NPRM in
the near future.
The primary purpose of notification is
to ensure that releasers notify the
federal government so that federal
personnel can assess the need to
respond to the release. The different RQ
levels do not reflect a determination that
a release of a CERCLA substance will
be hazardous at the RQ level and not
hazardous below that level. EPA has not
made such a determination because the
Agency has found that the actual hazard
will vary with the unique circumstances
of the release, and extensive scientific
data and analysis would be necessary to
determine the hazard presented by each
substance under a number of possible
circumstances. Instead, the RQs are
designed to be a trigger for notification
and reflect the Agency's judgment that
the federal government should be
notified of certain releases to which a
federal response might be necessary.
The importable quantities represent a
determination only of possible or
potential harm, not that releases of a
particular amount of a hazardous
substance necessarily will be harmful to
public health or welfare or the
environment.
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Federal Register / Vol. 51. No. 188 / Monday. September 29. 1986 / Rules and Regulations
Because CERCLA's RQ adjustment
methodology differs from that used
pursuant to section 311 of the Clean
Water Act some of the RQs set today
are not the same as those initially
promulgated under the CWA. The April
4.1985 final rule (50 FR 13456) amended
40 CFR 117.3 [see 44 FR 50776. August
29.1979), to make RQs adjusted under
CERCLA the applicable RQs for
purposes of CWA section 311. Today's.
rule therefore adjusts not only CERCLA
RQs. but where applicable. CWA RQs
as well. A person in charge need not
report a single release twice in order to
satisfy CERCLA and CWA reporting
requirements: one report to the NRC
suffices.
B. Summary of the Methodology
Underlying the Reportable Quantity
Adjustments
The Agency has wide discretion in
adjusting the statutory RQs for
hazardous substances under CERCLA.*
Administrative feasibility and v
practicality are important
considerations. The Agency's selected
methodology for adjusting RQs begins
with an evaluation of the intrinsic
physical, chemical, and lexicological
properties of each designated hazardous
substance. The intrinsic properties
• examined—called "primary criteria--
are aquatic toxicity, mammalian toxicity
(oral dermal, and inhalation).
ignitability. reactivity, chronic toxicity,
and potential carcinogenicity. (For the •
purposes of this rule, chronic toxicity—
referred to as "other toxic effects" in the
May 25.1983 NPRM—is defined as
toxicity resulting from repeated or
continuous exposure to either a single
dose or multiple doses of a hazardous
substance.) - '
The Agency ranks each intrinsic
property on a five-tier scale, associating
a specific range of values on each scale
with a particular RQ value. This five-tier
scale uses the five RQ levels of 1.10.
100.1000. and 5000 pounds originally
established pursuant to CWA section
311 (see 40 CFR Part 117 and 44 FR
50776). Each substance receives several
tentative RQ values based on its
particula properties.* The lowest of all
of the tentative RQs becomes the
"primary criteria RQ" for that
substance.
The Agency received several
comments on its general RQ adjustment
methodology. One commenter supported
the Agency's decision to continue'to use
the five-tier system for setting RQs
developed under CWA section 311.
Other commenters objected to EPA's use
of the primary criteria of chronic toxicity
and potential carcinogenicity to adjust
RQs. One of these commenters
suggested that the methodology used to
evaluate and assign chronic toxicity
rankings should employ data based on
routes of exposure and pharmacokinetic
parameters when converting animal
doses to human doses. The current
approach assumes 50 percent absorption
from inhalation exposures and 100
percent absorption from oral exposures.
The Agency decided to use these
assumptions instead of reviewing
absorption and pharmacokinetic data .
because the purpose of RQ adjustments
is to establish levels at which the
federal government should be notified of
releases, not to develop lengthy and
complex risk assessment scenarios. The
Agency has previously considered and
rejected the use of risk assessment
scenarios to adjust RQs (see the April 4..
1985 final rule at 50 FR 13456).
The same commenter alao requested .
an explanation of the Agency's decision
to estimate chronic exposure by
reducing subchronic effect levels by a
factor of 10 or less. The Agency believes
that this approach is well supported by
experimental evidence which shows
that the ratio of subchronic levels to
levels derived after chronic exposure is
2.0 or less for more than half of the
chemicals studied. Approximately 96
percent of these ratios are below a value
of 10. This empirically derived
relationship between chronic and
subchronic effect levels indicates that it
is reasonable to employ a 10-fold
uncertainty factor to account for
differences between subchronic and
chronic effect levels. For a detailed "
discussion of the chronic toxicity
methodology, see the Technical
Background Document to Support
• At Senile Report No. BU. 9Bth Congress.
Second Sotslon 11080) notes at page 2ft-ta
determining reponable quwitllui under tbli
paragraph (.ection 3(a)[2) of S.1480|. the President
may eonuder any futon deemed relevant to
adnlniitenng the reporting requirements or the
Prei idenfi other reiponsibillties under thu Act"
• If available evidence shows that a hazardous
sutMlance hydrolyiei into a reaction product that to
more hazardous than the original lubitance. me
primary criteria are applied to (he more hazardoui
product rather than to the original lubttanca to
determine the tentative RQ value* for the original
jubilance. For example, substance, known to
generate hydrogen aulfido or phosphlne upon
hydrolysis an assigned primary criteria RQs enme
basis of HUM degradation product*. In the April«.
l«ss NPRM. tha primary criteria RQs of four
lubiuncea (ammonium blunonda. laad •ulnae.
•odium bifluonde. and one phoaphide) were baaed
on the application of the primary criteria to tha
more haiafdoua reaction products rather than to the
original substances. In today', final rule, lead
lulfide baa been removed from the group of
substances whose RQi an baaed on application of
the primary criteria to reaction product.. For a
discussion of the reaaona the Agency removed lead
sulfide from this group, see Section III C.
Rulemaking Pursuant to CERCLA
Section 102. Volume 1. (Appendix B).
March 1985. available for inspection at
Room LG, U.S. Environmental Protection
Agency. 401M Street SW. Washington.
DC 20460.
Another commenter opposed
adjusting RQs upwards because many of
the 105 substances for which adjusted
RQs were proposed in the April 4.1885
NPRM had not been evaluated
adequately for potential carcinogenic or
chronically toxic effects. This
commenter suggested that statutory RQs
be retained until it is proven that a
designated hazardous substance does
not exhibit either chronic toxicity or
potential carcinogenicity. as applicable.
Although the Agency retains the
statutory RQs if it has evidence
indicating chronic toxicity or potential
carcinogenicity pending more detailed
analysis, the Agency does not delay RQ.
adjustment until it has evidence which
affirmatively proves the absence of such
characteristics. To attempt to
affirmatively prove the absence of
chronic toxicity or potential
carcinogenicity. even if technically
possible, would greatly strain Agency
resources with little added benefit to
human health and environmental
protection. The data available to the
Agency provide no clear evidence of
chronic toxicity or potential
carcinogenicity for any of the
substances referred to by the
commenter. However, the Agency will
readjust RQs as necessary in the future
to take into account new information
concerning the hazard of designated
substances.
For a more detailed discussion of the
primary criteria, including chronic
toxicity. see the preamble of the May 25,
1983 NPRM (48 FR 23562-23565). the
preamble of the April 4.1985 final rule
adjusting reportablc quantities (50 FR
13456, section V.D.I), and the Technical
Background Document to Support
Rulemaking Pursuant to CERCLA
Section 102. Volume 1. March 1985.
available for inspection at Room LG.
U S. Environmental Protection Agency,
401M Street SW. Washington. DC
20460.
After the primary criteria RQs are
assigned, substances are further
evaluated for their susceptibility to
certain degradative processes. These
natural degradative processes are
biodegradation. hydrolysis, and
photolysis, or "BHP." These processes
tend to reduce the relative potential for
harm to public health and welfare and
the environment of many hazardous
substance releases. If hazardous
substances have primary criteria RQs
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Federal Register / Vol. 51. No. IBfl / Monday. September 29. 1986 / Rules and Refutation^
already at the maximum assignable
level of 5000 pounds or are found to be
bioaccumulative. environmentally
persistent, highly reactive (or otherwise
unusually hazardous), or degradable to
more hazardous products, they are not
eligible for a one-level RQ increase on
the basis of BMP. On the other hand, if
analysis indicates that an eligible
hazardous substance degrades relatively
rapidly to a less harmful substance or
compound through one or more of these
processes when it is released into the
environment the primary criteria RQ is
raised one level on the basis of BHP.
The single RQ assigned to each
hazardous substance on the basis of the
primary criteria and BHP becomes the
adjusted RQ for the substance. Under no
circumstances may the RQ for a
substance be raised more than one level
based on BHP.
For a more detailed discussion of the
BHP criteria and their use in
combination with the primary criteria.
see the preamble of the May 25.1983
NPRM (48 FR 23565). the preamble of the
April 4.1985 final rule adjusting
importable quantities [50 FR 13456,
sections V.C.1. and VD.2.) and the
Technical Background Document to
Support Rulemaking Pursuant to
CERCLA Section 102, Volume I. March
1985. available for inspection at Room
LG. U.S. Environmental Protection
Agency. 401M Street SW. Washington.
DC.20460.
C. Substances for Which RQs An
Adjusted
This section describes the process
EPA used to select the 102 substances-
for which today's rule adjusts RQs. As
described below, these 102 substances
have been assigned adjusted RQs on the
basis of the five primary criteria other
than potential carcinogenicity. The
adjustments are as follows: 28
hazardous substances were adjusted on,
the basis of chronic toxicity only. 13
hazardous substances on the basis of
chronic toxicity and at least one other
primary criterion, and 81 hazardous
substances on the basis of primary
criteria other than chronic toxicity.
Prior to the May 25.1983 NPRM. the
Agency identified a number of CERCLA
hazardous substances that exhibited
chronic toxicity or potential
carcinogenicity (or both). EPA identified
the chronically toxic substances using a
variety of EPA background documents.
reports prepared by state agencies, and
other sources. EPA identified the
potential carcinogens using the
Monographs of the International Agency
for Research on Cancer, the First.
Second, and Third Annual Reports on
Carcinogens of the National Toxicology
Program. U.S. Department of Health and
Human Services, final Agency
determinations published in the Federal
Register identifying a substance as a
potential carcinogen, and
determinations by the Agency's Office
of Health and Environmental
Assessment that a substance may be a
potential carcinogen based on either .
published or unpublished data. Lists of
these substances were submitted to
EPA's Environmental Criteria and
Assessment Office (ECAO) for further
chronic toxicity analysis and to EPA's
Carcinogen Assessment Group (CAG)
for further carcinogenicity analysis.
For further information concerning the
selection of hazardous substances for
ECAO and CAG review, see the
Technical Background Document to
Support Rulemaking Pursuant to
CERCLA Section 102. Volume 1. March
1985, available for inspection at Room
LG. U.S. Environmental Protection
Agency. 401M Street. SW. Washington.
DC 20480.
Of the 102 hazardous substances
whose RQs are adjusted by today's rule,
95 were evaluated for chronic toxicity
by ECAO. In addition, the Agency
initially identified twelve of the 102
hazardous substances for evaluation as
potential carcinogens.1 CAG's
subsequent evaluation of these twelve
hazardous substances found no •
substantive evidence that any of the
twelve are potential carcinogens.
Therefore, the RQs of these twelve
substances have been adjusted using
available data on the other five primary
criteria. Of the 105 hazardous
substances for which adjusted RQs were
proposed in the April 4.1985 NPRM. the
Agency subsequently identified twelve
additional hazardous substances which
may be potential carcinogens.1 Seven of
these substances (lead chloride, lead
nitrate, tetraethyl lead, cresols. 1.3-
dichloropropene. dichloropropane-
dichloropropene (mixture), and captan]
currently have statutory RQs
established under the CWA which will
be adjusted downwards or remain the
same as a result of today's rule. The
RQs for another two of these twelve
substances, waste stream K052 and
' The twelve substances an: Bcenaphtbene.
acenaphthylene. anthracene. benio(ghi)perylene.
delta-BHC. chromic acetate, chromic uilfate. feme
dexlran. fluoranthene. fluorene. phenanlhrene. and
pyrane. (The Agency hai proposed In an NPRM
published November 8.1985. to deliet feme dextran
at a hazardous waste under RCRA and to delete it
from the lit! of CERCLA hazardous substances
under section lOZ(a) (see 50 FR 46488))
• These twelve substances are lead, lead chloride.
lead nitrate, tetraethyl lead, waste stream KOS2.
pentaehloreethane. methyl chloride, cresols. wasle
stream POM. 14-dichloropropene. dichloropropane-
dichloropropene (mixture), and captan.
waste stream F004, are based on their •
respective constituents, tetraethyl lead
and cresols. The RQs for waste stream
K052 and waste stream F004 will be
adjusted today to correspond to the RQs
for tetraethyl lead and cresols.
respectively. The one-pound statutory
RQs for the three remaining
substances—lead, pentachloroethane,
and methyl chloride—will be retained.
pending the outcome of their evaluation
for potential carcinogenicity. The
Agency will evaluate lead chloride, lead
nitrate, tetraethyl lead, waste stream
K052. cresols. waste stream F004.1.3-
dichloropropene. dichloropropane-
dichloropropene (mixture), and captan
for potential carcinogenicity and. if
necessary, readjust their final RQs
based on potential carcinogenicity. in a
future rulemaking action.
The portion of Table 302.4 printed in
this rale provides a list of all CERCLA
hazardous substances for which
adjusted RQs are established by this
rule. The table indicates both the RQ
' level originally established by statute
and the adjusted RQ for each substance.
In addition, the table includes nineteen
hazardous substances not previously
published in the table (see note 3
above).
Several commenters requested that
the RQs of various hazardous
substances be increased from the levels
proposed in the April 4.1985 NPRM. The
Agency agrees with three commenters
who suggested that the proposed RQ of
100 pounds for lead sulfide be raised-to
5000 pounds on the grounds that lead
sulfide is very insoluble and its aquatic
toxicity is low. The proposed 100-pound
RQ for lead sulfide was based in part on
the generalization that soluble sulfides
hydrolyze in water to form hydrogen
sulfide whose RQ is 100 pounds. The
commenters objected to the use of this
methodology for setting the RQ for lead
sulfide on the basis that lead sulfide is
highly insoluble. The Agency agrees that
lead sulfide is too insoluble to produce
significant amounts of hydrogen sulfide.
even in highly acidic solutions.
Accordingly, the RQ of lead sulfide in
the final rule will be raised from its
proposed value of 100 pounds in the
April 4.1985 NPRM to 5000 pounds.
based on its aquatic toxicity, the same
value it had under section 311 of the
Clean Water Act
One commenter suggested that the RQ
of chloroethane be increased to 5000
pounds from the proposed level of 100
pounds because "it is the least toxic of
all the chlorinated hydrocarbons."
Although the quoted statement is true.
the Agency proposed a 100-pound RQ
for chloroethane. not because of its
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Federal Register / Vol. 51. No. 188 / Monday. September 29. 1986 / Rules and Regulations 34539
toxicity. but because of its ignitability
(low flash point of -58 "F and low
boiling point of 54 *F). Therefore, the
proposed RQ of 100 pounds for
chloroethane will be retained in the Dnal
rule.
Other commentera also requested
increases in the RQs of various
hazardous substances. But as was the
case with the suggested increase for
chloroethane. these other increases
would be inconsistent with the overall
RQ adjustment methodology and
characteristics of the respective
substances.
One commenter recommended that
the RQs of thirteen hazardous
substances proposed in the April 4.1985
NPRM be lowered on the basis of
aquatic toxicity data provided by the
commenter. Some of the data are based
on aquatic toxicity tests that nsed
species and test procedures which
deviate from the standard species and
procedures used by the Agency for RQ
adjustment purposes. For the most part.
the suggested RQ adjustments were
based on such non-standard species and
procedures and therefore are not
accepted by the Agency.
For two substances
(pentacMorobenzene and phorate).
•however, the commenter need data
based on the standard 96-honr LCSO
aquatic toxicity test and a standard
species, the bluegilL The new aquatic
toxicity data for pentachlorobenzene
justify towering the RQ of that
substance from the proposed level of
1000 pounds to 10 pounds. The new
aquatic toxicity data for phorate support
a one-pound RQ which should be raised
one RQ level to 10 pounds baaed on
BMP. The Agency based the proposed
1000-pound RQ for phorate on
mammalian toxicity data which
supported a 100-pound RQ. Because
phorate is hydrolyzed readily, the RQ
previously was raised one level to 1000
pounds. In sum. the RQs for both
pentachlorobenzene and phorate will be
set at 10 pounds in today's final rule,
instead of 1000 pounds, as they were in
the April 4.1085 NPRM.
Although not specifically requested by
the commenter. the RQ of a third
hazardous substance, waste stream
JC039, is also being lowered in the final
rule. K039 is a filter cake resulting from
the production of phorate and thus
contains phorate as a constituent
Because the RQ of a waste stream is
based upon the lowest RQ of any of its
hazardous constituents, the appropriate
RQ for K039 should also be 10 pounds in
light of the new aquatic toxicity data on
phorate. Accordingly, the RQ for K039
will be lowered from its 100-pound level
in the April 4.1985 NPRM to 10 pounds
to make its RQ consistent with the new
RQ for its constituent phorate.
D. ICR Substances
As was stated in the April 4.1985
NPRM, the obligation to report releases
into the environment of substances
exhibiting the Resource Conservation
and Recovery Act (RCRA)
characteristics of ignitability,
eorrosiviry. or reactivity (ICR) had been
the subject of some confusion. Under
section 103(al of CERCLA. the person ta
charge of a vessel or facility must notify
the NRC of the release of a "hazardous
substance." The term "hazardous
substance." as defined by section
101(14) of CERCLA, includes substances
designated pursuant to section 102 of
CERCLA as well as substances
designated by other federal
environmental legislation, including
RCRA. CERCLA section 101(14)(C)
designates as a CERCLA hazardous
substance "any hazardous waste having
the characteristics identified under or
listed pursuant to section 3001 of
[RCRA)." The "characteristics
identified" under RCRA include
ignitability, corrosivity, and reactivity.
Therefore, the release of a non-
designated substance exhibiting an ICR
"characteristic is the release of a
hazardous substance if the substance is
a waste.*
The April 4.1985 final rale established
a 100-pound RQ for ICR substances
which are wastes prior to release.
However, due to confusion with respect
to reporting requirements for ICR
substances which become wastes only
after release, the Agency proposed in •
the NPRM, published concurrently with
the April 4.1985 final rale, to apply the
same RQ to the latter type of ICR
substances. The reportable quantity
adjustment of 100 pounds for releases of
ICR substances which become wastes
only after release becomes effective
with today's final rale.
In the April 4.1985 NRPM. the Agency
acknowledged that CERCLA criminal
penalties attach only if the person in
charge knew or should have known that
the released material was a hazardous
substance, and recognized that
transporters may not be aware that
substances they are carrying exhibit ICR
characteristics. Several commentera
suggested that this lack of knowledge
may extend to others in the industrial
• Baeauaa CERCLA regulate. UN
aubataneea by virtue of «!•••** ^•••m^artM. gg RCRA
haxardotn wuio. the non-denguled eufaatanee
mutt, a! eoune. alto be a solid woito. at defined la
40 CFH 2BU and not excluded from regulation as e
haurdoui wmte wider 40 CFR Ml 4(b). (or the
notification requirement! baaed on ICR
ehuademllca lo apply. See 40 CFR 30Z4(b).
chain such as manufacturers, marketers,
and "other handlers" of these materials.
However, regardless of the general
likelihood that any class of persons may
or may not have the required level of
knowledge, enforcement decisions will
be made on a case-by-case basis upon
the facts present in a particular
situation.
' With respect to ICR substances which
are not wastes prior to release, the April
4,1985 NPRM makes a distinction
between those substances which upon
release are spilled and not cleaned up or
are cleaned up only for eventual
disposal and those which are released
and immediately cleaned up for
repackaging, reprocessing, recycling, or
reuse. Because the former substances
are wastes, their release must be
reported if it equals or exceeds an RQ of
100 pounds. The latter substances are
not wastes and therefore their release
need not be reported pursuant to
CERCLA section 103. For purposes of
clarification, if an ICR substance which
is not a waste prior to release la
released and only partially cleaned up.
the release need be reported only if the
amount not recovered equals or exceeds
an RQ (i-e^ 100 pounds). If the amount
spilled and not recovered (or recovered
only for eventual disposal) is less than
100 pounds, there has been no release of
an RQ or more of a hazardous substance
and the reporting requirements of
section 103, therefore, are not triggered.
Several commenters questioned the
legality and practicality of requiring
reporting of non-designated ICR
substances which become wastes only
after their initial release. However, as
stated above. CERCLA defines the term
"hazardous substance" to include
hazardous wastes that exhibit ICR
characteristics and thus requires
reporting of releases of such wastes. To
the extent an ICR substance enters the
environment and is not recovered for
repackaging, reprocessing, recycling, or
reuse, that substance becomes a waste
and thus is subject to the reporting
requirements of section 103. Moreover,
because the environmental impact upon
release of such a substance does not
depend upon its status as a waste prior
to release, the Agency believes that, in
the interest of protecting human health
and the environment, the federal
government must be notified of such
releases. This notification requirement is
consistent with the statutory purpose of
section 103(a) because it allows the
predesignated On-Scene Coordinator to
evaluate the need for a federal response
, action to the release of a non-designated
substance which, due to its ICR
characteristics, may be harmful to the
-------
environment if released in an amount
equal to or greater than the 100-pound
RQ.
One conunenter objected to a 100-
pound RQ for non-designated ICR
substances which only become wastes
after their initial release. The
conunenter believed that a 100-pound
RQ for such substances is unnecessarily
stringent and suggested instead a 1000-
pound RQ. EPA proposed a 100-pound
RQ for these non-designated substances
because substances which are wastes
prior to their initial release and exhibit
ICR characteristics have an RQ of 100
pounds. An RQ of 100 pounds was
originally proposed for the latter group
of substances in the May 25,1983 NPRM
(48 FR 23552). The Agency's rationale for
this RQ was that since the constituents
of unlisted wastes generally are
unknown, it is very difficult to apply the
RQ adjustment criteria to such wastes. It
•b reasonable to assume that on the
- average, these wastes will fall within
the middle of the five RQ levels (i.e. 100
. pounds). The same rationale is equally
applicable to ICR substances that
become wastes after release. Because
the environmental impact of a release of
a substance exhibiting an ICR
characteristic does not depend on
whether that substance was a waste
prior to its initial release, the RQ for
either type of ICR waste should logically
be the same. In addition, the Agency
believes that setting the same RQ for
both types of releases will ease the
reporting burden on the regulated
community. For these reasons. EPA will
retain a 100-pound RQ for non-
designated ICR substances which are
not wastes prior to their initial release.
Another conunenter believed, that
adopting an RQ for non-designated ICR
substances that do not become wastes .
until after their release would result in
unnecessary reporting of releases
associated with bulk liquid tank venting.
The Agency notes that as a general rule.
releases bom tank venting are in the
form of uncontained gases. However.
because uncontained gases are not
RCRA solid wastes, they are not
unlisted hazardous substances under 40
CFR 302.4(b). Therefore, emissions of
gases that are not wastes prior to their
release and that are associated with
bulk liquid tank venting are not subject
to the 100-pound RQ for non-designated
ICR substances. The release of a listed
hazardous substance'under 40 CFR
302.4(b). however, is subject to
notification requirements regardless of
the form of the released substance.
IV. Reportable Quantity Adjustments
Under Section 311 of the Clean Water
Act
The April 4.1985 final rule (50 FR
13456) amended 40 CFR 117.3 to make
reportable quantities adjusted under
CERCLA the applicable reportable
quantities for notification of discharges
of hazardous substances pursuant to.
Clean Water Act section 311. Thus, the
RQ adjustments in this rule apply to
both CERCLA and CWA section 311
RQs. Although the April 4.1985 final'
rule amended 40 CFR 117.3, Table 117J,
containing adjusted RQs for CWA
section 311 substances, was not
published at that time. To eliminate
discrepancies in adjusted RQs as listed
in Table 302.4 (CERCLA) and Table
117.3 (CWA). Table 117.3 is published in
today's rule. Reportable quantities under
both CERCLA and the CWA are set
forth in Table 302.4. Where there is a
release of a hazardous substance in a
reportable quantity into navigable
waters, a single report to the National
Response Center by the person in charge
will satisfy the notification requirements
of both statutes. The one conunenter
who addressed this issue favored
equalizing RQs under CERCLA and
CWA. For further discussion of the
relationship between CERCLA RQs and
CWA section 311 RQs. see the May 25.
