40 C.F.R. § 300.425

Establishing remedial priorities

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(a) General. The purpose of this section is to identify the criteria as well as the methods and procedures EPA uses to establish its priorities for remedial actions.

(b) National Priorities List. The NPL is the list of priority releases for long-term remedial evaluation and response.

(1) Only those releases included on the NPL shall be considered eligible for Fund-financed remedial action. Removal actions (including remedial planning activities, RI/FSs, and other actions taken pursuant to CERCLA section 104(b)) are not limited to NPL sites.

(2) Inclusion of a release on the NPL does not imply that monies will be expended, nor does the rank of a release on the NPL establish the precise priorities for the allocation of Fund resources. EPA may also pursue other appropriate authorities to remedy the release, including enforcement actions under CERCLA and other laws. A site's rank on the NPL serves, along with other factors, including enforcement actions, as a basis to guide the allocation of Fund resources among releases.

(3) Federal facilities that meet the criteria identified in paragraph (c) of this section are eligible for inclusion on the NPL. Except as provided by CERCLA sections 111(e)(3) and 111(c), federal facilities are not eligible for Fund-financed remedial actions.

(4) Inclusion on the NPL is not a precondition to action by the lead agency under CERCLA sections 106 or 122 or to action under CERCLA section 107 for recovery of non-Fund-financed costs or Fund-financed costs other than Fund-financed remedial construction costs.

(c) Methods for determining eligibility for NPL. A release may be included on the NPL if the release meets one of the following criteria:

(1) The release scores sufficiently high pursuant to the Hazard Ranking System described in appendix A to this part.

(2) A state (not including Indian tribes) has designated a release as its highest priority. States may make only one such designation; or

(3) The release satisfies all of the following criteria:

(i) The Agency for Toxic Substances and Disease Registry has issued a health advisory that 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.

(d) Procedures for placing sites on the NPL. Lead agencies may submit candidates to EPA by scoring the release using the HRS and providing the appropriate backup documentation.

(1) Lead agencies may submit HRS scoring packages to EPA anytime throughout the year.

(2) EPA shall review lead agencies' HRS scoring packages and revise them as appropriate. EPA shall develop any additional HRS scoring packages on releases known to EPA.

(3) EPA shall compile the NPL based on the methods identified in paragraph (c) of this section.

(4) EPA shall update the NPL at least once a year.

(5) To ensure public involvement during the proposal to add a release to the NPL, EPA shall:

(i) Publish the proposed rule in the Federal Register and solicit comments through a public comment period; and

(ii) Publish the final rule in the Federal Register, and make available a response to each significant comment and any significant new data submitted during the comment period.

(6) Releases may be categorized on the NPL when deemed appropriate by EPA.

(e) Deletion from the NPL. Releases may be deleted from or recategorized on the NPL where no further response is appropriate.

(1) EPA shall consult with the state on proposed deletions from the NPL prior to developing the notice of intent to delete. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the state, whether any of the following criteria has been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

(iii) The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

(2) Releases shall not be deleted from the NPL until the state in which the release was located has concurred on the proposed deletion. EPA shall provide the state 30 working days for review of the deletion notice prior to its publication in the Federal Register.

(3) All releases deleted from the NPL are eligible for further Fund-financed remedial actions should future conditions warrant such action. Whenever there is a significant release from a site deleted from the NPL, the site shall be restored to the NPL without application of the HRS.

(4) To ensure public involvement during the proposal to delete a release from the NPL, EPA shall:

(i) Publish a notice of intent to delete in the Federal Register and solicit comment through a public comment period of a minimum of 30 calendar days;

(ii) In a major local newspaper of general circulation at or near the release that is proposed for deletion, publish a notice of availability or use one or more other mechanisms to give adequate notice to a community of the intent to delete;

(iii) Place copies of information supporting the proposed deletion in the information repository, described in § 300.430(c)(2)(iii), at or near the release proposed for deletion. These items shall be available for public inspection and copying; and

(iv) Respond to each significant comment and any significant new data submitted during the comment period and include this response document in the final deletion package.

