[Federal Register Volume 68, Number 116 (Tuesday, June 17, 2003)]
[Notices]
[Pages 35884-35888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15260]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL -7513-4]


Interim Guidance for Community Involvement in Supplemental 
Environmental Projects

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Office of Enforcement and Compliance Assurance (OECA) is 
noticing an interim guidance document entitled, ``Interim Guidance for 
Community Involvement in Supplemental Environmental Protects.'' This 
document is intended to encourage EPA personnel to involve communities 
in supplemental environmental projects. EPA solicited public comments 
on a draft of this guidance on June 30, 2000 (65 FR 40639). The public 
comment period lasted sixty (60) days. EPA received five (5) comments 
on the draft guidance. The response to these comments follows below.

ADDRESSES: Copies of the interim guidance can be obtained by writing 
the Enforcement and Compliance Docket and Information Center (2201A), 
Docket Number EC-G-2000-055, Office of Enforcement and Compliance 
Assurance, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460, or by contacting the office via 
email at [email protected].

FOR FURTHER INFORMATION CONTACT: For further information contact 
Melissa Raack, 202-564-7039 or Beth Cavalier, 202-564-3271, Office of 
Regulatory Enforcement, Mail Code 2248-A, United States Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
e-mail: raack.melissa @epa.gov, [email protected]. The interim 
guidance can also be found at http://www.epa.gov/compliance/resources/policies/civil/seps/sepcomm2003-intrm.pdf.
    Response to Comments: Today, the United States Environmental 
Protection Agency (EPA) or (Agency) is issuing an interim guidance 
entitled ``Interim Guidance for Community Involvement in Supplemental 
Environmental Projects.'' This interim guidance is designed to provide 
information to EPA staff on involving communities in the selection and 
implementation of Supplemental Environmental Projects (``SEPs''), in 
appropriate cases. The Agency has decided to issue this guidance as 
``interim'' in order to evaluate its effectiveness in involving 
communities in SEP selection and implementation, and to assess the 
establishment of SEP libraries. This interim guidance is effective 
immediately upon publication.
    On June 30, 2000, EPA published a draft of the guidance in the 
Federal Register (65 FR 40639) and allowed 60 days for public comment. 
The comment period closed on August 29, 2000. EPA received five 
comments. With one exception (discussed below), the comments on the 
draft guidance were generally favorable. Several commenters stated they 
believed the guidance could better define the meaning of the term 
``communities.'' They also suggested that EPA clarify the guidance to 
provide that EPA should consult with the community adversely affected 
by the environmental violation, in addition to consulting community 
officials. These commenters suggested that the Agency should weigh 
input from the affected community more heavily than input from 
community officials or others in communities not directly affected by 
the violation. The Agency has clarified the guidance to indicate that 
EPA staff should give particular attention to input from communities 
affected by the violation that is the subject of the enforcement 
settlement.

[[Page 35885]]

