[Federal Register Volume 71, Number 83 (Monday, May 1, 2006)]
[Rules and Regulations]
[Pages 25504-25507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4079]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[FRL-8163-8]


Implementation of the Great Lakes Legacy Act of 2002

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule; Notice of Implementation Policy.

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SUMMARY: This action is intended to outline EPA's process for 
identification, evaluation, selection, and implementation of projects 
for funding under the Great Lakes Legacy Act of 2002 (also referred as 
GLLA or the Legacy Act). The Legacy Act authorizes the appropriation of 
$50 million annually for fiscal years 2004-2008 for contaminated 
sediment remediation projects and provides EPA with a unique approach 
for addressing contaminated sediment problems in Great Lakes Areas of 
Concern. The Act also authorizes smaller amounts of funding for other 
activities; this action pertains only to sediment remediation project 
selection and implementation. This action provides information to those 
interested in submitting cost-share, sediment remediation projects to 
EPA for funding under the Legacy Act.

DATES: Effective on May 1, 2006.

FOR FURTHER INFORMATION CONTACT: Scott Ireland, Technical Assistance 
and Analysis Branch, Environmental Protection Agency, Great Lakes 
National Program Office 77 West Jackson Blvd. G-17J, Chicago, IL 60604-
3590, telephone number (312) 886-8121; fax number (312) 353-2018, 
http://www.epa.gov/greatlakes.

SUPPLEMENTARY INFORMATION: 

I. General Information

    Affected Entities: Federal agencies and public and private non-
Federal sponsors eligible to have cost-shared projects approved under 
the Great Lakes Legacy Act of 2002.

II. Background

    Contaminated sediments have been a problem in the Great Lakes for 
several decades. It has been reported that polluted sediment is the 
largest major source of contaminants entering the food chain from Great 
Lakes Rivers and harbors. This includes most of the current 41 Areas of 
Concern (AOCs) designated by the United States and Canada, the Parties 
to the Great Lakes Water Quality Agreement. Over the past several 
years, Great Lakes stakeholders have moved forward in the pursuit of 
sediment remediation through a variety of mechanisms (enforcement, 
voluntary partnerships, etc.). From 1997-2004, approximately 3.7 
million cubic yards of contaminated sediment were remediated from the 
U.S. Great Lakes Basin. Roughly 76 million cubic yards of contaminated 
sediment remain.
    Congress passed the Great Lakes Legacy Act of 2002 on November 12, 
2002 and President George W. Bush signed the Legacy Act into law on 
November 27, 2002 (Pub. L. 107-303). The Legacy Act authorizes the 
appropriation of $50 million annually for fiscal years 2004-2008 for 
contaminated sediment remediation projects and provides EPA with a 
unique approach for addressing contaminated sediment problems in Great 
Lakes AOCs. The Act also authorizes smaller amounts of funding for 
other activities; this action pertains only to sediment remediation 
project selection and implementation.
    In order to be an eligible project under the Legacy Act, a project 
must be carried out in an AOC located wholly or partially in the United 
States and the project must:
    1. Monitor or evaluate contaminated sediment;
    2. Implement a plan to remediate contaminated sediment; or
    3. Prevent further or renewed contamination of sediment.
    The Legacy Act program is implemented through Project Agreements, 
which are binding cost-sharing agreements between the Great Lakes 
National Program Office (GLNPO) and a cooperating agency or entity. 
Project selection decisions will be made in consultation with the USEPA 
Office of Water.
    Legacy Act authorizing language places only limited restrictions on 
the types of entities (non-Federal sponsors) that may potentially enter 
into a Project Agreement with GLNPO. This provides the potential for 
entering into agreements with public and private entities, including 
not-for-profit organizations. It is the ultimate goal of GLNPO to work 
cooperatively with all qualifying potential non-Federal sponsors that 
have submitted project proposals under the Legacy Act in order to 
develop projects that are technically sound, beneficial to the 
environment, supported by the local community, and able to be completed 
in an expeditious manner. It is important to maintain the necessary 
flexibility in evaluating project proposals to achieve this goal.
    In situations where other sources of funding are available (e.g., 
Water Resources Development Act--WRDA) or other mechanisms to complete 
the project are available (e.g., Superfund or other enforcement or 
regulatory programs), GLNPO will work with these existing programs, 
where appropriate, to add value in a way that maximizes the overall 
benefit to the environment.
    In cases where enforcement or regulatory actions are pending, or 
underway, GLNPO will work and coordinate with the applicable 
enforcement or regulatory program on a case-by-case basis to determine 
the proper role, if any, for the Legacy Act to provide a value-added 
component to the project. In some cases, identifying a role for the 
Legacy Act may not be possible, if a proposed action is more 
appropriately accomplished by another program or agency.