1983 NPRM preamble at 48 FR 23569 and
the April 4.1985 final rule preamble at
50 FR 13456.
V. Summary of Supporting Analyses
Executive Order 12291 requires that
regulations be classified as major or
non-major for purposes of review by the
Office of Management and Budget
(OMB). According to E.0.12291. major
rules are regulations that are likely to
result in:
(1) An annual effect on the economy
of SlOO million or more: or
(2) A major increase in costs or prices
for consumers, individual industries,
federal state, or local government
agencies, or geographic regions: or
(3) 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 or export
markets.
An economic analysis performed by the
Agency, available for inspection at
Room LG. U.S. Environmental Protection
Agency. 401 M Street SW. Washington.
DC 20460, shows that today's final rule
is non-major, because the rule will result
in savings of approximately $1 million
annually. Of this amount about $200.000
annually will be saved by the regulated
community (the remainder to be saved
by government).
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for all rules that
are likely to have a "significant impact
on a substantial number of small
entities." This rule adjusts RQs for
substances that have a substantially
lower total production volume than the
substances that received adjusted RQs
in the April 4,1985 final rule. EPA's
analysis estimates that the economic
effects of both the April 4.1985 final rule
and today's final rule are directly
proportional to total production volume.
Thus, the impact of today's rule on small
entities will be substantially less than
the impact of the April 4.19B5 final rule.
The analysis of the April 4.1985 final
rule demonstrated that the rule would
not have a significant impact on small
entities. See the Regulatory Impact
Analysis of Reportable Quantity
Adjustments Under Sections 102 and 103
of CERCLA. available for inspection at
Room LG. U.S. Environmental Protection
Agency. 401 M Street SW. Washington. .
DC 20460. Therefore, as with the April 4.
1985 final rule. EPA certifies that no
Regulatory Flexibility Analysis is
necessary for today's rule.
The Information Impact Analysis
performed for the April 4,1985 final rule
indicated that that final rule would
decrease the paperwork burden imposed
on parties other than EPA by about
50.000 hours. Today's RQ adjustments
will provide a small additional reduction
in the paperwork burden imposed on the
regulated community for information
collection associated with reporting
releases. Because the effect of this rule
on the paperwork burden is not only
minimal, but also a reduction, EPA has
determined that no further Information
Impact Analysis need be performed for
this final rule.
OMB has approved the information
collection requirements contained in this
rule under the provisions of the
. Paperwork Reduction Act of 1980,44
U.S.C. section 3501 et seq., and has
assigned OMB control number 2050-
0046.
List of Subjects
40 CFR Part 302
Air pollution control. Chemicals.
Hazardous materials. Hazardous
materials transportation. Hazardous
substances. Hazardous wastes.
Intergovernmental relations. Natural
resources. Nuclear materials, Pesticides
and pests. Radioactive materials.
Reporting and recordkeeping
requirements. Superfund, Waste
-------
Federal Register / Voi. 51. No. 188 / Monday. September 29. 1986 / Rules and Regulations 34541
treatment and disposal Water pollution
control.
40 CFR Part 117
Hazardous substances. Penalties,
Reporting and recordkeepmg
requirements. Water pollution control
Dated- August 20,1986.
LM M. Thomas.
Administrator.
40 CFR Part 302 is amended as
follows:
PART 302—DESIGNATION.
REPORTABLE QUANTITIES. AND
NOTIFICATION
1. The authority citation for Part 302
continues to read as follows:
Authority: See. 102 of the Comprehensive
Environmental Response. Compensation, and
Liability Act of 1980.42 U.S.C. 9602. sees. 311
and 501(a) of the Federal Water Pollution
Control Act 33 U S C 1321 and 1361.
2. Section 302.4 is amended by
revising Table 302.4 to read as follows:
9 302.4 Designation of *•»•«!«« ••
substances.
Table 302.4—List of Hazardous
Substances and Reportable Quantities
Note 'The numbers under the column
headed "CASRN" are the Chemical Abstracts
Service Registry Numbers for each hazardous
substance. Other names by which each
hazardous substance is identified In other
statutes and their Implementing regulations
are provided in the "Regulatory Synonyms"
column. The "Statutory RQ" column lists the
RQs for hazardous substances established by
section 102 of CERCLA. The "Statutory
Code" column indicates the statutory source
for designating each substance as a CERCLA
hazardous substance: "1" indicates that the
statutory source is section 311(b)(4) of the
Clean Water Act "2" Indicates that the
source is section 307(a) of the Clean Water
Act. "3" indicates that the source is section
112 of the Clean Air Acl and "4" indicates
that the source is RCRA section 3001. The
"RCRA Waste Number" column provides the
waste Identification numbers assigned to
various substances by RCRA regulations. The
column headed "Category" lists the code
letters "X". "A". "B". "C". and "D". which are
associated with reportable quantities of 1.10.
100.1000. and 5000 pounds, respectively. The
"Pounds [lug]" column provides the reportable
quantity for each hazardous substance in
pounds and kilograms.
TABLE 302.4 • LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
MfffBPUi Subitmct
toSMyrfttllSMS. „
Ar-*c ml Wtof"*!) tatft
AfiMMna
*««~«~ ",
Ammany *»
IU.I...., hyun.y.
0«n>«n«l p^ugMnm.
Dmtiuim, l/l,*.*""*?-
(hnmUhinjomrx
n*tV"(9*li)PT*V1f**-
JlfLmrut*f**nnm ._ .
iwu.puc, .. . .
<•«•»">
Cwinrf tautM*
CMMHA.IM.
rUffnnr inri. iMui._i(IJ ffH._...._..,,.*
CMnnMIm*,, ,. ,.
ammK »»». . .
Chmme-Jta..
r*r~-~.. '"•.-•tft
a»»tt
CnMM|«)
^
CASRN
53329
20S9W
943688
JfJJIM
106480
7(84417
' 1341*97
1201 27
BM54
191242
106514
030104
78150
6533739
7S003
1066304
10101636
7440506
1316773
108304
69467
0-Tatudnt
D-TflhsMBTM
,^>**.^u»_^.
Civtmn trlmff¥t
RQ
1"
100
8000
t"
!•
f«
l«
l«
6000
t«
Smiwy
COO.T
2
t
1-
2
2
1.4
2
WMM
NUT**
P022
CM9D-
1
o
Q
B
B
o
o
Q
B
£
Q
RfttfflO
Pa.nd.MKQ)
100 (45 4)
100 (454)
-
100 145.4)
-------
34542 Federal Register / Vol. 51. No. 188 / Monday. September 29. 1986 / Rules and Regulations
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTITIES-Continued
HaaidM Subsunet
p- ..
p- —
ncMoreprepm • DeNoroprapm (niBMrt
Emm. imiutNoio —
fitmnc tat. iMra*y(ll) Mfl
1
CASRN
105445
1319773 (
106514
543756
124403
296000
76017
563122
110806
110605
900*661
206*40
86737
626864
70304
776306*
7763064
0004664
78705
7439921
13814965
7783462
1009974B
1072351
S26S2S9S
56169094
744614!
1314171
592871
59285
•
*
-
BOTmoumrt
-
fcWM HUH1
EBwtom e*eol imoemyi cmv —
jr imiMijump 1 1 irtrhmrait-mnfl
SuHwhydnd*
SuH-rnydnd*
fme Uertrtn ••• . .
-
•
•
_,
!
< , •
f ...
|f ________
:
RO
1000
•
10
10
100
r
5000
5000
5000
1000
1000
100
10
1*
1*
r
i'"
,.
,.
100
100
r
1000
1'
. 5000
. 5000
. 1000
. 5000
. 6000
. 5000
_ 6000
_ 5000
_ 5000
10
10
_ 10
minor
CoOtt
1.4
1
1
:
i
1.2.*
:
M
4
1
4
4
4
2.4
2
4
4
1.4
4
1
2
1
1
1
1
1
1
1
1
1
1
1
1
RCRA
Waste
lumMr
„— -. . ..
0052
U197
0084
—MM —
U092
P071
0164
U359
0358
0139
0120
P065
0132
0135
0135
UI39
•H^B»M<«»
•*«
=
U\»y>
iy
. ... -
C
A
A
B
A
B
B
B
B
C
B
X
A
X
X
D
B
D
A
B
B
B
D
B
: :
B
B
0
B
A
_. A
A
Pounds!*.) •
1000» (454)
10 (4.54)
10 (4.54)
100(454)
10 (4 54)
100* (45.4)
100 (45 4)
100* (454)
100 (45 4)
1000 (454)
100 (45 4)
la (0454)
10 (4.54)
1« (0454)
1 B (0 454)
5000(2270)
• 100 (45.4)
5000 (2270)
10 (4 54)
100(454)
100)454)
100 (45 4)
5000(2270)
100(454)
1* (0454)
100* (454)
100 (45 4)
100 (45 4)
100(454)
100* (454)
5000(2270)
100 (45 4)
5000 (227OI
100 (45 4)
10 (4 54)
10 (4.54)
10 (4.54)
-------
Federal Register / Vol. 51, No. 168 / Monday. September 29. 1986 / Rules and Regulations 34543
TABLE 3D2.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTiTIES— Contmuad
Huatdous Sublime
UmmtmM
LbfltVOTBi. ULnMiy.
UJOUIJII-J.
LhiHifl |i«ull«.i
PmacNorobamm
PI—1M r • ...._,
PIWM.
«to
PIIIIII.I i^fcj*..^
eyMta.
-r-r-ir-Trriifd.imiixtuU-
0jlul_lrfrrrfT
-Mnw 1ft
auuuu-
a^Nflu**.
SaUIIMM.
SuRurhpn.
SuHunc am mutual) ul .
• ffTMOl^A pJWOpTIOIphBJtt. Mm ii L ,L -
Thaliae (Mb* _.... _ _
Thaaflkm tt
ThMMfflMU.
Tt-nu^n,,*™-.
TMtt^daM.
ThtfunO) rent* _. _._. . _
Thalliufii(lll) 0*4* •„_« . .. ^
TMmjirtnuliiuJi
C«SRN
I04ISJ5S
6MM
I23M
itMoa
74879
29BOOO
T0304
TS047
608035
76017
8SOIB
1089K
62384
298022
298022
7*002
S427SS
128000
I10BBI
107483
744808*
7448084
6301041
1338831
1010Z18B
7TB3084
74*8186
10031581
78002
107489
131*328
74*8280
583888
6533739
7781120
10101451
i
1314325
12038520
~
•7
-
•
H|-B-Mei"f
PyfoplKMiihuift MJU. tmaaBiyl Mtor . . , ,
TVMfejmtll) oadda
fc^^m^.-^^,
TMIBT omrtt .... ,. .
Statutory
no
10
I*
' !•
1000
1-
100
r
1000
l«
1000
!•
r
r
m
son
>•
!•
too
1'
" !•
rao»
1000
i«
MO
1000
too
1000
too
100
1*
r
1-
r
i'
i'
Ceoat
I
4
4
1.4
2.4
U
1.4
4
1
4
4
2
1.2,4
4
4
4
1.4
M.*
2
4
M
4
2
M
M
4
1
1 .
1
1.4
M
1.4
4
2
«
4
4
4
4
4
ROMA
Wnu
Nunbar
FOBS
P092
U082
U045
'U0*5
P071
UI32
U183
U184
U188
P082
P084
P084
P1 10
U084
UI88
•111
U2B4
U204
P103
U13S
P110
P1 10
Pill
P1 13
U2I4
U215
U2M)
U217
PT18
P1 14
FkuIRO
C^
A
A
a
c
X
X
B
B
B
A
X
0
c
B
A
A
A
B
0
C
A
A-
B
A
A
C
B
B
a
B
a
A
A
B
C
a
a
a
a
B
c
PoundMKg)
10«*54|
10(4.54)
100 (454)
1000)454)
1«(0454)
1*(0454)
100 MS 4)
100(454)
100(454)
10(4.54)
1*(0454|
8000 (2270)
1000 «454)
100 (454)
10(454)
10(454)
I0« (454)
I00» 1*54)
5000 12270)
1000(454)
10(434)
1001454)
10)451)
10(464)
1088(454)
1001*54)
M0 1484)
IOOH&4)
1001454)
100(454)
10* (4.54)
MI4.S4)
100(454)
1000(454)
IOOm.4)
100(484)
100(48.4)
100(45.4)
100(454)
1000(454)
-------
TABLE 302.4 - UST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES-Continued
Hcufdous Subtiino
ThftliunO) wttiM . .__- ..._....». ....... —
fym»Tm0aMrum -
UrtvMd HBVdau W«m Chamu»«.x o» EP Tonaiy..
x.
Zinc Tt
ZtfC«Oart«1a>
Znc tmmomjm cttonda —
ZM branwM
ZanctenraM •
Znc hydraiM* — -
Zvc****
Tr» WKWKB apwi nc»v*rtoanM8d •€*•«» nenuunoi (•) Pyndn*
hyttogwi cMond* purticahon) horn m>
production nr mmuwctunng uu (u I IMCHM.
tarnwlating proem ) ol In- or wmeMorepMmal
or ol mwrfmdalM-Mad lo proouce ami
p«noriK*VMiwa. rnv^wmgoonfloi
ndud»«BOT *om IM proOuceontX
CASRN
7446186
100315*1
85534
106490
52608
75S03
•0354
NA.
NX
541003
10102064
1314621
1314871
27774196
7440866
657348
1332076
769M5B
348835*
557211
557415
177027
1314847
16871719
RoQuUtory Synonym
Suiim aoe. (TuflMnfl) un
2-Amno-l4iiMriyl beiu«n» — — .-..——.
fjiiui'i 1 7 ' inline . ___
Viratum trri»'*>* — — —
VBW*umO
1000
!•
1-
1000
ton
i'
r
5000
5000
1000
1000
1000
1'
1000
6000
1000
5000
1000
5000
10
1000
1000
1000
8000
6000
1008
6000
1000
!•
1*
r
'
.Uttiwy
Cooit
1.4
4
4
1
1
4
4
1
1
1.4
1.4
1
i
1
1
1
1
1 *
1
w
1
1
1
1
1
1.4
1
1
4
4
4
RCRA
waan
Number
Pi 15
U32B
U353
UZ34
0010
P120
PI 20
P121
PI 22
P004
POOS
F020
C«ieoo-
iy
B
X
X
B
B
A
A
B
B
C
C
C
C
C
':
c
c
A
C
C
c
c
D
B
D
:
B
X
PoundslKgl
100(454)
!• (04J4)
!• (04541
100(454)
100 (454|
10 (4 54)
10 (4 541
100(454)
100(454)
1000 (454)
1000 (454)
1000 (4S4)
1000 (454)
1000 (454)
1000 (454)
1000 (454)
1000 (454)
1000 (454)
1000 |4S4)
10 (4 54)
1000 (454)
1000 |454)
1000 (4S4|
1000(454)
5000 (2270)
100 (45.4)
5000(22701
1000(454)
1000B (4541
100(454)
IB (0454)
-------
Federal Register / Vol. 51. No. 188 / Monday. September 29. 1986 / Rules and Regulations 34545
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTlTIES-Continued
Huvdoui Subs-tnc*
FQ2i __„. „.„„„ ,„ . _ „_ m „ _ _,_, .
Wntn tempi MMMMr end ipvnt cvton tram
hydroovn chtondo punAccton) from tht
productnn or ranufKtunng uw (M • fMctefrt.
ntwniMtaiM uMd 10 producv itt tfwvtfivM
FQ22 . — « — • »• • •
7 ""J t ^™ f^,
M0RT)Ktai6 or oofnponont •!• forniufcWiQ
proctu ) of ten-, ptnu-. of
hnacNorobinzmi unw itamt conoioni
F023 . -_ _
tyum (cioipt wMtcmwr Mid iponi cwoon tront
usad tor Ow oroducton or nwnufacttfmg UM (M
wastM Irom •quvmam uMd only tor tht
producMn Of uM Of f»McMofQphcf*> tforn hQfwy
putM 2.4.S- BKMoiepmncl )
FQ26 — • ~ — -— --I.-I-I ,..., . _ _ ^». . ,
Winti (tmpl tnitnrMir ind ipM euton Horn
dMd tor ih« nwnmadmig un IM • racum.
tormuutvig prootu ) o* Mr** ponifr, or
EOT? .
OMvdMt unuMd tormulMoni oonunng tti. Wra-
. or pfnuchtoropiwnol or dKwood uruMd
tf«M GMoreprMnota. (TTw httng dOMflol *
•ymrnurt Irom prapwifad Z4>tnchto«prwnol
•R ttw wto eomporwnt)
F029 *
n iMk rfih hum ttm HH MM UN HI ra fhMfMl
natrnvni of aori ujiiUii««lid «Rh EPA
MOWOOM WMM No*. F020. F021. F022. FOZ3.
F026.andF027
K026 . . . ..n .., .
Sinppvig ctfl MH> tram ffw predudon of nwOiyt
FiMr cak* from ow flftrafiort of
phortfc
marutKtunng . tormuMtaon and toodng ol (M0-
tf(W9
MdM&V
KOJ7 M M _. . _ ,. .
Otjcintor tmk tv iludot from oolunQ opnuon
Pvodud wtttwiton frorn tho production of
dnootokMrw wn nmthjn of tokum
RoKtion D^froduci VMMT trorn 019 drjnriQ oohflm
jrHta produnon atf toB.«rwdi«MM «•
bydt jocwtoi Of dntro olum
Kiia L......... __ _ „ -t
CondenMd lloud fcght tnos trom tr» puntaatnn of
tolMrMomw n trw production of
tokMnodvmmi) MB hydrOBMtiort of
4ratroiQlu9nt
CASBN
•
__
.
-
RcguUtoiY Synonym
—
— — _ — . .
_____ _. _— - . — - — -
v
DO
1*
f
r
!•
!•
!•
!•
!•
1'
!•
!•
1-
f
r
Slatuiny
CoMt
t .
•
4
4
4
4
4 .
4
4
4
4
4
4
4
flCRA
wuw
Nun*v
R»1
F022
FD23
F0»
F027
W2B
wee
K03B
K048
KOS2
K087
Kill
KU!
K113
F
C>1OTO~
i
X
X
X
X
X
X
c
A
8
A
B
X
X
X
1
ralRO
PwndMKg)
1* (04M)
1 • (04S4)
1* (04S4)
1* (0454)
IB (04541
1* (0454)
1000(454)
10(454)
100(4541
10* (4541
100(454)
1» (0454)
1* (0454)
l« (0454)
-------
34546 Federal Register / Vol. 51. No. 188 / Monday, September 29. 1986 / Rules and Regulations
TABLE 302.4. UST OF HAZARDOUS SUBSTANCES AND REPORTABLE OUANTITIES-Continued
Vtafrwfc from 0» punficiton of toUwwdtfmm m
nw prooucbon of Whmnu&um MI
frtttootrhiunn of d-nrtrotoium.
Hnwy •nd> from the purttcrton ol lotuwwtt.vn.fM
n the producbon of totMMd»mn) MI
Orpine condwmw from ttio •otart fMOMHy
ootumn n Bit producbon ol lo.xi.jn* dnocyrato
Mt phooQMSbon ol tokMnodvmnB.
Wutmtw from lha raacbon MM ou •crubtw to
dobfomdi) n thv producbon ol olhylofw
dobrornot*
SoD bottom* from the purifctton ol omyleno
(ferombe m mo produebon ol •mylm dtromUi
X.
CASRN
W"y8W~
.
•
•
-
•
Smimy
RO
r
i*
i*
i*
Codet
4
4
4
4
4
' 4
RCRA
Wute
Number
K114
K115
K117
K118
K138
Cftego-
ry
»
X
X
X
X
X
PoundKKg)
1* (04S41
\m (0.4S4)
1« (0.4&4)
141 (04MI
IB (04M)
1> 04S4)
n ^rlSJbVS1?.*^.^ m^^
r/ir^srffl» ss ^ s1^
2- noeiun eiei Die lUiBnory eouroe tar de.gn.tw, ol ttm heierdout MMienee under CJRClA a CWA SecMn 307(e)
3 . Mate* oiel me fUkitorv eouroe tor dennnenon of th» heieidoue ubetenoe under CERCLA • CAA Section 1 12
4. KS1S ta! ta SiS? t^ce tor SSritKX, of th. neaiooui uMenoo under CERCLA a RCRA Seebcn 3001
'! • «*""• •• •• '-P""" "? • • CERCLA. !Uluu)nfRQ__ - ^ „.._.__- „__._,, _.-. .-a., section 3001 of RCRA The Agency reeenO,
IT*"*" (-We WWier o-cuon
beruene
Pyrophosphonc tod. Mtreethrl <
Teueem»l pyruunoipnele
rrvCnstybeeod
CASRN
10B852.
10BW7
MOMS
110081
190127
120403
127822
120000
139082
1*1242
206440
296000
imylene gVeel ffl
l-EmovyelhenDl
Beraotgnllpeiylene
BemoILkllluerene
Mettiyl pemihion
O.O-Oimemyl O-P-
nyl pnatpnoromioen
-------
Federal Register / Vol. 51, No. IBB / Monday. September 29. 1986 / Rules and Regulations 34547
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES— Continued
CASflN Hazardous Sunianca
1
290022
319666
541093
542756
SS72I1
557346
- 557415
563122
563688
S9285B
592870
G0M»4
MMtfja
628864
630104
81S9Z7
1066304
1072351
1314325
1314621
-
1314847
1314870
1319773
1332076
1333831
1341497
3466359
6533739
7429480
7439921
7 A4A9IM
'**vcOU
7440360
7440508
7440666
7446084
7446142
7446186
Phortta
PhosphorooWioc acd. 0 O4mnyi S-tamyitno)
matnylesWf
OORI • BHC
Utanyl acetate
Prep*.. 1.340NOTO-
Znc cyatrato
Zncaeettto
Zinc tomtita
EOvon
Acete add. thiltamd) tan
TTuHuRlfl) flCVUto i
Mcrcunc Buccyinm
laad Biecyanaia
r~™V~' *T lau^hv"
Furnne too, marcuylll) tan v
Mwcufy tuhnmto
Carbarnmaoiaianoc ml
SfiMnDUTM
Cupnc tartm
Cn.aau.Kmlm
laaoaiaanm
ThaUconde
ThSHtfnnH) ffl*?
Vanadun pantoada
VanarjunOO onto
ZbcphotptKto
kaadauifda
CraaolM
Cnayfccaod
ZincbanM
Sodum Mluonde
Amnonun blfhionda
Zific carbonaia
Carbonc acd. dtnaOamO) utt
Thaftumd) carbonate
laadataanua
uad
IfejillaiMM
inBUwn
Antromr
Copear
Zinc
Sohmum dwoda
Setonwmonoa
LaadtuDau
Suttunc ant. nalbnmi) tan
Thallwnll) auHaia
APPENDIX A • SEQUENTIAL CAS REGISTRY
NUMBER LIST OF CERCLA HAZARDOUS
SUBSTANCES— Continued
CASRN
7447394
7832000
76468S7
7664417
7699458
7733020
7736954
7756987
7779864
7779686
7782492
7783008
7783064
1 IMMCQ
inSJ33H
7783462
7783496
7791120
8003198
90O4664
10G91SB1
10045940
10049095
10099748
10101538
10101630
10102064
10102168
10102451
1041575S
12039520
13814985
15739807
16871719
26952238
27774138
52626258
• nalEMQM
3CB923KE
56189094
Hazardous Suoaianca
Cuprc clilonda
Mdwn mvtw
ZmccfUonoa
Ammom
ancbromaa
ZmeaJlata
[ml tttaiia
Ciim tuttta
Znc hydnarflM
Zmc ntraia
Saunun
tiiinioua art
Midrooan aritda
HydroauMune tea
Srfwtiydrtaa
aVa^HVSIra^ lauH«tia1
(••WCaWitr ••«•§•
Laadlkjonda
ZmcruonM
ThUkmlo cnortda
Fame damn
Iron damn
Sdkn aod. nalbm(l) •*»
Tha*um(l) otMa
Marounc Mnna
IMdnann
Chrome •Dial*
LaadodHa
Uranylnmt*
Sodnvn aalaiila
ThallurrKI) nrtrata
Maranut nflrat*
ThaPMiHI) aalanda
Uafl nuobonM
laadaitfan
Zinc •boMUnaa
DcMoropropona^t)
Vanadyl tiMaw
Znc amnoHurn craonda
marat*
LMdauarala
3. Section 302.5 is revised to read as
follows:
§ 302.5 Determination of reportable
quantities*
(a) Listed hazardous substances. The
quantity listed in the column "Final RQ '
fm* Aaf»h aiitiotanfD in Tahlp ^119 d IQ Inp
lor cacn BuDStiincc in i auic MJ&.I ID me
reportable quantity for that substance.
