[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Rules and Regulations]
[Pages 49414-49417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20086]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[FRL-9189-1]
RIN 2050-AG58


Cooperative Agreements and Superfund State Contracts for 
Superfund Response Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule amends the regulation by allowing interim progress 
reports to be due in 60 days, instead of the current 30-day 
requirement, following the close of the quarterly and semi-annual 
reporting periods. In addition, this amendment allows the recipient of 
a Superfund State Contract (SSC) to request that EPA apply any 
overpayment of cost share to another site. The revisions affect States, 
Indian Tribes, intertribal consortia, and political subdivisions. The 
revisions will improve the administration and effectiveness of 
Superfund Cooperative Agreements and Superfund State Contracts.

DATES: This rule is effective October 12, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-SFUND-2010-0085. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the CERCLA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the CERCLA docket is (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: Angelo Carasea, Assessment and 
Remediation Division, Office of Superfund Remediation and Technology 
Innovation, (5204P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460; telephone number: (703) 603-8828; fax 
number: (703) 603-9112; e-mail address: carasea.angelo@epa.gov.

SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. Applicability
III. Background
IV. Description of Key Changes
V. Section-by-Section Analysis
VI. Statutory and Executive Order Reviews

I. Statutory Authority

    This rule is issued under section 104(a)-(j) of the Comprehensive 
Environmental Response,

[[Page 49415]]

Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) as 
amended (hereinafter CERCLA).

II. Applicability

    The final regulation requirements shall apply to all new 
Cooperative Agreements and Superfund State Contracts, funded under 
CERCLA, which EPA signs on or after the effective date of this 
regulation. EPA may agree to amend existing Cooperative Agreements or 
Superfund State Contracts to make the final regulation requirements 
applicable to work performed on and after the date EPA signs the 
amendment.

III. Background

    CERCLA launched the nation's first centralized and substantial 
commitment to clean up hazardous substance sites. CERCLA, or Superfund, 
provided federal authority and resources to respond directly to 
releases (or threatened releases) of hazardous substances, pollutants, 
or contaminants that could endanger human health or the environment. 
The law also authorized enforcement action and cost recovery from those 
responsible for a release of a hazardous substance.
    CERCLA authorizes two types of Superfund response agreements for 
State, Tribal (including intertribal consortium) and political 
subdivision participation in CERCLA implementation: Cooperative 
Agreements and Superfund State Contracts. These agreements ensure State 
and Tribal involvement, consistent with section 121 of CERCLA, 42 
U.S.C. 9621 (hereinafter section 121), and section 126 of CERCLA, 42 
U.S.C. 9626 (hereinafter section 126), and are used to obtain State 
assurances required under section 104 of CERCLA, 42 U.S.C. 9604, 
(hereinafter section 104) before EPA begins a remedial action.
    EPA uses Cooperative Agreements to transfer funds to a State, 
political subdivision, or Indian Tribe that assumes responsibility as 
the lead or support agency for Superfund responses. Core Program 
Cooperative Agreements are used to fund non-site-specific activities 
that support a State or Indian Tribe's involvement in CERCLA responses.
    A Superfund State Contract is used to document a State's CERCLA 
section 104 assurances when either EPA or a political subdivision has 
the lead role in the implementation of a remedial action.
    The role of States, Indian Tribes, and political subdivisions (also 
described as recipients) in Superfund has evolved substantially since 
1990 when the original 40 CFR part 35 subpart O regulation was 
promulgated. The recipients' cleanup programs have matured and become 
more sophisticated. In addition, EPA has actively sought to fulfill 
CERCLA's mandate in sections 121 and 126 to provide States and Indian 
Tribes a ``substantial and meaningful involvement'' in Superfund by 
providing Core Program funding for the development of State and Tribal 
infrastructure.
    On May 2, 2007, EPA promulgated a final regulation, which amended 
40 CFR part 35 subpart O, to reduce the burden on recipients to receive 
and administer Cooperative Agreements and Superfund State Contracts. 
This rule amends 40 CFR part 35 subpart O to further reduce the 
recipients' burden by allowing interim progress reports to be due in 60 
days, instead of 30 days, following the close of the quarterly and 
semi-annual reporting periods. Also, this rule amends 40 CFR part 35 
subpart O so that under a Superfund State Contract, a recipient may 
request the overpayment of cost share from one site be applied to meet 
the cost share requirement of another site.