    A few commenters suggested that EPA should not accept SEPs from 
defendants who are unwilling to seek community input on potential SEPs. 
While the Agency agrees that the possibility of substantial penalties 
should provide an incentive for defendants to settle with EPA, the 
Agency will continue to enter into some settlements that include SEPs 
where the community has not been involved in the SEPs selection. This 
is because the Agency has placed a high priority on including SEPs in 
settlements. While the Agency has provided incentives for defendants to 
agree to involve the community in that process, such as informing 
defendants of the positive results of community input and considering a 
defendant's efforts in seeking community input on potential SEPs as a 
factor in determining the SEP mitigation percentage, nevertheless, some 
defendants may remain reluctant to involve the community. In addition, 
timetables, such as court-ordered deadlines, may not permit community 
involvement. EPA may decide in some cases that a settlement with a 
SEP--even if not obtained with community involvement--is better than a 
settlement without a SEP. In some circumstances, EPA may elect to 
involve the community without the participation of the defendant. Every 
settlement and every defendant is unique, and EPA must take many 
factors into consideration when negotiating a settlement.
    One commenter proposed that EPA not use the term ``SEP Bank'' 
because it is confusing. The commenter suggested the term ``SEP 
Library'' instead, which conveys more clearly what the term means, 
i.e., a collection of ideas for possible SEP projects. The Agency 
agrees with this comment, and has revised the guidance accordingly.
    Another commenter stated that the draft guidance places too much 
emphasis on the limitations on community participation and not enough 
emphasis on empowering communities. As an example of the limitations, 
the commenter noted that the guidance suggests that, in some instances, 
``it may be desirable to delay the community involvement until after 
the consent decree is entered.'' (65 FR 40641). The commenter was 
concerned that this may result in a final settlement document that does 
not take into account the needs of the affected community. In addition, 
the commenter believed that the Miscellaneous Receipts Act (31 U.S.C. 
3302) (``MRA''),\1\ may impede efforts to ``assign penalties to SEPs'' 
once the decree is entered, and in effect, preclude communities from 
shaping the SEP. The Agency agrees that including communities as early 
in the process as possible, given the circumstances of a particular 
case, is desirable, and the guidance certainly does not suggest 
restricting community participation to circumstances where the consent 
decree has already been signed. Moreover, EPA does not intend to 
suggest that penalty money could be converted to a SEP based on 
comments received during the public comment period. Rather, the consent 
decree between EPA and the defendant must define the type, scope and 
costs of the project, as discussed in the SEP policy. The Agency 
believes that in some instances, given the timing of settlement 
negotiations within the context of litigation deadlines, a defendant 
and EPA may reach agreement on the SEP, but may not be able to finalize 
all details of the SEP before entry of the consent decree. In these 
circumstances, the Agency still believes community involvement after 
the consent decree is entered will help ensure the successful 
implementation of the SEP.
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    \1\ The MRA, 31 U.S.C. 3302(b), requires that money received for 
the use of the United States be deposited into the Treasury as soon 
as practicable unless the Federal agency receiving the money has 
statutory authority to use the funds differently.
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    With respect to the commenter's statement concerning the MRA, the 
Agency's SEP policy has been designed to ensure compliance with the 
MRA. All monetary penalties assessed against violators are deposited 
into the Treasury. An acceptable SEP is a mitigating factor that EPA 
may consider in deciding whether to settle a matter and what the terms 
of such a settlement are. SEPs are not substitutes for monetary 
penalties. Another commenter stated that the Agency should not wait, as 
it currently does, to include a community in SEP proposal/selection 
until after it has identified a violation, conducted an investigation, 
and filed a lawsuit. This commenter also stated that the Agency should 
work first with communities to identify opportunities for projects, 
then work such projects into settlements, instead of selecting the best 
approach for a specific case at hand. The Agency believes both 
approaches are meritorious and the guidance allows EPA a significant 
degree of flexibility. However, in no event will the desirability of a 
community SEP affect the Agency's decision to pursue an enforcement 
action. The guidance attempts to remain as flexible as possible with 
respect to all aspects of community involvement. The differences in 
cases and communities will dictate the particular approach that will 
work best for a specific case. In addition, the defendant must be 
willing to undertake a SEP; EPA cannot mandate that a SEP be part of a 
settlement. As such, EPA needs to ensure that the defendant is willing 
to conduct a SEP, to include the community in the SEP process, and to 
abide by Agency and court-ordered deadlines. However, the Agency does 
agree that working with communities to identify potential SEPs is a 
good way to expedite the SEP element of the settlement process and to 
include SEPs that are important to the affected community. The Agency 
believes that a SEP library is an excellent vehicle for collecting 
potential projects. Several Regional offices have already begun to 
collect ideas for SEPs from communities, and the interim guidance 
encourages Agency enforcement staff to consider development of SEP 
libraries.
    The commenter also raised concerns that the draft guidance may 
discourage some SEPs because they are too ``resource intensive'' with 
respect to EPA oversight. Although the Agency seeks SEPs with the 
maximum favorable environmental impact, the Agency must also consider 
its resource limitations and balance those limitations against the 
benefits of the proposed SEP when deciding whether or not to agree to a 
particular SEP.
    One commenter proposed a SEP idea for its community but did not 
comment on the draft guidance. EPA has forwarded the comment to the 
appropriate regional office for evaluation and possible inclusion in a 
regional SEP library.
    One commenter stated that the Agency should retain its existing 
approach to community input. The commenter suggested that the draft 
guidance created the presumption that communities would be involved in 
the earliest stages in most enforcement proceedings and act as a 
``third party'' to the settlement. Although the commenter claimed that 
including communities in the SEP suggestion/selection process would 
create a substantial disincentive for companies to conduct SEPs, the 
commenter did not include any support for this claim, nor did it 
include any further details on the ``substantial disincentive'' the 
commenter envisioned.
    EPA disagrees with these comments. First, the guidance makes clear 
that there is no formula for determining whether or not community 
involvement in SEP selection is appropriate and it does not dictate the 
level or timing of any such involvement. The guidance does not impose 
any requirements or