(b) Unlisted hazardous substances.
Unlisted hazardous substances
designated by 40 CFR 302.4(b) have the
reportable quantity of 100 pounds.
except for those unlisted hazardous
wastes which exhibit extraction
procedure (EP) toxicity identified in 40
CFR 261.24. Unlisted hazardous wastes
which exhibit EP toxicity have the
reportable quantities listed in Table
302.4 for the contaminant on which the
characteristic of EP toxicity is based.
The reportable quantity applies to the
waste itself, not merely to the toxic
contaminant. If an unlisted hazardous
waste exhibits EP (oxicity on the basis
of more than one contaminant, the
reportable quantity for that waste shall
be the lowest of the reportable
quantities listed in Table 302.4 for those
contaminants. If an unlisted hazardous
waste exhibits the characteristic of EP
toxicity and one or more of the other
characteristics referenced in 40 CFR
302.4(b), the reportable quantity for that
waste shall be the lowest of the
applicable reportable quantities.
40 CFR Part 117 is amended as
follows:
- .
PART 117— DETERMINATION OF
REPORTABLE QUANTITIES FOR
HAZARDOUS SUBSTANCES
4. The authority citation for Part 117
continues to read as follows:
Authority: Sees 311 and SOl(a). Federal
Water Pollution Control Act (33 U.S.C 1251 et
seq.). and Executive Order 11735.
5. Section 117.3 is amended by
revising Table 117.3 to read as follows:
§ 117 J Determination of reportable
Quantities*
Table 117.3— Reportable Quantities of
Hazardous Substances
Not*— The First number under the column
headed "RQ" is the reportable quantity in
pounds. The number in parentheses is the
metric equivalent in kilograms. For
convenience, the table contains a column
headed "Category" which lists the code
i •• ii v*1 •*&•• HB*I »«/*•» nHj xn**
letter* A . A , B . (T . and O
associated with reportable quantities 1. 10,
100. 1000. and 5000 pounds, respectively.
-------
34548 Federal Register-/ Vol. 51. No. 188 / Monday. September 29. 1986 / Rules and Regulations
TABLE 117.3 -REPORT
OF HAZARDOUS E
NOTE: Tt» flat mmbar under 9\
DM rapofuoto qMnuy n pound
th0 ttbto oontBins B GdJwWt hn
me code Mien "X". 'A". "B"
wffi rapofUbta QLUWifltkM of 1
pounda napecM*
Materiel'
Acetcacrt 1
AMm
A* alcohol =r.
Alylchtonda
AlUMmroaultala
. Arnnomm bchrorntta
Airranun aerbarnett
Afimonun cMoride
Amnenun ifltoAucvkta
Amnonun Bmuttate
Amyleoaale
BanumcyOTda
Banana*
Beroorl chtonoa
Benzyl cMonde
BeryBuTNCMonde
D»y_«i fluoride
B_yhjm nJM»
Butyl acetate
Ceomum acetate
Carimum tpfl""#t
Caldun anonae _______
r>k»ii a me memc egumiem n hdognna For congruence.
me UDM eanunt a eoiunn heMed "Category" xnefi bra
tr» cede Men "X". 'A11. "B". "C". ana "D" aisooaieO
with repBruole quantmei of 1. 10. 100. 1000 and 5000
pounds reipeelxely
MitanM
OtUVfttM
Prone and -
Chrome euHita
Chromoui eMonda ______
CoMRousbromda
Cobattoua (orrmta
Coumaphne,
Rraenl .
ClfJT *~"l-
Cupnc aceuanama
Cwneenionde
Cupncnmu
CupHeoulaM
Cupnclanraie
Oywogan ehkjrida
2,44) ACM
i*^ Eaier» ________
DOT..,.
Pi— W— *
aummeniene
O-hkncnpana
Ooimiiumi»»
Dehteropfopene Mature.
U-OcMoraproparic add
Dehkjrvw
Duron
e— —
Bnrlana dtrenide
Elnytene ftcntonoe
enr*
Fame enonda
Ferncftjonde
C_A-_M«.
Famwa aramonun autlaM
FamMaumna
FonnlcacM
Fumencadd
Fuflunl
Ql^tajftn
Myoroci-otx aert
MydfOOUOftC flOHl<^i^MBHeiei«B_>^HH
boprena
iMpfCptfMHHIBW
tiodvcyttMiwnMUiOnBML
— "— -
iMdcnionaa
_lagory
X .
c
c
c
c
e
c
c
A
c
B
B
B
A
B
a
A
B
B
A
C
B
B
X
X
C
B
X
B
C
a
a
D
A
X
e
c
B
c
c
X
B
c
X
X
e
A
t
D
c
D
D
c
c
c
B
C
c
e
B
e
c
D
" 0
D
X
X
X
D
B
A
Oj
B
C
A
X
B
TO In pound!
KHognira)
1(0454)
1:000(454)
1.000(4*4)
1,000 (454)
1.000(444)
1.000(454)
1.000(454)
10(4.54)
1.000 (454)
100(454)
100 (45 4)
100(454)
10(464)
100(454)
100(454)
10 (4.54)
tOO (45 4)
100(45.4)
10 (434)
1^00(454)
100(454)
100(454)
1(0464)
1(0«54)
1400(464)
100(454)
1(0464)
100(454)
1400(464)
100(454)
100(454)
5400(2270)
10 (434)
1 (0.454)
TOO (46.41
1400 (454)
100(454)
10(434)
1400 (454)
1400(464)
1 (0454)
100(464)
1400(454)
1(0464)
1(0454)
1400(454)
10(434)
1400(454)
5400 (2£70)
1400(454)
5400 (£270)
5.000 |2_70)
1400 (454)
1400 (454)
1400 (454)
100(464)
1.000(454)
1.000 (454)
1400(454)
100(464)
1.000(464)
1400(454)
5.000 (2-TO)
S400GL270)
5.000 (2J70)
1(0454)
1(0,454)
1 (0454)
5400 (Z270)
100 (45.4)
W1434I
100 (454)
100(454)
1400(454)
TO (444)
1(0464)
5400 B£70)
6400(1270)
100(464)
100(464)
TABLE 117.3 - REPORTABLE QUANTITIES
OF HAZARDOUS SUBSTANCES-Continued
NOTE The M number under the column headed "BO" •
ihe reponaMa quantity n poundt The number n perenthe-
aet ia lha metnc eauMlent n Mogrami For corMnenoe.
me ubla comama a column headed -Caieaory" when IBM
Ihe coo* lanan "X", "A". "B". "C". and "D" naooaud
mm raeortaBleouantitiaa ol 1. 10. 100. 1000 and 5000
pomtt fwptc&w^ff
Material
Uad fluoride
Uad«Me
leedntreta
LMdateamia
load auniuj _________
LMdMMda
Uwd Moertnm
ll—lt-T "
mhum chromate
Maiavaen
Malecaod —
MaMc anhydnda _______
MareaDtedmtnu
Uercunc eymrxJa
MercuncMraM
MenamcauHaia..
Mereunc Baoeyanata
Memnphei
NapMhttna
NapMhancaad
Nekal ehtonda
Ncfcel riydronde
Nckelnrnta
"-T*1 '•• ••**
NIUBbeniana
••• rr-— '
Paramoi
P-incmuiephenol
Phoaphoric eod-_^_ _ _ — -
PheephMua o»»ehlonda
Phaephorua tncNonde
Potaaeun araanala——
Pouaewn permanganaia
SIMrmnta
SodMnanente
Sodum Mkiorida
Sodum chromsn
Sodun
dixMcylMnx*
-------
-------
-------
Monday
Novambar 17, 19M
Part III
Environmental
Protection Agency
40 CFR Part 300
Emjrgwicy Planning and Community
Hignt to Know Program* Interim Final
Rula and Propoaad Rula Croaa-Referance
-------
41570 Fedei Kepiter / o».
an-
EffVlRONUEHTAL PROTECTION
AOCNCY
Emergency Planning and Community
Right to Know Program*
AOIMCY: U S Environments! Protection
Agency (EPA)
Acnox: Interim final rote _
SUMMARY: Section 302 of the Superfund
Amendments and Reauthonzation Act
of 1986 (SARA), signed into law on
October 17, 1986. requires the
Administrator of EPA to publish a list of
extremely hazardous substances »ithm
30 days The Administrator a also
required to simultaneously publish an
interim final regulation establishing a
threshold planning quantity for each
substance on the list and inmate a
rulemaking to finalize these regulations
The list and planning quantities trigger
emergency planning in States and local
communities under SARA The purpose
of this rule is to publish the statutonly
prescribed list of extreme!) hazardous
substances and the corresponding
threshold planning quantities for those
substances. This rule also codifies the
reporting and notification requirements
under SARA for facilities at which
extremely hazardous substances are
present. Finally, a companion proposed
rule, published elsewhere in today's
Federal Register. initiates a rulemaking
to revise the list of substances, the
threshold planning quantities and
reporting regulations.
•mcnvi DATU: This rule becomes
effective on: November 17. 1986 Other
dates relevant to this rule include the
following:
1. The emergency release notification
requirements become effective on
November 17. 1986.
2. State emergencv response
commissions should be established b>
Apnl 17. 1987.
3. Facility notifications for emergency
planning arc required b> May 17. 1987.
4. Slate commissions should establish
emergency planning distncts by July 17.
1987.
5. State Commissions should establish
local emergency planning committees by
August 17. 1987.
6. Facility notifications to local
committees concerning facility
representatives are due by September
17. 1987.
ceejMfiiT*. Written comments should be
submitted on or before January 2. 1987
AOOmstU: Comments' Written
comments should be submitted in
triplicate to Preparedness Staff.
Superfund Docket Clark. Attention:
Ducket Number 300PQ. Superfund
Docket Room Lower Garage. U.S.
Environmental Protection Agency. Mail
Stop WH 548D. 401 M Street SW.
Washington. DC 20460.
Docket: Copies of materials relevant
to this rulemaking are contained in the
Superfund Docket located In Room
Lower Garage at the U.S. Environmental
Protection Agency. 401 M Street. SW..
Washington. DC 20460. The docket is
available for inspection by appointment
only between the hours of 9HJO ajn. and
4 00 p m. Monday through Friday.
excluding federal holiday!. The docket
phone number is (202) 362-3046. As
provided in 40 CFR Part 2. a reasonable
fee may be charged for copying services.
FOM Furrxtn wFosnunoei COHTACT
Richard A Homer. Chemical Engineer.
Preparedness Staff. Office of Solid
Waste and Emergency Response. WH-
548. U.S. Environmental Prot
Agency. 401 M Street. SW.. Washington.
DC 20460. or the Chemical Emergency
Preparedness Hotline at 1-800/3*6-0202,
in Washington. DC at 1-202/47»444B
SUmJMf NTAMV INPOfBUVnOK The
contents of today s preamble are listed
in the following outline:
I Introduction
A Statutory Authority
B Background
l. Superfund Amendments and
Reauthoruauon Act of 19B6 (SARA)
2. Title Dl
3. Subtitle A
4. Section 301
II Analysis of the Interim Final Rule
A Emergency Planning Program
1 Purpose of the List and Tbmhold
Planning Quantities
i Responsibilities of Facilities Under
Subtitle A
3. Applicability
4 Responsibilities of the SutM ad Local
Communities Under Title HI
B. List of Extremely Hazaidotis Substances
and Threshold Plsrjung Quannfles
1 Lit of Extremely Hazardous Substances
a Statutory Requirement
b Criteria for the list
i basil for the criteria
u enter*
in. application of the criteria
iv other toxic chemicals
c. List of 402 Chemicals
2. Threshold Planmai Quantities
s Statutory Requirement
b. Development of Threshold Planning
Quantities
c Methodology
C. Statutory Requirement of latstim Final
Rulemalcins and Solicitation of Public
Comment
III Relationship to CERCLA
A Relationship of Title ID to CERCLA
B Relationship of This Rulemaktai to the
National Contingency Plan __
C Rela noiunio of Thw Rule to CERCLA
Reporung Requireminn Section 103
P/. Regulatory Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Analytn
C Paperwork Reduction Act
V. Supporting Information
A List of Subiecti
I. Introduction
A. Statutory Authon-.y
These regulations art issued u..
Title ID of the Superfund Amencr.
and Reauthonzation Act of 1986 ' i
99-198). ("SARA" of "the Act ! T
of SARA is known as the Emersp
Planning and Community Rigk.: -\
Act Of 1988.
B. Background
1. Superfund Amendments a-:
Reauthonzation Act of 1986 'SAP.;
On October 17.1986 the Pres.r.e
signed into law the Superfund
Amendments and Reauthor.za:i:r.
of 1986 ("S»J*A") which revises ar
extend* the authorities established
under the Comprehensive
Environmental Response Camper.
and Liability Act of 1980 ("CERCL
Commonly known as "Superfund.'
CERCLA provides authority for fn
cleanup of abandoned toxic waste
and response to releases of haiar:
substances. Title 111 of SARA
establishes new authorities for
emergency planning and preparrd
community right to know repcr
toxic chemical release reportu
2. Title DI
Title ID of SARA, also.. - n as
"Emergency Planning and Commui
Right-to-Know Act of 1986". is inte
to encourage and support emergen
planning efforts et the State and Ic
level and provide residents and lo
governments with information
concerning potential chemical hdz
present in their communities.
The emergency planning require
of this Act recognize the need to
establish and maintain contingent
plans for responding to chemical
accidents which can inflict health
environmental damage as well as
•jgniflMtit disruption within a
community.
Title III is organized into three
subtitles. Subtitle A. which establ
the framework for local emergent
planning, will be described in mot
detail in the following section. Su
provides the mechanism for comrr
awareness with respect to hazard
chemicals present in the locality.
Information is critical .for effectiv
contingency planning Subtitle B
includes requirements for the
submission of material safety d
sheets and emergency ar'1 ~t
-------
Federal Register / Vol. SI. No. 221 / Monday. November 17. 1986 / Rule* and Regulations
•^^•^•^^•••^•^^^^^^^^^^^^^^••^^^^^^^SS^^^^^SS^^S^S^^^^^^^S*^^^^^^^^*^1*
chemical inventory forms to State and
local governments, and the submission
of toxic chemical release forms to the
Slates and-the Agency. Subtitle C
contains general provisions concerning
trade secret protection, enforcement.
citizen suits, and public availability of
information.
3 Subtitle A
Subtitle A of Title III ts'concerned
primarily with emergency planning
programs at the State and local levels.
Section 301 requires each State to
establish an emergency response
commission by April 17.1987. The State
emergency response commission will
have several tasks critical to the
implementation of local contingency
planning and response efforts. It will be
responsible for establishing emergency
planning districts and appointing local
emergency planning committees The
Commission will also be responsible for
the supervision and coordination of the
activities of the local-emergency
planning committees.
Section 302 requires the Administrator
of EPA to publish a list of extremely
hazardous substances and threshold
planning quantities for such substances.
Any facility where an extremely
hazardous substance is present in an
amount in excess of the threshold
planning quantity is required to notify
the State commission by Ma> 17.1986.
Other facilities may also be designated
by the Commission or the Governor
Section-303 go\ems the development
of comprehensive emergency response
plans by the local emergency planning
committees and provision of facility
information to the committee Section
304 establishes requirements for
immediate reporting of certain releases
of hazardous substances to the local
planning committees and the State
emergency response commission, similar
to the release reporting provisions under
section 103 of CERCLA. Section 304 also
requires follow up reports on the
release, its effects, and response actions
taken.
Finally, section 303 addresses
emergency preparedness and training.
wuh special emphaais on hazardous
chemicals. The Adminiatrator is also
required under section 305 to conduct a
review of emergency systems
4. Section 302
Section 302 define* the specific list of
extremely hazardous subatances and
requires EPA to publish the list within 30
days after the enactment of SARA. The
list of extremely hazardous substances
u defined in section 302 aa "the list of
substances published in November. 1965
by the Adminiatrator in Appendix A of
the Chemical Emergency Preparedness
Program Interim Guidance". This list
waa established by EPA to identify
chemical substances which could cause
senoua irreversible health effects from
accidental releases.
Section 302 further requires EPA to
establish threshold planning quantities
for each of the 402 extremely hazardous
substances through an interim final
regulation. At the same time. EPA must
initiate a rulemalung effort to finalize
these threshold planning quantities. This
threshold planning quantity is the total
amount of any listed extremely
hazardous substance present at any one
tune at a facility, regardleas of location,
number of containers, or storage
method, which will trigger the planning
notification. Section 302 gives the
Administrator broad flexibility in
establishing these quantities. If EPA
does not publish interim final rules
establishing the threshold planning
quantities by thirty daya after enactment
of SARA, then the threshold planning
quantity becomes two pounds for each
extremely hazardous substance.
Under section 302(a)(4) the
Administrator may make revisions to
the list and threshold planning
quantities. Any revisions muat take into
account the toxicity. reactivity.
volatility, dispersibility, combustibility.
or flammability of a substance.
Toxicity muat include any abort- or
long-term effect resulting bom a short-
term exposure to the substance in
question. Thus, extremely hazardous
substances are characterized aa those
which can cause aenoua health effects
with only a single exposure.
A facility la subject to the emergency
planning requirements of section 302 if
any extremely hazardous substance is
present at the facility IB a quantity
greater than the threshold pu«"»"j
quantity established for that substance.
The Governor or the Slete emergency
response commission may designate
additional facilities to be covered if such
designation is made after public notice
and opporunity for comment.
Within seven months after enactment
of SARA. May 17.1987. the owner/
operator of each facility subject to the
provisions of section 302 muat notify the
State emergency response commission
of the state in which it la located mat it
is subiect to that Section. After May 17.
1987 an owner/operator moat notify the
State emergency responae commission
within sixty daya after the facility
begins handling an extremely hazardous
substance. Failure to comply with these
reporting provisions may. under section
325. result in tnjunctive relief or the
imposition of a civil penalty In an
amount!of op to CUOO for each day in
which the violation continues.
Lastly, the State emergency response
commission muat provide the
Administrator of EPA with information
concerning the notifications received
from any facility under sec- on 302
Today's rule publishes th* list of
extremely hazardous subsunces and
corresponding threshold pUnnmg
quantities, as required by section 30:
This rule also codifies related itatu;o:>
reporting requirements applicable to
facilities at which extremely hazardous
subatances are present. Finally. toda> s
rule represents an initiation of an
Agency nilemaking to revise this rule as
appropriate in response to public
comment. A companion proposed rule
published elsewhere in today's Federal
Register, specifically sets out for public
comment all aspects of this final rule
and proposes revisions to the list
published today.
0. Analysis of the Interim Final Rule
A. Emergency Planning Program
The emergency planning program is a
first step toward chemical emergency
planning for extremely hazardous
substances. After the enactment of
Soperfond H became apparent that
emergency response to accidental
releeses of hazardous substances.
although vital to the protection of public
health and tin environment, wti not
enough protection against the possibility
of the release of extremely hazardous
substances. For many chemicals the
magnitude of the endangerment to
lurrounding populations upon release is
such thai it is not sufficient merely to
plan for cleanup of spills once they hav e
occurred Rather, it is important to
facilitate emergency planning which can
help prevent the accident and to prepare
facilities and the surrounding or
adjacent community for the contingency
of a release and the resulting emergency
response.
Particularly after the Bhopal. India
disaster of December. 1984. it became
dear that ennetenres which are highly
acutely toxic end have e high potential
for t^^"'-^ airborne posed a special
praolem for emergency response. In
many oases, by the time any emergency
respoBM fnrrr"1*1 can amve on the
scene of a release, the cloud has already
done its damage to public health or the
eBvarmmustt and dissipated For such
extremely hazardous substances, early
planning for
the possibility of a release is vital to
effective public and environmental
psoiecliuB.
-------
1 purpose of the List and Threshold
running Quantities
JtSfSSEttSSSl
KUSSsSTsK&as-
,c,;ii of o.«r • yeir of ?V.?i5?.
mw
preparedness responsibilities for
hazardous substance releases under
CERCLA and for Addressing toxic
9Ubs-.ances under the Toxic Substances
Control Act (TSCA). The pwgrwn *«
announced ,n June. 1985. as part of the
Agency's Air Toxics Strategy for
addressing both continu-Jig and
accidental releases of toxic substances
,nto ihe air. CEPP is designed to
increase public awareness of chemical
hazards in communities and to assist
States and communities in deve.opmg-
preparedness programs and response
capabilities for releases of hazardous
chemicals into the environment.
The Agency first developed the
extremely hazardous substances list as
part of the CEPP along with guiddnce
materials to aid localities tn focusing on
these chemicals to address the
development of community emergency
response plans. The lut and guidance
materials (laaued November. 1985) were
designed to enable a commumtj to
obtain information on the location of
potential chemical hazards in the
community. Thia information could be
used to help the communit> take
preventive actions and pUr. responses
to accidental releases of these extremely
hazardous substances. A notice of
»v ailability of the CEPP Interim
Guidance waa published in the Federal
Rrgitlet on December 17.1985
Title 111 of SAFA mandate* the type of
proaiam advocated by the Agency's
CEPP. It requires Stale and local
governments to establish the
infrastructure needed to facilitate
emergency planning and provides
technical auppon to these programs, li
also requires certain facilities to supply
ihe information on chemicals present at
the facility which is necessary for
contingency planning
The extremely hazardous substances
list and ita threshold planning quantities
are intended to help the local
community focus on the chemicals and
facilities of the most immediate concern
from a community emergency planning
and response perspective. EPA strongly
emphasizes, however, that while the list
published today includes many of the
chemicals which may pose an
immediate hazard to a community upon
release, it is not to be considered a list
of all chemicals which are hazardous
enough to require community emergency
response planning. There are tens of
Kinds of compounds and mixtures
In commerce in the United States, and in
specific circumstances, many of them
could be considered toxic or^otherwise
dangerous. The list published today
represents only • first step towards
development of an effective emergency
response planning effort at the
community level. Without a preliminary
|,sTof th.» kmd. it would be very difficult
for most communities to know where to
begin identification of potential
chemical hazards among the many
chemicals present in any locality.
Similarly, the threshold planning
quantities are not absolute levels above
which the extremely hazardous
substances are dangerous end below
*hich they pose no threat at all. Rather.
the threshold planning quantities are
intended to provide a "first cut (01
communitj emergency response
planners* here these extremely
hazardous substances art present. After
identification of facilities at which
extremely hazardous substances are
present in quantities greater than Uie
threshold planning quantities, the local
community will have the basis for
further analysis of the potential danger
posed by these facilities. Also, they will
be able to identify other facilities posing
potential chemical risks to the locality.
and develop contingency plans to
protect its citizens from releases ol
hazardous chemicals. Sections 311 and
312 of Title III provide a mechanism
through which a community will receive
Material Safety Data Sheets and otner
information on extremely hazardous
substances, as well aa many other
chemicala. from facilities which handle
them. A community can then assess and
initiate planning activities, if desirable.
for quantities below the threshold
planning quantity.
In addition to »he assistance provided
by the extremely hazardous substance
list and the threshold planning
quantities. M"*""^,«".r8'nc* .j.,.
response planners wul be farther aided
by the National Response Team s
proposed Hazardous Material!
Emergency ftamag Guide whichi is
required under section 30310 of Title ID.