IV. Description of Key Changes

    EPA made limited revisions to certain sections of the regulation. 
The following is a brief description of the key changes.

A. Progress Reports

    This rule revises 40 CFR part 35 subpart O by amending the current 
reporting requirements that require the interim progress report to be 
due within 30 days after the reporting period. In the revised 
regulation, interim progress reports are now due within 60 days after 
the reporting period. This change codifies a recommendation under EPA 
initiative, ``Burden Reduction Initiative'' (See http://www.epa.gov/burdenreduction/index.htm for information about EPA's Burden Reduction 
Initiative.)

B. Financial Reports

    This revision corrects a citation error to CFR 31.41(b)(3) for 
quarterly and semiannual financial reports requirement. The correct 
citation is CFR 31.41(b)(4), which requires quarterly and semiannual 
financial reports due 30 days after the reporting period.

C. Overpayment

    In the revised regulation, a State may also direct EPA to use the 
excess cash cost share funds (overmatch) at one site to meet the cost 
share obligations at another State site. This change was made to 
provide greater flexibility to a State on how it wants to address the 
overmatch of cost share under a Superfund State Contract.

V. Section-by-Section Analysis

Section 35.6650 Progress Reports

    Paragraph (a) is revised to read, ``Reporting frequency. The 
recipient must submit progress reports as specified in the Cooperative 
Agreement. Progress reports will be required no more frequently than 
quarterly, and will be required at least annually. Notwithstanding 40 
CFR 31.41(b)(1), the reports shall be due within 60 days after the 
reporting period. The final progress report shall be due 90 days after 
expiration or termination of the Cooperative Agreement.'' The reporting 
period for quarterly and semiannual progress reports was changed from 
30 to 60 days.

Section 35.6670 Financial Reports

    Paragraph (b)(2)(i) is revised to read, ``If a Financial Status 
Report is required annually, the report is due 90 days after the end of 
the Federal fiscal year or as specified in the Cooperative Agreement. 
If quarterly or semiannual Financial Status Reports are required, 
reports are due in accordance with 40 CFR 31.41(b)(4).'' The reference 
citation to 40 CFR 31.41(b)(3) was changed to 40 CFR 31.41(b)(4), and 
the redundant statement, ``due 30 days after the reporting period,'' 
was deleted. 40 CFR 31.41(b)(4) requires quarterly and semiannual 
reports to be due 30 days after the reporting period.

Section 35.6805 Contents of an SSC

    Paragraph (k) is revised to read, ``Reconciliation provision, which 
states that the SSC remains in effect until the financial settlement of 
project costs and final reconciliation of response costs (including all 
change orders, claims, overmatch of cost share, reimbursements, etc.) 
ensures that both EPA and the State have satisfied the cost share 
requirement contained in section 104 of CERCLA, as amended. The 
recipient may direct EPA to return the overmatch or to use the excess 
cost share payment at one site to meet the cost share obligation at 
another site in accordance with Sec.  35.6285(d). Reimbursements for 
any overpayment will be made to the payer identified in the SSC.'' The 
revised regulation permits the recipient also to request the overmatch 
be applied to the cost share requirements of another site. Under the 
current regulation, EPA must return the overpayment to the recipient. 
On May 2, 2007, EPA promulgated a final regulation, amending Sec.  
35.6285(d),

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``Excess cash cost share contribution/overmatch,'' which permitted a 
state to request the overmatch be applied to the cost share 
requirements of another site when using a remedial cooperative 
agreement. This change makes the overmatch requirements the same for an 
SSC as for a remedial cooperative agreement.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Reviews

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden, 
because it makes only minimal changes in the current 40 CFR part 35 
subpart O requirements. However, the Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing regulations in 40 CFR part 35 under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2050-0179. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    Today's final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice and comment requirements under the APA or any 
other statute because this rule pertains to grants which the APA 
expressly exempts from notice and comment rulemaking requirements under 
5 U.S.C. 553(a)(2). Moreover, CERCLA also does not require EPA to issue 
a notice of proposed rulemaking prior to issuing this rule.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. UMRA excludes from the definition of ``Federal 
intergovernmental mandate'' duties that arise from participation in a 
voluntary Federal program. Therefore, this action is not subject to the 
requirements of sections 202 or 205 of UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. Participation by 
small governments in this program is voluntary and is funded by EPA.

