[Federal Register Volume 77, Number 216 (Wednesday, November 7, 2012)]
[Rules and Regulations]
[Pages 66729-66733]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26970]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[EPA-HQ-SFUND-2012-0738; FRL-9713-1]
RIN 2050-AG73
National Oil and Hazardous Substances Pollution Contingency Plan;
Revision To Increase Public Availability of the Administrative Record
File
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to amend the National Oil
and Hazardous Substances Pollution Contingency Plan (NCP), to
acknowledge advancements in technologies used to manage and convey
information to the public. Specifically, this revision will add
language to EPA regulations to broaden the technology, to include
computer telecommunications or other electronic means, that the lead
agency is permitted to use to make the administrative record file
available to the public. By updating the language used to describe
permitted technology, the lead agency will be able to serve the
information needs of a broader population, while maintaining the
ability to provide traditional means
[[Page 66730]]
of public access to the administrative record file, such as paper
copies and microform. The lead agency should assess the capacity and
resources of the public to utilize and maintain an electronic- or
computer telecommunications-based repository to make a decision on
which approach suits a specific site.
DATES: This rule is effective on February 5, 2013 without further
notice, unless EPA receives adverse comment by December 7, 2012. If EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-2012-0738, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: superfund.docket@epa.gov.
Fax: 202-566-9744.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center (EPA/DC), Superfund Docket, Mailcode: 28221T, 1200 Pennsylvania
Ave. NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room
3334, 1301 Constitution Ave. NW., Washington, DC 20460. Attention
Docket ID No. EPA-HQ-SFUND-2012-0738. Such deliveries are only accepted
during the Docket's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
2012-0738. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Superfund Docket (Docket
ID No. EPA-HQ-SFUND-2012-0738). This Docket Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
Superfund Docket telephone number is (202) 566-0276. EPA Docket Center
(EPA/DC), EPA West, Room 3334, 1301 Constitution Ave. NW., Washington,
DC.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP and Oil Information Center at (800) 424-9346
or TDD (800) 553-7672 (hearing impaired). In the Washington, DC
metropolitan area, call (703) 412-9810 or TDD (703) 412-3323. For more
detailed information on specific aspects of this direct final rule,
contact Melissa Dreyfus at (703) 603-8792 (dreyfus.melissa@epa.gov),
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460-0002, Mail Code 5204P.
SUPPLEMENTARY INFORMATION:
I. Why is EPA using a direct final rule?
EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment as this action merely adds language to 40 CFR 300.805(c) of the
NCP to broaden the technology, to include computer telecommunications
or other electronic means, that the lead agency is permitted to use to
make the administrative record file available to the public. By
updating language used to describe permitted technology, the lead
agency will be able to serve the information needs of a broader
population, while maintaining the ability to provide traditional means
of public access, such as paper copies and microform, to the
administrative record file. However, in the ``Proposed Rules'' section
of today's Federal Register, we are also publishing a separate proposed
rule to add language to broaden the technology that the lead agency is
permitted to use to make the administrative record file available to
the public under 40 CFR 300.805(c), if adverse comments are received on
this direct final rule. We will not institute a second comment period
on this action. Any parties interested in commenting must do so at this
time. For further information about commenting on this rule, see the
ADDRESSES section of this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We would address all public
comments in any subsequent final rule based on the proposed rule.
II. What should I consider as I prepare my comments for EPA?
A. Submitting Confidential Business Information (CBI). Do not
submit this information to EPA through www.regulations.gov or email.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark
the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with the procedures set forth in 40 CFR
part 2.
B. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
[[Page 66731]]
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
III. Background
A. What is CERCLA?
In 1980, Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601-9675 (``CERCLA'' or
``the Act''), in response to releases or substantial threats of
releases of hazardous substances into the environment or releases or
substantial threats of releases into the environment of any pollutant
or contaminant which may present an imminent and substantial danger to
the public health or welfare.
B. What is the National contingency plan?
To implement CERCLA, EPA promulgated the revised National Oil and
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300,
on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and
Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets
guidelines and procedures for responding to releases or substantial
threats of releases of hazardous substances into the environment and
releases or substantial threats of releases into the environment of any
pollutant or contaminant that may present an imminent or substantial
danger to the public health or welfare. EPA has revised the NCP on
several occasions. The most recent comprehensive revision was on March
8, 1990 (55 FR 8666).
