[Federal Register Volume 59, Number 134 (Thursday, July 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17004]


[[Page Unknown]]

[Federal Register: July 14, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 35 and 300

[FRL-5011-8]

 

National Oil and Hazardous Substances Pollution Contingency Plan; 
Cooperative Agreements and Superfund State Contracts for Superfund 
Response Actions

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating 
largely technical revisions to four sections of the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP). EPA is also 
promulgating conforming revisions to two sections of the administrative 
requirements for CERCLA-funded Cooperative Agreements and Superfund 
State Contracts for Superfund Response Actions.
    The first NCP revision clarifies that EPA may acquire an interest 
in real estate in order to conduct a Superfund (Fund)-financed remedial 
action only if the State in which the interest is located agrees to 
accept transfer of that interest upon completion of the remedial 
action. The second revision clarifies that a Federal agency has 
discretionary authority over the expenditure of its funds when acting 
as an expert agency providing assistance in a cleanup. The third 
revision explains that when EPA extends the operational and functional 
period of a remedial action, it will fund such extensions as part of 
the remedial action. The fourth revision clarifies that an on-scene 
coordinator (OSC) may be authorized to coordinate and direct 
appropriate response action, not merely a removal action.

EFFECTIVE DATE: This final rule is effective August 15, 1994.

ADDRESSES: The record supporting this rulemaking is contained in the 
Superfund Docket and is available for inspection, by appointment only 
(telephone--202-260-3046), between the hours of 9:00 a.m. and 4:00 
p.m., Monday through Friday, excluding legal holidays. As provided in 
40 CFR part 2, a reasonable fee may be charged for copying services.

FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Office of 
Emergency and Remedial Response, U.S. Environmental Protection Agency, 
401 M St., SW., Washington, DC 20460 (Mail Code--5203G), at (703) 603-
8769, or the RCRA/Superfund Hotline at 1-800-424-9346 (in Arlington, 
Virginia at (703) 920-9810).

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:

I. Background
II. Response to Comments
III. Summary of Supporting Analyses

I. Background

    The Environmental Protection Agency (EPA or the Agency) is today 
promulgating largely technical revisions to the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. 
EPA is also promulgating conforming changes to two sections of 40 CFR 
part 35, subpart O (hereafter subpart O), the administrative 
requirements for CERCLA-funded Cooperative Agreements and Superfund 
State Contracts. The rationale for the rule and a discussion of its 
background may be found in the preamble to the proposed rule, at 58 FR 
53688, October 18, 1993. Two commenters submitted comments concerning 
two of the proposed revisions. A discussion of those comments follows.