III. Project Selection

    The Legacy Act specifically directs the Administrator to give 
priority to projects that:
    1. Constitute remedial action for contaminated sediment;
    2. Have been identified in a Remedial Action Plan (RAP) and are 
ready to be implemented;
    3. Use an innovative approach, technology, or technique that may 
provide greater environmental benefits,

[[Page 25505]]

or equivalent environmental benefits at a reduced cost; or
    4. Include remediation to be commenced not later than 1 year after 
the date of receipt of funds for the project.
    EPA will use a scoring system to evaluate how well applications 
meet program priorities. In addition to the priorities listed above, 
the Agency will score applicants based on criteria that place greater 
weight on projects meeting Category 1 requirements (see Section V, Step 
2: Project Evaluation Process) in order to allocate limited resources 
and facilitate coordination with requirements of other Agency programs. 
A Category 2 application would receive fewer points than a Category 1, 
and so on for Categories 3 and 4. The Agency will also award additional 
points to applications that exceed the minimum non-Federal cost-share 
requirements for their category (see Section IV below) and those that 
will result in the delisting of an AOC.

IV. Cost Share Requirement

    The Legacy Act requires a minimum of a 35% non-Federal cost share 
for all projects carried out under the Legacy Act. The Legacy Act also 
requires a 100% non-Federal share for operation and maintenance of a 
project. The non-Federal cost share of a project may include the value 
of in-kind services. Additionally, the Legacy Act provides that the 
non-Federal cost share ``may include monies paid pursuant to, or the 
value of any in-kind service performed under, an administrative order 
on consent or judicial consent decree.'' The Legacy Act also states 
that the non-Federal cost share ``may not include any funds paid 
pursuant to, or the value of any in-kind service performed under, a 
unilateral administrative order or court order.''
    EPA believes project sponsors have substantial non-Federal cost-
share responsibilities and has set the non-Federal cost-share rate 
minimums accordingly, by project category (see Section V, Step 2: 
Project Evaluation Process).
    The underlying principle that guides our decision-making is that 
GLNPO will require at least a 35% non-Federal cost share in those cases 
where no responsible parties are clearly identified (the action could 
not be required of any responsible party). In other cases, where Agency 
regulatory and/or enforcement programs determine that the non-Federal 
sponsor may have some clear responsibility, GLNPO will require a 
substantially higher contribution (minimum of 40-50%). However, for all 
potential projects, GLNPO will coordinate and work with other 
applicable programs (Federal, State, tribal, and local), including 
regulatory programs, to ensure that the GLLA is not providing funding 
in a situation where other programs are more appropriate.
    EPA's approach to non-Federal cost share with regard to the Legacy 
Act projects is as follows. The non-Federal cost share does not include 
costs incurred prior to initiation of a Legacy Act project. Costs 
incurred after project initiation but within the context of a consent 
decree in place at the time of project initiation can be included in 
the non-Federal cost share.