C. What is the administrative record?
Under CERCLA section 113(k)(1) and 40 CFR 300.800(a), the lead
agency is required to establish an administrative record that ``* * *
contains the documents that form the basis for the selection of a
response action.'' These documents are further described in 40 CFR
300.810. In addition, CERCLA section 113(k)(2)(A) requires that EPA
establish ``* * * procedures for the appropriate participation of
interested persons in the development of the administrative record * *
* '' for a removal action. For remedial actions, EPA ``* * * shall
provide for the participation of interested persons, including
potentially responsible parties, in the development of the
administrative record * * *'' CERCLA section 113(k)(2)(B). That is, EPA
should provide the public with an opportunity to participate in the
selection of a response action. In addition, CERCLA section 117
requires EPA to allow for public comment on certain aspects of a
proposed remedial action. Participation by interested persons
(including affected communities) ensures that EPA (or the lead agency,
if not EPA) has considered the concerns of the public, including
potentially responsible parties (PRPs), in the selection of a response
action.
D. How is the administrative record file \1\ made available to the
public?
---------------------------------------------------------------------------
\1\ Typically, EPA refers to the administrative record as the
``administrative record file'' until EPA has selected a particular
response action, to avoid creating the impression that the record is
complete at any time prior to the final selection decision. See 55
FR 8666, 8804-5 (March 6, 1990) (National Oil and Hazardous
Substances Pollution Contingency Plan Preamble).
---------------------------------------------------------------------------
CERCLA section 113(k)(1) requires that a copy of the administrative
record be available to the public ``* * * at or near the facility at
issue.'' 40 CFR 300.805(a). In addition, a docket containing the
administrative record file should be located at the Regional office or
other central location. 40 CFR 300.805(a). In the case of an emergency
removal, the administrative record need only be available for public
inspection at the central location, unless otherwise requested (e.g.,
by a member of the public). 40 CFR 300.805(a)(5), 300.805(b).
Reflective of the technology available at the time of the last revision
to the NCP (March 8, 1990 (55 FR 8666)), the ``lead agency may make the
administrative record file available to the public in microform.'' 40
CFR 300.805(c).
The administrative record file located at or near the site should
be placed in one of the information repositories that may already exist
for community involvement purposes. An information repository contains
documents that relate to a Superfund site and the Superfund program in
general. An information repository is required at all remedial action
sites and any site where a removal action is likely to extend beyond
120 days. See 40 CFR 300.430(c)(2)(iii), 300.415(n)(3)(iii),
300.415(n)(4)(i). The information repository may contain information
beyond the scope of the administrative record, since the documents in
the administrative record file relate to a particular response action
selection decision at a site. For example, an information repository
might contain copies of site-specific press releases or public fact
sheets.
E. What does this amendment do?
This direct final rule amends 40 CFR 300.805(c)--Location of the
Administrative Record File in Subpart I--Administrative Record for
Selection of Response Action of the National Oil and Hazardous
Substances Pollution Contingency Plan, to acknowledge advancements in
technologies used to manage and convey information to the public.
Specifically, this revision will add language to broaden the
technology, to include computer telecommunications or other electronic
means, that the lead agency is permitted to use to make the
administrative record file available to the public regarding documents
that form the basis for the selection of a response action. This
amendment does not limit the lead agency's ability to make the
administrative record file available to the public in traditional forms
such as paper and microform. The lead agency should assess the capacity
and resources of the public to utilize and maintain an electronic- or
computer telecommunications-based repository to make a decision on
which approach suits a specific site. Based on the preferences of the
community and the lead agency's assessment of the site-specific
situation, the lead agency will determine whether to provide: (1)
Traditional forms (e.g. paper copies; microform) (2) electronic
resources, or (3) both traditional forms and electronic resources.
F. What is the basis for this amendment?
Since the passage of the CERCLA \2\, as amended, the Federal
government has made strides in encouraging electronically-available
data. For example, the Electronic Freedom of Information Act Amendments
of 1996,\3\ amending section 552(a) of title 5, United States Code,
popularly known as the Freedom of Information Act, provides for public
access to information in an electronic format. Specifically, ``For
records created on or after November 1, 1996, within one year after
such date, each agency shall make such records available, including by
computer telecommunications or, if
[[Page 66732]]
computer telecommunications means have not been established by the
agency, by other electronic means.'' \4\ In addition, ``* * * an agency
shall provide the record in any form or format requested by the person
if the record is readily reproducible by the agency in that form or
format. Each agency shall make reasonable efforts to maintain its
records in forms or formats that are reproducible for purposes of this
section.'' \5\
---------------------------------------------------------------------------
\2\ 42 U.S.C. 9601-9675, as amended.
