[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Proposed Rules]
[Pages 40764-40772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19886]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 202
RIN 0790-AG31
Restoration Advisory Boards (RABs)
AGENCY: Department of Defense, Office of the Assistant Deputy Under
Secretary of Defense (Environmental Cleanup), DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) proposes and requests public
comments on regulations regarding the characteristics, composition,
funding, and establishment of Restoration Advisory Boards (RABs). DoD
has proposed these regulations in response to section 324 of the
National Defense
[[Page 40765]]
Authorization Act for Fiscal Year 1996 (Pub. L. 104-106) that amended
section 2705 of title 10, United States Code, and requires the
Secretary of Defense to prescribe regulations regarding RABs.
The purpose of a RAB is to facilitate public participation in DoD
environmental restoration activities at operating and closing DoD
installations where local communities express interest in the program.
The proposed regulations are based on DoD's current policies for
establishing and operating RABs as well as DoD's experience in
establishing RABs over the past two years.
DATES: Comments on this proposed rule must be submitted on or before
November 4, 1996.
ADDRESSES: Comments on this proposal should be sent to the following
address: Office of the Assistant Deputy Under Secretary of the Defense
(Environmental Cleanup), 3400 Defense Pentagon, Washington, DC 20301-
3400. The public must send a written original, two copies, and whenever
possible, a 3.5 inch computer disk containing comments in a common word
processing format such as WordPerfect version 5.1. This will expedite
DoD's response to comments and reduce the associated costs.
FOR FURTHER INFORMATION CONTACT:
Ms. Marcia Read, Office of the Assistant Deputy Under Secretary of
Defense (Environmental Cleanup), (703) 697-9793.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
III. Summary of the Proposed Rule
A. General Requirements
B. Operating Requirements
C. Administrative Support, Funding, and Reporting Requirements
IV. Section by Section Analysis of the Proposed Rule
A. General Requirements
1. Purpose, Scope, and Applicability
a. Purpose and Scope of Responsibilities of RABs
b. Applicability of Regulations to Existing RABs
2. Criteria for Establishment
a. Determining if Sufficient Interest Warrants Establishing a
RAB
b. Responsibility for Forming and Operating a RAB
c. Converting Existing Technical Review Committees (TRCs) to
RABs
3. Notification of Formation of a RAB
a. Public Notice and Outreach
b. RAB Information Meeting
4. Composition of a RAB
a. Membership
b. Government Representation
c. Community Representation
d. Roles and Responsibilities of Members
B. Operating Requirements
1. Creating a Mission Statement
2. Selecting Co-Chairs
3. Developing Operating Procedures
4. Training RAB Members
5. Conducting RAB Meetings
C. Administrative Support, Funding, and Reporting Requirements
1. Administrative Support and Eligible Expenses
a. Administrative Support
b. Eligible Administrative Expenses
2. Funding
3. Technical Assistance to Community Members
4. Documenting and Reporting Activities and Expenses
V. Regulatory Analysis
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
VI. Unfunded Mandates
I. Authority
These regulations are proposed under the authority of section 2705
of title 10, United States Code, that was amended by section 324 of the
National Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-
106).
II. Background
The Defense Environmental Restoration Program (DERP) was
established in 1984 to promote and coordinate efforts for the
evaluation and cleanup of environmental contamination at operating and
closing DoD installations and formerly used defense sites (FUDS).
Policy direction and oversight of DERP is the responsibility of the
Office of the Assistant Deputy Under Secretary of Defense
(Environmental Cleanup). The DoD Components (Departments of Army, Navy,
and Air Force, and the Defense Agencies) are responsible for program
implementation.
DoD recognizes the importance of public involvement at military
installations and FUDS that require environmental restoration. DoD has
developed policies to ensure that local communities are provided the
opportunity as early as possible to obtain information about and
provide input to the decisions regarding the environmental restoration
activities at military installations. It is DoD policy to provide such
opportunity through the establishment of RABs.