[[Page 35886]]

obligations on EPA, defendants, or the community. Rather, the guidance 
identifies a number of factors for EPA staff to consider in evaluating 
what is appropriate in any given case. Second, the Agency believes that 
there are substantial benefits for defendants who involve affected 
communities in SEP selection. One particularly important incentive is 
that, under the SEP policy, a defendant's inclusion of community input 
into a SEP may be considered as a factor supporting increased penalty 
mitigation. The interim guidance encourages enforcement staff to 
consider giving more credit to a defendant who agrees to implement a 
SEP where there has been a commitment to include affected communities 
into the SEP selection. As to the commenter's suggestion that including 
a community will unreasonably delay resolution of enforcement actions, 
the Agency does not believe that this will be a significant problem. 
The Agency can set milestones and objectives for community involvement 
that are consistent with litigation deadlines. There will be times when 
inclusion of a SEP, or community involvement in the SEP process, in a 
particular settlement is not appropriate, specifically where deadlines 
or other circumstances do not make inclusion of a project or community 
involvement possible, even if the community supports a particular 
project. Lastly, because EPA (and the Department of Justice (DOJ) in 
judicial actions) is the final decision maker on SEP selection, the 
Agency can ensure that all legal requirements are met.
    The same commenter noted that DOJ and EPA already have 
opportunities to seek community/public input on cases, e.g., pursuant 
to DOJ's provision for public comment on consent decrees under 28 CFR 
50.7. While this is one opportunity for input, it occurs after the 
parties have signed a consent decree, which is late in the enforcement 
process. As stated in the interim guidance, the Agency would like to 
remain flexible, and where appropriate, include community involvement 
in selecting or implementing SEPs that address the needs and concerns 
of all involved: the Agency, the defendant, and the affected community.
    The commenter also noted that the revised Consolidated Rules of 
Practice (``CROP''), 64 FR 40138 (July 23, 1999) \2\, did not include 
modifications to the ``settlement process.'' The Agency did not include 
such provisions because it is not requiring community involvement. The 
Agency encourages community involvement where appropriate and possible, 
and is issuing this guidance to provide helpful information to EPA 
staff to facilitate community involvement. The guidance specifically 
notes that there will be situations in which community involvement is 
not appropriate. This guidance is not intended to alter any current 
administrative or judicial settlement process requirements. 
Furthermore, the guidance is not intended to and does not alter 
statutory requirements for public participation in settlements, or 
change DOJ requirements for public comment on settlements. Finally, 
both the defendant and the Agency must agree to enter into a SEP as 
part of a settlement. If the defendant does not agree to a SEP, the 
settlement will not include a SEP.
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    \2\ The CROP are procedural rules for the administrative 
assessment of civil penalties, issuance of compliance or corrective 
action orders, and the revocation, termination or suspension of 
permits, under most environmental statutes.
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    The commenter also expressed concern about public participation as 
it relates to the finality of settlements. The Agency believes that if 
an affected community is involved in the selection of a SEP that is 
included in the final settlement, the community will be less likely to 
submit an adverse comment on the settlement as a whole.
    In addition, this commenter also stated that by asking a defendant 
to ``actively participate'' in reaching out to communities, the Agency 
may, in effect, indirectly or directly supplement Agency outreach 
activities for which Congress has provided funding. The commenter 
specifically raised concerns about the MRA. The Agency has not sought 
nor has Congress specifically appropriated money for SEP outreach 
activities. Moreover, EPA carefully considered the MRA when designing 
the SEP Policy. The SEP Policy includes specific ``Legal Guidelines'' 
intended to preclude improper augmentation of EPA's appropriations. See 
section C., item 5., of the May 1, 1998, SEP Policy. Nevertheless, EPA 
has clarified in the final guidance that should any costs be incurred 
when conducting community outreach, each party must bear its own costs 
throughout the settlement process in any enforcement action, including 
those which involve SEPs. Finally, a number of commenters suggested 
editorial, non-substantive comments on the guidance. The Agency has 
made these changes in the final guidance, where appropriate.