\3\ The Freedom of Information Act, 5 U.S.C. 552, As Amended By
Public Law No. 104-231, 110 Stat. 3048. Available online: http://www.justice.gov/oip/foia_updates/Vol_XVII_4/page2.htm.
\4\ Ibid. section 552(a)(2).
\5\ Ibid. section 552(a)(3)(B).
---------------------------------------------------------------------------
As of 2010, 99% of the over 16,800 public libraries in the U.S. had
public computers connected to the internet, with an average of 16
computer stations per library. Over 85% of these libraries had public
wireless internet access, with approximately 6% planning to add access
over the next year.\6\ However, the presence of an electronic- or
computer telecommunications-based repository does not preclude
establishing a traditional paper-based repository. The lead agency
should always assess the capacity and resources of the specific
community to utilize and maintain an electronic- or computer
telecommunications-based repository. Based on the preferences of the
community and the lead agency's assessment of the site-specific
situation, the lead agency will determine whether to provide: (1)
Traditional forms (e.g. paper copies; microform) (2) electronic
resources, or (3) both traditional forms and electronic resources.
Community preferences and access to technological resources may be
gleaned through community interviews conducted as part of the planning
for the Community Involvement Plan at a site.\7\ In addition, in
accordance with Section 508 of the Rehabilitation Act of 1973, as
amended, the lead agency is responsible for ensuring that all
electronic and information technology is accessible to persons with
disabilities. This involves procuring, creating, maintaining and using
electronic and information technology, including, Web sites, software,
hardware, video and multimedia, and telecommunications, that is Section
508 compliant,\8\ as well as incorporating other techniques to ensure
accessibility.
---------------------------------------------------------------------------
\6\ U.S. Census Bureau. 2010. Table 1154: Public Library Use of
Internet: 2009 and 2010. In: Statistical Abstract of the United
States, 2011 (30th Edition): Information & Communications: Internet
Service Providers, Data Processing & Libraries. Available online:
http://www.census.gov/compendia/statab/cats/information_communications/internet_service_providers_data_processing_libraries.html.
\7\ U.S. Environmental Protection Agency. 2011. Superfund
Community Involvement Toolkit. Community Involvement Plans.
Available online: http://www.epa.gov/superfund/community/pdfs/toolkit/ciplans.pdf.
\8\ Further information on Section 508 is available online:
http://www.section508.gov.
---------------------------------------------------------------------------
EPA's Assessment of Superfund Information Repositories
EPA conducted an assessment of Superfund information repositories
(IR) as part of the Office of Solid Waste and Emergency Response
Community Engagement Initiative, Action 13, Part B.\9\ While site
information repositories were traditionally paper copies of documents
maintained at locations near Superfund sites, today there are varying
degrees of usage of electronic resources to store information,
including CDs, DVDs and Web sites. For this assessment, EPA was
interested in how the repositories are organized and maintained, as
well as investigating how current technological resources could be
utilized to improve public accessibility to Superfund site information
and the general cost and time associated with maintaining a repository.
The approach adopted for this assessment consisted of two distinct
studies: (1) A survey of EPA regional practices for establishing and
maintaining information repositories, and (2) an on-site assessment of
the content, completeness, and organization of information
repositories. The on-site assessment consisted of visits to 28
information repositories in five EPA regions to assess the content,
completeness, and organization of the repositories. A complete account
of the information repository assessment and findings can be found in
the Superfund Information Repository Assessment Report (Assessment
Report).\10\
---------------------------------------------------------------------------
\9\ Access information on EPA's Community Engagement Initiative
online: http://www.epa.gov/oswer/engagementinitiative/.
\10\ Access EPA's Superfund Information Repository Assessment
Report online: http://www.epa.gov/oswer/engagementinitiative/rr13b.pdf.