II. Response to Comments

    EPA proposed to change the definition of ``On-scene coordinator'' 
in NCP section 300.5 to mean the Federal official predesignated by EPA 
or the USCG to coordinate and direct Federal responses under subpart D, 
or the official designated by the lead agency to coordinate and direct 
removal or other response actions under subpart E of the NCP. One 
commenter opposed EPA's proposed revision of the definition. The 
commenter believes that ``EPA is moving towards eliminating the 
distinction between remedial project managers (RPMs) and having only 
site managers.'' He further argued, that ``considering existing 
contracts and differences in the programs,'' that he would ``not like 
to see the day * * * where an individual is an OSC on one site and an 
RPM on the next on a routine basis.''
    In response, EPA notes that it proposed to revise the definition of 
``On-scene Coordinator'' (OSC) in NCP section 300.5 to make clear only 
that the OSC may be authorized in appropriate cases, not that the OSC 
must be authorized in all cases, to implement any necessary response 
action, not merely a removal action. The rule change was not intended 
to eliminate the distinction between RPMs and OSCs, but was proposed to 
promote efficiency in the management of remedial action projects, to 
avoid the necessity of assigning both an OSC and an RPM to sites where 
multiple types of response action are necessary. The Agency also 
expressed belief in the preamble to the proposed rule that it is 
important to have the flexibility to assign one ``site manager'' to a 
site--either an OSC or an RPM--and for the OSC and RPM to have the 
ability to supervise both removal and remedial actions, as 
circumstances warrant. In response to the commenter's objection that 
existing contracts and differences in the programs made the proposed 
change an inappropriate idea, EPA acknowledged in the preamble to the 
proposed rule that cross-training of OSCs and RPMs may be needed to 
implement this idea. OSCs will continue to be primarily charged with 
overseeing removal actions; however, in appropriate cases (e.g., where 
multiple actions are necessary), the OSC may be authorized to oversee 
the remedial action activities. Thus, EPA is making no change to the 
rule language proposed.
    EPA proposed to revise NCP section 300.510(f) to provide that, in 
the case of a Fund-financed remedial action, a State would be required 
to accept the transfer of an interest in real estate acquired ``upon 
completion of the remedial action.'' One commenter asserted that EPA's 
preamble discussion of ``completion of the remedial action'' as ``the 
point at which O&M measures would be initiated if started in a timely 
fashion,'' itself creates an ambiguity. The commenter notes that, 
``aside from the obvious subjectivity of the definition, it is contrary 
to the definition of when O&M starts under 40 CFR 300.435(f).'' The 
commenter argued that to ``remedy this discrepancy, EPA should not 
establish a separate definition to `completion of the remedial 
action,''' but should ``simply specify `the remedial action is complete 
when O&M starts pursuant to 40 CFR 300.435(f).'''
    In response, EPA agrees with the commenter and will change the 
final rule to provide that ``completion of the remedial action'' means 
the point at which O&M measures would be initiated pursuant to section 
300.435(f). For sites other than ground or surface-water sites, O&M 
would generally begin when the remedy has been constructed, is 
operational and functional, and has attained ROD objectives (e.g., the 
landfill and leachate collection system are built as called for in the 
ROD, are operational, and need only be maintained). For ground- and 
surface-water restoration remedies, O&M begins after up to 10 years of 
restoration measures. See NCP section 300.435(f). (Note, however, that 
the requirement of a State assurance with respect to transfer of real 
property is not limited to sites at which the State would be conducting 
O&M the definition of the O&M initiation point in NCP section 
300.435(f) is used to identify the point at which transfer would occur 
regardless of whether the State or some other entity is in fact 
responsible for conducting O&M at the site.) The final rule, like the 
present rule, allows for earlier transfers if agreed to in writing by 
EPA and the State. See 55 FR 8779 (March 8, 1990). (``Completion of the 
remedial action,'' for purposes of NCP section 300.510(f) should not be 
confused with ``construction completion,'' which occurs at an earlier 
point in the process. See 58 FR 12142, (March 2, 1993). It is also not 
relevant to determining the date at which all response action has been 
completed for purposes of the statute of limitations in 40 U.S.C. 
9613(g).)

III. Summary of Supporting Analyses

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis which 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
EPA may certify, however, that the rule will not have a significant 
economic impact on a substantial number of entities.
    This final rule will not have a significant economic impact on 
small entities since its effect would be largely to clarify EPA's 
original intent under the 1990 NCP. There is no additional impact on 
the regulated community due to today's final rule, and no new 
obligations would be imposed on any party. Accordingly, EPA hereby 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This regulation, 
therefore, does not require a Regulatory Flexibility Analysis.

C. Paperwork Reduction Act

    There are no information collection requirements imposed by this 
rule.

List of Subjects

40 CFR Part 35

    Environmental protection, Accounting, Administrative practice and 
procedures, Financial administration, Grant programs (Cooperative 
Agreements and Superfund State Contracts), Government procurement 
requirements, Property requirements, Reporting and recordkeeping 
requirements, Superfund.

40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous materials, Hazardous substances, Incorporation by reference, 
Intergovernmental relations, Natural resources, Occupational safety and 
health, Oil pollution, Reporting and recordkeeping requirements, 
Superfund, Waste treatment and disposal, Water pollution control, Water 
supply.

    Dated: June 30, 1994.
Carol M. Browner,
Administrator.

PART 35--STATE AND LOCAL ASSISTANCE

    1. The authority citation for part 35 continues to read as follows:

    Authority: 42 U.S.C. 9601 et seq.

    2. Section 35.6105 of subpart O is amended by revising paragraph 
(b)(5) to read as follows:


Sec. 35.6105   State-lead remedial Cooperative Agreements.

