[Federal Register Volume 59, Number 134 (Thursday, July 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17004]
[[Page Unknown]]
[Federal Register: July 14, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 35 and 300
[FRL-5011-8]
National Oil and Hazardous Substances Pollution Contingency Plan;
Cooperative Agreements and Superfund State Contracts for Superfund
Response Actions
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is promulgating
largely technical revisions to four sections of the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP). EPA is also
promulgating conforming revisions to two sections of the administrative
requirements for CERCLA-funded Cooperative Agreements and Superfund
State Contracts for Superfund Response Actions.
The first NCP revision clarifies that EPA may acquire an interest
in real estate in order to conduct a Superfund (Fund)-financed remedial
action only if the State in which the interest is located agrees to
accept transfer of that interest upon completion of the remedial
action. The second revision clarifies that a Federal agency has
discretionary authority over the expenditure of its funds when acting
as an expert agency providing assistance in a cleanup. The third
revision explains that when EPA extends the operational and functional
period of a remedial action, it will fund such extensions as part of
the remedial action. The fourth revision clarifies that an on-scene
coordinator (OSC) may be authorized to coordinate and direct
appropriate response action, not merely a removal action.
EFFECTIVE DATE: This final rule is effective August 15, 1994.
ADDRESSES: The record supporting this rulemaking is contained in the
Superfund Docket and is available for inspection, by appointment only
(telephone--202-260-3046), between the hours of 9:00 a.m. and 4:00
p.m., Monday through Friday, excluding legal holidays. As provided in
40 CFR part 2, a reasonable fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Office of
Emergency and Remedial Response, U.S. Environmental Protection Agency,
401 M St., SW., Washington, DC 20460 (Mail Code--5203G), at (703) 603-
8769, or the RCRA/Superfund Hotline at 1-800-424-9346 (in Arlington,
Virginia at (703) 920-9810).
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Background
II. Response to Comments
III. Summary of Supporting Analyses
I. Background
The Environmental Protection Agency (EPA or the Agency) is today
promulgating largely technical revisions to the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300.
EPA is also promulgating conforming changes to two sections of 40 CFR
part 35, subpart O (hereafter subpart O), the administrative
requirements for CERCLA-funded Cooperative Agreements and Superfund
State Contracts. The rationale for the rule and a discussion of its
background may be found in the preamble to the proposed rule, at 58 FR
53688, October 18, 1993. Two commenters submitted comments concerning
two of the proposed revisions. A discussion of those comments follows.
II. Response to Comments
EPA proposed to change the definition of ``On-scene coordinator''
in NCP section 300.5 to mean the Federal official predesignated by EPA
or the USCG to coordinate and direct Federal responses under subpart D,
or the official designated by the lead agency to coordinate and direct
removal or other response actions under subpart E of the NCP. One
commenter opposed EPA's proposed revision of the definition. The
commenter believes that ``EPA is moving towards eliminating the
distinction between remedial project managers (RPMs) and having only
site managers.'' He further argued, that ``considering existing
contracts and differences in the programs,'' that he would ``not like
to see the day * * * where an individual is an OSC on one site and an
RPM on the next on a routine basis.''
In response, EPA notes that it proposed to revise the definition of
``On-scene Coordinator'' (OSC) in NCP section 300.5 to make clear only
that the OSC may be authorized in appropriate cases, not that the OSC
must be authorized in all cases, to implement any necessary response
action, not merely a removal action. The rule change was not intended
to eliminate the distinction between RPMs and OSCs, but was proposed to
promote efficiency in the management of remedial action projects, to
avoid the necessity of assigning both an OSC and an RPM to sites where
multiple types of response action are necessary. The Agency also
expressed belief in the preamble to the proposed rule that it is
important to have the flexibility to assign one ``site manager'' to a
site--either an OSC or an RPM--and for the OSC and RPM to have the
ability to supervise both removal and remedial actions, as
circumstances warrant. In response to the commenter's objection that
existing contracts and differences in the programs made the proposed
change an inappropriate idea, EPA acknowledged in the preamble to the
proposed rule that cross-training of OSCs and RPMs may be needed to
implement this idea. OSCs will continue to be primarily charged with
overseeing removal actions; however, in appropriate cases (e.g., where
multiple actions are necessary), the OSC may be authorized to oversee
the remedial action activities. Thus, EPA is making no change to the
rule language proposed.