---------------------------------------------------------------------------
This assessment found that despite the careful attention and time
dedicated to appropriately locating and maintaining an information
repository, it appears to be an under-utilized and outdated source of
information for most communities. In general, community members inquire
about information repositories relatively infrequently (between 1-6
times per year). The frequency of repository use seems to be highest
for newly listed National Priorities List (NPL) sites and during the
pre-Record of Decision phase in the Superfund remedial process. New
materials and instructions are sent by the lead agency to the
repository, and the repository staff is responsible for adding and
removing documents. Due to the variation in organization and
maintenance of repositories, there can be inconsistency between
repositories. Most repositories contain useful information and are
organized in such a way that specific documents can be found. However,
some repositories lack important documents or are poorly organized due
to public usage over the years.
In almost all repositories visited for this assessment, computers
are available. Some of these computers did not have CD drives to avoid
the introduction of viruses into the library computer system, or the CD
drives were not functional. All of the libraries that were visited had
internet access.
Permitting the lead agency to provide the administrative record
file to the public via computer telecommunications or other electronic
means could help to alleviate situations with document access that have
been known to sometimes occur with disorganized or misplaced paper
files. Electronic access to site documents will also make this
information more widely available and accessible to a broader public
audience. The presence of an electronic- or computer
telecommunications-based repository does not preclude establishing a
traditional paper-based repository. The lead agency should always
assess the capacity and resources of the specific community to utilize
and maintain an electronic- or computer telecommunications-based
repository to make a decision on which approach suits a specific site.
Based on the preferences of the community and the lead agency's
assessment of the site-specific situation, the lead agency will
determine whether to provide: (1) Traditional forms (e.g. paper copies;
microform) (2) electronic resources, or (3) both traditional forms and
electronic resources. Community preferences and access to technological
resources may be gleaned through community interviews or community
technical needs assessments conducted as part of the planning for the
Community Involvement Plan at a site.\11\
---------------------------------------------------------------------------
\11\ U.S. Environmental Protection Agency. 2011. Superfund
Community Involvement Toolkit. Community Involvement Plans.
Available online: http://www.epa.gov/superfund/community/pdfs/toolkit/ciplans.pdf.
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is
not a ``significant regulatory action'' and is therefore not
[[Page 66733]]
subject to OMB review. This action merely adds language to 40 CFR
300.805(c) of the NCP to broaden the technology, to include computer
telecommunications or other electronic means, that the lead agency is
permitted to use to make the administrative record file available to
the public. This action will enable the lead agency to serve the
information needs of a broader population while maintaining the ability
to provide traditional means of public access, such as paper copies and
microform, to the administrative record file. This action does not
impose any requirements on any entity, including small entities.
Therefore, pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), after considering the economic impacts of this action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not contain any unfunded mandates or significantly or uniquely
affect small governments as described in Sections 202 and 205 of the
Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). This
action does not create new binding legal requirements that
substantially and directly affect Tribes under Executive Order 13175
(63 FR 67249, November 9, 2000). This action does not have significant
Federalism implications under Executive Order 13132 (64 FR 43255,
August 10, 1999). Because this action has been exempted from review
under Executive Order 12866, this final rule is not subject to
Executive Order 13211, entitled Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355,
May 22, 2001) or Executive Order 13045, entitled Protection of Children
from Environmental Health Risks and Safety Risks (62 FR 19885, April
23, 1997). This action does not contain any information collections
subject to OMB approval under the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq., nor does it require any special considerations
under Executive Order 12898, entitled Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994). This action does not
involve technical standards; thus, the requirements of Section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272) do not apply. The Congressional Review Act, 5 U.S.C. 801 et seq.,
generally provides that before certain actions may take effect, the
agency promulgating the action must submit a report, which includes a
copy of the action, to each House of the Congress and to the
Comptroller General of the United States. Because this action does not
contain legally binding requirements, it is not subject to the
Congressional Review Act.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: October 26, 2012
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
For the reasons set out above, title 40, chapter I of the Code of
Federal Regulations is amended as follows:
PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN
0
1. The authority citation for part 300 continues to read as follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp.,p.351; E.O. 12580, 52 FR 2923,
3 CFR, 1987 Comp., p.193.
0
2. Section 300.805 is amended by revising paragraph (c) to read as
follows:
Sec. 300.805 Location of the administrative record file.
* * * * *
(c) The lead agency may make the administrative record file
available to the public in microform, computer telecommunications, or
other electronic means.
[FR Doc. 2012-26970 Filed 11-6-12; 8:45 am]
BILLING CODE 6560-50-P