Interim Guidance on Community Involvement in Supplemental Environmental 
Projects

Introduction

    In its Supplemental Environmental Projects Policy (SEP Policy) of 
May 1, 1998, EPA included a section on community involvement \3\. 
Seeking community involvement in a SEP, especially from the community 
directly affected by the facility's violations, can have a number of 
benefits. It can promote environmental justice, enhance community 
awareness of EPA's enforcement activities, and improve relations 
between the community and the violating facility.
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    \3\ The SEP Policy allows EPA to consider a defendant's or 
respondent's willingness to perform an environmentally beneficial 
project when setting an appropriate penalty to settle an enforcement 
action. The purpose of a SEP is to secure significant environmental 
or public health protection improvements beyond those achieved by 
bringing the defendant into compliance. The SEP must be a new 
project, where EPA has the opportunity to shape the scope of the 
project before it is implemented, and the defendant must not be 
otherwise legally required to do the work. Community participation 
in SEP consideration is just one of the factors considered in 
valuing a SEP. This summary of the SEP Policy should not be 
considered a full summary of the SEP requirements and persons 
interested in such requirements should consult EPA's Final SEP 
Policy, available at 63 FR 24796 (May 5, 1998), or http://www.epa.gov/compliance/resources/policies/civil/seps/index.html.
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    While community involvement is not possible or appropriate in all 
settlements involving SEPs, in many cases community involvement may be 
a valuable part of SEP consideration without adversely affecting the 
enforcement process. This document encourages EPA staff to include 
community involvement in settlements, where appropriate, and to strive 
to meet the community involvement goals of the SEP Policy. In addition, 
this interim guidance suggests resources that may be utilized to foster 
community involvement.
    This interim guidance recognizes that not every settlement can 
include a SEP, or a SEP that is proposed or favored by community 
members. SEPs are projects undertaken voluntarily by defendants \4\, 
and not all defendants are interested in performing SEPs. Defendants 
may not be willing to solicit input from the community, or may not be 
receptive to community input. Further, final approval of all SEPs rests 
with EPA,\5\

[[Page 35887]]