DoD, as with all federal agencies, must comply with the statutory
and regulatory requirements for community involvement found under the
National Oil and Hazardous Substance Pollution Contingency Plan (NCP),
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) (Pub. L. 96-510) as amended by the Superfund Amendments
and Reauthorization Act (SARA) (Pub. L. 99-499), the Resource
Conservation and Recovery Act (RCRA) (Pub. L. 94-550), National
Environmental Policy Act (NEPA) (Pub. L. 91-190), and other applicable
federal, state and local environmental laws and regulations. Section
211 of SARA (10 USC 2705(c)) and Executive Order 12580, entitled
``Superfund Implementation,'' require DoD, where possible and
practical, to establish technical review committees (TRC) for reviewing
technical documents and discussing progress in implementing and
completing restoration activities.
Over the past several years, DoD has participated as a member of
the Federal Facilities Environmental Restoration Dialogue Committee
(FFERDC). The FFERDC is a committee chartered under the Federal
Advisory Committee (FACA). The committee includes stakeholders--
representatives of federal, state, tribal, and local agencies, and of
environmental, community, labor, and environmental justice
organizations. The FFERDC develops consensus policy recommendations for
improving decisions about environmental restoration at federal
facilities. In February 1993, the FFERDC issued the ``Interim Report of
the FFERDC: Recommendations for Improving the Federal Facilities
Environmental Restoration Decision-Making and Priority-Setting
Processes''. In that report, the FFERDC recommended that: (1) Federal
agencies should be more proactive in providing information about
restoration activities to stakeholders, and (2) citizen advisory boards
should be established to provide advice to government agencies that
conduct and regulate restoration at federal facilities. DoD carefully
considered the recommendations of the FFERDC and, in response,
strengthened its community involvement efforts including the RAB
initiative under its environmental restoration program.
Following the release of the FFERDC Interim Report in 1993, the
FFERDC expanded its membership to include representatives from the
military services, local governments, and environmental justice
organizations. In April 1996, the FFERDC issued its Final Report which
includes chapters on community involvement and advisory boards. The
Final Report affirms the value of RABs as a method for involving the
public in the environmental restoration decision-making process and
provides recommendations for establishing and implementing successful
RABs.
[[Page 40766]]
In 1993, President Clinton announced a five-part plan to speed the
economic recovery of communities in which bases are scheduled to close.
Part of the Fast-Track Cleanup Program, which sprang from the
President's plan, emphasized the early community involvement in the
environmental restoration process as an important element of the
program. On September 9, 1993, the Deputy Secretary of Defense issued a
memorandum that outlined the policies for implementation of the Fast-
Track Cleanup Program. One of the guidances called for the
establishment of RABs at closing installations where property was
available for transfer to communities for reuse. The RAB initiative,
subsequently applied to operational installations, gives an opportunity
for citizens living near military installations to obtain information
about, and provide input to, the environmental restoration program.
DoD believes that working in partnership with local communities and
addressing the concerns of those communities early in the restoration
process will enhance its efforts under, and increase credibility of,
the environmental restoration program. DoD remains committed to
involving communities neighboring its installations in environmental
restoration decisions that may affect human health and the environment.
RABs have become a significant component of DoD's efforts to increase
community involvement in DoD's environmental restoration program. RABs
continuously provide a forum through which members of affected
communities can provide input to an installation's ongoing
environmental restoration activities.
On September 27, 1994, DoD and EPA jointly issued guidelines for
the formation and operation of RABs (``Restoration Advisory Board
Implementation Guidelines''). The guidelines describe how to implement
the DoD RAB policy and identify the role each stakeholder can play in
the RAB. The guidelines also state that existing TRCs or similar groups
may be expanded or modified to become RABs rather than an installation
creating a separate committee because RABs are designed to fulfill the
statutory requirements for TRCs.
As of September 30, 1995, more than 200 RABs had been formed at
more than 230 operating and closing installations that have restoration
programs. It is important to note that the RAB is not a replacement for
other types of community outreach and participation activities required
by law, regulation, or policy.
