[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]


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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.

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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?
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    \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).
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    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\
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    \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).
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    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.
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    \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.
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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\
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    \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.
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    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\
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    \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.
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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]
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