    (b) * * *
    (5) Real property acquisition. If EPA determines in the remedy 
selection process that an interest in real property must be acquired in 
order to conduct a response action, such acquisition may be funded 
under a Cooperative Agreement. EPA may acquire an interest in real 
estate for the purpose of conducting a remedial action only if the 
State provides assurance that it will accept transfer of such interest 
in accordance with 40 CFR 300.510(f). The State must provide this 
assurance even if it intends to transfer this interest to a third 
party. (See Sec. 35.6400 of this subpart for additional information on 
real property acquisition requirements.)
* * * * *
    3. Section 35.6400 of subpart O is amended by revising paragraphs 
(a)(1) and (2) to read as follows:


Sec. 35.6400  Acquisition and transfer of interest.

    (a) * * *
    (1) If the recipient acquires real property in order to conduct the 
response, the recipient with jurisdiction over the property must agree 
to hold the necessary property interest.
    (2) If it is necessary for the Federal Government to acquire the 
interest in real estate to permit conduct of a remedial action, the 
acquisition may be made only if the State, or Indian Tribe to the 
extent of its legal authority, provides assurance that it will accept 
transfer of the acquired interest in accordance with 40 CFR 300.510(f). 
States and Indian Tribes must follow the requirements in 
Secs. 35.6105(b)(5) and 35.6110(b)(2) respectively, of this subpart.
* * * * *

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION 
CONTINGENCY PLAN

    1. The authority citation for part 300 continues to read as 
follows:

    Authority: 42 U.S.C. 9601-9657, 33 U.S.C. 1321(c)(2); E.O. 
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 
2923, 3 CFR, 1987 Comp., p. 193.

    2. Section 300.5 of subpart B is amended by revising the definition 
for On-scene Coordinator (OSC) to read as follows:


Sec. 300.5  Definitions.

* * * * *
    On-scene Coordinator (OSC) means the Federal official predesignated 
by EPA or the USCG to coordinate and direct Federal responses under 
subpart D, or the official designated by the lead agency to coordinate 
and direct removal or other response actions under subpart E of the 
NCP.
* * * * *
    3. Section 300.160 of subpart B is amended by revising paragraph 
(c) to read as follows:


Sec. 300.160  Documentation and cost recovery.

* * * * *
    (c) Response actions undertaken by the participating agencies shall 
be carried out under existing programs and authorities when available. 
Federal agencies are to make resources available, expend funds, or 
participate in response to discharges and releases under their existing 
authority. Interagency agreements may be signed when necessary to 
ensure that the Federal resources will be available for a timely 
response to a discharge or release. In cases where a Federal agency is 
asked to provide expert assistance for a response action, the ultimate 
decision as to the appropriateness of expending funds with respect to 
such assistance rests with the agency that is held accountable for such 
expenditures. Further funding provisions for discharges of oil are 
described in Sec. 300.335.
* * * * *
    4. Section 300.510 of subpart F is amended by revising paragraphs 
(c)(2) and (f) to read as follows:


Sec. 300.510  State assurances.

* * * * *
    (c)(1) * * *
    (2) After a joint EPA/State inspection of the implemented Fund-
financed remedial action under Sec. 300.515(g), EPA may share, for any 
extension period established in Sec. 300.435(f)(2), in the cost of the 
operation of the remedy to ensure that the remedy is operational and 
functional. In the case of restoration of ground or surface water, EPA 
shall share in the cost of the State's operation of ground- or surface-
water restoration remedial actions as specified in Sec. 300.435(f)(3).
* * * * *
    (f) EPA may determine that an interest in real property must be 
acquired in order to conduct a response action. However, as provided in 
CERCLA section 104(j)(2), EPA may acquire an interest in real estate in 
order to conduct a remedial action only if the State in which the 
interest to be acquired is located provides assurances, through a 
contract, cooperative agreement or otherwise, that the State will 
accept transfer of the interest upon completion of the remedial action. 
For purposes of this paragraph, ``completion of the remedial action'' 
is the point at which operation and maintenance (O&M) measures would be 
initiated pursuant to Sec. 300.435(f). The State may accept a transfer 
of interest at an earlier point in time if agreed upon in writing by 
the State and EPA. Indian tribe assurances are to be provided as set 
out at 40 CFR part 35, subpart O, Sec. 35.6110(b)(2).

[FR Doc. 94-17004 Filed 7-13-94; 8:45 am]
BILLING CODE: 6560-50-P