which must review project proposals to ensure consistency with the SEP 
Policy and the law. A proposed project may not be able to be approved 
because it may not have the required nexus to the underlying violation, 
or may violate other legal requirements. Also, if different community 
groups support different SEP projects, some part of the community is 
likely to be disappointed no matter what the outcome of the SEP 
consideration process might be. Finally, court imposed deadlines on the 
parties may not allow for community input into the SEP selection.
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    \4\ SEPs can only be obtained in settlement agreements, not 
imposed by a court or administrative tribunal. Under the MRA, 31 
U.S.C. 3302(b), all court-or administratively-imposed penalties must 
be paid to the treasury. Only in settlement, before a penalty is 
imposed, can a penalty be mitigated by a SEP.
    \5\ Throughout this interim guidance, the term ``EPA,'' when 
used in the context of a judicial enforcement action, also includes 
the Department of Justice.
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    Nevertheless, EPA believes that community involvement is an 
important factor that should be considered along with other factors 
surrounding the particular facts of a potential settlement, such as 
quick response to environmental threats, timely resolution of 
enforcement actions, and using limited resources effectively to achieve 
the maximum benefit for human health and the environment. This guidance 
encourages Regions to think creatively about how to engage communities, 
particularly communities affected by the facility's violations, even 
though direct community participation will not be possible in every 
case that includes a SEP. For example, Regions can consider setting up 
a SEP library to solicit community project ideas outside of the context 
of a particular enforcement action so that community project ideas are 
available to draw from in appropriate cases. Also, settlements can be 
structured to provide for community input on implementation of the SEP, 
even if participation in SEP consideration itself is not feasible.
    Building trust between EPA and communities is the foundation of 
effective community involvement in the SEP consideration process. Even 
where community outreach does not result in a community-supported or 
proposed SEP being included in a settlement, effective community 
outreach can help increase the community's confidence in the process 
and may encourage the community to work with EPA in the future.
    Including communities, when possible, in the consideration of SEPs, 
may benefit the defendant \6\ the community, the environment, and EPA. 
First, because SEPs help to protect the environment and public health, 
and can redress environmental harm, involving communities in SEP 
consideration enables EPA and the defendant to focus on the particular 
environmental priorities and concerns of a community, which is 
especially important if several different SEPs are being considered. 
The community also can be a valuable source of SEP ideas, including 
ideas that result in creative or innovative SEPs that might not 
otherwise have been considered.
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    \6\ ``Defendant,'' when used herein, includes defendants in 
civil judical actions and respondents in EPA administrative actions.
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    Furthermore, pursuant to the SEP Policy, a defendant's 
participation and inclusion of public input into a SEP is one of the 
factors EPA uses to determine the degree to which penalty mitigation is 
appropriate in a particular case. (SEP Policy, p. 16). Enforcement 
staff should consider giving a defendant who conducts outreach to 
communities in development of an acceptable SEP proposal, a greater 
mitigation percentage for a SEP than a defendant who does not conduct 
such outreach. Defendants may also benefit from community involvement 
because it can result in better relationships with the community.
    Given the wide range of settlement scenarios, types of violations 
and communities, there is not standard formal to determine when 
community involvement in the consideration of a SEP is appropriate. 
There are a number of factors that may help EPA staff determine whether 
or not community involvement may be appropriate in a particular case. 
Generally these factors may include:
    1. The parameters surrounding the specifics of each case, e.g., 
court-ordered deadlines, imminent and substantial endangerment 
situations;
    2. The willingness of the defendant to conduct a SEP, and a 
willingness to solicit and respond in a meaningful way to community 
input;
    3. The impact of the violations on the community, especially the 
community most directly affected by the facility's violations;
    4. The level of interest of the community in the facility and the 
potential SEP; and
    5. The amount of the proposed penalty and the settlement amount 
that is likely to be mitigated by the SEP.
    An excellent way to include communities in SEPs is to establish a 
``SEP library.'' A SEP library is an inventory of potential SEPs that 
can be consulted in individual cases where the defendant requests 
assistance in identifying appropriate SEPs. Several EPA Regional 
offices have established SEP libraries; others are considering 
development of a SEP library. A SEP library can include specific 
projects identified as priorities by communities, non-governmental 
organizations and others. SEP libraries can be developed from project 
ideas obtained from the affected community through town meetings, 
publications, the internet, or public hearings. Collecting ideas for 
possible SEPs for inclusion in a SEP library can happen at any time. 
Therefore, the enforcement action in which a SEP may ultimately be 
selected from the SEP library will be unknown at the time the potential 
SEP is placed into the library. Therefore, inclusion of SEP in the SEP 
library does not ensure that a project will be chosen and/or 
implemented in any particular settlement.
    Finally, SEPs are developed in the context of settlement 
negotiations. As such, confidentiality between the government and the 
defendant is essential to the exchange of ideas and exploration of 
settlement options. Because of this, EPA must consider how to provide 
information to the public to facilitate its involvement in SEP 
consideration and development without undermining the confidentiality 
of settlement negotiations. Much of the information developed by the 
government may be privileged and therefore not appropriate for release 
to the public. In addition, a defendant may provide information to the 
government that must be kept confidential. For example, a defendant may 
provide confidential business information (``CBI'') to EPA. CBI, by 
law, cannot be provided to the public. \7\ Thus, each case will have 
limits on what information EPA can make available to the public. In 
judicial cases, DOJ will also retain authority to determine what 
information can be released to the community.
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    \7\ See 40 CFR part 2, subpart B.
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    EPA believes that community involvement in SEPs is an important 
goal, and is committed to involving communities in the consideration of 
SEPs. This interim guidance is intended to encourage enforcement staff 
to consider community involvement in SEPs, and to help effectuate the 
best possible SEPs in the settlement of enforcement cases in a manner 
that promotes mutual trust and confidence, and builds positive 
relationships between the community and the Agency.

