[Federal Register Volume 74, Number 114 (Tuesday, June 16, 2009)]
[Rules and Regulations]
[Pages 28443-28444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14114]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[EPA-HQ-SFUND-2009-0144; FRL-8919-3]
 RIN 2050-AG53


Inclusion of CERCLA Section 128(a) State Response Programs and 
Tribal Response Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule revises regulations to include State Response 
Programs and Tribal Response Programs under Section 128(a) of the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) as among the Environmental Program Grants eligible for 
inclusion in a Performance Partnership Grant (PPG). The rule also adds 
State Response Program and Tribal Response Program specific provisions.

DATES: This rule is effective on June 16, 2009.

ADDRESSES: The mailing address of the Office of Brownfields and Land 
Revitalization, Office of Solid Waste and Emergency Response, is U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., MC 
5105T, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
U.S. EPA's Virginia Fornillo, Office of Solid Waste and Emergency 
Response, Office of Brownfields and Land Revitalization, at (202) 566-
2770 ([email protected]), U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 
5105T.

SUPPLEMENTARY INFORMATION:

I. Background

    State Response Program Grants and Tribal Response Program Grants, 
authorized under Section 128(a) of CERCLA, are awarded to States and 
Tribes to establish or enhance the response program of the State or 
Tribe; capitalize a revolving loan fund for Brownfield remediation 
under section 104(k)(3); or purchase insurance or develop a risk 
sharing pool, an indemnity pool, or insurance mechanism to provide 
financing for response actions under a State or Tribal response 
program. Public Law 104-134 authorizes EPA to combine State and Tribal 
Assistance Grant (STAG) ``categorical'' program grant funds into PPGs. 
The CERCLA 128(a) State and Tribal Response program grants are funded 
from STAG categorical appropriations and are eligible for inclusion 
under 40 CFR 35.133 and 35.533 in a PPG. On August 20, 2004, EPA 
implemented a pilot program authorizing EPA Regional Offices to add 
CERCLA 128(a) State and Tribal Grant program funds into PPGs for one 
state and one tribe in each region (69 FR 51756).

II. This Action

    The intent of this action is to include CERCLA 128(a) grants in the 
list of grants eligible to be included in a Performance Partnership 
Grant (PPG). Consistent with current Agency guidance on using CERCLA 
128 funds, EPA has determined that funds awarded to states and tribes 
under CERCLA 128(a)(1)(B)(ii) to capitalize a revolving loan fund for 
Brownfield remediation under section 104(k)(3); or purchase insurance 
or develop a risk sharing pool, an indemnity pool, or insurance 
mechanism to provide financing for response actions under a State or 
Tribal response program are not eligible for inclusion in PPGs. EPA's 
regulations implementing PPGs are found at 40 CFR 35.101, 40 CFR 
35.130-35.138, 40 CFR 35.501 and 40 CFR 35.530-35.538. This rule amends 
these regulations to include State Response Programs Section CERCLA 
128(a) under Title 40 Part 35 Subpart A and Tribal Response Programs 
Section CERCLA 128(a) under Title 40 Part 35, Subpart B as a PPG 
eligible grant program. The rule also adds State Response Program and 
Tribal Response Program specific provisions to 40 CFR Part 35, Subparts 
A and B.

III. 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 grant action is not subject to 
notice and comment requirements under the Administrative Procedures Act 
or any other statute, it is not subject to the Regulatory Flexibility 
Act (5 U.S.C. 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. 
Although this action does not generally create new binding legal 
requirements, where it does, such requirements do not substantially and 
directly affect Tribes under Executive Order 13175 (63 FR 67249, 
November 9, 2000). Although this grant action does not have significant 
Federalism implications under Executive Order 13132 (64 FR 43255, 
August 10, 1999), EPA consulted with states in the development of these 
grant guidelines. This action is not subject to Executive Order 13045 
(62 FR 19885, April 23, 1997), because this is not an economically 
significant regulatory action as defined by Executive Order 12866, and 
this action does not address environmental health or safety risks 
disproportionately affecting children. 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.). This action does not entail special considerations of 
environmental justice related issues as delineated by Executive Order 
12898 (59 FR 7629, February 16, 1994). 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. Since this grant 
action, when finalized, will contain legally binding requirements, it 
is subject to the Congressional Review Act, and EPA will submit its 
final action in its report to Congress under the Act.

List of Subjects in 40 CFR Part 35

    Environmental protection, Air pollution control, Grant programs--
environmental protection, Grant programs--Indians, Indians, 
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: June 9, 2009.
Lisa P. Jackson,
Administrator.

