[Federal Register Volume 78, Number 52 (Monday, March 18, 2013)]
[Rules and Regulations]
[Pages 16612-16614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06189]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[EPA-HQ-SFUND-2012-0738; FRL-9791-4]
National Oil and Hazardous Substances Pollution Contingency Plan;
Revision To Increase Public Availability of the Administrative Record
File
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action on an amendment that was
withdrawn in a January 22, 2013, Federal Register withdrawal notice.
The amendment that is the subject of today's final rule adds language
to the National Oil and Hazardous Substances Pollution Contingency Plan
(NCP) to broaden the technology, to include computer telecommunications
or other electronic means, that the lead agency is permitted to use to
make the administrative record file available to the public.
DATES: This final rule is effective on April 17, 2013.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-SFUND-2012-0738. All documents in the docket are listed in
the www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Superfund Docket (Docket
ID No. EPA-HQ-SFUND-2012-0738). This Docket Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
Superfund Docket telephone number is (202) 566-0276. EPA Docket Center
(EPA/DC), EPA West, Room 3334, 1301 Constitution Ave. NW., Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Melissa Dreyfus at (703) 603-8792
([email protected]), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue NW., Washington, DC 20460-0002, Mail Code 5204P.
SUPPLEMENTARY INFORMATION:
I. Why is EPA publishing this final rule?
On November 7, 2012, EPA published in the Federal Register a Direct
Final rule entitled National Oil and Hazardous Substances Pollution
Contingency Plan; Revision to Increase Public Availability of the
Administrative Record File (77 FR 66729) (hereafter the Direct Final
rule). This Direct Final rule added language to 40 CFR 300.805(c) of
the NCP to broaden the technology, to include computer
telecommunications or other electronic means, that the lead agency is
permitted to use to make the administrative record file available to
the public. At the same time, EPA also published a parallel Proposed
rule (77 FR 66783) that requested comment on the same change to the
NCP. We stated in that Direct Final rule that if we received adverse
comment on the amendment by December 7, 2012, the affected amendment
would not take effect and we would publish a timely withdrawal in the
Federal Register of the amendment. We received one adverse comment and
as a result withdrew the amendment on January 22, 2013 (78 FR 4333).
EPA is publishing today's Final rule to address the adverse comment
received on the amendment listed above and to finalize this amendment.
II. Background
A. What does this amendment do?
In the November 7, 2012, Direct Final rule, 40 CFR 300.805(c)--
``Location of the Administrative Record File'' in Subpart I--
``Administrative Record for Selection of Response Action'' of the
National Oil and Hazardous Substances Pollution Contingency Plan, was
revised to acknowledge advancements in technologies used to manage and
convey information to the public. Specifically, this revision to the
NCP added language to broaden the technology, to include computer
telecommunications or other electronic means, that the lead agency is
permitted to use to make the administrative record file available to
the public regarding documents that form the basis for the selection of
a response action. This amendment to the NCP does not limit the lead
agency's ability to make the administrative record file available to
the public in traditional forms such as paper and microform. Based on
the preferences of the community and the lead agency's assessment of
the site-specific situation, the lead agency will determine whether to
provide: (1) Traditional forms (e.g. paper copies; microform) (2)
electronic resources, or (3) both traditional forms and electronic
resources. The lead agency should assess the capacity and resources of
the public to utilize and maintain an electronic- or computer
telecommunications-based repository to make a decision on which
approach suits a specific site.
B. What comment did EPA receive and how is it addressed?
While three comments were submitted in a timely manner, only one of
them is considered to be substantive. This comment, submitted
anonymously, stated that ``This modification to the current methods of
conveying information to the general public is prudent and likely to
increase public awareness of activities relating to the National
Contingency Plan.'' However, the commenter was ``* * * curious as to
how the `preferences of the community and the lead agency's assessment
of the site-specific situation' will be determined.'', as ``Within any
single community, there is probably going to be a range of capabilities
and preferences regarding the delivery of a record file.'' The
commenter went on to explain ``In determining community preference, the
Agency should be cautious, again, of allowing the
[[Page 16613]]
overrepresentation of special interests, for these interests may
attempt to project a community preference for traditional microform
files so that public participation does not increase. But, as the
Proposed rule explains, the lead agency will be free to determine that
both electronic and traditional microform information be available,
which, when faced with competing views, is best for effectuating the
purpose of this necessary and wise amendment.''
In response to this comment, EPA agrees that the amendment being
promulgated today is a useful and important change that will give the
lead agency the ability to serve the information needs of a broader
population. In the Direct Final rule (and parallel Proposed rule), EPA
explained that the lead agency should assess the capacity and resources
of the public to utilize and maintain an electronic- or computer
telecommunications-based repository to make a decision on which
approach suits a specific site. Based on the preferences of the
community and the lead agency's assessment of the site-specific
situation, the lead agency will determine whether to provide: (1)
Traditional forms (e.g. paper copies; microform) (2) electronic
resources, or (3) both traditional forms and electronic resources.
Further, EPA agrees with the commenter's remark that ``In
determining community preference, the Agency should be cautious, again,
of allowing the overrepresentation of special interests, for these
interests may attempt to project a community preference for traditional
microform files so that public participation does not increase.''