John Peter Suarez,
Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
    This document is interim guidance intended for use of the EPA 
personnel and does not create any right or benefit, substantive or 
procedural, enforceable at law by a party against the United States,

[[Page 35888]]

its agencies, its officers, or any person. This interim guidance is not 
intended to supercede any statutory or regulatory requirements, or EPA 
policy. Any inconsistencies between this interim guidance and any 
statute, regulation, or policy should be resolved in favor of the 
statutory or regulatory requirement, or policy document, at issue.

Appendix A

Resources for Identifying Communities

    Below are some suggested resources within and outside of EPA 
that may be useful in targeting community outreach efforts.

Suggested Internal Sources

    1. Community involvement coordinators at EPA's Office of 
Emergency and Remedial Response Community Involvement and Outreach 
Center;
    2. Headquarters offices, including: Office of Environmental 
Justice, American Indian Environmental Office, Federal Facilities 
Enforcement;
    3. Colleagues in other media programs or regions;
    4. Regional offices or coordinators who handle community 
involvement, environmental justice, tribal issues, or community-
based environmental problems.

Suggested External Sources

    1. State, local or tribal governments;
    2. Education or spiritual organizations;
    3. Other Federal agencies
    4. Neighborhood organizations or groups, and individuals in 
neighborhoods closest to the defendant's facility;
    5. Community activists;
    6. Environmental and environmental justice organizations and 
groups;
    7. Local unions, business groups, and civic groups;
    8. The defendant or other members of the regulated community 
(e.g., trade associations);
    9. Local newspapers, radio, television, local Internet sites.

Appendix B

Community Outreach Techniques

    [sbull] This list is intended to provide a library of options 
available for use in conducting community outreach, and is not 
intended to suggest that all of these techniques be used in any 
given case.
    1. Interview: Face to face or telephone discussions with 
community members provide information about local concerns and 
issues. A significant time commitment may be required to gather 
feedback representative of the community;
    2. Small Group Meeting: Convening community members in a local 
meeting place stimulates dialogue, generates information, and may 
build rapport among participants;
    3. Focus Group Meeting: Focus group participants are convened by 
a trained facilitator to provide answers to specific questions. The 
direct approach is an efficient information gathering tool if 
participants represent a cross-section of the community.
    4. Public Meeting: Public meetings are useful for hearing what 
people have to say about current issues and engaging community 
members in the process. At public meetings, EPA should focus on 
active listening and learning from the public.
    5. Public Availability Session/Open House: A public availability 
session is a less structured alternative to a public meeting that 
provides everyone an opportunity to ask questions, express concerns, 
react to what is being proposed, and make suggestions. Typically, a 
public official announces she or he will be available at a 
convenient time and place where community members can talk 
informally.
    6. Public Notice: Public notices in the print media or on radio 
and television are a relatively inexpensive way to publicize 
community participation opportunities. In addition to the mainstream 
media, minority publications, church bulletins and other such 
vehicles offered by local organizations can reach a more diverse 
audience.
    7. Workshop: Workshops are participatory seminars to educate 
small groups of citizens on particular site issues.
    8. Site Tour: Site tours can familiarize citizens, the media and 
local officials with the nature or environmental concerns affecting 
a community near a specific site. Tours may result in better 
communication among the community, facility and Agency.
    9. Information Repository: An information repository is a 
project file containing timely information on site-specific 
activities and accurate detailed and current data about a site or 
enforcement action. Project files are typically kept at convenient 
public locations, e.g., libraries, and publicized through various 
media.

[FR Doc. 03-15260 Filed 6-16-03; 8:45 am]
BILLING CODE 6560-50-P