In section 326(a) of the National Defense Authorization Act for
Fiscal Year 1995 (Pub. L. 103-337, October 5, 1994), Congress directed
that section 2705 of title 10, United States Code (CERCLA), be amended
in the following manner, (``1) In lieu of establishing a technical
review committee under subsection (c), the Secretary may permit
establishment of a restoration advisory board in connection with any
installation (or group of nearby installations) where the Secretary is
planning or implementing environmental restoration activities.'' Thus,
Congress granted DoD the authority to establish RABs instead of TRCs at
installations undergoing environmental restoration.
On February 10, 1996, the President signed into law the National
Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106) which
contained several provisions addressing the establishment and operation
of RABs. Section 324(a) of Pub. L. 104-106 amended section 2705 of
title 10, United States Code, requiring the Secretary of Defense to
``prescribe regulations regarding the establishment, characteristics,
composition, and funding of restoration advisory boards'' (amended
section 2705(d)(2)(A)). Section 324(a) of Pub. L. 104-106 also stated
that DoD's issuance of regulations shall not be a precondition to the
establishment of RABs (amended section 2705(d)(2)(B)). Section 324(b)
of Pub. L. 104-106 authorized DoD to enable the installation to pay for
routine administrative expenses of a RAB, as well as allowing RABs or
TRCs to obtain technical assistance for interpreting scientific and
engineering issues with regard to the nature of environmental hazards
at the installation and the restoration activities conducted, or
proposed to be conducted at the installation using DERP and Base
Realignment and Closure (BRAC) funding (amended sections 2705(d)(3),
(e), and (g)). However, section 324(d) of Pub. L. 104-106 stated that
funding for both administrative expenses and technical assistance may
not be made after September 15, 1996, unless the Secretary publishes
proposed final or interim final regulations for RABs (amended section
2705(g)(2)(B)).
Therefore, DoD proposes these regulations regarding the
characteristics, composition, funding, and establishment of RABs. DoD
recognizes that each RAB established will be a unique organization
dealing with installation-specific issues. This proposal, developed
consistent with the recommendations set forth in the FFERDC's Final
Report, is consistent with existing DoD and EPA policy on RABs, and
reflects over two years of experience in establishing and operating
RABs throughout the United States. DoD has structured this proposal to
maximize flexibility for RAB members and installations nationwide.
III. Summary of the Proposed Rule
DoD is proposing and requesting public comment on regulations
regarding the establishment, characteristics, composition, and funding
of RABs. This section of the preamble provides a summary of the
proposed regulations in 32 CFR part 202.
A. General Requirements
In this section of the proposed rule, DoD discusses the purpose,
scope, and applicability of the proposed regulations for RABs. DoD is
required by revised section 2705(d)(2)(A) of title 10, United States
Code, to issue regulations concerning the establishment,
characteristics, composition, and funding of RABs. When issued as a
final rule, the regulations will apply to all RABs regardless of when
they were established.
In this proposal, DoD defines the purpose of a RAB as providing an
expanded opportunity for stakeholder input into the environmental
restoration process at operating and closing DoD installations. While a
RAB will complement other community involvement efforts undertaken by
the installation concerning environmental restoration, DoD that a RAB
does not replace other types of community outreach and participation
activities required by applicable federal and state laws.
DoD will require that a RAB be established at an installation when
there is sufficient and sustained community interest and any of four
specified criteria are met. The installation shall have the lead
responsibility for forming and operating a RAB. Further, DoD proposes
five minimum steps that the installation should take to determine if
sufficient and sustained community interest exists in forming a RAB.
Prior to establishing a RAB, DoD is proposing that the installation
should notify potential stakeholders of its intent to form a RAB.
Stakeholders are defined as all parties that are actually or
potentially affected by restoration activities at an installation. At
closing installations, stakeholders should include members of the Local
Redevelopment Authorities (LRA). The notification should describe the
purpose of a RAB and discuss opportunities for membership.
[[Page 40767]]
This proposed rule contains guidelines regarding the composition of
RABs. DoD proposes that each RAB should consist of representatives from
DoD, EPA, state and local government, and members of the community.