This document will be available for
public review and comment in
December. A separate notice of
availability will be published in the
Fedwal Register at that time. The
outdance document will be
Xpolemented in 1987 with a technical
publica™ on developed by EPA to assist
local emergency planning committees in
the technical evaluation of potential
chemical hazards and the pnonnzanon
of sues
2. Responsibilities of Fscilities Under
Subtitle A
Subtitle A established several
notification responsible- far fac-.lr..-.
at which hazardous substi -.ie»
present or from which hazar c
substances are released F rst v
section 302. each facility * here am
extremely hazardous subna..ce is
present at any one time in a 3ufln •"•
equal to or above the threshold piar- -.
quantity established for that sunso-,:e
must notify the State emergence
response commission for the Su'.e -r.
which it is located.
This notification must be prov ided
within seven months after the er.ac:-*--
of SARA [May 17. 198?) or * ;:!s:r. W
days from the time that the fac.l." ITS:
becomes subiect to the notifica:icr.
requirements in section 302. whichever
is later.
Second, under section 303|d|. these
facilities must also designate s facility
representative who will participate in.
the local emergency planning effort as
facility emergency response coordinati
This designation must be made by
September 17. 1987 or 30 days after
establishment of the local emergenc)
response committee, whichever is
earlier. Section 303(d) also requires
facilities to provide the committee *j:
information relevant to develop™
implementation of the local emer?< .
response plan.
Section 304 requires notih - s?-
facility at which a hazardous cnenyca
is produced, used, or stored to the loc
planning committee and the State
emergency ««P°n«fommi"!!'nfRu£;
release of a reportable quantity (RQ)
any extremely hazardous substance
other hazardous substance 'denied
under CERCLA section 101(14) This
notification is required even if a
threshold planning quantity of a
Stance is not present at the fac,U:
Those extremely hazardous subs-aw
for which an RQ has not been
established under CERCLA are p e
RQ of Srpound under section 304 e
SARA. These RQ's will be adpjsted
ii^vSLi by EPA Section 304
requiresboth an immediate release
Xition to the local committee a
State commission and a follow-up i
;™d?ng additional information _«,
release, its impacts, and any acue..
taken in response.
Under section 325. failure to cctr.
with these responsibilities may res
dtitens may also bnng
many sections of the Act
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Federal Register / Vol. 51. So. 221 / Monday. November 17. 1966 / Rulei aad Regulations 41 r
3. Applicability
The emergency planning requirements
under section 302 are applicable to all
facilities which store, manufacture.
process, use. or otherwise handle et any
time an extremely hazardous substance
in an amount above the threshold
planning quantity established for that
substance in today's rule. Additionally.
after public notice and the opportunity
for comment, the Governor may
designate other facilities that will be
subiect to these regulations "Facility".
for the purposes of Title III. is defined as
"all buildings, equipment, structures.
and other stationary items which are
located on a single site or on contiguous
or sdiacent sites and which are owned
or operated by the same person (or by
any person which controls, is controlled
by. or under common control with, such
person)."
For purposes of emergency release
notification, under section 304 "facility"
is defined in section 329 to also include
transportation vessels or facilities
However, section 304 notification
requirements apply only to facilities at
Mhich hazardous chemicals are
produced, used, or stored and at which
there is a release of an extremely
hazardous substance or a CERCLA
hazardous substance.
4. Responsibilities of the Stales and
Local Communities Under Title 111.
Title ID also prescribes several
requirements with respect to emergency
planning for States and localities First.
under section 301(a) the Governor of
each State is to appoint, within six
months of the enactment of SARA. Apnl
17.1987. a State emergency response
commission or designate a state agency
to have this responsibility. Until the
Governor appoints such a commission
or state agency, responsibilities of the
Commission under Title in remain with
the Governor.
Section 301 (b) further provides that
the State emergency response
commission will be responsible for the
establishment of emergency planning
districts in which local emergency
planning committees will be formed.
One month after the emergency planning
districts art tttabliahed. the State
commission is responsible for
appointing the local emergency planning
committee*.
Under section 301(c) local emergency
planning committee* will have the initial
responsibility for establishing the
community emergency response plans
specified in section 303. and the ongoing
responsibility for updating, revising, and
exercising these plan*.
B. Lilt ofExtnmtly Haurdoui
Subttaacei and Thrnhoid Planning
Quatititiet
1 bst of Extremely Hazardous
Substancee
a Statutory Requirement- As stated
above, the list of extremely hazardous
substances is defined in section 302 to
be the "same as the list of substance*
published in November 1965 by the
Administrator in Appendix A of the
Chemical Emergency Preparedness
Program (CEPP) Interim Guidance.'*
Secnon 302 requires the EPA to publish
the list within 30 days of the enactment
of SARA.
One of the goals of the CEPP was to
increase community awareness of
chemical hazards, specifically acutely
toxic chemicals. To satisfy this goal, the
Agency developed the toxicity criteria to
assist communities in identifying acutely
toxic chemicals present in their midst.
Through identification of these
chemicals, communities could establish
priorities for developing comprehensive
emergency response plans. To further
assist the communities, the Agency
applied toxicity criteria to develop a
representative, but not exhaustive, list
of acutely toxic chemical*. It is this
representative list of 402 chemicals that
is presently designated in section 302 as
the list of extremely hazardous
substances.
The following sections diacuss the
criteria for identifying extremely
hazardous substance*.
b. Criteria for the Lift—I Basis for the
Criteria. Considering the large number
of chemicals in commerce and the
vanable nature of their individual
inherent acute toxiutie*. the Agency
assumed for the purposes of the CEPP.
.that It would be impractical for
communities to evaluate all of them. The
CEPP bat was also based on the
assumption that communities would
want to focus emergency planning
efforts on the most acutely toxic
chemicals rather than on nontoxic
chemicals or those exhibiting lesser
acute toxicity. In an attempt to direct
community planning efforts to these
chemicals which, because of their
Inherent acute toxicity. are most likely
to induce serious acute reactions
following short term axpoaura. the
Agency has specified selection criteria
that can be applied to toxicity data to
identify acutely toxic chemicals
(referred to at "extremely hazardous
substance*" under Title ID).
In defining the criteria, the Agency
had to identify the health effects of
concern and the data to be used.
Because there are very few human acute
toxicity data, the Agency elected to use
acute taddty data derived from
exptriatnt* with animals to infer
potential for acute toxic effects m
humans. The Agency assumed that
humans and animal* (mammals), on ih
average, are similar in intrinsic
susceptibility to toxic chemicals and
that animal data can be used as a
surrogate for human data. This
assumption forms one basic premise oi
modem toxicology and is s key
component in the regulation of toxic
chemicals.
The Agency chose to utilize data on
lethality because it represents the mos:
immediate concern in an emergenc)
situation. Additionally, such data can c
used aa a comparison among many
substance* whose mechanisms and s.u
of action may be markedly different.
Moreover, acute lethality data for ma.-.;.
chemicals are the most commonly
reported toxicity information and are
available in accessible databases.
Lethality data from animal toxicity test
are generally expressed as the median
lethal concentratioD (LCto) when the
substance has been administered by
inhalation or the median lethal dose
(LEU) when the substance has been
•dminiattred orally or dennally. These
data lapraaant doae levels or
concentrations of a chemical that
resulted In the daath of SO percent of tr
teat animals axpoaed at the indicated
COM level.
U. Criteria. The Agency sdopted the
specific criteria shown In Table l to
identify extremely hazardous
substance* that may present severe
health hazards to humans following
short tan exposure to chemicals danr.j
a ditmkf1 acodant or other emergent.
The selection criteria art only screenm:
tools to identify highly acutely toxic
chemicala. Under the** criteria, a
chemical is to be considered • poientia
acute human toxicant if animal test da;
in iay mammalian gpecies are identif c
with a value las* than or equal to that
stated for the LC* or ID* criteria for
any one of three exposure routes.
Extremely hazardous substances are
those defined with inhalation LQe
valuta of leu than or equal to 0.5
milUgnma par liter of air. dermal LD-.o
value* of to* than or equal to 90
milligram per kilogram of body weigh'
or oral LDb valuta of leaa than or equa'
to 25 milligram* par kilogram of body
weight. Tht specific value* chosen are
reeognixtd by the scientific commum:>
a* Indicating a high potential for actuu
toxicity, and chemical* hutting the
toxicity critana art considered potent!
hazard*.
-------
41574 Federal Repitar / Vol. 51. No. 221 / Monday. November 17. 1966 / Rulei and Regulations
TABU i-Cwnw* To IOCMTWV Aeumr Toxic CMCMCMJ TM»T Uav I
HCM.TM HAZARDS TO HUMANS EXPOSCO DUMNO A CMEMCAL AcoDBfT an Oneai I
The primary route of exposure with
which the Agency » concerned n
inhalation. In using data on oral and
dermal acute lethality to infer concern
about inhalation toxicity. the Agency
was not as much concerned with these
specific routes of exposure in humans as
with identifying compounds with
inherent high potential for acute
toxicity.
Even with the amount of animal data
that are available, there exist chemicals
for which there an no standard acute
toxicity test data. In those cases when
toxicity testing has not determined an
LDx or LCw. the Agency selected an
alternative measure of acute toxicity:
The lowest dose or concentration at
which some animals died following
exposure (LDu or LCu). These values
may be more vanable than those
provided from median lethality tests, but
for the purposes of screening large
numbers of chemicals, it was deemed
necessary to provide a second level
screening tool in preference to missing
potentially toxic chemicals because they
were not adequately tested.
The Agency chose to use data from
the most sensitive mammalian species
instead of data from only one specific
species because at present it is not
possible to predict which species is the
appropriate surrogate for humans for a
given chemical.
Acute inhalation toxicity testing
depends upon the concentration of the
chemical IB air and the duration of the
exposure period*. Because of this. LCm
and LCu valuta for • chemical may
vary depending upon how long the
animals were axpoaad to the substance.
The Agency chose also to make
maximum uae of available acute toxicity
data to screen for acutely toxic
chemicals and. therefore, chose to use
LCw and LCto values with exposure
periods up to 8 hours or with no
reported exposure period. The Agency
recognizes that this may be a
conservative approach.
The screening criteria selected by the
Agency are basically consistent with
internationally accepted criteria used by
both the European Economic
Community and the World Bank.
However, the Agency has adopted •
more conservative approach by
modifying the selection criteria in three
ways:
1. Lethality data are not limited to
data on rats, but include deta on the
most sensitive mammalian spedes
tested:
2. LCH data with inhalation exposure
penods up to 6 hours ere mended as
compared to using only data from 4 hour
exposure tests: and
3. LDto and LCu data are uaed when
LDk* or LCn data are unavailable.
lii. Application of the Criteria. The
screening criteria can be applied to any
experimental data or data base on
chemical substances that tadodet ante
animal toxicity data. The Agency
applied the criteria to a apaUfk toxicity
data basai the fiaysiay afTtatie Bffecti
ef Chtmical SuDsaance* (RTKSj.
maintained by the National Institute of
Occupational Safe*? and Health
(NIOSH). The RTBCS data base was
used aa the principal souita) of Umk.ity
data for Identifying acutely toxic
moat comprehensive repository of acute
toxidty information available wttfa basic
toxicity tnronuttoo aad other data on
matt than TBuOOO ohontoak. ft to widely
accepted and used aa a toxidty data
source by industry aad leajajatery
agencies alike. Altheajgjh RTEC8 la net
lonneuy peeweviewecL use CJB&B
presented en from ertentlftr Him etuis
which has been edited byafraiaeiiune
community ocfofet ^rouciQOiX Toe)
Agency recognises the Umltattoa
associated with the lack of aaas lauliiw.
but for the purpoeee of artesnlBi acute
toxidty data. RTBCSlajpraeaats use
In addition, the Agency aalaclad only
those cfaeateala considered to be a
current production by reviewing the
noo-confidendal 1077 Toxic Substances
Control Act (TSCA1 Inventory and the
current EPA list of active paetidds
ingredients. The TSCA UiteuUay Is a
listing of chemicals In production at the
time the Inventory wai compiled.
Chemicals entering commerce sincr 19
through the Premaaufactunng Noi—
fPMN) review process under Sect
TSCA also were screened for scuu
texicity data and compared v
criteria for possible inclusion ' <
Radioactive materials and c
substances in research and develop .<
stages, aa well as those manufactured
processed, or distributed in comme-ce
for use as food additives, drugs, cr
cosmetics are not listed in the TSCA
inventory and hence, were not
considered. If research chemicals thai
meet the criteria are produced for
commercial use under TSCA or for
peauode uae under the Federal
InaectJoda. Fungicide, and Roder.:ic:de
Act (FIFRA). EPA will identif) such
chemicals through its PMN review
program or pesticide registration
program and list them under section 30
in furore rulemakings. The Agency
solidta comments concerning the
addition of chemicals in food, drugs.
cosmetics aad radioactive materials to
the list of extremely hazardous
iv. Other Toxic Chemicals. Chemica
with ante lethality values not mee'.mj
the criteria values discussed in the
previous section an not necessarily
safe. In fact many may be toxic to
humans aad may represent hazards "*
the conosanity in accidental relear
situations. The Agency idenf' ' < .
of these potentially toxic di
using criteria baser! on facto as
high production volume, acute icinalry
and known risk, aa indicated by the fa
that these chemicals have caused deal
and injury in accidents.
c. U*t af«a Chmteoh: Application
of the criteria discussed above to the
RTECS data base and subsequent
review of the TSCA Inventory and the
FIFRA active pesticide Ingredient list
led to the Identification of 378
chemicals. In addition, one chemical
meeting tha toxidty criteria was
identified boa the Premsnufscture
Notes. Twenty-three additional
identified as potentiall
aasardoaa. using the criteria described
above far "other toxic chemicals". The
«4Min«^|t nut added to the list on tr
basis of toxicHy. high production
volume, and known risk. The list of 4C
extremely hazardous substances is set
forth in Appendices D and E.
Tha Agency recognizes that the
criteria aaad to establish the extreme!
haaardooa frl"""" list address only
ledwlhy, and do not account (or all
effects that stay be aaaodatad with
acute exposure to chemicals. Cnttn*
an being considered for other heal
-------
Federal Register / Vol. 51. No. 221 / Monday, November 17. 1986 / Rules and Regulations
41'
effects after acute expoiurai to toxic
chemical*. In addition, lection 302
requires we Agency to also consider
long-term health effect* resulting from
short-term exposure* to these chemicals.
The Agency does not presently have
sufficient data on such effects and
requests data from commenten on
chronic effects from short-ierm
exposures and comments on how these
effects should be incorporated into
criteria for revisions to the list The
Agency also requests any other
comments on the appropriate cnteria for
additions to or deletions from the list.
A companion proposed rule published
elsewhere in today s Federal Register.
specifically proposes the addition and
deletion of certain substances from
Appendices 0 and E.
2. Threshold Planning Quantities
A Statutory Requirement Under
section 302 the Agency is required to
develop threshold planning quantities
for each of the 402 chemicals on the list
of extremely hazardous substances and
publish intenm final quantities
simultaneously with publication of the
list. The threshold planning quantity is
used to trigger reporting by facilities to
the Slate emergency response
commission. Any facility that has one or
more of the chemicals on the list of
extremely hazardous substances in
quantities equal to or greater than the
threshold planning quantity must
provide notification to Slate emergency
response commissions by Apnl 17.1967.
Section 302 specifier that the planning
quantities may be based upon classes or
categories of chemicals If the Agency
fails to develop threshold planning
quantities for the chemicals on the
extremely hazardous substances list, a
quantity of two pounds is automatically
established for each chemical.
6. Development of Threshold Planning
Quantities: For many substances the
potential for a aenous accidental release
resulting from an on-site quantity of two
pounda la extremely remote. Therefore.
threshold planning quantities of two
pounds for all of the extremely
hazardous chemical* could result in
many unnecessary notifications.
diverting the attention of emergency
planner* from facilities which may be of
higher concern
Because the Agency believes that the
two pound threshold planning quantity
for all 402 substances would overwhelm
local emergency planning efforts and
would not nine to the endangerment
posed by individual aubstances. it ia
today establishing threshold planning
quantities in lira of the statutory level.
the threshold planning quantities are
designed to help State and local officials
identify those sites where then is •
greater potential for harm to the
surrounding community if a release
were to occur, thereby focusing
resources on the priority emergency
planning problems.
c. Methodology The Agency
considered four alternative approaches
for development of the threshold
planning quantities:
Approach 1. Specific Quantity
Prediction. Under this approach the
Agency would determine the specific
quantity of each chemical that if
accidentally released, would result in
significant acute health effects at a fixed
distance from the release site.
Approach 2. Dispenion/Toxicity
Ranking Method. Under this approach
the Agency would assign chemicals to
threshold planning quantity categories
based on an index that accounts for the
toxicity. the potential to become
airborne, and the downwind dispersion
of each chemical in an accidental
release.
Approach 3. Toxicity Ranking
Method. Under this alternative the
Agency would assign categories of
threshold planning quantities based
solely on a toxicity index.
Approach 4. Two Pound Quantity for
All Chemicals. Under this option. the
default quantity of two (2) pounda would
be used.
After considerable analysis, the
Agency baa chosen to develop threshold
planning quantities using Approach 2.
The methodology used in each approach
is presented below along with a
discussion of die approach** and the
reasons why the Agency believes
Approach 2 ia the moat appropriate for
establishing threshold planning
quantities. For detaila on the
methodologies employed, refer to the
Threshold Planning Quantities
Technical Support Document, which la
available in the public docket for this
rule. Comments an solicited on the
various approachea and the
methodologies. Information en
alternative approachea also ia being
sought by the Agency for consideration
in the development of a revtaed final
rule.
Methodology for Approach 1—Specific
Quantity Prediction
The methodology for this approach ia
denved bom the aiteapeoflc guidance
developed for the CBPP Interim
Guidance. The methodology consists of
initially determining a maximum short-
term exposure concentration level in air
("level of concern") for each chemical
that would not lead to serious health
effects. The quantity of each chemical
that would have to be released to the air
to reach the "level of concern" is
estimated using techniques for
atmospheric dispersion and assessing
physical/chemical properties.
This approach is a complex process
designed to provide a t peciflc threihc
planning quantity for e ich of the 40:
extremely hazardous s instances Th s
section discusses the derivation of
levels of concern, assumptions.
concerning distance and release
circumstances, and the dispersion
modeling techniques used in the
development of the threshold plar..—z
quantities under this approach.
To perform this analysis a level cr
concern must be selected for each
chemical, a representative distance '-
the release site to the exposed
population oust be determined, and -
conditions and modeling techniques' •
release and dispersion must be selec'..
for each chemical.
A level of concern was considered 'o
be the maximum concentration of an
extremely hazardous substance in a:r
that will not cause serous irreversible
health effects in the general population
when exposed to the substance for
relatively abort duration. At present r<
such exposure levels have been
established specifically for the general
public. The National Academy of
Science* and others have been
developing guidelines for estimating
such lairela for toxic chemicals.
However, at this tune, values for onlv a
few chemicals have been established
In lieu of a value developed for the
general public, the Agency has
identified e surrogate measure of such
an exposure level This approximation
the Immediately Dangerous to Life and
Health (BLH) level which is available
for 82 of the chemicals on the list of
extremely hazardous substances. Th.s
level established by the National
Inatitata for Occupational Safety and
Health (NIOSH) represents the
iceatration of a substance
in air to which a healthy worker can be
exposed for 90 minutes end escape
without suffering irreversible health
effects or Impairing symptoms.
The Aftncy recognnes that the IDU
may have come limitations as a mease:
for protecting the general population.
Pint the DLH ia baaed upon the
response of a healthy, male worker
population and does not take into
account expoann of men sensitive
indrviduala such as the elderly. childrc<
or people with various health problems
Second, the fDLH to baaed upon a
•••iuMflf. 30 minute exposure period
which may not be nalistic for
accidental airborne releases. Third, the
BLH may not indicate the
-------
41578 Fad«r«l Regale* / Vol. 51. No. 221 /'Monday. November 17. 1986 / Rules and Regulations
concentration thit could mult in
•enoui but nvcnible injury. Bated en
theu considerations, the development
of more appropriate chemical emergency
exposure levelf for the generaJ public
hat been identified aa e high priority for
the Agency.
However, the IDLH value, or an
estimation of thu vaJue for lubitancea
that do not have a published IDLH.
appears at present to be the best
approximation of a level of concern
available for planning purposes. IDLH
values for those substances with
published values were used in the
calculations for establishing threshold
planning quantities.
Levels of concern wen estimated
from acute animal toxicity test data for
the substance* that did not have
published IDLH values.
In these instances, the concentration
used to establish threshold planning
quantities is determined from -^V LCva»
LDi*. or LD|* data. The following
equations show how these data an
converted to air concentrations to
approximate the IDLH level: (1)
Estimated level of concern - LCu x
01: (2) estimated level of concern •
LCu>: (3) estimated level of concern •
LD» x 0.01: and (4) estimated level of
concern • LDu> x 0.1. As new
information and methodologies become
available in the future, the level of
concern and the value derived for
chemicals on the lilt should be re*
evaluated,
A second critical input to the analysis
is the distance from the source of the
release to the exposed population. For
the purpose* of establishing planning
quantities, the Agency chose a distance
of 100 meters (330 feet) to represent the
distance from a source inside a chemical
facility to the point where the
community might be exposed. The
Agency believes that this distance it
representative of the point at which the
community might first be impacted for
most situations. The Agency recognizes
that it may be shorter than that found at
large manufacturing facilities.
(particularly those that also have a
"buffer zone") or farther than that found
at facilities located within urban
centers. For example an informal
survey of chemical facilities in the
Kanawha Valley (West Virginia) by the
National Institute for Chemical Studies
in Charleston, West Virginia, showed
that the distances between storage
vessels and residential housing may be
as dost u 25 feet (Meyer. 1906).
However, there an limitations
associated with atmospheric dispersion
modeling techniques et distances less
than 100 meters. Additionally, the
Netherlands Safety Report Legislation
indicate! that releases that travel more
than 100 meter* an judged to be major
accidents (Van Depone. 1982).
Once the level of concern for each
chemical was determined and a fixed
distance was established, ejepertion
modeling techniques were used to
calculate the quantity of airborne
chemical required to generate the level
of concern at 100 meters. Although
technique* have long been available and
used to address air pollution and
nuclear fallout the uses of dispersion
modeling techniques to simulate the
behavior of chemicals released under
accidental conditions for very short time
spans are largely soil under
development. The Agency's comparison
of the several available dispersion
modeling techniques is described in the
Threshold Planning Quantities
Technical Support Dnruniaut available
in the public docket far this rule.
A third critical aspect m mat
development of the sjiajianrinanp ss the
of the chemical Aa aeaiieeaal reaeaee
could be caused by a manner of events
such as a process upset (a*, renawey
reactions, tempentun or pnasete
excursions leading to release).
equipment failures (such a* pipe rupture.
equipment seal failure, valve leaks).
handling accidents (Mich as overfilling
containers and puncturing drum* with a
fqrkiift). or fins and explosion* that
affect nearby container*
vessels of toxic
r storage
k The release
scenario generally determines the nature
of the emission sow tie end suuiue
strength which are critical to the
dispersion consequence*. Therefore
analysis of potential raleeee scenarios in
complex and critical to the outcome.
The chemicals on the hat were
segregated by ambient physical state
and grouped as gas. Unrnd or solid.
Cases aad liquids represent about half
of the 402 chemicals on the list the
remainder are solids, m analysing the
chemicals released i
developed as folia
assumed to be i
such that if a leak i
upset occurred, a relief vahre would
open or a rupture would occur, causing a
gas jet to be released. Liquids wen
assumed to be spilled on the ground at
ambient conditions and allowed to
volatilixe. Liquified eases wen also
evaluated. Because neither of the two
release scenarios above en appropriate
for solids unless the solids an haacUad
in molten or vaporised state, solids wen
assumed to be dispersed in powered
form aa aa aerosol by some mechanical
means (e.g. filtration unit failure, dust
explosion, or other explosion) because
this represents a more realistic
emergency reheat scenario. The
sublimation of a solid u a result of«
spill was considered and reiected
because volatilization of solids n
slow that it doe* not prevent r
emergency release hazard.
Advantages and Limitation* o.