V. Project Identification, Evaluation and Selection

    GLNPO has a three stage process in place for the identification, 
evaluation, and selection of projects for Great Lakes Legacy Act 
funding. This process aims to merge the statutory priorities identified 
in the Legacy Act along with considerations of fiscal responsibility 
and technical merit. The process includes:
     Step 1: Project Identification
     Step 2: Project Evaluation
     Step 3: Project Selection and Funding
    Step 1: Project Identification:
    Projects are identified through the release of a Request for 
Projects (RFP). The first RFP was released in January 2004 to solicit 
projects to be considered for funding under the Legacy Act. This RFP 
closed on March 31, 2004 (http://www.epa.gov/glla/rule/rfp.html). GLNPO 
will issue a new RFP incorporating this action within 90 days following 
publication of this action in the Federal Register (this new RFP will 
then replace the initial RFP at the web address above). However, GLNPO 
remains open to the receipt of additional proposals at any time.
    The potential non-Federal project sponsors are responsible for 
submitting a project proposal using the guidelines provided in the RFP.
    Step 2: Project Evaluation Process:
    Upon receipt of a project proposal, the proposal undergoes a two-
stage evaluation process consisting of a Stage 1: ``Minimum 
Requirements Check'' (Stage 1 Minimum Requirements Check http://www.epa.gov/glla/rule/min_req.html) and a Stage 2: ``Strength of 
Proposal'' (Stage 2 Strength of Proposal http://www.epa.gov/glla/rule/str_pro.html).
    In Stage 1, projects are evaluated against several minimum 
requirements that reflect statutory requirements of the GLLA, 
including:
    1. Project scope as identified under the Legacy Act (e.g., monitors 
or evaluates contaminated sediments, remediates contaminated sediments, 
or prevents further contamination of contaminated sediments),
    2. Location of the project within a U.S. AOC,
    3. Identification of a cumulative 35% minimum cost share from (a) 
non-Federal project sponsor(s), and
    4. Completion or commencement of a site assessment and an 
evaluation of remedial alternatives (applies only to remediation 
projects).
    All projects that successfully meet the statutory requirements of 
the Legacy Act pass the Stage 1 review and are then subject to a more 
complete Stage 2 evaluation process. The Stage 2 review process is a 
thorough technical evaluation process that includes representatives 
from U.S. EPA enforcement and regulatory programs, the U.S. Army Corps 
of Engineers, the National Oceanic and Atmospheric Administration, and 
the U.S. Fish and Wildlife Service. These representatives form the 
Technical Review Committee (TRC) for each project. This multi-
disciplinary, multi-agency review team provides for broad technical and 
enforcement/regulatory input into the review process.
    The TRC evaluates each project for:
    1. ``Strength of Proposal'' (see http://www.epa.gov/glla/rule/str_pro.html), and
    2. Overlap with on-going enforcement or regulatory actions or other 
Federal activities (Water Resources Development Act (WRDA), 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), etc.), and State, local or tribal efforts.
    All sediment remediation proposals are first subjected to a 
comprehensive written review by the TRC. GLNPO consolidates comments 
from the TRC and provides them to the applicant. The applicants are 
then required to provide a formal, oral presentation and a revised 
written proposal that addresses each of the TRC's comments.
    The major functions of the TRC are first, to identify any technical 
deficiencies in the proposed project, and then to highlight any 
potential issues regarding ongoing or planned enforcement or regulatory 
activities at the site. The technical deficiencies identified by the 
TRC can range from relatively minor comments regarding the need for 
small modifications to the project design or changes to the long-term 
sampling plan, to more major issues regarding the need for additional 
sediment characterization at the site or the viability of the proposed 
remedial strategy, that could potentially require

