[Federal Register Volume 78, Number 52 (Monday, March 18, 2013)]
[Rules and Regulations]
[Pages 16612-16614]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-06189]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-2012-0738; FRL-9791-4]


National Oil and Hazardous Substances Pollution Contingency Plan; 
Revision To Increase Public Availability of the Administrative Record 
File

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action on an amendment that was 
withdrawn in a January 22, 2013, Federal Register withdrawal notice. 
The amendment that is the subject of today's final rule adds language 
to the National Oil and Hazardous Substances Pollution Contingency Plan 
(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.

DATES: This final rule is effective on April 17, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-SFUND-2012-0738. 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: 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 publishing this final rule?

    On November 7, 2012, EPA published in the Federal Register a Direct 
Final rule entitled National Oil and Hazardous Substances Pollution 
Contingency Plan; Revision to Increase Public Availability of the 
Administrative Record File (77 FR 66729) (hereafter the Direct Final 
rule). This Direct Final rule added 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. At the same time, EPA also published a parallel Proposed 
rule (77 FR 66783) that requested comment on the same change to the 
NCP. We stated in that Direct Final rule that if we received adverse 
comment on the amendment by December 7, 2012, the affected amendment 
would not take effect and we would publish a timely withdrawal in the 
Federal Register of the amendment. We received one adverse comment and 
as a result withdrew the amendment on January 22, 2013 (78 FR 4333). 
EPA is publishing today's Final rule to address the adverse comment 
received on the amendment listed above and to finalize this amendment.

II. Background

A. What does this amendment do?

    In the November 7, 2012, Direct Final rule, 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, was 
revised to acknowledge advancements in technologies used to manage and 
convey information to the public. Specifically, this revision to the 
NCP added 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 to the NCP 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. 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. 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.

B. What comment did EPA receive and how is it addressed?

    While three comments were submitted in a timely manner, only one of 
them is considered to be substantive. This comment, submitted 
anonymously, stated that ``This modification to the current methods of 
conveying information to the general public is prudent and likely to 
increase public awareness of activities relating to the National 
Contingency Plan.'' However, the commenter was ``* * * curious as to 
how the `preferences of the community and the lead agency's assessment 
of the site-specific situation' will be determined.'', as ``Within any 
single community, there is probably going to be a range of capabilities 
and preferences regarding the delivery of a record file.'' The 
commenter went on to explain ``In determining community preference, the 
Agency should be cautious, again, of allowing the

[[Page 16613]]

overrepresentation of special interests, for these interests may 
attempt to project a community preference for traditional microform 
files so that public participation does not increase. But, as the 
Proposed rule explains, the lead agency will be free to determine that 
both electronic and traditional microform information be available, 
which, when faced with competing views, is best for effectuating the 
purpose of this necessary and wise amendment.''
    In response to this comment, EPA agrees that the amendment being 
promulgated today is a useful and important change that will give the 
lead agency the ability to serve the information needs of a broader 
population. In the Direct Final rule (and parallel Proposed rule), EPA 
explained that 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.
    Further, EPA agrees with the commenter's remark that ``In 
determining community preference, the Agency should be cautious, again, 
of allowing the overrepresentation of special interests, for these 
interests may attempt to project a community preference for traditional 
microform files so that public participation does not increase.'' 
Community preferences and access to technological resources may be 
gleaned through community interviews conducted as part of the planning 
for the Community Involvement Plan (CIP) at a site.\1\ A CIP is a site-
specific strategy to enable meaningful community involvement throughout 
the Superfund cleanup process. Consistent with the NCP 
[300.415(n)(3)(ii); 300.415(n)(4)(i); and 300.430(c)(2)(ii)(A-C)], the 
lead agency prepares a Community Involvement Plan (formerly called a 
Community Relations Plan) ``* * * based on the community interviews and 
other relevant information, specifying the community relations 
activities that the lead agency expects to undertake during the 
remedial response.'' In addition, consistent with the NCP [40 CFR 
300.415(n)(3)(i); 40 CFR 300.415(n)(4)(i); and 300.430(c)(2)(i)] the 
lead agency conducts ``interviews with local officials, community 
residents, public interest groups, or other interested or affected 
parties, as appropriate, to solicit their concerns and information 
needs, and to learn how and when citizens would like to be involved in 
the Superfund process.''
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    \1\ 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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    EPA generally recommends that interviews be conducted with at least 
25 community members, though a complex site may warrant 100 or more 
interviewees, and a small or remote site might warrant less than 25 
interviewees.\2\ Conducting community interviews typically is a 
particularly effective way to gather information about community needs, 
questions, and concerns, as well as expectations and unique needs or 
cultural behaviors, customs, and values. Community interviews also give 
the lead agency the opportunity to hear the preferences of community 
members that may have otherwise hesitated to share during a public 
meeting or availability session. The information and insights gained 
from community interviews will help the lead agency to assess the 
capacity and resources of the community to utilize and maintain an 
electronic- or computer telecommunications-based repository, and to 
make a decision on which approach suits a specific site and best 
encourages the community's participation.
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    \2\ U.S. Environmental Protection Agency. 2011. Superfund 
Community Involvement Toolkit. Community Interviews. Available 
online at http://www.epa.gov/superfund/community/pdfs/toolkit/5cominterv.pdf.
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    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 typically 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,\3\ as well as 
incorporating other techniques to ensure accessibility.
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    \3\ Further information on Section 508 is available online: 
http://www.section508.gov.
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    Thus, the amendment being promulgated today is a useful and 
important change that will give the lead agency the ability to serve 
the information needs of a broader population, while maintaining the 
ability to provide the administrative record file to the public as: (1) 
Traditional forms (e.g. paper copies; microform) (2) electronic 
resources, or (3) both traditional forms and electronic resources. EPA 
is today promulgating the change to add language to 40 CFR 300.805(c) 
as was proposed.

III. Statutory and Executive Order Reviews

    As explained above, this rule takes final action on an amendment 
for which we received adverse comment in response to our November 7, 
2012, National Oil and Hazardous Substances Pollution Contingency Plan; 
Revision to Increase Public Availability of the Administrative Record 
File Direct Final rule (and parallel Proposed rule).
    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 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,

[[Page 16614]]

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 substances, Hazardous waste, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements, Superfund, Water 
pollution control, Water supply.

    Dated: March 11, 2013.
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. 2013-06189 Filed 3-15-13; 8:45 am]
BILLING CODE 6560-50-P