Approach 1
Approach 1 was designed to
determine e specific individual quar-.:
for each chemical for purposes of
emergency planning. The quantities
calculated using this approach ranged
from below one pound (for certa-.r:
extremely toxic geees) to millions of
pounds (for reletively involatile
substances). The appirent ngor of the
methodology, however, is somewhat
misleading due to the uncertainty m :!•
level of concern (IDLH). the release
scenarios selected, the source s'.re-.B"i
inputa. and the ability to model both :h
release and dispersion. Also, most
dispersion techniques are compatible
with only a baited number of the mar;
potential release events that could
occur, the Agency has no data to show
•*"••• **"— —- * resent typical
I with the modeling
i wide variations
the results, m the case of gases.
variations of aeraral orders of
magnitude an possible depending r
the pressure at which the gas i* «'oi
sixe of the release opening, d >nd
velocity of the escaping gas.
accidental release is an extm>...,
dynamic event. The dynamics
associated with actidenul releases are
not considered in this analysis since
little Information is available for the
potential release conditaona ukel> for
the chemical* an the list
Finally, even if the Agency was fully
cmnfident of the nlease scenario.
emiseion source modeling and
a number of key
i m die analysis are site-
specific. These parameters include the
distance bom the source to the
community or fenceline. the wsy in
which the rheniral is actually handled
at the facility (ej. at Hgh temperatures
and pleasures, refrigerated, etc.). the
•mmtiBiaiy of the ana around the site.
and prevailing meteorological condition
which can canes wide variation in the
dispersion of airborne chemicals. In the
i of a vabd empirical da la base.
l make sssumptions
•mabie-or-credible"
characteristic! of these site-epecific
factors. These assumptions an
influenced by modeling capabilities as
well aa general knowledge of ehemic
manufactnring and processing
-------
Federal Register / Vol. 51. No. 221 / Monday. November 17. 1986 / Rulei and Regulation! 415~
operations and greatly affect the
•ccuncyefiMulu.
For these nasone: thi Agency hai not
uied this approach to establish the
threihold planning quantities u today'i
rule. However, became the eelected
methodology (Approach 2} reliee on
Approach 1 technical analyses, the
Agency seeks comments end
suggestions on the methodology used
here for revision pnor to issuance of a
reviied final rule.
Approach 2—Diapenion/Toxicity
Ranking Method
The methodology for thu approach
makei uie of the lane technical
analyses uied in Approach 1 but usei
them only to produce a ranking of the
chemicals according to their potential to
become airborne, dispersion potential
and lexicological properties. This
approach provides a bans for relative
measures of concern rather than
absolute values. Under Approach 2. the
levels of concern are used as an index of
toxicity. and physical state and
volatility are used to assess their
dispersion potential The two indices are
combined to produce an overall risk
score or "ranking factor" Once the
chemicals have been ranked, categories
of quantity are assigned based on their
relative ranking. The lowest rank
(highest nsk) are assigned low
quantities and the highest rank (lowest
nsk) are assigned higher quantities.
To achieve this, the list of chemicals ia
again segregated by ambient physical
state such as gas. liquid or solid. An
index value is obtained by assuming
that the level of concern is divided by .
the factor V. which represents the extent
to which the material can become
airborne and dispersed
Index -Level of Concern/V
where V ia the extent to which the
chemical can become airborne. V'ia
assumed to be 1 for chemicals that are
gaseous at ambient conditions and for
solids in powder form (e.g.. flour, talc).
that is. in an accidental release all of the
chemical could become airborne. For
liquids. V represents the extent of
volatilization of • spilled quantity of
liquid and is estimated by knowing the
chemical's molecular weight and vapor
pressure. See Attachment 1 at the end of
this preamble for a derivation of the
equations used to estimate V.
Once all the chemicals have been
ranked, quantities are assigned to
groups of chemicals on the list. In the
Agency's evaluation of all of the
chemicals, only nickel carbonyl is
assigned a quantity of "any amount"
and must be reported in any quantity
because of its extremely high acute
toxicity. Other cbamicaJj with a low
index factor, bated on the Agency's
technical review, an assigned a
quantity of two pounds, the default
quantity given by the Congress. With the
exception of nickel carbonyl. It Is
believed that the two-pound quantity
represents a reasonable lower unit for
the moat extremely hazardous
substances on the list Chemicals with
the highest index factors (or rank) were
assigned a threshold planning quantity
of 10.000 pounds. This ensures that any
facility with as much as a tank wegon or
truck loed of any extremely hazardous
substances would be required to notify
the State commission. Between the
limits of two pounds and 10.000 pounds.
chemicals were assigned to intermediate
categones of 100.900 or 1,000 pounds
based on order of magnitude ranges in
the index values. The selection of the
intermediate categories was based on
standard container sues between two
and 10.000 pounds. In summary, the
allocations were as follows:
Index value:
>10-'to
>10-'lo <
>1 to <10
Advantages and limitations of
Approach 2
The methods utilized In conatrucuag
the exposure and toxioty indices for
Approach 2 are based upon, and
therefore share the limitations of the
methodologies utilized In Approach 1. In
particular. NIOSHs DLH or the
Agency's estimated level of concern ia
an imperfect measure or an
approximation of acute toxicity for
emergency release situations involving
the general public. In addition, us)
dispersion index ia baaed upon ipedflc
release event assumptions. Changes in
such assumptions could load to changes
In the rankings to a certain degree.
Nevertheless, the Agency believe* that
this approach provides • consistent
relative ranking of the extremely
hazardous substance*.
The selection of the particular cutoff
valuea for the quantities ia baaed wholly
on the relative ranking among all of the
substances on the liat SUMS) this 1s a
relative ranking schema, man ia no
precision associated with the numbers
end they should not bo construed aa
"safe" levels. Because the Agency
cannot evaluate every release scenario.
it is possible that a ssnous event could
r with any quantity lower than the
threshold planning quantity given by
this approach. Conversely, some
chemicals may be unlikely to cause
senoua events even at quantities
significantly above their thresholds.
However, the Agency believes thai :h-j
approach yields threshold planning
quantities which will focus initial
community planning on those situations
which present the greatest nsk.
Methodology for Approach 3—Tox:c::y
Ranking Method
This approach is similar to Approach
2 except that the chemicals on the list c'
extremely hazardous substances are
ranked using only their level of concern
as an index. Aa in Approach 2. the
chemicals an assigned quantities
ranging from any quantity for nickel
carbonyl to 10.000 pounds with
intermediate categories of 100. 500 and
1.000 pounds based upon a ranking of
level of concern valuea.
Advantage* and Limitations of
Approach 3
By Ignoring the potential for the
chemical to become airborne, this
approach simplifies the analysis but it
may alao distort local planning
priorities. Although the Agency cannot
aaaaaa all of the ways In which releases
can occur, tt to clear that physical state
and vapor pressure greatly influence
how much of the chemical actually gets
into the air. Therefore, the Agency
believes that consideration of the
potential should be included in the
development of a threshold planning
quantify.
Approach 4—Default to 2 Pounds
Under thia approach. EPA could take
no action and allow the statutory
thresholds to become effective.
Advantage* and Limitations of
Approach 4
A two pound quantity for each
chemical ia aimpla and straight-forward
and ensures notification by facilities
handling those «^»*"«iff !• that are
deemed extremely hazardous in nature.
However, it again Ignores the potential
for the g^*"!^1 to actually become
airborne, distorts local planning
prioritie* and may cause local planning
authorities to bo overburdened by
unnecessary notifications.
The Agency believee that Approach 2
is moat appropriate for development of
the threshold p'**"1*"! quantities
because the quantities developed
depend primarily on the toxicity of the
chemical (level of concern) and degree
-------
41578 Federal Register / Voi- 51. No. Z21 / Monday, November 17. 1966 / Rules tad Regulations
to which the chemical will become
airborne: faclon which are very
-.mportant in-deciding which chemicals
are the most important from an
emergency planning standpoint. The
potential for the chemicals to become
airborne ii not considered in Approach
3. Although Approach 1 also addresses
these factors, the apparent rigor of this
methodology is not supported by the
uncertainty of the assumptions and the
models which must be applied.
Therefore, the planning quantities
derived from Approach l suggest a level
of accuracy or precision that cannot
reasonably be relied upon.
Technical support documents, which
contain additional information on the
approaches presented here and the
outcome of applying the'approaches, are
available in the public docket. A list of
these documents is set forth in
Attachment II. Approach I provides a
much broader range (from less than one
pound to over one million pounds.
depending upon the assumptions and
models used) than the other approaches.
The Threshold Planning Quantity
Technical Support Document includes
the results of applying Approach 1. using
varying release scenarios and
assumptions, for a representative group
of chemicals. Approaches 2 and 3 result
in a narrower range, with five planning
quantity categories, and "any quantity"
planning quantity for nickel carbonyl.
Of these two latter approaches, only
Approach 2 considers the degree to
which the chemical will become
airborne.
The Agency believes that limited
State and local resources should be
focused on those substances that
potentially will cause the greatest harm
should an accidental release occur. The
quantities developed in Approach 2
meet the objective such that those that
are most likely to cause serious
problems (extremely toxic gases, solids
likely to be readily dispersed, or highly
volatile liquids) have lower quantities
that those thai might be toxic but are not
likely to be released to the air.
The Agency applied the ranking
methodology described in Approach 2 to
the 402 extremely hazardous substances.
Recognizing that a strictly mechanical
application of this approach could Lead
to errors based OR specific
characteristics of individual chemicals.
the Agency then subjected each
chemical to a limited additional review
to evaluate the technical reasonableness
of the assignments. The threshold
planning quantity allocations
determined by the ranking methodology
were examined and where appropriate
changes to higher or lower threshold
classifications wen made based upon
other loxicity data, rapid absorption
chemical reactivity, specific handling.
formulation, and use considerations and
related factors. For example, sann and
tabun. which were assigned to the 100
pound category by the methodology
applied, were assigned to the two pound
category because information on their
toxicity suggested that they may be even
more toxic under conditions of an
accidental release than is indicated by
the estimated level of concern. Thirty
chemicals were reassigned based on this
review. The rationale for each such
decision is being included in the public
docket for this rulemaking. Finally ont
chemical, nickel carbonyL had a ranking
value so low the Agency decided that
any quantity could be a potential
problem. The threshold for this chemical
was therefore set at "any quantity".
Further, in the case of Approach 2. it
was decided that if a chemical in solid
form is not handled or stored as a
powder at a site and it is not reactive °
with air or water to become airborne or
to form airborne toxic products or by-
products (e.g., sodium cyanide), than it
would be assigned a quantity of 10.000
Ib. Although the Agency cannot identify
which chemicals are stored or handled
in powder form, it has identified IS
substances that are reactive with water
or air which cannot be assigned a
threshold planning quantity of 10.000
pounds regardless of their physical form.
These substances are identified in the
list of extremely hazardous substances
and are discussed in the Technical
Support Document on Raactve Solids.
which is available in the public docket
for this rule. The Agency solicits
comments on whether nonreactive
solids not bandied as a powder should
be deleted from the bat of extremely
hazardous substances, instead of
assigning a default value of 10.000
pounds.
Many of the extremely hazardous
chemicals an transported, used and
stored in formulated products, which
contain mixtures of chemicals. The
potential hazard associated with
extremely hazardous chemicals in
mixtures depends on the concentration
of the material as well as many factors
specific to the composition of the
formulations. The Agency has noted in
the threshold planning quantities list
one ease where it believes that common
commercial formulations should not be
considered for the purpose of
notification under this regulation. In the
case of hydrogen peroxide, the Agency
does not believe that there is cause for
concern with aqueous concentrations of
equal to or less than 52 percent and
designates this exception on the
.extremely hazardous sabstancea
Agency solicits comments OT> •">>
concept which is discussed
detail in the technical docunw...
addresses response to puw' - cor
on the CEPP intend gt i<
In all other cases, ar.d ..
of more specific infonr ation. u.*
believes that matures of formuli
containing one (1) percent or mo>
extremely hazardous substance ;
be evaluated for notification pun
This means a mixture containing
than l* of an extremely hazards
substance need not be factored it
calculation of the threshold plan:
quantity. The rationale for the i»
the low probability of the releast
such a mixture delivering the thrs
planning quantity of the extremei
hazardous substance to the
environment OSHA has selected
cutoff value of its Hazard
Communication Rule (29 CFR T9(x
for all hazards except carcinogen:
in evaluating whether to notify
mixtures, facility owners or open
should compare the appropriate
threshold quantity with the weigt
extremely hazardous substance u
mixture. For example, if the thres
for a given chemical on the list is
pounds and that chemical is 20 pc
by weight of a mixture, notifies":
would be necessary if 500 poi
more of that mixture is presen ,
facility. Note, however. •' >o su
deminunis exemption ex jr
emergency release reporting unde
section 304.
The Agency seeks comments or
methodology chosen to determine
threshold planning quantities.
Specifically, the Agency seeks
comments on:
—Whether the ranking methodulo
selected (Approach 2} is appro?
for the categorization of the ett
hazardous substances by thresh
quantity, and if not which other
approach might be preferable a.-
why.
—Whether the specific toxicity an
exposure indices, the IDLH (or
calculated level of concern], anc,
respectively, chosen are approp'
for constructing the index.
—Whether the Agency has set the
threshold planning quantities fo
extremely hazardous chemicals f
(ranging from any to 10.000 pour
too high or too tow in order to p
state and local planning authon
the information with which to
effectively begin their emerge—]
planning activities.
-------
Federal Reyiter / Vol. 51. No. 221 / Monday. November 17. 1986 / Rulei and Regulation*
413:
—Whether it ii appropriate to establish
a percentage below which extremely
hazardous componenis of mixtures do
not have to be considered and. if so.
whether one percent or some other
percentage is an appropriate cutoff
level
—Whether the chemical specific
quantity adjustments to the
determinations made under Approach
2 properly considered the individual
characteristics of the adjusted
chemicals, and whether other
chemicals on the list also require
quantity adjustments.
—Whether assigning threshold planning
quantities of 10.000 pounds to non-
powder, non-reactive solids
adequately addresses concerns for
these matenals.
—Whether it is appropriate not to
consider certain common commercial
formulations for purposes of
notification under this regulation and
whether the designated reporting limit
of greater than 52 percent aqueous
hydrogen peroxide is appropriate
C. Statutory Requirement of Inte'im
Final Rulemaking and Solicitation of
Public Comment
Section 302 of Title III of SARA
requires the Administrator to publish a
list of extremely hazardous substances
within 30 days of enactment The initial
list is required to be the same as the list
of substances published in November.
1965 by the Administrator in Appendix
A of the Chemical Preparedness
Program Interim Guidance. In addition.
section 302 specifically requires the
Administrator to publish interim final
regulations establishing a threshold
planning quantity for each substance on
the list and to initiate a rulemakmg to
revise these threshold planning
quantities. Failure to establish the
threshold planning quantities results in
statutorily established threshold
planning quantities of two pounds.
Although this rule is statutonly
required to be effective immediately, the
Agency is alao. soliciting comment on all
aspects of today's rale. In a companion
proposed rule published elsewhere in
today's Fadaml Rtftetar. the Agency is
specifically initiating a rulemaking to
revise today's rait as appropriate in
response to public comment.
In addition, cenam portions of today's
rule have previously received the benefit
of public scrutiny and comment. At the
time the liat of 402 extremely hazardous
substance* was first published by the
Agency, it was part of a voluntary
program to encourage localities to begin
tht process of planning for chemical
contmgenciee occurring in their
communities. Appendix A of the
Chemical Emergency Preparedness
Program Interim Guidance document
was made public in November. 1985.
That guidance identified those
substances for which it was not enough
to merely focus attention on cleanup of
releases Rather, because these
substances, upon release, posed
immediate and senous threats to the
surrounding community, emergency
planning and release prevention was
necessary for effecnve protection of
human health and the environment.
At the tune of publication, comments
were requested on the methodology for
establishing the CEPP list. EPA received
comments on the toxiaty data used for
specific chemicals, and revision* baaed
on those comment* are discussed in
section U.B.2.C. above. A summary of
these comments and the Agency's
response has been incorporated into the
public docket for this rule.
Today we are requesting comments on
all aspects of this rule and are
specifically soliciting comments on the
criteria for establishing the extremely
hazardous substance list, the threshold
planning quantities and the
methodologies for establishment of the
quantities.
Comments must be submitted within
45 days of the publication of this
regulation in the Federal Register. Upon
completion of the 45 day comment
penod. the threshold planning quantities
and supporting regulation* will be
finalized in a subsequent final rule as
required by section 302. using the
comments received a* guidance in
revision of this interim final rule. The
comment penod Is shorter than that
provided for many Agency rule*, but is
essential in order to allow a final rule to
be published before May 17.1987. when
facility notifications arc due.
III. Rab
ip to CERCLA
A. Relationthip of Title 111 to CERCLA
Title III i* a free-standing Title within
SARA and thus is eeparate from, though
closely related to. CERCLA. Because the
Agency's CEPP effort wa* developed
originally under CERCLA and because
Title III emergency response and
planning art closely linked to the
hazardous substance release response
program under CERCLA. tht authorities
and requirements craattd by Title III
will be largely lacorporatad into the
existing National Contingency Plan.
established under CERCLA aeetion IDS.
B. Relationthip of Thit Rulemabing to
the National Contingency Plan
This rulemaking i* a new Subpart I
within the existing National Oil and
Hazardoua Substances Pollution
Contingency Plan (NCP) (40 CFR 300,'
Tht NCP provides for an efficient.
coordinated and effective response :o
discharges of oil and releases of
hazardoua substances, pollutants and
contaminants in accordance with ih?
authorities of CERCLA and lectior. r.i
of the Clean Water Act. The NCP
establishes the national organiza-.:.-
policy and procedures for prepare =.-c-
and response to environmental
incident*. The Agenc> is now m -•
process of developing a rulemak.r: •-
comprehensively revise the NCP 'o
incorporate other changes under 5AR -.
and will evaluate placement of T/.ie i.1.
rule*.
C. Rflationihip ofthii Rule to CEf.CL1
Section 103 Reporting Requireme.-.:s
Under section 103 of CERCLA a.-v
person in charge of a facility at *r.icu
there is a release of a hazardous
substance as defined in CERCLA sec:,.c
101(14} equal to or in excess of us
reportable quantity must report
immediately to the National Response
Center. Tht National Response Center
will them altrt the appropriate federal
emergeacy response personnel of the
re!****. Thi* notification includes
transportation Incidents as well as fixe:
facility emergencies.
The notification to the Slate
emergency moons* commission under
•action SOS i* not triggered by a release
inodeat but rather by the presence of
certain quantities an extremely
hazardoua aubatancc at a facility No
release or event of any kind is required
for a section 302 report. This notified-. ?-.
Is an initial action in a process that
culminate* la tht development of
community emergency response plans
Section 304 in contrast, establishes
reporting requirements similar to
CERCLA Section 103 release report.rg
Howejw. inataad of requiring
notification only to the National
Response Canter when certain
quantities of certain chemicals are
released, facilities must under se::.:r.
304 auto notify State and local
emergency response officials of these
releaeaa.
A comparison of the reportable
quantititt established by the Agenc>
under CERCLA for the purposes of
emergency response with the threshold
planning quantities in today's rule
indicates that tht quantities established
under thaw list* are not entirely
comparable, b fact 26 adjusted
reportable quantities were higher than
the threshold planning quantities for the
•ame extremely hazardous substance
A* a mult, emergency planning would
be required for an amount on the plan
-------
41580 Federal Register / Vol. 51. No. 221 / Monday. November 17. 1986 / Rulei and Regulations
site which, if entirely released, would
not require a reporting to the National
Response Center or to the Stale
commission. This has occurred as a
result of the use of two different
approaches for establishing reportable
quantities and threshold planning
quantities Unlike CERCLA reportable
quantities, the threshold pFar..-.:rig
quantities are based upon exposure
potential. CERCLA reporable quantities
are based solely on the intrinsic
chemical and physical properties or
toxicity. of a hazardous substance
Dunng rulemakings to revise the final
rule and to adjust reportable quantities
under CERCLA and Title III. the Agency
intends to evaluate and address, as
appropriate, inconsistencies between
the two methodologies, the underlying
data base of each, and the resulting
quantities.
IV. Regulatory Analyses
A. Regulatory Impact Analysis
Rulemakmg protocol under Executive
Order 12291 requires that regulations be
classified as "maior" or "non-major" for
purposes of review by the Office of
Management and Budget. According to
E. 0.12291. major rules are regulations
that are likely to result in (1) An annual
adverse (cost) effect on the economy of
$100 million. (2) a major increase in
costs or prices for consumers, individual
industries, federal, state, or local
government or geographical regions, or
(3) significant advene effects on
competition, employment, investment.
productivity, innovation, or the ability of
United Stales based enterprises in
domestic or export markets.
Because this rule was required by
statute to be published in 30 days no
further economic or regulatory impact
analysis could be conducted by the
Agency prior to the publication of this
intenm final rule. However, analyses of
economic and regulatory impact will be
completed for the revised final rule.
B Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980
requires that an analysis be performed
for all rules that are likely to have a
"significant impact en a substantial
number of small entities." Based on the
limited tune available, the Agency did
not conduct a formal flexibility analysis.
However, the Agency has considered
the impact-on small entities and does
not believe that this rule will have
significant impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The reporting and notification
requirements contained in this rule have
been approved by the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act of 1980. 44 U.S.C. 3501 et
seq and have been assigned OMB
control number 2050-0048.
V. Supporting Information
A List of Subjects
Chemicals, hazardous substances.
extremely hazardous substances.
intergovernmental relations, community
nght-to-kaow. natural resources.
Superfund Superfund. Amendments and
Reauthonzation Act. air pollution
control, chemical accident prevention.
chemical emergency preparedness.
threshold planning quantity, community
emergency response plan, contingency
planning, reporting and recordkeeping
requirements.
Dated November 12. 1986
La* M Thomas.
Administrator
Attachment I
Technical Details for Approach 2
Determination of the Threshold
Planning Quantity
In Approach 2. the index for ranking
the chemicals on the list la:
Index » Level of Concern /V
where V represents the extent to which the
chemical can become airborne arc
dispensed. For gases and solids V equals
one. meaning all of the chemical or.ce
released can be potentially airborne For
liquids. V is calculated by astima:.r.g the
rale of volanluauon (mass vaponzed per
tune) per mass of liquid spilled. The V
may be generated as follows using
equations from Clements (19H) (MC also
TRC 1996)
The evaporation rate of a liquid into
stagnant air may be estimated by:
C-ll.74 xio-* MKAP)/(RT)
when C » the generation rate in pounds/
mmutr M. the molecular weight K. mass
transfer coefficient (cm/sec): A. surface
ana of the apiU (cm"j: P la the vapor
pressure of the chemical (mm Hg): R is
the UnlveiMl CM Constant (BUS am
CB'/g-moit *K) and T is tha temperature
of the liquid in TC The mass transfer
coefficient may be approximated by
referencing the unknown chemical to
water
K-043(1«/M)»»
place, deeper levels could occur frr •
same surface ares of spilled mf - *
the absence of specific inform.
about the size of diked area fnr eaci-
liquid, we assume that the »- < i •
deep and has density aboi
water (1 gm/cm*):
"<^ninfl equations gives:
(em«)-4S4 (gm/ib) Q [!b| ' 1 ;B-
1 (cm) - 4M Q
Substituting and assuming the I :.
is at its boiling temperatures (P = v,
T> boiling point):
G/Q-V. 1.6 M/e"/(T- 2-31
where C/Q represent! the rate of
volanlization per mast of lioia <„
Note that V was estimated for !:;. .
• their boiling point rather than, a: t-
, temperatures Condition* dur..ig
accidental release* are likel> to \,-
to involve heat (e g firei eioirc— :
runaway reaction* or reaction * •-
or water) causing more rapid
volatilization of the liquid The Av-
reeognuas that spills at ambitnt
temperature* are alto likel> and :t-.i
rate of volatilization may be impact
heat from the surrounding*, subcool
due to evaporation and flashing fror
superheated condition*. Howe\ er fc
purpose* of developing a relative rai
between substance* volatiltuucn ai
boiling points we* utilized and
eonaidanoon of other condition! .'?r
chemicals is not expected to greiiiv
reorder the ranking of chemict's
The surface area of a spill (or pool) is
primarily a function of spilled quantity
provided the spill occurs on a flat, non-
absorbing surface. The depth of the pool
is assumed to be 1 cm: although if the
area around a storage vessel is diked or
not flat where puddling could take
Van de Puna. 1962. "The Safer ••'
Legislation and to Applica <•
Netherlands". T. Van de Pu c-. •
General of Labour. P.O. Box to. -T3 Kl
Voorburg (The Netherlands), lourr.a: of
Haundoua Material*. »(1983| 131-iw I
1&19SZ.