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re-design of the remediation. Non-Federal sponsors for the projects are 
given an opportunity to respond to any deficiencies noted by the TRC 
during the Stage 2 review process. Based on the extent of the 
deficiencies identified and the speed of the applicant in addressing 
the deficiencies, the Stage 2 process could last from several weeks to 
several years.
    To aid in the Stage 2 evaluation process, projects are assigned to 
one or up to four categories, with input from applicable regulatory and 
enforcement programs, including coordination with the Office of 
Enforcement and Compliance Assurance (OECA) staff to determine if 
enforcement or regulatory actions are pending or underway at each 
proposed project site. In those cases where a project includes more 
than one category, GLNPO will determine the appropriate category and 
the applicable cost share for each component of the project, and pro-
rate the overall cost share requirement proportional to the project 
costs from each category. For all project categories, GLNPO will seek 
to evaluate the extent to which proposed projects address the 
restoration of beneficial uses, per the Great Lakes Water Quality 
Agreement.
    Category 1: Formal enforcement/regulatory evaluation completed, no 
action is anticipated by any governmental body against any entity. No 
restrictions on GLLA implementation. GLNPO will require a non-Federal 
cost share minimum of 35 percent.
    Category 2: No enforcement, regulatory or CERCLA response actions 
are pending. GLNPO will coordinate with enforcement/regulatory programs 
to verify that no actions are pending or planned for the site. In cases 
where the non-Federal sponsor is a nonliable public entity, the non-
Federal cost would typically be 35%. Additionally, it is possible that 
through consultation with Superfund, projects may be identified that 
although Superfund has the potential to conduct the project, it is more 
appropriate to use the Legacy Act. For projects in this situation, 
GLNPO will require a non-Federal cost share of greater than 35%.
    Category 3: A decision document under Superfund, or a settlement 
agreement under another applicable state or Federal authority, has been 
signed. GLNPO will not provide any funding for implementation of the 
decision document or settlement agreement. Instead, GLNPO may use GLLA 
funding for the portions of these sites not addressed by the Superfund 
decision document or settlement agreement where enforcement or 
regulatory actions are not anticipated. GLLA may be used to provide 
betterments or enhancements to the required elements of the decision 
document to address the U.S. Government's commitment under the Great 
Lakes Water Quality Agreement. For Category 3 projects, the non-Federal 
sponsor at these sites will be required to contribute at least 40%.
    Category 4: Enforcement, regulatory or CERCLA response actions 
pending but no settlement has been reached. If Legacy Act funds are 
used for a project where enforcement, regulatory or CERCLA response 
actions are pending but no settlement has been reached, GLNPO will work 
and coordinate with the applicable enforcement or regulatory program to 
determine the appropriate project delineation and cost distribution 
between the Legacy Act and the other program. The appropriate GLLA 
share for conducting a project that meets the combined objectives of 
the enforcement program and the Great Lakes Water Quality Agreement 
will be determined through discussions with the applicable enforcement 
authority. The non-Federal sponsor at these sites will be required to 
contribute at least 50%.
    GLNPO utilizes TRC input to work with the applicant to modify 
proposed projects and ensure that the proposed project meets the 
technical requirements for implementation. Once this step is complete, 
GLNPO compiles information from the Stage 2 review for presentation to 
the Great Lakes National Program Manager in the project selection and 
funding process. As part of this compilation process, GLNPO completes a 
Great Lakes Legacy Act Scoring Sheet (Attachment A; http://www.epa.gov/glla/rule/scor_sheet.html) for each project. The scoring sheet 
represents a summary of:
    1. ``Strength of Proposal'' (see http://www.epa.gov/glla/rule/str_pro.html);
    2. Success in addressing statutory priorities of the Legacy Act 
(i.e., identified in a RAP and ready to be implemented, includes 
sediment remediation to be commenced within one year, and use of an 
innovative approach, technology, or technique);
    3. Other relevant policy factors (e.g., including presence of 
Potentially Responsible Party (PRP), project category, eligibility for 
other cleanup programs, the ability to delist an AOC at the end of the 
project, and the non-Federal contribution).
    The Step 2 evaluation process assigns a score based on relevant 
factors that allows the decision-maker to identify projects that are 
technically sound and represent the best use of program resources.
    Step 3: Project Selection and Funding:
    In Step 3, every six (6) months, or at other appropriate intervals, 
but never less frequently than once each year, GLNPO prepares a project 
ranking based on scores computed on a Great Lakes Legacy Act Scoring 
Sheet (Attachment A) for all pending projects. GLNPO then provides this 
ranking, along with a Proposal Scoring and Summary Information sheet 
(http://www.epa.gov/glla/rule/scor_summ_sheet.html) and a ``Minimum 
Requirements Check'' (http://www.epa.gov/glla/rule/min_req.html), a 
``Strength of Proposal'' (http://www.epa.gov/glla/rule/str_pro.html), 
and a Great Lakes Legacy Act Scoring Sheet to the Great Lakes National 
Program Manager who, in consultation with the USEPA Office of Water, 
and taking into account available GLLA funding, selects projects for 
which formal Project Agreement (PA) negotiations will be initiated.
    Given the complications that can occur when planning and 
implementing a sediment remediation project, GLNPO continually 
evaluates each proposed project. A project's ranking may evolve or 
change through several ranking cycles as an applicant addresses EPA 
concerns with its application or other project circumstances change.
    Once a project has been selected for potential funding, GLNPO and 
the Office of Regional Counsel (ORC) begin Project Agreement 
discussions with the non-Federal sponsor of the project. The PA is a 
legal agreement between GLNPO and the non-Federal sponsor that 
memorializes each entity's legal and financial responsibilities and 
requirements. GLNPO, ORC and Headquarters staff, as required, will 
coordinate closely during PA development to ensure that legal, 
financial, and technical requirements are clearly identified. If 
complications arise during the PA discussions that result in delays in 
signing the agreement, the project may be reevaluated to determine the 
potential impact of the delays on project schedule; and therefore, 
these complications may also impact project priority.
    The signing of a PA represents an Agency decision to fund a Legacy 
Act project. It is important to note that no official funding decision 
is made prior to PA signing, and, therefore, Legacy Act funds remain 
available for all potential projects until a PA is signed. Projects 
will be periodically evaluated and compared until a PA is signed.
    Once a PA is signed, the implementation phase of the project can 
begin, including, but not limited to,

