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Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Rules and Regulations
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release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance, however, as it does not assign liability to any party or to the owner of any specific property.
Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
For purposes of listing, the NPL
includes two sections, one of sites that are generally evaluated and cleaned up by the EPA the General Superfund section and one of sites that are owned or operated by other Federal agencies the Federal Facilities section. With respect to sites in the Federal Facilities section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 52 FR 2923, January 29, 1987 and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System HRS score and determining whether the facility is placed on the NPL.
D. How are sites listed on the NPL?
There are three mechanisms for placing sites on the NPL for possible remedial action see 40 CFR 300.425c of the NCP: 1 A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA
promulgated as appendix A of the NCP
40 CFR part 300. The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 55
FR 51532, the EPA promulgated revisions to the HRS partly in response to CERCLA section 105c, added by SARA. On January 9, 2017 82 FR 2760, a subsurface intrusion component was added to the HRS to enable the EPA to consider human exposure to hazardous substances or pollutants and contaminants that enter regularly occupied structures through subsurface intrusion when evaluating sites for the NPL. The current HRS evaluates four pathways: Ground water, surface water, soil exposure and subsurface intrusion, and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. 2
Each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in
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the state. This mechanism for listing is set out in the NCP at 40 CFR
300.425c2. 3 The third mechanism for listing, included in the NCP at 40
CFR 300.425c3, allows certain sites to be listed without any HRS score, if all of the following conditions are met:
The Agency for Toxic Substances and Disease Registry ATSDR of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.
The EPA determines that the release poses a significant threat to public health.
The 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.
The EPA promulgated an original NPL
of 406 sites on September 8, 1983 48 FR
40658 and generally has updated it at least annually.
E. What happens to sites on the NPL?
A site may undergo remedial action financed by the Trust Fund established under CERCLA commonly referred to as the Superfund only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425b1.
Remedial actions are those consistent with a permanent remedy, taken instead of or in addition to removal actions 40 CFR 300.5.
However, under 40 CFR 300.425b2, placing a site on the NPL does not imply that monies will be expended.
The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.
F. Does the NPL define the boundaries of sites?
The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL to identify releases that are priorities for further evaluation, for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.
Although a CERCLA facility is broadly defined to include any area where a hazardous substance has come to be located CERCLA section 1019, the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data if the HRS is used to list a site upon which the NPL placement was based will, to some extent, describe the releases at issue. That is, the NPL
site would include all releases evaluated as part of that HRS analysis.

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When a site is listed, the approach generally used to describe the relevant releases is to delineate a geographical area usually the area within an installation or plant boundaries and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the boundaries of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.
In other words, while geographic terms are often used to designate the site e.g., the Jones Co. Plant site in terms of the property owned by a particular party, the site, properly understood, is not limited to that property e.g., it may extend beyond the property due to contaminant migration, and conversely may not occupy the full extent of the property e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the site. The site is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination; and is not meant to constitute any determination of liability at a site. For example, the name Jones Co. plant site, does not imply that the Jones Company is responsible for the contamination located on the plant site.
EPA regulations provide that the remedial investigation RI is a process undertaken . . . to determine the nature and extent of the problem presented by the release as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility study FS 40 CFR
300.5. During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the sources and the migration of the contamination.
However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination has come to be located before all necessary studies and remedial work are completed at a site. Indeed, the known
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