Turner. 1970. "Workbook of Atmo»?'it''c
Dispomon Eatamatei". NTIS
Environmental Health Series PB19U6.
USDHEW. NAPCA, Cincinnati OH '.?
Meyer. 1MB. Telephone discussion w in i
Meyer. National Institute for Che-ica>
Studies (N1CS) Charleston. W VA IUA
1908,
TRC. 1806. "Evaluation and Ai»e$imf-'
Models for Emergency Reiponie P'JT-
prepared for CMA. TRC Environ.T.r-ai
Consultants. Inc. April 1986
Dement*. 1991. •'Mathematical Mndeli .'-
Estimating Workplace Concentration
Levels: A Literature Review" I'SEPA
Clement Associate*. October 1961
Attachment 0
Litt of Technical Support Documem
1. Responses to Public Comments on
Chemical Emergency Preparedr
Program Interim Guidance and
Chemical Profiles •
2. Proposed Changes to the List of
Extremely Hazardous substar--
3. Chemicals thst were Assigned
Different Threshold PI'
-------
Federal Register / Vol. 51. No. 221 / Monday. November 17. 1986 / Rule* aid Regulations
Quantities from the Calculated
Index Value
4. Reactive Solid* Whoee Threshold
Planning Quantities Should Not
Become 10.000 Pounds
S Alphabetical Listing of Synonyms for
the List of Extremely Hazardous
Substances
6. Threshold Planning Quantities
Technical Support Document
7 Technical Support Document for
Determination of Levels of Concern
8. The Criteria Used to Identify
Extremely Hazardous Substances
9 Chemical Emergency Preparedness
Program Interim Guidance-
November. 1966
lO.Chemical Profiles on the List of 402
Extremely Hazardous Substances
For the reasons set out in the
Preamble. Title 40 of the Code of Federal
Regulations is amended as follows.
PART 300— NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
l. The authority citation for Pan 300 is
revised to read as follows:
Authority: Sec. 10S Pub. L 98-510. 94 Slat
2764. 42 U.S.C. 0505 and ice. 311(clC) Pub L
92-500 ai amended. 88 Slat BBS. 33 U S C.
1321(e)(2) and aec*. 302. 303 305 325 and 328.
Pub. L 90-499: E.O. 12316 46 FR 4U37
(August 20. 1961). E.O 11733. 36 FR 21243
(August 1973).
2. The table of contents of Part 300 is
amended by adding a new Subpan I as
follows:
PART MO— NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
nity WgM to Know
Sec
30091 Purpose.
300 92 Definitions.
300 93 Emergency planning.
300 94 Emergency release notification.
300.95 Pmalttea.
3. Following Subpart H in Pan 300. a
new Subpart I ia added as follows:
Subpart I Emorpeney Ptannlnej and
Community Right to Know
130041
This regulation establishes the list of
extremely hazardous substances.
threshold planning quantities, and
facility notification responsibilities
necessary for the development and
implementation of State and local
emergency response plans.
I30O92
Terms not specifically defined In this
section have the same meaning as in
Subpart A of this part.
Act means the Superfund
Amendments and Reauthonxation Act
of 1986.
CERCLA Hazardout Subttanee means
a substance listed in Table 302.4 of 40
CFR Part 302.
Commission means the State of
emergency response commission (or. for
the purpose of emergency planning, the
Governor if there is no commission) for
the State in which the facility ia located.
Environment includes water, air. and
land and the interrelationship which
exists among and between water, air.
and land and all living things.
Extremely hexanioia tubitance
means a substance listed IB Appendix 0
of this part.
Facility meana all buildings.
equipment, structures, and other
stationary items which an located on a
single site or on contiguous or adjacent
sites and which are owned or operated
by the same person (or by any person
which controls, is controlled by. or
under common control with, such
person). For purpose* of emergency
release notification, the term includes
motor vehicles, rolling stock, and
aircraft.
Hazardout Chemical meana any
hazardous chemical as defined under
i 1910.1200(e) of Title 29 of the Code of
Federal Regulations, except that such
term doee not include the following
substances:
(1) Any food food additive, color
additive, drug, or cosmetic regulated by
the Food and Drug Administration.
(2] Any substance present aa a solid
in any manufactured itaa to the extent
exposure to the auhetaaea dees not
occur under normal conditions of use.
(3) Any substance to the extent it is
used for personal, family, or household
purposes, or is present in the same form
and concentration aa a product
packaged for distribution and use by the
general public.
(4) Any substance to the extent it is
used in a research laboratory or a
hospital or other medical facility under
the direct supervision of a technically
qualified individual.
(9) Any substance to the extent it is
used in routine agricultural operations
or is a fertilizer held for sale by a
retailer to the ultimate customer.
Penan meana any individual, trust.
firm, joint stock company, corporation
(including a government corporation).
partnership, association. State.
municipality, commission, political
subdivision of a State, or interstate
body.
fe/aow mains any spilling, taking.
pumping, pouring, emitting, emptying.
discharging, injecting, escaping.
leeching, dumping, or disposing into th,
environment (including the
abandonment or discarding of barrels
containers, and other dost i
receptacles) of any hazardous chemica
extremely hazardous substince o:
CERCLA hazardous substance.
Reportabie quantity means, for an>
CERCLA hazardous substance, the
importable quantity established in Tib'
302.4 of 40 CFR Part 302. for such
substance: for any other substance the
reportable quantity is one pound.
Threshold planning quantity means
for a substance listed in Appendix D
the quantity listed in the column
"threshold planning quantity" for that
substance.
I30OM Emergency pfenning.
(a) Applicability. The requirements of
this section epply to any facility at
which than la present an amount of an>
extremely hazardous substance in
excawa of Ita threshold planning
quantity, or designated, after public
notice and opportunity for comment, by
the rMmmimtt*m or the Governor for tht
Stata in which the facility is located.
fa) Emargency Planning Notification.
The owner or operator of e facility
subject to tola section shall provide
notification to the commission that it is
a facility subject to the emergency
planning requirements of this subpart.
Such notification shall be provided (i)
On or before May 17. 196? or (2) withm
sixty day* after a facility first becomes
subject to the requirements of this
section, whichever ia later.
(c) Facility Emergency Coordinator
The owner or operator of a facility
subject to this Section shall designate a
facility repreeentenve who will
participate in the local emergency
planning process as a facility emergent
response coordinator. The owner or
operator shall notify the local
emergency planning committee (or the
Governor if there is no committee) of tn<
facility representative on or before
September V. 1967 or 30 days after
establishment of a local emergency
planning committee, whichever is
earlier.
(d) Proviiion of Information. (1) The
owner or operator of a facility subject to
this section shall inform the local
emergency planning committee of any
rhsnjes occurring at the facility which
may be relevant to emergency planning
(2) Upon request of the local
ergency planning committee,
the
owner or operator of a facility subiect :
this section shall promptly provide to
-------
41582 reoerai negater /"Vol. 5L No. 221 / Monday, November 17, Mee / Rules and Regulations
(ii) In lien of the notices specified it
paragraphs (b) (2) and (3) of this sccti
any owner or operator of a faciU' ~ .
subject to this section from whit
is s release during transportation ur
storage incident to trar«noru*' Nm
provide notice by dialL^ 911 *x
absence of a 911 emerg;..cy teict
number, calling the operator.
(Approved by tfae Offict oY '-dntgemen* i
Budget oder tnt control Bsraber 2Q50-OM
the committet toy information
necessary for development or
implementation of the local emergency
plan.
(Approved'by the Office of MtMgtnent tnd
Budget uadtr the eoetrol Number 2090-00*6}
{300.M tinei>ency rsleass notMcetlon.
(a) Applicability. The requirements of
this Section apply to any facility: (1) At
which a hazardous chemical is
produced, used, or stored and (2) at
which there is release of a reponable
quantity of any extremely hazardous
substance or CERCLA hazardous
substance which results in exposure to
persons outside of the boundaries of the
facility. This Section does not apply to
any such release which is a federally
permitted release.
(b) Notice Requirements. [1] The
owner or operator of a facility subject to
this Section shall immediately notify the
local emergency coordinator for the
local emergency planning committee of
any area likely to be affected by the
release and the State emergency
planning commission of any State likely
to be affected by the release. If there is
no local emergency planning committee
or State emergency planning
commission, notification shall be
provided under this section to relevant
local or state emergency response
personnel.
(2) The notice required under this
Section shall include the following to the
extent known at the time of notice and
so long as no delay in notice or
emergency response results:
(i) The chemical name or identity of
any substance involved in the release.
(ii) An indication of whether the
substance is on the list referred to in
section 302(a).
(iii) An estimate of the quantity of any
such substance that was released into
the environment.
(iv) The time and dantioa of tha
release.
(v) The medium or media into which
the release occurred.
(vi) Any known or anticipated acute
or chronic health risks aaeooated with
the emergency and. where appropriate.
advice regarding medical attention
necessary for exposed individuals.
(vii] Proper precautions to take as a
result of the nrinse. including
evacuation (unlets such information is
readily available to the community
emergency coordinator passant to the
emergency plan).
(vtii) The name and telephone number
of the person or persons to be contacted
for further information.
(3) As soon as practicable after a
release which requires notice under
(b)(l) of this section, such owner or
operator shall provide a wnttan follow-
up emergency notice (or nonces, as mote
information t>»rnm*« available) titling
forth irni updati&g the infooBAtton
required under r""*gMrt< (DM2) of this
section, and including additional
information with respect to—
(i) Actions taken to respond to and
contain tha release.
(ii) Any known or anticipated scute or
chronic health oaks aaaooatad with the
release, and.
(iii) When ajmrapaife. advice
regarding i
for exposed indrvtdaala,
(4) Exceptions. (I) IB Baa of the notice*
specified in paragraphs (b) (Z) end (3) of
this section, any owner or operator of a
facility subject to tins sectieatrorn
which that* ia a release of a CERCLA
hazardous aubetance vdriea ia ant an
extremely hacardoea aabKeute end has
a statutory reportaWe qwattty may
provide the aane Mtiee required aider
CERCLA section «B(a) to the total
6ZD6I£BBCy plUBS&y COO&ittW.
(a) Civil Pmaltie*. Any person
fails to comply with the requirement
i 300.94 shall be subject to civil
penalties of up to S2&000 for each
violation in •"•'"•innrf with tecuon
3ZS(bUDofthaAct
(b) Civil Penalties for Continuing
Violation*. Any person who fails to
comply with the requirement] of
I 300.94 shall be subject to civil
penalties of up to S2&000 for each day
during which the violation continues, u
accordance wita eacboo 125{b)(2) of ti>
Act In the case of a second or
aufaaaqaeBt riolattan. any such penon
may be subject to dvil penalties of up
$75.000 for each day the violation
cootiouea, in accordance with section
325(b)(2)ofthaAcL
(c) Ceausai Ptaeltiu. Any penon
knowingly ud willfully fails to pro- ^
notice in accatdanca with I 30CL94
upon conviction, be fined not n>^—
S25JBO or iapriaonad for not r ban
two (2) yean, or both (or, in th<. *e of
a second or subsequent conviction, shal
be fined not more than $50.000 or
imprisoned for act more than five (5)
years, or both, ai accordance with
325(bM4)oftkeAeL
3. Following Appendix C of Part 300
new Appendix D and Appendix E are
added as follows:
0.—Usr OP ErracMtLv HAZA
CKS.T<
•UMNM OuAKTrrtES. ANO RCPonTxau OUANTTTIEJ
Sl-SM II
icoe
t.oee
MO
100B
««*•
1000
•100
JOOi
100 i
1.000 .
1JOB .
V301
-------
Federal Reystcr / Vol 51 No 221 / Monday. November 17 1986 / RuJe« and Reaularons 4;
-tar OP ErrweMii.v HAZAWOwt SUISTANCU. TNMSHOU PUUMMO QuANnmi. AND RVOWTAMJ QiMMnni»-ConinM!
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Federal Raster / Vol. 51. No. 221 / Monday. November 17. 1968 / Rulei and Regulations
APPENDIX 0 -US* V EmtCMCLT HAZ,
Continued
-------
Federal Register / Vol. 51. No. 221 / Monday. November 17. 1988 / Rules tnd Regulations 41;
AWCNOU 0 -UST OF EOTICMCIV H
SUMTANCU. TlPMlBU PUWMNO QUAMTTmi, M0 ftOQHT
-------
AWCNOU 0 -UST OF ElT«M«lY HAZARDOUS SuMTMCH, TMCSMOU} PUNNMQ QuAWTTTW. AND BUWTAM OUAMTTnf»_C
-------
Federal RegUter / Vol. 51. No. 221 / Monday. November 17. 1986 / Rulee end Regulations 415
APPENDIX O.-UST or ErmcMtiY HAZARDOUS SUUTMCH. TMNONOU)
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E.-LIST OF EXTREMELY HAZARDOUS SUMTANCU. TMRUHOA I
(CASOWrl
'AMI QUANTITIES
-------
an. Regulation*
E-Urr or EOTHMR.V HAZAHOOUI SMSTANCO. T
-------
Federal Register / Vol. 51. No 221 / Monday. November 17. 1966 / Rulet and Regulations 41'^'
E -L.ST o* EITREMCIT HMWOOUS SUMTAMCTS. THW SHOifl PLAN.** OuAKTtrm.
(CAS
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-------
41590 Federal Register / Vol. 51. No. 221 / Monday, November 17. 1966 / Rulet and Regulations
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Fedef.1 Raster ' Vol 51. No 221 / Monday. November 17. 1966 / Rulci ud Reborn 41,
"
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-------
41592 Fed»rai_Regiter_/_Vol. SI. No. 221 / Monday. November 17. 1886 / Rulet and Regulation.
E.-UST or EXTREMCLV HUMMUS SUISTMCCS. TMWSHOfl PUWNMO OuMrmcs. AND REKMTMU Ou*Hrmts-Com* M
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-------
Federal Register / Vol 51. No. 221 / Monday. November 17. 1986 /^ropcgetTRulg 4159J
tlfVWONMtNTAL WOT8CDOM
AGENCY
40 CF« Part 300
|SWH.-f«L-J1«-71
Emergency Plannlmj and Community
Rfght To Know Program*
AQINCV: U S Environmental Protection
Agency (EPA).
ACTION: Proposed Rule Cross-
Reference. ^^^______
SUMMARY: This proposal is a companion
10 EPA's Intenm Final Rule published
elsewhere in today's Federal Register
establishing the list of extremely
hazardous substances, threshold
planning quantities and notification
requirements Section 302 of the
Superfund Amendments and
Reauthonzation Act of 1966 (SARA).
signed into law on October 17.1986.
requires the Administator of EPA to
publish a list of extremely hazardous
substances within 30 days The
Administrator is also required 10
simultaneously publish an interim final
regulation establishing a threshold
planning quantity for each substance on
the list and initiate a rulemakmg to
revise these regulations The list and
planning quantities trigger emergency
planning by States and local
communities under SARA. The purpose
of this proposal is to inmate a
rulemakmg to revise the Interim Final
Rule. The full text of that rule including
the list of substances, the threshold
planning quantities and reporting
regulations, is published elsewhere in
today s Federal Register.
DATE: Written comments should be
submitted on or before January 2.1987
AODMisr Comments Written comments
should be submitted to: Preparedness
Staff. Superfund Docket Clerk.
Attention. Docket Number 300PQ. Room
Lower Garage. U.S Environmental
Protection Agency. Mail Stop WH 548D.
401 M Street SW.. Washington. DC
20460.
Copies of materials relevant to this
rulemakmg are contained in Room
Lower Garage. U.S. Environmental
Protection Agency. 401M Street SW .
Washington. DC 20480. The docket is
available for inspection, by appointment
only, between the hours of 9 00 a m
through 4pm. Monday through Friday.
excluding federal holidays. The do-let
telephone number is (202) 382-3064 As
provided in 40CFR Part 2. a reasonable
fee may be charged for copying sen ices.
•ON niMTMIR IMFOMJATtON CONTACT:
Richard A. Homer. Chemical Engineer.
Preparedness Staff. Office of Solid
Waste and Emergency Response. WH-
548 U S aworuneTrtal Protection
AgencM» M Street SW.. Washington.
DC 20460. or the Chemical Emergency
Preparedness Hotline at 1-600/535-0202.
in WasRinglon DC at l-ZOZ/47v-2*49, .
I. IntroducliM
Section 302 of SARA requires the
Administrator of EPA to publiah a list of
extremely hazardous substances and
threshold planning quantities for such
substances. Any facility where an
extremely hazardous substance is
present in an amount in excess of the
threshold planning quantity a required
to notify the State commission by May
r 1987.
The list of extremely hazardous
substances is defined in section 302 as
"the list of substances pahnsfaxrm
November. 1985 by the Administrator in
Appendix A of the Chemical Emergency
Preparedness Program Intenm
Guidance." This list was established by
EPA to identify chemical substances
which could cause serious irreversible
health effects from accidental releases.
Section 302 further requires EPA to
establish threshold planning quantities,
for each of the 402 extremely hazardous
substances through an interim final
regulation At the same tune. EPA must
initiate a rulemakmg effort to finalize
these threshold planning quantities If
EPA does not publish an interim final
rule establishing the threshold planning
quantities by thirty days after enactment
of SARA, then the thmhotd planning
quantity becomes two pounds for each
extremely hazardous substance.
Under section 302(a](4) the
Administrator may make revisions to
the list and threshold planning
quantities. Any letuiune of the In* mast
take into account specified factor*.
II. Cross-Referanca of Interim Final Rule
The Interim Final Rule establishing
the list of extremely hazardous
substances and corresponding threshold
planning quantities is published
elsewhere in today's federal Eagiatur
Because section 302 alao aaqwres EPA
to initiate an Agency nriemaking to
revise this rule EPA is also soliciting
comment on all aspects of that final rule.
Thus, the Intenm Final Rule is
immediately effective but the text also
serves as the text for this proposal
Readers should refer to the Intenm Final
Rule published elsewhere in today s
Federal Register.
III. Additional Proposals
The Intenm Final Rule which is the
companion rule to this proposal.
included only those requirements which
•re immediately effective under Title IH
of SARA. Aa indicated above. EPA fr.
this proposal eoliciu comments on all
asptcta of that rule for revision in a
revised final rule. This proposed rule.
however, also includes a specific
proposal for revisions to the list of
extremely hazardous substances which
does not appear in the Intenm Final
Rule. Readers should refer to the lev. of
the Intenm Final Rule published
elsewhere in today's Federal Register
for a discussion of the basis for
identifying the initial list of extremely
hazardous substances.
Section 302 authorizes EPA to re-, .sc
the list of extremely hazardous
substances, both to add and delete
substances. Revisions to the list must
take into account the toxicity reacns ••.
volatility, dupereability. combustibility.
orfasaaaasaaW^aeubaunce The
Agency sjattawea oat changes to the !.»>
should a* baaed on three conditions
correctieoa to the tdsddry data base
addHeaaofawf data, or modifications
to4ha criteria. The RTECS database is
periodtoattf twiewed and updated as
new and/or corrected data become
available.
Since me hat wu originally made
public M part of me CEPP Intenm
Guidance (November 1985). the Agency
discovered that several chemicals no
longer meet the ordinal listing criteria
which uiiiaspuuda to the statutory
criterion of toxldty. Table l lists the
chemical* thai are today proposed for
deletion. Additionally, several other
chemicals ware nwry identified as
tentatively meeting the cntens and a-e
proposed for addition to the list. Table 2
lista du chemicals mat an proposed
today for addition to the list of
extremely hazardous substances, along
with ummapaeillliitiai'irinsed threshold
planning) quantities. Farther discussion
of the aitada for addition or deletion
and the reasons for the decisions made
wi(h respect to Individual substances
can be found In tho'Intenm Final Rule.
published elsewhere in today s Federal
Refiater and In the technical support
documents lasted in Attachment 1 of thai
rule.
The Agency recognizes that the
cntena used to establish the extremely
hazardous substance list address only
lethality, and do not account for all
effects that may be associated with
ecute exposure to chemicals. Cntena
are being considered for other health
effects after ecute exposures to toxic
chemicals. In addition, section 302
requires the Agency to consider long-
term health effects resulting from short-
term exposures to these chemicals The
Agency does not presently have
-------
sufficient data on such effecti and
request data from commenters on
chronic effecti from short-term
exposures and comments on how these
effects should be incorporated into
cntena /or revisions to the list. Finally.
the Agency haa developed the list and
proposed revisions to it. largely based
upon the toxicity of the chemicals The
Agency requests comment on the extent
and the manner in which the cntena for
adoption or deletion should be revised
to include the other statutory cntena
that may be considered for revisions to
the list. The Agency also solicits any
other comments on the criteria for
additions to or deletions from the list.
IV. Regulatory Analyses
A. Regulatory Impact Analysis
Rulemakmg protocol under Executive
Order 12291 requires that regulations be
classified as "major" or "non-major" for
purposes of review by the Office of
Management and Budget. According to
t.O 12291. major rules are regulations
that are likely to result in: (l) An annual
advene (cost) effect on the economy of
S100 million. (2) a mapr increase in
costs or pnces for consumers, individual
industries, federal, atate. or local
government, or geographical regions, or
(3) significant adverse effects on
competition, employment, investment.
productivity, innovation, or the ability of
United Statea baaed enterprises in
domestic or export markets.
Because SARA requires the
Administrator to publish this proposed
rule within 30 daya. the Agency cannot
conduct an economic or regulatory
impact analysis pnor to the publication
of this intenm final rule. However, for
informational purposes, the Agency will
develop economic analyaes in
connection with the revised final rule.
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980
requires that an analysis be performed
for all rules that an likely to have a
"significant impact on a substantial
number of small entu.es." Based on the
limited time available, the Agency did
not conduct a formal flexibility analysis
However, the Agency haa conaidered
the impact on small entities and il does
not believe it will have a significant
impact on a substantial number.
C. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1980. 44 U.S.C. 3501 et sea..
Submit comments en these requirements
to the Office of Information and
Regulatory Affairs: OMB: 728 Jackson
Place. NW.: Washington, DC 20503
marked "Attention: Desk Officer for
EPA." The final rule will respond to any
OMB or public comments on the
information collection requirements.
V. Supporting Infonatioo
A Usl of Subjects
Chemicals, hazardous substances.
extremely hazardous substances.
intergovernmental relations, community
nght-to-know. natural resources.
Superfund. Superfund Amendments and
Reauthonzation Act air pollution
control, chemical accident prevention.
chemical emergency preparedness,
threshold planning quantity, community
emergency response plan, contingency
planning, reporting and recordkeeping
requirements.
Dated: November 12.1MB.
UefcLTleaua,
Admmiitrotor.
PART MO-KAMENOED]
For the reaaons aet out in the
Preamble. Appendix D and Appendix E
of Pan 300 in Tide 40 of the Code of
Federal Regulations, which an set fonh
in an Intenm Final Rule pabliahed
elsewhere in today's Federal Register,
are proposed to be amended aa follows:
TABLE 1.—SUBSTANCES Pucwoaco ton DELE-
TION FROM TMe uar c* ErmeMtty HA*.
ANOOUB SUBBTANCU
TASUI.
now Fsm n«
'0'
CAS MB
TABU 2. BusjiTANUt P»o*osn
TONTOTMI liar or
oua SUBBTANCU
CAS MO
I
[FR Doe. S6 tlOBO Filed 11-14-86. 8.45 irr)
-------
Friday
November 21, 1986
Part IV
Department of
Transportation
Research and Special Programs
Administration
49 CFR Parts 171 and 172
Hazardous Substances; Final Rule
-------
42174
Federal Register / Vol. 51. No. 225 / Friday. November 21. 1986 / Rules and Regulation!
DEPARTMENT OF TRANSPORTATION
and SptcW Programs
AdrnsniiU stton
49 CFR Parts 171 and 173
(Dock* No. HIM4SF, Amdt Hot. 171-SO,
172-101)
Hazardous Substance*
AOINCY: Reiearch and Special Program*
Administration (RSPA). Department of
Traniportation (DOT).
Acno* Final rule.