Community preferences and access to technological resources may be
gleaned through community interviews conducted as part of the planning
for the Community Involvement Plan (CIP) at a site.\1\ A CIP is a site-
specific strategy to enable meaningful community involvement throughout
the Superfund cleanup process. Consistent with the NCP
[300.415(n)(3)(ii); 300.415(n)(4)(i); and 300.430(c)(2)(ii)(A-C)], the
lead agency prepares a Community Involvement Plan (formerly called a
Community Relations Plan) ``* * * based on the community interviews and
other relevant information, specifying the community relations
activities that the lead agency expects to undertake during the
remedial response.'' In addition, consistent with the NCP [40 CFR
300.415(n)(3)(i); 40 CFR 300.415(n)(4)(i); and 300.430(c)(2)(i)] the
lead agency conducts ``interviews with local officials, community
residents, public interest groups, or other interested or affected
parties, as appropriate, to solicit their concerns and information
needs, and to learn how and when citizens would like to be involved in
the Superfund process.''
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\1\ U.S. Environmental Protection Agency. 2011. Superfund
Community Involvement Toolkit. Community Involvement Plans.
Available online: http://www.epa.gov/superfund/community/pdfs/toolkit/ciplans.pdf.
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EPA generally recommends that interviews be conducted with at least
25 community members, though a complex site may warrant 100 or more
interviewees, and a small or remote site might warrant less than 25
interviewees.\2\ Conducting community interviews typically is a
particularly effective way to gather information about community needs,
questions, and concerns, as well as expectations and unique needs or
cultural behaviors, customs, and values. Community interviews also give
the lead agency the opportunity to hear the preferences of community
members that may have otherwise hesitated to share during a public
meeting or availability session. The information and insights gained
from community interviews will help the lead agency to assess the
capacity and resources of the community to utilize and maintain an
electronic- or computer telecommunications-based repository, and to
make a decision on which approach suits a specific site and best
encourages the community's participation.
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\2\ U.S. Environmental Protection Agency. 2011. Superfund
Community Involvement Toolkit. Community Interviews. Available
online at http://www.epa.gov/superfund/community/pdfs/toolkit/5cominterv.pdf.
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In addition, in accordance with Section 508 of the Rehabilitation
Act of 1973, as amended, the lead agency is responsible for ensuring
that all electronic and information technology is accessible to persons
with disabilities. This typically involves procuring, creating,
maintaining and using electronic and information technology, including,
Web sites, software, hardware, video and multimedia, and
telecommunications, that is Section 508 compliant,\3\ as well as
incorporating other techniques to ensure accessibility.
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\3\ Further information on Section 508 is available online:
http://www.section508.gov.
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Thus, the amendment being promulgated today is a useful and
important change that will give the lead agency the ability to serve
the information needs of a broader population, while maintaining the
ability to provide the administrative record file to the public as: (1)
Traditional forms (e.g. paper copies; microform) (2) electronic
resources, or (3) both traditional forms and electronic resources. EPA
is today promulgating the change to add language to 40 CFR 300.805(c)
as was proposed.
III. Statutory and Executive Order Reviews
As explained above, this rule takes final action on an amendment
for which we received adverse comment in response to our November 7,
2012, National Oil and Hazardous Substances Pollution Contingency Plan;
Revision to Increase Public Availability of the Administrative Record
File Direct Final rule (and parallel Proposed rule).
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is
not a ``significant regulatory action'' and is therefore not subject to
OMB review. This action merely adds language to 40 CFR 300.805(c) of
the NCP to broaden the technology, to include computer
telecommunications or other electronic means, that the lead agency is
permitted to use to make the administrative record file available to
the public. This action will enable the lead agency to serve the
information needs of a broader population while maintaining the ability
to provide traditional means of public access, such as paper copies and
microform, to the administrative record file. This action does not
impose any requirements on any entity, including small entities.
Therefore, pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), after considering the economic impacts of this action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not contain any unfunded mandates or significantly or uniquely
affect small governments as described in Sections 202 and 205 of the
Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). This
action does not create new binding legal requirements that
substantially and directly affect Tribes under Executive Order 13175
(63 FR 67249, November 9, 2000). This action does not have significant
Federalism implications under Executive Order 13132 (64 FR 43255,
August 10, 1999). Because this action has been exempted from review
under Executive Order 12866, this final rule is not subject to
Executive Order 13211, entitled Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355,
May 22, 2001) or Executive Order 13045, entitled Protection of Children
from Environmental Health Risks and Safety Risks (62 FR 19885,
[[Page 16614]]
April 23, 1997). This action does not contain any information
collections subject to OMB approval under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq., nor does it require any special
considerations under Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994). 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) do not apply. 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. Because this action does not
contain legally binding requirements, it is not subject to the
Congressional Review Act.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: March 11, 2013.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
For the reasons set out above, title 40, chapter I of the Code of
Federal Regulations is amended as follows:
PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN
0
1. The authority citation for part 300 continues to read as follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p.193.
0
2. Section 300.805 is amended by revising paragraph (c) to read as
follows:
Sec. 300.805 Location of the administrative record file.
* * * * *
(c) The lead agency may make the administrative record file
available to the public in microform, computer telecommunications, or
other electronic means.
[FR Doc. 2013-06189 Filed 3-15-13; 8:45 am]
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