EPA proposed to revise NCP section 300.510(f) to provide that, in
the case of a Fund-financed remedial action, a State would be required
to accept the transfer of an interest in real estate acquired ``upon
completion of the remedial action.'' One commenter asserted that EPA's
preamble discussion of ``completion of the remedial action'' as ``the
point at which O&M measures would be initiated if started in a timely
fashion,'' itself creates an ambiguity. The commenter notes that,
``aside from the obvious subjectivity of the definition, it is contrary
to the definition of when O&M starts under 40 CFR 300.435(f).'' The
commenter argued that to ``remedy this discrepancy, EPA should not
establish a separate definition to `completion of the remedial
action,''' but should ``simply specify `the remedial action is complete
when O&M starts pursuant to 40 CFR 300.435(f).'''
In response, EPA agrees with the commenter and will change the
final rule to provide that ``completion of the remedial action'' means
the point at which O&M measures would be initiated pursuant to section
300.435(f). For sites other than ground or surface-water sites, O&M
would generally begin when the remedy has been constructed, is
operational and functional, and has attained ROD objectives (e.g., the
landfill and leachate collection system are built as called for in the
ROD, are operational, and need only be maintained). For ground- and
surface-water restoration remedies, O&M begins after up to 10 years of
restoration measures. See NCP section 300.435(f). (Note, however, that
the requirement of a State assurance with respect to transfer of real
property is not limited to sites at which the State would be conducting
O&M; the definition of the O&M initiation point in NCP section
300.435(f) is used to identify the point at which transfer would occur
regardless of whether the State or some other entity is in fact
responsible for conducting O&M at the site.) The final rule, like the
present rule, allows for earlier transfers if agreed to in writing by
EPA and the State. See 55 FR 8779 (March 8, 1990). (``Completion of the
remedial action,'' for purposes of NCP section 300.510(f) should not be
confused with ``construction completion,'' which occurs at an earlier
point in the process. See 58 FR 12142, (March 2, 1993). It is also not
relevant to determining the date at which all response action has been
completed for purposes of the statute of limitations in 40 U.S.C.
9613(g).)
III. Summary of Supporting Analyses
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis which
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
EPA may certify, however, that the rule will not have a significant
economic impact on a substantial number of entities.
This final rule will not have a significant economic impact on
small entities since its effect would be largely to clarify EPA's
original intent under the 1990 NCP. There is no additional impact on
the regulated community due to today's final rule, and no new
obligations would be imposed on any party. Accordingly, EPA hereby
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. This regulation,
therefore, does not require a Regulatory Flexibility Analysis.
C. Paperwork Reduction Act
There are no information collection requirements imposed by this
rule.
List of Subjects
40 CFR Part 35
Environmental protection, Accounting, Administrative practice and
procedures, Financial administration, Grant programs (Cooperative
Agreements and Superfund State Contracts), Government procurement
requirements, Property requirements, Reporting and recordkeeping
requirements, Superfund.
40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous materials, Hazardous substances, Incorporation by reference,
Intergovernmental relations, Natural resources, Occupational safety and
health, Oil pollution, Reporting and recordkeeping requirements,
Superfund, Waste treatment and disposal, Water pollution control, Water
supply.
Dated: June 30, 1994.
Carol M. Browner,
Administrator.
PART 35--STATE AND LOCAL ASSISTANCE
1. The authority citation for part 35 continues to read as follows:
Authority: 42 U.S.C. 9601 et seq.
2. Section 35.6105 of subpart O is amended by revising paragraph
(b)(5) to read as follows:
Sec. 35.6105 State-lead remedial Cooperative Agreements.