. hii final rule amendi the
Hazardous Material* Regulation* (HMR)
by incorporating into theie regulation*.
at hazardous materials, substances
designated as hazardous substances
under the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
(CERCLA). Pub. L 96-510). This action ia
necessary to comply with the Superfund
Amendments and Reauthonzation Act
of 1988. The intended effect of this
action is to enable carriers of hazardous
materials to specifically identify
CERCLA hazardous substances and to
make the required notification if a
discharge occurs.
imcnvi DATE: This regulation Is
effective January 1. 1987. Under this
final rule, the exceptions provided in 49
CFR 172.101(j) will apply only to a
hazardous substance that is subject to
an entry in the 49 CFR 171101 Table
prior to January 1. 1987. unless there is a
difference in its reportaUrqpaniriy a*
specified in the Appendix adopt**
hania.
ran FUMTMM MraMtAnoat CONTACT.
Lee Jackson (202) 366-4488 or George
Cushmac (202) 366-4545, Office of
Hazardous Materials Transportation.
RSPA. Washington. DC 20590. Question*
about hazardous substance designation*
or reportable qiiarttieeabnuldba
directed to the EPA. Cafl the RGRAf
Superfund hotline at (800) 424-0346 or.
in Washington. DC (202) 382-.
L Background
On October 17. 1988. the President
signed into law the Superfund
Amendments and Reauthonzation Act
of 1986 (Pub. L 99-499). which made
several important changes to the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA). Section 202 of
Pub. L 99-499 amended section 306 of
CERCLA to require that the Secretary
list and regulate hazardous substances
listed or designated under section
101(14) of CERCLA as hazardous •
materials within thirty days of
enactment of the Amendments. RSPA k>
tadbf p«bli*nii«j a final rule under
Docket HM-14SF to fulfill this
requirement
RSPA has been considering
incorporating CERCLA hazardous
substances into the Hazardous
Materials Regulations (HMR. 49 CFI
Parts 171-179) under Docket HM-14&E,
and published both an advance notice of
proposed rulemaking (ANPRM. 49 PI
35965. August 8,1963) and a notice of
proposed rulemaking (NPRM, 51 PR
22902. June 23.1966) dealing with thea*
issues. The Superfund Amendments of
1986 have overtaken most of the iaeves
presented ia these two notices, b that
final rule, RSPA has selected the BO*
practical method of listing and
regulating hacardous substance* hi
order to comply with the statutory
deadline. A few issues remain, such as
whether or not to remove the hazardoea
substance discharge notification
requirement found at 49 CFR 171.17 bom
the HMR. These issues will be dealt
with in the future under Docket HM-
145E. Issues raised in HM-145E whictt
are dealt with in this final rule will not
be raised again under Docket KM-145L
Today's rule includes a list of current.
hazardous nbttaaces with their
reportable quantities (RQs). funtahedby
the U.S. Environmental Protection
Agency (EPA). This list appears in an
Appendix to 1172,101 (Appendix) which
replace* the CERCLA List In addition
the rate contains amendments which
apply the HMR to these hazardous
lubvtanee*. It ia RSPA1* intention to
make changes from time to time to that
list of hazardous substances or their
RQB ia. the Appendix as adjustment* an
•adabyEPA.
The Dating oFhazardous subrtances
•*
-------
proposed to integrate approximately 200
of theM hazardoui substances into the
Table. Although RSPA hat information
from EPA on the physical, chemical, and
toxicological properties of thoic
Material*, this NPRM wa» not published
'\ June 23,1988. This wa» dut to UM
wiry in determining the proper
**rd class for the material* because
they were either not suited to the
established process for hazardous
material* classification or became many
of them were relatively obscure
materials. In come cases DOT was not
even able to establish the physical state
(solid, liquid, or gas) for the materials
designated by EPA. Given the size of
this problem and the short time
available to issue regulations in
accordance with Pub. L 89-199.
RSPA has decided to abandon this
approach and let shippers, who should
know the properties of their materials.
determine their proper shipping names,
hazard classes, and the correct
Identification numbers. To do this, a
shipper has the Table with its specific
and generic entries, the hazard class
definitions contained in Part 173. and
the list of hazardous substances. .
including their RQ's. as designated by
EPA in the Appendix. Under the HMR it
has always been the responsibility of
the shipper to class each material for
shipment (except for explosives which
require prior laboratory testing), and
•Sat responsibility remains in this final
PA is aware that this approach will
^te some inconsistencies in the
application of the regulations. For
example, asbestos is presently regulated
as an ORM-G but the regulations only
apply to asbestos that has commercial
valuer not waste asbestos. The
packaging for commercial asbestos is
specified at 1173.1090. However.
asbestos is on the EPA list of hazardous
substances el a reportable quantity of
eoe pound and this applies to all
asbestos, commercial and waste.
provided it is in a friable (loose) form.
Therefore, under this rule commercial
asbestos is regulated as an ORM-G
with packaging specified at f 173.1090,
and waste asbestos is regulated •• an
ORM-E. with packaging specified at
1173.1300. This inconsiste
because of the statutory mandate In the
Superfund Amendments to regulate all
hazardous substances. RSPA will
undertake regulatory action in the near
future to correct this and other
Inconsistencies. Because the
determination of the appropriate degree
of regulation is discretionary, unlike
today's action which is based on a
statutory mandate, the future
rulemaking will provide for notice and
comment Interested persons should
withhold their comments until that
notice is published,
Other than the expanded 1st of
hazardous substances and the
relocation of hazardous subsumes from
the table to the Appendix, the regulatory
requirements remain essentially the
same. The shipper will have to
determine the hazard class and proper
shipping name for the material and the
authorized packaging for the material
using the Table and the packing
authorizations contained in Part 173.
When a hazardous substance Is present
in a shipment (i.e, there is a reportable
quantity or more of the designated
material in the package), the shipping
paper entry must contain the notation
"RQ". This requirement is unchanged
When the proper shipping name does
not contain the name of the constituents
which make the material a hazardous
substance, that information must be
added in association with the basic
description. This requirement is also
unchanged. In the case of waste
streams. RSPA is requiring the use of the
EPA waste number instead of the entire
narrative •waste stream description. The
EPA waste number for the waste stream
must be entered in association with the
proper shipping name. In the case of a
hazardous substance which satisfies one
of the EPA "ICRE" hazardous waste
characteristics of ignitibility. corroiiviry.
reactivity, or extraction procedure
toxicity (EP toxieity). the requirement
for additional information must be
satisfied by using the letters, "EPA"
followed by the word "ignitibility". or
-eomsivity". or "reactivity-, or "EP
toxicity". as appropriate, in association
with the basic description.
Procedures for '••*{*g non-bulk
packagings (those of 110 gallons or less)
also remain essentially the same. The
"RQ" notation la required when a
hazardous substance is present and if
the proper shipping name does not
include the constituent or constituents
which make thy material a hazardous
substance, that information must be
added in association with the proper
shipping name. As is the case with
shipping papers, when the hazardous
substance is a waste stream or a waste
material exhibiting an EPA "ICRE"
characteristic, the additional Identifying
information required in the marking in
association with the proper shipping
name must be tne waste stream number
or. for the ICRE materials, the letters
"EPA" end the word "ignitibility". or
"corrosivity". or "reactivity", or "EP
toxicity" as appropriate.
The regulatory action in this final rule
i< mandated by statute, and for this
reason, with one exception. RSPA Is not
affording persons affected by this rule
the relief afforded by 1172.101(j) which
allows up to one year after a change in
the Table to use up stocks of preprinted
shipping papers and to ship packages
mat were marked prior to the change.
The exception is that RSPA is allowing
preprinted shipping papers to be used
and previously marked packages of
hazardous substances to be transported
if prepared In conformance with the
requirements for hazardous substances
prior to January 1.1987. For example.
shipping papers for a hazardous
substance which read "RQ, Adiplc acid
ORM-E. NA9077". may be used until
exhausted or until January 1.1988.
whichever comes first After exhaustion
or one year, such a shipment would
have to be described as: "RQ.
Hazardous substance, solid. a.o.s~
ORM-E. NA918B. (adipic add)". This
also applies to marked packages.
However, if the reportable quantity for
the material has changed and the
shipping paper entry or package
marking does not reflect the reportable
quantity as it appears in the Appendix
In this rule, the shipment does not
qualify for the exception in | •172.101 (j)
and must comply with the new
requirements after January 1.1987.
1L Review by Sections
Section 171A The definition of a
hazardous material is revised to
specifically include hazardous
substances. The definition of a
hazardous substsnce is revised to
reference a new Appendix to 1172.101
which follows the Hazardous Materials
Table (Table) at 117X101. This
Appendix replaces the CERCLA List
currently shown and contains all
hazardous substances and their
reportable quantities. Reference to
petroleum products has been removed
from the hazardous substance definition
since the determination of what
material* should be designated as
hazardous substance* rests with EPA.
Reference to "or la one transport vehicle
tf not packaged" has been removed
since RSPA considers vehicles to be
packagings when they are the primary
means of containment (i.e, are used to
transport material* In bulk).
Sect/on 171.11. The wording of (d)(l)(i)
of this section is amended to require the
display of the waste stream number or
"EPA" and the applicable ICRE
characteristic on shipping papers.
Section 171.12a. The wording of
(a)(3)[i) of this section is amended to
require the display of the waste stream
-------
Rulct and ReguUtkxw
Federal Reastar / VoL 51, No. 225 / Friday. Noeeipber ». IBM
number or "EPA" and the applicable
1CKE characteristic on shipping papers.
Sectioa 273.101. Preoaiblt. Paragraph
(b) is revised to eliminate aD references
to the lettar T in tha Table.
Subparagraph (eJW If revised to remova
reference to f and "reportsble
quantity" and to add provisions for
selecting proper shipping names for
hazardous substances.
Section 172.1Ot, Haxardoiu Mattnoa
Table. The TabhrJs revised by removing
the letter TT from Cohnrm 1 of the Title
heeding and all places where R appears
in Colrnrm 1 of die Tabre. All RQ
designattom and quantrtiet are removed
from oNe destsipthmi to Colmnn 2 of *•
Table (for example. "(ItQ-100O/454n
The Tabte hr revised by removing all
entries far hazardoas lubrtances whfch
only meet die detmrtfom of the ORM-B
hazard dan. with the exception of dm
generic entry "Hatardons rabstanee.
liquid or solid. n.o.s.'. This mqudet
removing the fuIK/wing five entries win
•See" referencw to certain hazardous
substance* dessed ss ORM-E:
(1J2.4-D ester. See 2.4-
Dtchloropnenoxyeceric ecid eaten
(2]EDTA,Se»
EthylenedteminetetraaceHc acid:
(3) PCBi See PolyckJertnated
biphenyhs
(4) ZCS-T amine. ester, or salt See?
2.4.5-Trichlorophenozyacatic acid.
amine. ester, or salt
(5) 2.4.5-TP ester. See 2.4>
Triehlorophenoxyproplonic add ester.
The entry "Hazardee* waste, liquid or
solid, n.o.s." nanama in the Table and
continues to bear the ORM-E hazard
daas designation. Hazardous)
substances meeting only the DOT
hazard dass definition for ORX4-R
appear m the new Appendix to
1172.101. akng with aft af me other
CERCLA haaardous robstnnrrm Certain
hazardous substances which sntiary tint
definition of a DOT bazard daaa other
than ORW-Er«B«ni as the Table end
of hazaidoKi substcocaa which fellows
the Table and to require thai bazirdoua
•ubsunca coutitueaU ba shown ia,
parentheses In assocatian with tha baaic
description, if tha proper shipping nan-
does not Identify me hazardous
substance comfltoenti n shown m
Appendbc A to 1172.101. A new
seotemv rs edded to tbfs sectlon^tp
require mat a waste stream cruiirbet or
"EPA" and the epprJeabhr KRE
characteristic be shown nstead of fte
nanse of 6W uxoOruent froni »•
Appendix taparwrthsw OB 4e
shipping paper SB assentation with As>
basic descrtptem far those waeta-
matertols wtddi an either wea«e
streaoa or ooisst asi ICU
characteristic.
Sectmsr \72Jtt. Pangraph (a) ia
reviasxitoreajeiralheaeMeia
hazankm nbatance eeeatfUxcai la be
shown as a pacfcaf* maikJnf, if A«
proper shipping name does ant •seaavy
the h"-»*»"> sabalaaBS) coejtitueaV. at)
shown ia tha Apfcadtx to 1172.101.
Paragraph (b) is revised to raqwire thai
all packagaa of 110 gallons or leaa that
contain waste sireaaa ei waste
exbriitiag ICRE characteristics, be>
marked ia ajsofiartffp with tha proper
shipping naaa with the wasta stream
number 01 "EPA" aad tha appropriate
ICRE characteristic in parentheses
Existing paragraph (b} ia redeaigvatad
aa paragraph (cj.
OLA
Noficaa
detsrninsnoBS have be« asade w_
tha Reamlatory FhwAiltty Art (• USC
AJ*« _« ^^^ \
However, the "V sysabok "RQ^east
quantities no hanger appear fas BnTsbto
for these •nleriahv
Secuee ITZJOi. AananoSx, Ta*
CERCLA List is removed and r-1-
by an Appendix entitled "List L.
Hazardous Snbstaneaa and Repottakk
Quantities." The appendix bats r1
materials which are bnsnrdona
substances as listed or desigaaled i
Section im(M} of CERCLA.
Section in.UO. Paragraph (a) el (has
section is aaaeadcd to require display af
the wsste stream sanber or "EPA" end
the applicable ICRE cksxacienaDc en
shipping paaen,
Sectioo V12B1 Paragraph (c\ ia
•mended to reiereaca tha aaw Aapandix
1. Becaoae me amendments adopted
herein are mandated by the Superfuad
Amendments and Resuthorization Act
of 1986 (Pub. L 99-C99. October 17,
1986). and are to be adopted within 30
days of enactment I find under S U.S.CL
553. that notice aad pnbHc procedure an
contrary to the public interest, m
addition, due to the bnrrted traw
available to prepare this ratal rw>. na
JoBsbavs
H4
ns*ed above, tha agency b aware thai a
ruleoMkiBg o/ such broad so4
IBV^AUU appucabiUty nay prodaca
sigaificast infects on, udnslry
segments, a substantial avabar of which
may be eaak\ enlarprisea, h order It)
comply with tha Baodata of Pob. L t
499. RSPA has choeam a regulatory
approach whkh both coapuea with Ik*
purpose of that Congress and peasants
the least possible disruption to the.
regulatory schema of the HMR.
Because RSPA's rob • regaiatmi
hazardous, substance* ia diracdy tied IB
EPA'a ongoing sasardovs eabstaacea
responsibuity. prbMruy mnugh tha
agency's o^tacmeMtiaii of leportablt)
quantities, than will be a nechanlsai kr
RSPA's oversejnl of me toansportatiaa
impacts of these amendments as tha
agency conducts rnkmakanf to pnrf ida
coneordaace wim EPA requiremcntSL Aa
the need for sdjnstmesrts to thesn
amendmerdt is deanxutrared RSPAwfti
modify the raqmresMaits to me extent
consisaeBt with the mntnt of Congrasa
expressed B Pub. L 9B-4«a
UstofSubiacto
19 CFR Port 171
Haatddoua aaa-terials traospartatioo,
Definitions.
Hazardous materials tisasportaooa.
Hazardous subslancaa.
In consideration of the foregoing
171 and 172 of Tide 4ft Code of Federal
Regulations ere amended ss foBowr
PART ITV-aCMEfUL WWHJjUTlttl,
REQUiATsONS, AND DtFIHITlOW
1. The authority citation lor Pact 171 to
revised to read as follows:
Aumotitr *» U-S-C- MK180B. leM. and
latm IVrK L ta-SOII as4 41 OR Part 1 assess
otherwise)
.
Regulatory Pobciw aext
FR UQS*, Fatnary m 10n I
detetmmed tbat thss rukaakmf ia an
emergency raaenanaaj becawje it is
governed by a ehurWens statatory
deadlinat. tkctesorc. so detentxaAtkaD to
made aa te whedter s) ia "signdkaas*.
X 1 cestrfy that this relasMksBg doc*
not require a* environmental imped
stateeassU laadea the National
Envirrtimnilal Pohcy Act (« US.C
4321. at soa>V
Although tha provieiem of Pub. L, 90-
499 provide iaaafficieat one for RSPA to
perfom reoBvea analyse* and make
required findings undei me statutory.
regulatory, and executive authorities
I In 1 171A tha definitions lor
"Hazardous materinl" and "Hasardous
substances" an revised to read aa
follows:
|17fJr
• •
subauace or material iacuidiraj a
hazaxdouai substance, which haa beam
determined by the Secretary oi
TransnorUlion to ba capable of poaasf
an unreaeonabk risk to health, safety.
and property when transported la
coaBvuce, and which hns been so
designs tod.
"Hazardous substance" for the
purposes of this subchapca
-------
Federal Register / Vol. 51. No. 225 / Friday. November 21. 1986 / Rutei and Regulation! 42177
material, tncladlng Hi mixtures and
solutions, that—
(1) Is lilted in the Appendix to
1172.101 of thii nbcbapter
(2) It tat a quantity, in one package.
' ;ch equals or exceedi the rtportable
tity (RQ) lilted in the Appendix to
4.101 of this subchapter and
(3) When in a mixture or solution, la in
• concentration by weight which equals
or exceedi the eonceatration
corresponding to the RQ of the material,
•a ahown IB the following table:
teant-
IMftftl
MDHS4I.
10tO«l_
002
0,002
ram
no
SO
3. m | in.11 paragraph (d)fl)P) !•
revised to read ai follows.
|171.11UMoflCAOT<
(i) The name of the hazardous
substance shall be entered on shipping
papers m parentheses in association
with the basic description, and in
association with the proper shipping
Tie required to be marked on the
'age. unleu the proper shipping
. required by the ICAO Technical
Instructions already includes the name
of the hazardous substance. For waste
streams or for waates which exhibit an
EPA characteristic of ignitibUity.
cofTosivity. reactivity, or EP roxitity. the
baaic description shall be followed by
the waste stream number in parentheses
or by the letters "EPA" and the word
"jgnitibility" or "corroaiviy or
"reactivity", or "EP toxJcrty", in
parenlheaea. as appropriate: and
4. la 1171.12a. paragraph (a)(3)(i) it
revised to read as follows:
1171.12* CaneaMneMpmetsaad
"
3) ' * *
i) The name of the Mr
substance ihall be entered on crapping
papers and in association with (he
proper skipping naae required to be
marked on the package, in parentheses,
unless the proper shipping name
required by the TDG regulations already
includes the name of the hazardous
substance. For waste streams or for
wastes which exhibit an EPA
'Cteristic of ignitibility. corrosivity,
reacthrity. or EP toxictly. the bade
description shall be followed by the
waste stream number in parentheses or
by the letters "EPA" and the wort
Tgnitibility" or "corroaiviry" or
-reactivity", or "EP toxJdty". in
parentheses, aa appropriate: md
PART 17a-MAZARDOUS MATERIALS
TABLE AND HAZARDOUS MATERIALS
COMMUNICATIONS REGULATIONS
8. The authority citation for Pert 173 is
revised to read as follows:
Authority: WUiClM. UOi M05. and
otherwise noted
6. In 1 172J01. paragraphs (b) and
(eXB) are rerised to read as follow*:
im.101 Purpose sod use of
(b) Column 1 contains the three
symbols as appropriate: Phs (•+) and
the letters "A" and "W.
(1) The plus (+) fixes the proper
shipping name and the hazard class for
that entry without regard to whether the
material meets the definition of that
dass. An alternate proper shipping
name and hazard dan may be
authorized by the Director, Office of
Hazardous Materials Trensportation.
RSPA.
(2) A letter "A" restricts the
application of thii nbchepter to
materials offered or intended for
Uansportation by aircraft unless the
material is a hazardous substance or a
hazardous waste.
(3) The letter "W restricts the
application of this sufachapter to
materials offered or mtended for
transportation by vessel unless the
Muriel is a hazardous substance or •
hazardous waste.
(c)
<9) Hazardota joevtancv. The
Appendix to this section lists materiala
which ire beted or designated ae
hazardous substances undff section
101(14) of the Comprehensive
EnviiunmeiHal Response. •
Compensation, and Liability Act
(CERCLA). Piupei snipping names for
hazardous subatancee (See Appendix
and 1171J of this subchepter) shall be
determined as follows:
' (i) If fo* Ka»ar»l»ii« flf^ffgnft SpPCSrS
B the table by technml name, then the
technical name is the proper i
(11) If the hazardous substance does
not appear in the table and is not a
forbidden material (See || 17321,
173.51. man, and 17X114a of this
aubchapter), then an appropriate generic
shipping name must be selected
corresponding to the hazard dass of the
material ss determined by the defining
criteria of this subchapter and the
hazard precedence prescribed in 1173 J
of this lebchapter. F-t example. •
hazardous substance which meets the
definition of a flammable liquid might be
described ai "Flammable liquid, 004."
or other appropriate shipping name
corresponding to the flammable liquid
hazard dan.
7. In 1172.101. the Hazardous
yateriala Table la amended aa foDowc
•• ^E/ li fUDOVMl DOB tatt •tftfliOfl
b. The symbol "E" is removed from
Column 1;
c. All reportable quantity (RQ)
designation! and quantities are removed
from the descriptions In Column 2 (eg..
d. The phrase "fthttt atoteriok may
contain various hiuuivuut tuottonctt
for which the appropriate RQ applia)"
is removed from the Column 2 entry for
"Motor fuel antiknock compound";
a. All entries in the table that are
dassed "ORM-E" as shown in Column 3
are removed from the table, except for
me following two generic entries?
"Hazardous substance, liquid or solid.
•4>.s." and "Hazardous waste, liquid or
solid, aoj". and
L The following five "See" references
to certain materials classed ORM-E an
removed from the table;
(a)"2.4-D ester. See 2.4-
Dichlorophenoxyacetic add ester";
(b)HEDTA.Se»
Ethylenediaminetetraacatic add";
(c) "PCB. See Pdychloimated
biphenyls":
(d) "&4>T amine. eater, or salt See
2.4.5-Tridilorophenoxyacetic add,
•mine, ester, or salt"; and
(e) "2A5-TP ester. See 2.4.5-
Trichlorophenoxypropionic ado aaier".
a. The CERCLA Bet which follows the
Table is removed and an Appendix to
1172,101 la added to reed as reUowe: —>
Appendix to I ITUM-Ual of
Ha* wifMM glikaf-;na-aM aifMl Q^BB^04ek|kW
1. This Appendix Vets BMfcrleb and men-
eoTrevpond&i rcportsble qvintttfes (RQt)
which are listed or dnlgruttd ss "hautdoM
f*"'""--?" uadcr MCUW 101(M) of ike
CeaipnlminK EinuuimiBiiial Rnpoase.
Compsnsatioa. tnd Usblbty Act (CERCLA;
Pub. L 96-SlO). A auiazfal B thn hat Is
regulated as s aaaardoiM BMteriel ander mis
nbcbapter tf it meets the definition of a
hazardous nibsianco in 1171J of this
mhrhipter.
Zi CohflBB 1 of the ML fllUtlCU
lubitancft". conuini the nantei of
-------
42178
Federal Recster / Vol. 51. No. 225 / Friday. November 21. 1986 / Rulei and Regulation.
hazardous substances Elements aod
compounds are lined firtL In alphabetical
sequence Following the lutmg of elements
•nd compounds it • listing of waste streams
•ndtheircorresponding"Fnumbe«i .They
•R luted in numerical etquence by "F
number". Column 2 of the lift entitled
"Synonym* " containe tht n»mee of
lynonymi for certain of the element! and
•rt llded for waste ilrtaor Synonymi art
useful in identifying hasardous substance*
•nd in selecting proper shipping names.
Column 3 of the list, entitled "Reporteblf
quantity (RQJ". eontuns the reporteble
quantity |RQ). in pounds and kilogrimi. for
each hazardoua substance baled in Column 1.
1. The procidurt fof atlactlng a proper
compounds listed in Column 1. No synonyma
shipping name for a haurdous substartca •
act forth in | lT1101|c)(9).
4. A series of notes is used throughout He
list to provide additional Information
concerning certain haiarduua matarials.