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issuing a work order with an EPA contractor or entering into an 
Interagency Agreement with the Corps of Engineers. It is GLNPO's goal 
to work with the non-Federal sponsors, other Federal agencies, other 
EPA program offices, state and local governments, and the public to 
implement the Legacy Act in order to clean up contaminated sediment 
sites throughout the Great Lakes, and ultimately begin delisting AOCs, 
under provisions of the Great Lakes Water Quality Agreement. Project 
management and oversight will be performed by GLNPO, in consultation 
with the USEPA Office of Water. Each project will have a GLNPO project 
manager who will convene a project management team consisting of 
representatives from the non-Federal sponsor, the EPA contractor, and 
appropriate project personnel and other involved stakeholders. The 
project agreement will not relieve any third party from any liability 
that may arise under CERCLA, RCRA, TSCA, or other Federal environmental 
statutes.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to OMB review. Because this action is not subject to notice and 
comment requirements pursuant to 5 U.S.C. 553(a)(2) and 553(b)(A), it 
is not subject to the Regulatory Flexibility Act (5 U.S.C. section 601 
et seq.) or sections 202 and 205 of the Unfunded Mandates Reform Act of 
1999 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments. This action does 
not have Tribal implications, as specified in Executive Order 13175 (63 
FR 67249, November 9, 2000). This action will not have federalism 
implications, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999). This action is not subject to Executive Order 13211, 
``Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866. 
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 note) do not apply. This action 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The 
Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that 
before certain actions may take affect, 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. Since this final action contains legally binding requirements, 
it is subject to the Congressional Review Act, and EPA will submit this 
action in its report to Congress under the Act.

Attachment A--Great Lakes Legacy Act Scoring Sheet

Project :
Project Title:
    Score the project for each evaluation criterion listed below, with 
higher scores representing a more favorable rating. Provide narrative 
rationale (4-5 sentences) for total score in the space provided.
    1. Measurable environmental results/risk reduction is expected upon 
project completion, potential for delisting Areas of Concern, soundness 
of approach, reasonableness of costs, and probability of success. (0 = 
Low, 35 = High) Score ----------------
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    2. Project identified in Remedial Action Plan (RAP). (0 = Low, 5 = 
High) Score ----------------
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    3. Project will use an innovative approach, technology, or 
technique that may provide equivalent environmental benefits at a 
reduced cost or greater environmental benefit. (0 = Low, 5 = High) 
Score ----------------
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    4. Probability (based on best professional judgment) that 
remediation will occur not later than 1 year after the date of the 
receipt of funds for the project. (0 = Low, 5 = High) Score ----------
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    5. The non-Federal sponsor will exceed the minimum non-Federal 
cost-share requirements for its respective project category (exceeds 
category target by 10% = 4 points, 20% = 8 points, 30% = 12 points, and 
greater than 40% = 15 points; EPA will interpolate between these values 
if percentages differ from the above numbers). Score ----------------
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    6. Project category (Category 1 = 35 points, Category 2 = 25 
points, Category 3 = 15 points, and Category 4 = 5 points). Points will 
be apportioned for multiple-category projects. Score ----------------

TOTAL SCORE ----------------
Provide Narrative Discussion
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    Dated: April 25, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-4079 Filed 4-28-06; 8:45 am]
BILLING CODE 6560-50-P