(5) EPA shall place the final deletion package in the local information repository once the notice of final deletion has been published in the Federal Register.

[55 FR 8839, Mar. 8, 1990, as amended at 80 FR 17706, Apr. 2, 2015]

Notes of Decisions

Cited in 36 cases (4 in the last 5 years), 1991–2022 · leading case: CTS Corp. v. Env't Prot. Agency, 759 F.3d 52 (D.C. Cir. 2014).

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CTS Corp. v. Env't Prot. Agency, 759 F.3d 52 (D.C. Cir. 2014). · cites it 3× “See 40 C.F.R. § 300.425 ; id. Part 300, App. A.”

Atl. Richfield Co. v. Christian, 140 S. Ct. 1335 (2020). · cites it 2× “See 40 CFR §300.425 (e). The landowners and JUSTICE GORSUCH alternatively argue that the landowners are not potentially responsible parties because they did not receive the notice of settlement negotiations required by §122(e)(1).”

United States v. W.R. Grace & Co. Kootenai Dev., Corp. W.R. Grace & Co. Conn., 429 F.3d 1224 (9th Cir. 2005). · cites it 2× “See 40 C.F.R. §§ 300.425 (b)(1), 300.430(e)(7).”

State of New Mexico v. Gen. Elec., 467 F.3d 1223 (10th Cir. 2006). · cites it 2× “§ 9605 ; 40 C.F.R. § 300.425 . The State of New Mexico had the South Valley site placed on the NPL pursuant to § 9605(a)(8)(B), which provides the NPL "to the extent practicable, shall include among the one hundred highest priority facilities one such facility from each State…”

Michigan Millers Mut. Ins. v. Bronson Plating Co., 519 N.W.2d 864 (Mich. 1994). · cites it 2× “42 USC 9605(a)(8)(B). A contaminated site must be included on the NPL if the EPA intends to use public CERCLA funds (the superfund) to finance remedial action in connection with the site.”

Residents of Gordon Plaza v. Cantrell, 25 F.4th 288 (5th Cir. 2022). · cites it 2× “” Notably, the proposed rule does not indicate an intention to clarify rights and obligations generally with the force of law but rather to set out a fact-bound inquiry into the application of a regulation to a particular party— here, the provision for NPL site deletion in the…”

The Mead Corp. v. Carol M. Browner, Adm'r, & the United States Env't Prot. Agency, 100 F.3d 152 (D.C. Cir. 1996). · cites it 4× “40 C.F.R. § 300.425 (c). Here, relying on the latter, it has listed three areas as a single site.”

Agere Sys., Inc. v. Advanced Env't Tech. Corp., 602 F.3d 204 (3rd Cir. 2010). “Those two disposal sites are not the focus of the present appeal.”

United States v. Sensient Colors, Inc., 580 F. Supp. 2d 369 (D.N.J. 2008). · cites it 2× “Sixth Affirmative Defense — Removal Versus Remedial Action According to the sixth affirmative defense, The United States may only conduct remedial work at sites listed on the National Priorities List, see 40 C.F.R. § 300.425 (b)(1). There is no dispute that the Site is not on…”

Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409 (11th Cir. 1995). “40 C.F.R. § 300.425 (b)(1) (1994). The former MGPs at issue in this litigation have never been placed on the NPL, although other MGP sites have been listed.”

United States v. Colorado, 990 F.2d 1565 (10th Cir. 1993). · cites it 4× “40 C.F.R. § 300.425 (b)(1) (1992). We note that Superfund monies cannot be used for remedial actions at federal facilities, 42 U.”

United States v. Asarco Inc., 28 F. Supp. 2d 1170 (D. Idaho 1998). · cites it 5× “15 The HRS evaluates the relative site risks posed to human health or the environment. If a site is assigned a score of 28.5 or more, EPA will propose the site for inclusion on the NPL.”

Show all 36 citing cases →

— 40 C.F.R. § 300.425(b)(1) — 1 case

Env't Prot. Agency Ex Rel. United States v. TMG Enter., Inc., 979 F. Supp. 1110 (W.D. Ky. 1997).

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