DoD. notes in the preamble (see section IV. A.4.a) that EPA's
involvement on a RAB is discretionary depending on whether the
installation is included on the National Priorities List (NPL) set
forth in Title 40 Code of Federal Regulations part 300, appendix B. At
closing installations, members of the BRAC Cleanup Team BCT) may serve
on the RAB as DoD, EPA, or state representatives.
DoD is not proposing regulations for specific roles and
responsibilities of RAB members, but is stating that the chairmanship
of a RAB must be shared between the installation and community. In
addition, DoD proposes that community members of a RAB shall not be
compensated by DoD for their participation.
B. Operating Requirements
In this section of the proposed rule, DoD sets forth basic
requirements for the operation of a RAB. DoD proposes that each RAB
should develop a mission statement that describes its overall purpose
and goals. DoD also specifies certain requirements regarding the
selection process for co-chairs. DoD proposes that the installation's
co-chair shall be determined by the installation's Commanding Officer
(CO) or other DoD decision authority in accordance with military
service-specific guidance. DoD is not specifying any required
procedures for selection of the community co-chair or for community
members of the RAB in general, only that the community members of the
RAB will be responsible for selecting their co-chair.
DoD proposes that each RAB should develop a set of operating
procedures. These procedures may address: Announcing meetings;
attendance of members at meetings; frequency of meetings; addition or
removal of RAB members; length of service for RAB members and co-
chairs; methods for dispute resolution; review of responses to public
comments; participation of the general public in RAB operations; and
keeping the public informed about RAB proceedings.
DoD is not proposing specific requirements concerning the conduct
of RAB meetings, because the meeting format of each RAB will vary and
be dictated by the needs of the participants. However, DoD proposes
that the installation should prepare meeting minutes summarizing the
topics discussed at RAB meetings, and make them available in
information repositories.
C. Administrative Support, Funding, and Reporting Requirements
In this section of the proposed rule, DoD sets forth requirements
regarding administrative support for establishing and operating a RAB,
funding for administrative support, and reporting requirements
regarding the activities and administrative expenses associated with
RABs. This section also references impending regulations governing how
community members of RABs and TRCs may seek funding for obtaining
technical assistance to interpret scientific and engineering issues
with regard to the nature of environmental hazards at the installation
and the restoration activities conducted, or proposed to be conducted
at the installation.
Section 324 of Pub. L. 104-106 amended section 2705(d)(3), title
10, United States Code, authorizes the CO of an installation, or if
there is no such commander, an appropriate DoD official, to pay for
routine administrative expenses of a RAB established at an
installation. To implement this provision, this proposed rule requires
that the installation provide administrative support to establish and
operate a RAB, subject to the availability of funds. The scope of this
support corresponds to those activities that are eligible for DoD
funding including:
Establishing a RAB.
Membership selection.
Certain types of training.
Meeting announcements.
Meeting facility.
Meeting facilitators, including translators.
Preparation of meeting materials and minutes.
Maintenance of a RAB mailing list and mailing of RAB
materials.
Section 324(d) of Pub. L. 104-106 amended section 2705(g) title 10,
United States Code, prescribes the level and allocation of funds
earmarked for RAB administrative expenses. Accordingly, the proposed
rule establishes these requirements and specifies that operating
installations should pay for RAB administrative expenses using funds
from their Component's Defense Environmental Restoration Account
(DERA). At closing installations, DoD proposes that installations use
BRAC funds to pay for eligible RAB administrative expenses.
Section 324(c) of Pub. L. 104-106 revised section 2705(e), title
10, United States Code, enables community members of a RAB or TRC to
request DoD to obtain from the private sector, technical assistance for
interpreting scientific and engineering issues with regard to the
nature of environmental hazards at the installation and the restoration
activities conducted, or proposed to be conducted at the installation.
Later this year, DoD will issue a rule addressing policies and
procedures for obtaining technical assistance under section 2705(e). In
this proposed rule, DoD states that community members of a RAB or TRC
seeking technical assistance in interpreting information with regard to
the restoration activities at an installation may obtain a grant
through such programs as EPA's Technical Assistance Grant (TAG) program
or Technical Outreach Services to Communities (TOSC) program. Upon
DoD's promulgation of regulations implementing section 2705(e),
Technical Assistance for Public Participation (TAPP), community members
of a RAB or TRC may request the installation CO, or appropriate DoD
official, to obtain from private sector sources technical assistance.