(b) * * *
(5) Real property acquisition. If EPA determines in the remedy
selection process that an interest in real property must be acquired in
order to conduct a response action, such acquisition may be funded
under a Cooperative Agreement. EPA may acquire an interest in real
estate for the purpose of conducting a remedial action only if the
State provides assurance that it will accept transfer of such interest
in accordance with 40 CFR 300.510(f). The State must provide this
assurance even if it intends to transfer this interest to a third
party. (See Sec. 35.6400 of this subpart for additional information on
real property acquisition requirements.)
* * * * *
3. Section 35.6400 of subpart O is amended by revising paragraphs
(a)(1) and (2) to read as follows:
Sec. 35.6400 Acquisition and transfer of interest.
(a) * * *
(1) If the recipient acquires real property in order to conduct the
response, the recipient with jurisdiction over the property must agree
to hold the necessary property interest.
(2) If it is necessary for the Federal Government to acquire the
interest in real estate to permit conduct of a remedial action, the
acquisition may be made only if the State, or Indian Tribe to the
extent of its legal authority, provides assurance that it will accept
transfer of the acquired interest in accordance with 40 CFR 300.510(f).
States and Indian Tribes must follow the requirements in
Secs. 35.6105(b)(5) and 35.6110(b)(2) respectively, of this subpart.
* * * * *
PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN
1. The authority citation for part 300 continues to read as
follows:
Authority: 42 U.S.C. 9601-9657, 33 U.S.C. 1321(c)(2); E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p. 193.
2. Section 300.5 of subpart B is amended by revising the definition
for On-scene Coordinator (OSC) to read as follows:
Sec. 300.5 Definitions.
* * * * *
On-scene Coordinator (OSC) means the Federal official predesignated
by EPA or the USCG to coordinate and direct Federal responses under
subpart D, or the official designated by the lead agency to coordinate
and direct removal or other response actions under subpart E of the
NCP.
* * * * *
3. Section 300.160 of subpart B is amended by revising paragraph
(c) to read as follows:
Sec. 300.160 Documentation and cost recovery.
* * * * *
(c) Response actions undertaken by the participating agencies shall
be carried out under existing programs and authorities when available.
Federal agencies are to make resources available, expend funds, or
participate in response to discharges and releases under their existing
authority. Interagency agreements may be signed when necessary to
ensure that the Federal resources will be available for a timely
response to a discharge or release. In cases where a Federal agency is
asked to provide expert assistance for a response action, the ultimate
decision as to the appropriateness of expending funds with respect to
such assistance rests with the agency that is held accountable for such
expenditures. Further funding provisions for discharges of oil are
described in Sec. 300.335.
* * * * *
4. Section 300.510 of subpart F is amended by revising paragraphs
(c)(2) and (f) to read as follows:
Sec. 300.510 State assurances.
* * * * *
(c)(1) * * *
(2) After a joint EPA/State inspection of the implemented Fund-
financed remedial action under Sec. 300.515(g), EPA may share, for any
extension period established in Sec. 300.435(f)(2), in the cost of the
operation of the remedy to ensure that the remedy is operational and
functional. In the case of restoration of ground or surface water, EPA
shall share in the cost of the State's operation of ground- or surface-
water restoration remedial actions as specified in Sec. 300.435(f)(3).
* * * * *
(f) EPA may determine that an interest in real property must be
acquired in order to conduct a response action. However, as provided in
CERCLA section 104(j)(2), EPA may acquire an interest in real estate in
order to conduct a remedial action only if the State in which the
interest to be acquired is located provides assurances, through a
contract, cooperative agreement or otherwise, that the State will
accept transfer of the interest upon completion of the remedial action.
For purposes of this paragraph, ``completion of the remedial action''
is the point at which operation and maintenance (O&M) measures would be
initiated pursuant to Sec. 300.435(f). The State may accept a transfer
of interest at an earlier point in time if agreed upon in writing by
the State and EPA. Indian tribe assurances are to be provided as set
out at 40 CFR part 35, subpart O, Sec. 35.6110(b)(2).
[FR Doc. 94-17004 Filed 7-13-94; 8:45 am]
BILLING CODE: 6560-50-P