0
EPA amends 40 CFR Part 35 as follows:

PART 35--STATE AND LOCAL ASSISTANCE--[AMENDED]

0
1. The authority citation for part 35, subpart A continues to read as 
follows:


[[Page 28444]]


    Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42 
U.S.C. 300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.; 
15 U.S.C. 2601 et seq.; 42 U.S.C. 13101 et seq.; Public Law 104-134, 
110 Stat. 1321, 1321-299 (1996); Public Law 105-65, 111 Stat. 1344, 
1373 (1997); 5. 105-276, 112 Stat. 2461, 2499 (1988).

Subpart A--[Amended]

0
2. Amend Sec.  35.101 by adding paragraph (a)(20) to read as follows:


Sec.  35.101  Environmental programs covered by the subpart.

    (a) * * *
    (20) State Response Program Grants (section 128(a) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA)).
* * * * *

0
3. Section 35.133 is amended by revising paragraph (a) to read as 
follows:


Sec.  35.133  Programs eligible for inclusion.

    (a) Eligible programs. Except as provided in paragraph (b) of this 
section, the environmental programs eligible, in accordance with 
appropriation acts, for inclusion in a Performance Partnership Grant 
are listed in Sec.  35.101(a)(2) through (17) and (20). (Funds 
available from the section 205(g) State Administration Grants program 
(Sec.  35.100(b)(18)) and the Water Quality Management Planning Grant 
program (Sec.  35.100(b)(19)) and funds awarded to states under State 
Response Program Grants (Sec.  35.100(b)(20)) to capitalize a revolving 
loan fund for Brownfield remediation or purchase insurance or develop a 
risk sharing pool, an indemnity pool, or insurance mechanism to provide 
financing for response actions may not be included in Performance 
Partnership Grants.)
* * * * *

0
4. Subpart A is amended by adding an undesignated center heading and 
Sec. Sec.  35.419, 35.420 and 35.421 to read as follows:

Subpart A--[Amended]

State Response Program Grants (CERCLA Section 128(A))


Sec.  35.419  Purpose.

    (a) Purpose of section. Sections 35.419 through 35.421 govern State 
Response Program Grants (as defined in section 128(a) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA)).
    (b) Purpose of program. State Response Program Grants are awarded 
to States to establish or enhance the response program of the State; 
capitalize a revolving loan fund for Brownfield remediation under 
section 104(k)(3) of CERCLA; or purchase insurance or develop a risk 
sharing pool, an indemnity pool, or insurance mechanism to provide 
financing for response actions under a State response program.


Sec.  35.420  Basis for allotment.

    The Administrator allots response program funds to each EPA 
regional office. Regional Administrators award funds to States based on 
their programmatic needs and applicable EPA guidance.


Sec.  35.421  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs with the exception of the cost shares required 
by CERCLA 104(k)(9)(B)(iii) for capitalization of revolving loan funds 
under CERCLA 104(k)(3).

0
5. Amend Sec.  35.501 by adding paragraph (a)(10) to read as follows:


Sec.  35.501  Environmental programs covered by the subpart.

    (a) * * *
    (10) Tribal Response Program Grants (section 128(a) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA)).
* * * * *

0
6. Section 35.533 is amended by revising paragraph (a) to read as 
follows:


Sec.  35.533  Programs eligible for inclusion.

    (a) Eligible programs. Except as provided in paragraph (b) of this 
section, the environmental programs eligible for inclusion in a 
Performance Partnership Grant are listed in Sec.  35.101(a)(2) through 
(10) of this subpart. Funds awarded to tribes under Tribal Response 
Program Grants (Sec.  35.101(a)(10)) to capitalize a revolving loan 
fund for Brownfield remediation or purchase insurance or develop a risk 
sharing pool, an indemnity pool, or insurance mechanism to provide 
financing for response actions may not be included in Performance 
Partnership Grants.
* * * * *

0
7. Subpart B is amended by adding a new undesignated center heading and 
Sec. Sec.  35.736, 35.737 and 35.738 to read as follows:

Subpart B--[Amended]

Tribal Response Program Grants (CERCLA Section 128(A))


Sec.  35.736  Purpose.

    (a) Purpose of section. Sections 35.736 through 35.738 govern 
Tribal Response Program Grants (as defined in section 128(a) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA)).
    (b) Purpose of program. Tribal Response Program Grants are awarded 
to Tribes to establish or enhance the response program of the Tribe; 
capitalize a revolving loan fund for brownfield remediation under 
section 104(k)(3) of CERCLA; or purchase insurance or develop a risk 
sharing pool, an indemnity pool, or insurance mechanism to provide 
financing for response actions under a Tribal response program.


Sec.  35.737  Basis for allotment.

    The Administrator allots response program funds to each EPA 
regional office. Regional Administrators award funds to Tribes based on 
their programmatic needs and applicable EPA guidance.


Sec.  35.738  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs with the exception of the cost shares required 
by CERCLA 104(k)(9)(B)(iii) for capitalization of revolving loan funds 
under CERCLA 104(k)(3).

[FR Doc. E9-14114 Filed 6-15-09; 8:45 am]
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