Section 324(f) of Pub. L. 104-106 amends section 2706(a)(2) of
title 10, United States Code, by adding subsection (j) requiring DoD to
report to Congress on the activities of TRCs and RABs. In order to
fulfill this requirement, this proposed rule requires that the
installation at which a RAB has been established document the
activities of the RAB and track expenditures for administrative
expenses of the RAB. This proposed rule does not prescribe specific
procedures for the installation to follow as part of DoD's collecting
this information when reporting to Congress. Rather, DoD will rely on
existing internal reporting mechanisms within the Department and
services to collect this information.
IV. Section-by-Section Analysis of the Proposed Rule
This section of the preamble presents an analysis of each section
of the proposed rule.
A. General Requirements
1. Purpose, Scope, and Applicability
a. Purpose and scope of responsibilities of a RAB. To define the
duties and responsibilities of a RAB, DoD is proposing that the purpose
of a RAB is to provide an expanded opportunity for stakeholder input
into the environmental restoration process at DoD installations. DoD
considers stakeholders as parties that are actually or potentially
affected by restoration
[[Page 40768]]
activities at an installation. At closing installations, the LRA, as
defined under BRAC, are included as stakeholders.
This proposed rule does not list specific responsibilities of a
RAB, but DoD considers the following types of activities within the
scope of a RAB:
Providing advice to the installation, EPA, state
regulatory agency, and other government agencies on restoration
activities and community involvement.
Addressing important issues related to restoration, such
as the scope of studies, cleanup levels, waste management, and remedial
action alternatives.
Reviewing and evaluating documents associated with
restoration activities, such as plans and technical reports.
Identifying restoration projects to be accomplished in the
next fiscal year and beyond.
Recommending priorities among sites or projects.
Conducting regular meetings that are open to the public
and scheduled at convenient times and locations.
Interacting with the LRA or other land use planning bodies
to discuss future land use issues relevant to environmental restoration
decision-making.
By establishing a RAB, DoD hopes to ensure that interested
stakeholders have a voice and can actively participate in a timely and
thorough manner in the planning and implementation of the environmental
restoration. A RAB will serve as a forum for the expression and careful
consideration of diverse points of view.
While a RAB complements other community involvement efforts at DoD
installations, DoD notes in the proposed rule that a RAB does not
replace other types of community outreach and participation activities
required by law, regulation, or policy. DoD installations will continue
to be responsible for fulfilling all legally mandated public
involvement requirements, such as those required under CERCLA, RCRA,
NEPA, and applicable state environmental regulations.
b. Applicability of regulations to existing RABs. As directed by
section 2705(d)(2)(A) of title 10, United States Code, DoD must
prescribe regulations regarding the establishment, characteristics,
composition, and funding of RABs. DoD intends that the final
regulations will apply to all RABs, including RABs established prior to
the effective date of the final rule. DoD does not consider that
applying final regulations to RABs already established will pose any
additional requirements or conflict, because the proposed regulations
are based on existing DoD policy that has been implemented since
September 1994.
2. Criteria for Establishment
a. Determing If Sufficient Interest Warrants Establishing a RAB. In
this rule, RABs may only be established at operating or closing
installations undergoing environmental restoration. In accordance with
existing policy, DoD proposes that a RAB be established when there is
sufficient and sustained community interest and any of the following
criteria are met:
The closure of an installation involves the transfer of
property to the community.
At least 50 local citizens petition for an advisory board.
Federal, state, or local government representatives
request formation of an advisory board, or
The installation determines the need for an advisory
board.
To clarify how an installation will determine the need for an
advisory board, DoD proposes that the installation determine the level
of interest within the community for establishing a RAB by:
Reviewing correspondence files.
Reviewing media coverage.
Consulting community members.
Consulting relevant government officials, and
Evaluating responses to notices placed in local
newspapers.