E. Executive Order 13132: Federalism

    This final rule does not have federalism implications. This action 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various level of 
government, as specified in Executive Order 13132. This final rule 
makes minor changes to the regulation, under which the 40 CFR part 35 
subpart O program has been operating since May 2007. Apart from the 
minor changes, this rule adds new provisions that increase State 
flexibility, so it does not have federalism implications as that phrase 
is defined for purposes of Executive Order 13132. Further, because this 
is a rule that primarily conditions the use of Federal assistance, it 
does not impose substantial direct compliance costs on States. Thus 
Executive Order 13132 does not apply to this final rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal government and Indian Tribes, or the distribution 
of power between and responsibilities between the Federal government 
and Indian tribes. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211 (Energy Effects)

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involved technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health and environmental 
effects on minority or low-income populations because it does

[[Page 49417]]

not affect the level of protection provided to human health or the 
environment. This rule amends 40 CFR part 35 subpart O by allowing 
interim progress reports to be due in 60 days, instead of the current 
30-day requirement. In addition, this amendment allows the recipient of 
a Superfund State Contract to request that EPA apply any overpayment of 
cost share to another site. The regulation 40 CFR part 35 subpart O 
codified: (1) Recipient requirements for administering Cooperative 
Agreements awarded pursuant to section 104(d)(1) of CERCLA; and (2) 
requirements for administering Superfund State Contracts for non-State-
lead remedial responses undertaken pursuant to section 104 of CERCLA.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. While this action is not a ``major rule'' as defined by 5 
U.S.C. 804(2), the final rule becomes effective 60 days after 
publication in the Federal Register on October 12, 2010.

List of Subjects in 40 CFR Part 35

    Administrative practices and procedures, Environmental protection, 
Grant programs--environmental protection, Reporting and recordkeeping.

    Dated: August 9, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons set out in the preamble, 40 CFR part 35 is amended as 
follows:

PART 35--STATE AND LOCAL ASSISTANCE

0
1. The authority citation for 40 CFR part 35, subpart O continues to 
read as follows:

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

Subpart O--Cooperative Agreements and Superfund State Contracts for 
Superfund Response Actions

0
2. Amend Sec.  35.6650 by revising paragraph (a) to read as follows:


Sec.  35.6650  Progress reports.

    (a) Reporting frequency. The recipient must submit progress reports 
as specified in the Cooperative Agreement. Progress reports will be 
required no more frequently than quarterly, and will be required at 
least annually. Notwithstanding 40 CFR 31.41(b)(1), the reports shall 
be due within 60 days after the reporting period. The final progress 
report shall be due 90 days after expiration or termination of the 
Cooperative Agreement.
* * * * *

0
3. Amend Sec.  35.6670 by revising paragraph (b)(2)(i) to read as 
follows:


Sec.  35.6670  Financial reports.

* * * * *
    (b) * * *
    (2) * * *
    (i) If a Financial Status Report is required annually, the report 
is due 90 days after the end of the Federal fiscal year or as specified 
in the Cooperative Agreement. If quarterly or semiannual Financial 
Status Reports are required, reports are due in accordance with 40 CFR 
31.41(b)(4);
* * * * *

0
4. Amend Sec.  35.6805 by revising paragraph (k) to read as follows:


Sec.  35.6805  Contents of an SSC.

* * * * *
    (k) Reconciliation provision, which states that the SSC remains in 
effect until the financial settlement of project costs and final 
reconciliation of response costs (including all change orders, claims, 
overmatch of cost share, reimbursements, etc.) ensures that both EPA 
and the State have satisfied the cost share requirement contained in 
section 104 of CERCLA, as amended. The recipient may direct EPA to 
return the overmatch or to use the excess cost share payment at one 
site to meet the cost share obligation at another site in accordance 
with Sec.  35.6285(d). Reimbursements for any overmatch will be made to 
the recipient identified in the SSC.
* * * * *
[FR Doc. 2010-20086 Filed 8-12-10; 8:45 am]
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