Theae notes an explained «t the end of tb»
lift
U»T or HAIAROOUS SUMTAMCM wea Ri«o»n*«l CXAMTITSU
1ID4MI
1000 BfOI
HOOIU'UI
1000 KM
looo am
sooo am
MOO mm
1000 I*M|
saooeim
JOOCO7TOI
MOO mm
-------
Federal Register / VoL 51. No. 225 / Friday. November 21. 1966 / Rnlei end Regulation! 42179
Urr OF HA2MDOU9
* I
tOO 14.4)
1000(4941
1000(4*4)
WOO (454)
1011 _.
181 _
IIM-_
wi_
1140 _
1S94 _
iao_.
•« —
•OLVOCOMMTEDI
•OLTOCOMMITtDI
•OLTO4.UMIAILU 0»»CNnS (
•MVUl
:NVUI
WHM)
» (434)
IOHS4|
Wl« Ml
ANSEMCMOCOMPOUWS.
(UNI
§000 U^TV)
MOO QBTO)
IOOBU8>U)
•ODD 0fO)
110 464)
1ID4M)
1*434)
1*494)
10.0*1
110494)
104M)
10.494)
•00 8270)
10.494)
1*494)
104S4)
9000 (UN)
104S4)
mo (494)
104W)
10491)
10494)
10494)
10454)
•DO OfffO)
1000 (4M)
100(434)
1001494)
100(4941
10DK&4)
100149.4)
tBO<4B.4)
1001494)
10494)
•00(414)
1000(4*4)
1000 |4M)
t04M)
104*4)
« 0 4*4)
(494)
. U.4,
1J.4J-*
t 0-4*4)
•00070)
104941
10 I* 94)
10494)
•BO ozm
10«M)
-------
LIST or HA2AAOOUI SUMTANCCI AMD REPOMT,
MOOItlTtl
IQDO|4M|
100(414)
lOOIUfl
»00(4»«l
< ID 4M|
1(0«*4|
«00(4»«|
ieooin>ai
SOOO (8>OI
>!04it|
11C4J4I
10 |4 |4)
II04M)
1000 |4Vl)
'(0444)
•OOI4S4)
1|04S4|
KnninjMMO OOI»OUNOS
toaonmi
1
sooocnnn
1(0434)
1I04A4)
1I04M)
•10454)
1(04»4|
1«04»*»
1000(4*4)
«|0444»
1000 (4S4)
II04S4I
10 (4 14)
1I04S4I
1000 (4M|
1000 (4MI
100 (41 4)
100 (4$ 4)
<00 (45 4)
< (04»4|
1(0*44)
1 (0414)
9000 121701
10(414)
1001414)
1 104441
MOOCB70)
1(0414)
1 10444)
100(414)
100(414)
100 |41 4)
1000(414)
1000 (414)
10 (4 14)
1000 (414)
10 14 14)
1000 (414)
10 (4 14)
1 10414)
-------
Federa| M.I« / Vol. 81. No. 225 / Friday. November 21. 1986 / Rule, and Regulation! 42181
UST of HAUWDOU* SU»STAMCW *» W
-------
42182 Federal R«gJ»to / Vol. 51. No. 225 / Friday. November 21. 1986 / Rulci and Regulation!
1000 |4M}
HOC (2770)
1(0444)
»(04J4)
-------
Federal Register o
LIST or HAZARDOUS SUBSTANCIs AND REPORTABIC OuANrmes
ttfli "Vttif
OODO 077Vf
1000 MM)
Etm. 1.1
1.440*
HOMO
IB 04)
100014141
1000 Itti)
i,
u
MO (46 4|
WOH»4|
W00|4i4)
«ID4$4>
*I04M)
'***•'
Oeiif «i M»uu»»ry phaipmit ..
PNwtt
i
*«•«
•000)454)
1.1-D»>|0»)*t
OfirttoMoo'* .
Ij-Omm
0>nwi|«n*ii
O-t|n
*e& OjCMnNV MavMDfMmrahZ
0000 U27Q)
NOW4|
•0)444)
WOO|4M|
IID4M)
1D4J4)
tt(4J4|
1ID4MI
I04MI
*T*TTT*T-tt"
*tw«i.
•X|kI-«
MO 1414)
'****
100(48.4]
1*414)
IOO«4S4)
M0|4«4|
MO«4S4)
MO (454)
IOHI4)
tVOnkcvrml.
10)444)
«)4*4)
Cnoo*.
U-l
1.4
MOOH641
AMD* t J.
1101494}
1 1B 454)
MOI4S41
HOOBfm
1B.444)
1000 |4M|
H04S4)
M0f4«4)
100)414)
ice (*i 4i
1000)494
If) 414)
CNOOOM/AN AIC METAOOUTCT.
KB 414)
U.J 110 i
1I04M)
-------
421M Federal Reg liter / Vol. 51. No. 223 / Friday. November 21. 1986 / Rulei and RefulatioM
UST of HAZARDOUS SUMTANCES AND RCPONTAIJLI OUAMTTTVJ—C«cfln«d
1(0494)
1(0434)
9000(2270)
9000 (2270)
9000(22701
1(0494)
1(0494)
100(414)
10001414)
1000(494)
1(0414)
90008270)
1000(414)
1000(414)
1000(414)
10001414)
BOO (2270)
100 (4} 4)
10001414)
1000(414)
10001414)
100 (41 4)
1000(414)
100(414)
BO UJ7Q)
10(494)
100 (4S.4)
10(494)
1000(494)
BOD ^770)
10(414)
BOD (2270)
100(414)
1000(414)
BOO (2270)
9000 (27^9)
9000 (2770)
100(414)
110.444)
-------
LIST of HUMMUS SUUTAMCC* ANC RcPOffTAMJ OuAirrrnu—ConOnu*d
1*1
!»*»«)
MEFTACHLOM AW MFTAMlfltS..
4.M
MJJLT.
.4.7.1*.
1(D04|
VEAO «M> OOMPOUMA.
MM*
NQHS4)
100(4»4»
1000097^
**m»*
MBH>4|
10H34)
100(414)
tflO(4S«t
100(49.4)
100(4*4)
1|0444|
110454)
t (0444|
1000(4*4)
1000 MM)
1(0. 4*4)
WD (4S4I
WH341
I«4M|
I*4M)
«P4*4|
•008270)
100(04)
NOIO.4I
KDM.4I
10)4*4)
100MS.4)
••C.
|454)
MO (44 4)
10U) (cV'UI
MOD OB TO)
1000 (4S4)
1»4M)
10(4*41
-------
42186 Federal Register / Vol. 51. No. 223 / Friday. November 21. 1966 / Rules and Regulation!
L/ST Or HA2AMOOVS SUHTANCCS ANO RtPOffTAMJ OuANTI
•Cora**!
10 (4 Ml
1000 (4MI
1000 (4MI
1000 t4M|
1 B4MI
1(0 4M|
1000 (4M)
1000 HM)
MOO em
1(0 4M|
1 10434)
10 (4 Ml
100(434)
9000 mm
MM (2270)
100(434)
IR4M)
100 K5 4)
1(0 4M)
MM B270)
H04M)
9000 B2m
9000 UJ'U)
100(444)
1(0 4M|
MOO em
100(434)
1(04*4)
100014*4)
100(4*4)
1(0 4M)
10M(4M)
1000 |*M)
K0.4M)
1 |0«M)
1(0 4M)
1001434)
1000 (4M)
1000 (4M|
1000 (4M)
3000 em
10(434)
10 (4 Ml
l(04M>
9000 (22m
1(0 4M)
100(43.1)
1000(4341
1(0434)
100 (43.4)
MM ami
1(0 4M(
10 (4 M)
1000(04)
• 10.04)
100 (43 4|
100(434)
HD404)
tOO(O4)
9000 azm
MOO (22TQI
1 104*4)
100 (43 4)
sooocam
1(04341
1 I04MI
1 (04M)
1 I04M1
1(0 4M)
100 (43 4|
I (0444)
MMU270I
i I04M)
MMWOI
-------
t- en egis er
LIST OF HAZARDOUS SUBSTANCES ANO REPOWTAKJ OUANTTT**-Contrwcd
1000 «4M)
1(0 4S4)
14D444)
110 444)
1000 KM)
-------
42188 Federal Register / Vol. 51. No. 225 / Friday. November 21. 1986 / Rules.and Regulations
LOT OF HA2AAOOM SUUTANCCS AND RIWTA8U (X
i.texu-ffn
(1.2J-00J
10464)
•00 M4|
E4na.0.0a»»y »M»|4t«)i
10 MM)
•OHM)
100)464)
MOO 12270)
100(464)
10 MM
MOD (2770J
10 MM)
100 M8 4)
10464)
100 M6 4)
MOO MM)
MnMUkTC ESTEW-
MMfcMVMMi
POLVO46MMTED WKWYXS (
,2X
1-*N
1000(464)
100M6.4)
100M6.4)
1000(404)
6000(2170)
M0002TO)
10MM)
10 MM)
10 (4 M)
10 MM)
10 MM)
WM44)
10 MM)
1 10 M.M)
10 MM)
^«
1000 MM)
1000 I4M)
1000 (444)
1000 |4M)
10 (4 Ml
1000(464)
10001*94)
100(494)
1 (0494)
MOOU770)
104MI
1«494|
9000 (V0|
1>*1
»ftl
• mill io-
Mn
MM
2,4>T»>|
1(0494)
104M)
1000 MM)
1 04M)
1000 MM)
10MM)
1000 MM)
WM-M)
M(4M)
104M1
MOO B2TO)
1000 (2270)
MOO MM)
10 (4 M)
1000 I4M)
10 494)
9000 U270)
100(494)
1000 MM)
100(494)
1000 (4M|
9000(2270)
1000(494)
1000 MM)
1000 MM)
100(494)
9000(22101
100)49.4)
9000(2770)
900012270)
1000 |4M)
100(494)
1 04M)
MOO |4MI(
-------
Federal Register / Vol. 51. No. 225 / Friday. November 21. 1986 / Rules and Regulation! €2189
U8T Of HAZARDOUS SUISTANCCt AND ftEtOMTMtf QuANTTTIEt—Confeutd
NOO4IM)
1-CB-W
It)
t<
MOI*««I
0*4
1P«M|
WP.M)
KLEIWMMOC
W.VCM *M>COMPOUNDS.
,4>T* «
.4*1* M
MRMl
1»*MI
NOOKS4I
1|D«M)
1000|4S4|
NOHS.4I
WOO|*S«)
WOO|M«|
UOJ4S4I
mown
WOOI1UI
lOBOHM)
MOOIM4I
NOOHM1
WOO (AMI
100 HS 4)
100 H»4
0000 (
0000
1000 (4S«|
HM»»I»|I
1.4J.TM
14*1'.
«tD«M)
WHM)
HO (*>.•»
«00|tt.4)
oc»_
4.4' 000 ..
**.?*•»•
CffW«. 1
1 1JL
1
-------
- i. . o. zzs n ay. . ovenn er 21, 1966 / Rules and Regulation*
(JIT or HAZMOoua SUWTAMCC* mo R&OCTABJ OUANTTTW*—CentoMd
MOMA.4)
IOBMS4)
100 H4 4)
NOH&4I
100(454)
MM)
100 HM
• IOL4M)
I
IIOL4M
10464)
2.OTPD017
-------
Federal Register / Vol. 51. No. 22S / Friday. November 21. 1966 / Rule, and Regulation. 42191
^^M^M_•
LJST Of HAZAROOU* SUUTANCCI AND RCPORTAIU Ou*xnme»-CofTt»xnd
IkDuivWUBBrmw
MOOH»I)
«ond»
(Km. Ma
i»«*«»
tt.MM.a-
: AMD anUpnukTM
arc
&K
1000 (i
100 UMI
flflOO B77Q|
1000 KM)
1000 1«MI
1000 |«M)
1000 HMI
1000 HM)
1000 MM)
1000 MM)
1000 MM)
1000 KMI
1000 |4M)
•000 WW
100ri5.ll
10DDI4M)
WOI._
Th.lt_
1000 <«M)
HOC U9TOI,
JOOO I227DI
HMM^ Of VVM MMW 0 I
M TMienonanym __
l <11.T..«|.
MCMmMMwdi.
1»(04M>
1000* <4M|
1000 MM)
1000 KM)
MOO*O.JD)
i.1.l-TiiM
1000 KM)
100*141
4000 IUIOI
"9
WH
MEM
fl VTUT
NOOKM)
10000270)
1000(22701
1000 (4MI
WO («5 «)
BOOO USTO)
soooerroi
** ***"
BOXUJTW
MOOHMl
100(440
• 404MI
-------
42192 Federal Regiftef / Vol. 51. No. 225 / Friday. November 21. 1966 / RuFei and Reyi aUon«
LOT or HAZJMOOM SuMTMcn AMD RVOMTMU Ou««TTnf»-Coninu«*
ran.
i • temMMng'pooM « » B •••J*juU»«* « »»
i U»M » snajc* tm ftmaot tfimim. (Da
ten-
or of
iwft •> •
a) .nwtanv «• OB •
n*
rMMflt
nduOng tut noliMMB
MnLMiMI I*""1"
inSMOHMUU
1 •.««
1(0104
not
1*404)
1(046*1
i MOM w praduBsn tf>4SMMtf44i taM i
-------
Federal Register / Vol. 51, No. 225 / Friday. November 21. 19B6 / Rule» and Regulation* 42193
LIST or HAZARDOUS SWKTAWCM AND REPOATABLI QiMNTmu-ContnNd-.
R01«.
QMM
(WH-
KW1.
ttPV VVV) 9W pVQdUCttfl QB pAVAfll'ICMDAV •W (
MM- .
» ••
ksm r» praduacn
1.1.1-
ntfl.l.M
» »• pQOMCBn 01 MSMA «1d
I fit*
SOGOIUIUI
* ID 164)
IID4M)
l(0«44)
1ID.4M)
1IB4MI
1IDIMI
SOOO 070)
1|D4S4)
1flOO|
110*44)
1 |0«M)
1
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42194 r«dCr.l Register / Vol. 51. No. 225 / Friday. November 21.. 1.966./ Rulei and Regulations
UST Of HA2AJWOU8 SUMTANCf 8 AND REPORT ABU OU
Mnm torn M praouaon 4 M.
MII M IM ol KMMd orten to am*Aa»aii * M
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Fsderal Register / Vol. 51. No. 225 Kn ay.
UST Of HAZAftOOUS SUBSTANCE* ANO RlWTAiU
»• •e«»««lrwi»iuy*n«i trd/ar crrav on*
ifio Mmw « f* MOB « •» «•« m
*^^J** fGr Sacfeon jBOl[tf ACRA 1h»jijpnqr Ct^AI iw4Py
"**• "* ••••' •«• T««» X2.4 «f 40 Cn ML4 M IBM*
*••
0. In 1172.102. paragraph (e) ii revised
to read asfollows:
9172.182 Pvprne ami us* of Optional
Hazardous Isatartels TaM* far International
•Mpnwnta.
• • • • .
(e) If a hazardoui matenai that ii a
hazardous substance ia offered.
accepted or transported under an
acceptable shipping name from the .
Optional Table that does not contain the
name of the hazardous substance, the
name of the hazardous substance must
be entered, in parentheses, in
association with the proper shipping
->e. For waste streams or for wastes
h exhibit an EPA characteristic of
.ibitity. corrosivity, reactivity, or EP
loxicity. the basic description must be
followed by the waste stream number in
parentheses or by the letter* "EPA" and
Ihe word "ignitabiJity" or "corrosivity-
or "reactivity", or "EP toxicily". in
parentheses, as appropriate.
• • • • •
m In 1172.203. paragraph (c) is
revised to read as follows:
I tTUMAMWonal dmer^tton
(c) Hazafdaug tubstanext. (l) If the
proper shipping name for a mixtur* or
aolution that ia a hazardoua substance
does not identify the constituents
making it a hazardous substance, the
name or names of such hazardous
•ubstance constituents as shown in the-
Appendix to i 172.101 must be entered
in parentheses in association with the
basic description. For waste streams or
for wastes which exhibit aa EPA
characteristic of ignilibility. corrosivity.
reactivity or EP toxioty the basic
description must be followed by the
waste stream number in parentheses or
by the letters "EPA^and the word
"ignilibility", or "corrosivity". or '"
"reactivity", or "EP toxicjty", in
parentheses, as appropriate. These
requirements also apply when
descriptions from the Optional Table in
1172.102 are used. -
(2) The letters "RQ" must be entered
on the shipping paper either before or
after the basic description required by
1172.202 for each hazardous substance.
For example: "RQ, Cresol. Corrosive
matenai. UN 2078": or "Hazardous
substance, liquid, n.o.s., ORM-E. NA
9188 (Adipic Acid). RQ".
• • • • •
11.1172.324 is revised lo read as
follows:
I17U24 Hazardous wbvtane**.
(a) Except as provided in paragraph
(b) of this section, if the proper shipping
name for a mixture or solution that ia a
hazardous substance does not identify
USettnvtttuenu makiag.it a hazardous
•ubstance. the name or names of such '
hazardous substance constituents as
•hown in the Appendix to 1 172.101.
must be marked in parentheses in
association with the proper shipping-
name on each packaging having a •
capacity of 110 gallons or less. This
requirement also applies when
descriptions from the Optional Table in"
1 172.102 are used.
(b) Those packages with a capacity of
110 gallons or less which contain waste
streams or wastes which exhibit an EPA.
characteristic of ignitibility. cerrosivity.
reactivity, or EP toxicity, must be .
marked in parentheses in association ".
with the proper shipping name with the1
applicable waste stream number ot the
letters "EPA" and the word
"ignitibilily". or "corrosivity:;, jot t~
. "reactivity", or "EP toxicity" aa -
appropriate. ' '
(c) The letters RQ must be displayed* '
in association with the propef shipping- • <
name on a packaging having a capacity
of 110 gallons -or less that contains a
hazardous substance. , *'
li*ued in Washington. DC on Novnnbtr 17.
IMS under authority delegated in « GFR
fctCvntfauDwisUu,
frograna Adminittration.
[FR Doc aft-2U8l Fitaf 11-20-6* MS aa)
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Federal Register / Vol. 51. No. 245 / Monday. December 22. 1986 / Rules and Regulations
45767
The Catalog of Federal Domestic
Assistance Number is 64.116.
List of Subjects in 38 CFR Part 21
Civil rights. Claims. Education. Grant
programs. Loan programs. Reporting
requirements. Schools. Veterans.
Vocational education. Vocational
rehabilitation.
Approved. December 8. 1986.
Bv direction of the Administrator.
Thomas E. Harvey.
'\dmimslntor
PART 21— (AMENDED!
.18 CFR Part 21. Vocational
Rehabilitation and Education, is
amended by revising § 21.430.
pdragraphs (c|(l). (2) and (3) to read as
follows:
§ 21.430 Accountability lor authonutfon
and payment of training and rehabilitation
services.
• • • • •
(c) Limitations. • * *
(1) The DVB case manager may not
authorize payment or program costs
which will exceed S3.200 per year. If
program costs for a year exceed $3.200.
additional concurrence is required as
specified m paragraph (c)(2) through (4)
of (his section:
(2) Program costs which will be
greater than S3.200 but not more than
59.500 per year, may be approved by the
Vocational Rehabilitation and
Counseling Officer
(3) Program costs which will be
greater than S9.SOO per year, but not
more than $15.000 per year, may be
approved by the Director. VA Regional
Office: and
• • • • •
(.18 USC. 15lS(a|«)|
|KR Doc. 86-285:3 Filed 12-19-66. 8.43 am)
BIUIW COOt U2O-01-M
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 117 and 308
ISWH-fRL-3129-81
Suparfund Program*; ••portable
Quantity Adjustments* Correction
AGENCY: Environmental Protection
Agency.
ACTION: Final rule: correction.
SUMMARY: This document corrects the
amendatory language revising the list of
hazardous substances and reportable
quantities, as set forth m the final rule
adjusting 102 reportable quantities
under section 102 of the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
("CERCLA"). The final rule adjusting
reportable quantities was published on
September 29.1986 (51 FR 34534). In that
rule the Agency incorrectly identified its
action as "revising" the list of hazardous
substances, resulting in a potential
deletion of substances from the Table.
rather than revising only certain entries
in the list. This action is necessary to
correctly codify the list of hazardous
substances and reportable quantities in
Table 302.4 of 40 CFR Part 302.
OATtt The final rule adjusting reportable
quantities will be effective on December
29,1986.
ADDRESSES: The toll-free telephone
number of the National Response Center
is 1-800/424-8802; in the Washington.
DC metropolitan area, the number is 1-
202-428-2675. Docket: Copies of
materials relevant to this rulemaking are
contained in Room LG at the U.S.
Environmental Protection Agency. 401M
Street. SW.. Washington. DC 20460. The
docket is available for inspection
between the hours of 8.-00 a.m. and 4:00
p.m.. Monday through Friday. As
provided in 40 CFR Part 2. a reasonable
fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT:
Dr. K. Jack Kooyoomjian. Senior Project
Officer. Response Standards and
Criteria Branch. Emergency Response
Division (WH-548B). U.S. Environmental
Protection Agency. 401 M Street. SW..
Washington. DC 20460. or the RCRA/
Superfund Hotline ai 1-800/424-9346: in
Washington. DC at 1-202/382-3000.
SUPPLEMENTARY INFORMATION: The
following correction is made in SW-H-
FRL 3032-0 published in the Federal
Register on September 29,1988 (51 FR
34534):
1. On page 34541. column 2, the text of
numbered paragraph 2 is corrected to
read "2. Section 30Z4 is amended by (1)
revising the introductory note to Table
302.4. (2) adding the following hazardous
substances to Table 302.4 and Appendix
A: (waste streams F020. F021. F02Z F023.
F028, F027. F02& Kill. K112, K113. K114.
KHS. K116. K117. Klia K136:
o-toluidine. p-toluidine. and
2-ethoxyethanol). and (3) revising the
entries for certain other hazardous
substances in Table 302.4 and Appendix
A as listed below, to read as follows (all
other entries not listed below remain
unchanged):".
Dated: December 11.1988.
|.W. McGraw.
Acting Assistant Administrator for Solid
Waste and Emergency Response.
|FR Doc 88-28383 Filed 12-19-88:8:43 am)
DEPARTMENT Of HEALTH AND
HUMAN SERVICES
Public Health Service
42 CFR Part 57
Grants to Schools of Medicine.
Osteopathy. Dentistry, PuMte Health,
Veterinary Medicine, Optometry,
Pharmacy, and Podiatry for Support of
Their Education Programs
AOBNCY: Public Health Service. HHS.
ACTION; Final regulation.
SUMMARY: These final regulations revise
existing regulations governing capitation
grants to health professions schools to:
incorporate amendments made to
sections 770-772 of the Public Health
Service Act (the PHS Act) by the Health
Professions Training Assistance Act of
1985. Pub. L 99-129. enacted October 22.
1985.
RFncnva OATK These regulations are
effective December 22.1986.
FOR FURTHIR INFORMATION CONTACT.
Dr. Howard L Kelly. Public Health
Professions Branch. Division of
Associated and Dental Health
Professions Branch. Bureau of Health
Professions. Health Resources and
Services Administration. 5600 Fisher
Lane. Room 8-08. Rockville. Maryland
20857: 301-443-6896.
SUPPLEMENTARY INFORMATION: These
regulations implement amendments
made in the Health Professions
Capitation Grant legislation (sections
770-772 of the PHS Act) by the Health
Professions Training Assistance Act of
1985 (Pub. L 99-129) enacted on October
22.1985. These regulations incorporate
into the existing regulations revisions
which are technical and ministerial in
nature to conform the regulations to the
amendments made by Pub. L 99-129.
These revisions are summarized below
according to the section numbers and
titles of the regulations.
1. Revise the title of 42 CFR Part 57.
Subpart |] from "Grants to Schools of
Medicine. Osteopathy. Dentistry. Public
Health. Veterinary Medicine.
Optometry. Pharmacy, and Podiatry for
Support of Their Education Programs" to
"Capitation Grants for Schools of Public
Health."
2. Revise the Table of Contents to
reflect new section designations.
3. Revise § 57.3501. "To whom do
these regulations apply?", and § 57 3503.
"Who is eligible for health professions
capitation grants?", to delete references
to schools of medicine, osteopathy.
dentistry, veterinary medicine.
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