At the majority of installations that have an environmental
restoration program, DoD expects that local communities will be
interested in forming a RAB. If, however, outreach efforts reveal no
interest within the community, a description of those efforts taken, a
summary of the results, and plans for future efforts, must be
documented as part of the installation's community relations plan
(CRP). Under CERCLA (see 40 CFR 300.430(c)), an installation must
prepare a formal CRP based on community interviews and other relevant
information. The CRP specifies the community relations activities the
installation expects to undertake during the restoration process.
DoD notes that installation efforts to identify the level of
community interest in establishing a RAB should not be limited to a
one-time assessment of the criteria discussed above. Although DoD is
not proposing a specific requirement, DoD recommends that the
installation reassess current community interest in the restoration
program as part of the periodic update of its CRP.
b. Responsibility for forming and operating a RAB. Once the
installation determines that a RAB must be established, DoD proposes
that the installation have the lead responsibility for forming and
operating the RAB. The installation should have lead responsibility
because the RAB will be an integral part of the installation's
community involvement and outreach programs. DoD recommends that
installations involve, as appropriate, EPA, state, and local government
in all phases of RAB planning and operation.
c. Converting existing Technical Review Committees (TRCs) to RABs.
TRCs were established at more than 200 DoD installations to provide
interested parties with a forum to discuss and provide input into
environmental restoration activities. DoD recommends that, where there
is sufficient and sustained interest, installations expand or modify
existing TRCs or similar groups to become RABs rather than create a
separate committee.
RABs will expand the TRC initiative in the following ways: (1) RABs
will involve a greater number of community members than TRCs, thereby
better incorporating the diverse needs and concerns of the community
directly affected by environmental restoration activities; and (2)
chairmanship of the RAB will be shared between the installation and
community, promoting partnership and a strong commitment to incorporate
the community's concerns into the decision-making process. In these
situations, RABs will fulfill the statutory requirements for a TRC.
In order to convert a TRC to a RAB, several tasks must be
accomplished. These tasks include: Increasing community representation;
adding a community co-chair; and making meetings open to the public.
The DoD installation should evaluate the diversity of the current
membership of the TRC when converting to a RAB. DoD recommends that the
installation should consult with EPA and the state, as appropriate,
regarding the diversity of the current membership of the TRC. When
formulating RABs, it is DoD's goal to ensure diversity and balance in
membership of RABs. DoD believes that current TRC members should be
given a preference for a seat on the RAB to preserve continuity and the
``institutional history'' of the environmental restoration process.
However, DoD feels that this preference to include existing TRC members
in RABs also should be balanced against the preeminent need to form a
RAB truly representative of the community's diverse interests.
[[Page 40769]]
3. Notification of Formation of a RAB
a. Public notice and outreach. Prior to establishing a RAB, DoD
proposes that installations should notify potential stakeholders of its
intent to form a RAB, including those installations that may be
converting TRCs to RABs. In announcing the formation of a RAB, the
installation should describe the purpose of a RAB and discuss
membership opportunities.
DoD recommends that every effort be made to ensure that a broad
spectrum of individuals or groups representing the community's
interests are informed about the RAB, its purpose, and membership
opportunities. In some cases, it may be necessary that the installation
directly solicit some groups or organizations, particularly groups
traditionally underrepresented such as low-income and minority segments
of the population. Installations should consult the existing TRC,
state, and EPA for information or other comments before providing this
notice.
b. RAB information meeting. While not required in the proposed
rule, DoD suggests that an installation sponsor an informational
meeting prior to establishing a RAB. The focus of this meeting will be
to introduce the concept of RABs to the community and to begin the
membership solicitation process.
4. Composition of a RAB
a. Membership. DoD's goal is that RAB membership be well balanced
and reflect the diverse interests within the local community.
Therefore, DoD proposes that each RAB should consist of representatives
of DoD, EPA, state and local government, and members of the community.
b. Government representation. DoD proposes that DoD, EPA, and state
and local governments should be represented on the RAB. Potential
candidates may include the Remedial Project Manager (RPM) from the
installation, EPA, and the state, as well as representatives from local
government agencies. In the case of closing military installations,
members of the BCT may serve on the RAB as DoD, EPA, and state
representatives. It is important that any government representative
chosen for RAB membership dedicate the time necessary, and have
sufficient authority, to fulfill all RAB responsibilities.
EPA, state, and local regulatory agencies fulfill important roles
on a RAB, because of their regulatory oversight of DoD environmental
restoration activities. However, EPA stated in the September 27, 1994
Restoration Advisory Board Implementation Guidelines that its
involvement on a RAB will vary based on whether the installation is on
the National Priorities List (NPL) under the CERCLA. The NPL, set forth
in Title 40 CFR part 300, appendix B, is a list of sites ranked in
order of priority for hazardous waste restoration. EPA is committed to
full involvement as the federal regulatory agency on RABs where EPA has
received resources from DoD. For installations that are not included on
the NPL, non-base closure or base closure installations where EPA has
not been given resources from DoD, EPA's involvement will be at the
discretion of the Regional Administrator of EPA's regional office. DoD
has included EPA's discretionary involvement in RABs in the proposed
rule.
Ideally, DoD believes that RABs should have only one representative
from each government agency, so as to prevent an inordinate
representation of government and DoD officials. While DoD encourages
other government representatives to attend RAB meetings their role will
be strictly one of providing information and support.
c. Community representation. RAB community members should live and/
or work in the affected community or be affected by the installation's
environmental restoration program. While DoD is not proposing specific
procedures to be used for selecting community members of the RAB, DoD
notes that one of the most sensitive issues facing installations that
establish a RAB concerns the selection of community members. When
members of the community feel the selection process for RAB members,
particularly of community members, is conducted in a fair and unbiased
manner, it enhances their perception that the RAB can be a credible
forum for the discussion of their issues and concerns. If the selection
of community members is not approached carefully, the result can be a
loss of trust and failure to achieve dialogue.
DoD will not limit the ability of community RAB members who have
business interests to compete for DoD contracts, if proper and
appropriate assurances to avoid any potential conflicts of interest are
issued.
d. Roles and responsibilities of members. DoD proposes that
chairman ship of the RAB be shared between the installation and the
community. DoD believes this will promote partnering between the two
parties and reflect a strong commitment by DoD to incorporate the
community's concerns into decisions about the environmental restoration
process. Together, the installation and community co-chairs will
jointly determine meeting agendas, run meetings, and ensure that issues
related to the environmental restoration are raised and adequately
addressed.
DoD also is specifying in the proposed rule that the community co-
chair and community RAB members are expected to serve without
compensation for their services. DoD considers community membership on
a RAB to be voluntary, and therefore these members will not be paid by
DoD for the time invested or services rendered.
DoD is not proposing specific requirements concerning the roles and
responsibilities of individual members of a RAB. DoD considers the
issuance of such regulations to be overly burdensome to the formation
and operation of RABs, and therefore unnecessary. DoD recommends that
installations consult previous guidance concerning the roles of
individual members when forming and operating a RAB.
B. Operating Requirements
1. Creating a Mission Statement
DoD proposes that each RAB should develop a mission statement that
articulates the overall purpose of the RAB. DoD considers this
necessary to provide focus and goals for the group. In addition, when
members of the RAB agree early on to their mission, it provides a
framework for discussions. Without the framework, discussions may
become hampered with issues that are not relevant to the environmental
restoration process.
2. Selecting Co-Chairs
DoD proposes that the installation co-chair be selected by the
installation's CO or as defined by military service-specific guidance,
while the community members of the RAB will select the community co-
chair. DoD considers it necessary for the community members to select
their co-chair to ensure their active participation in the operation of
the RAB and to enhance their perception that the RAB can be a credible
forum for their issues and concerns.
3. Developing Operating Procedures
DoD considers a formal and agreed-upon set of operating procedures
necessary to manage the business of RABs. While DoD will allow each RAB
to customize or tailor its operating procedures as it sees fit, DoD
proposes that each RAB develop operating procedures on:
Announcing meetings.
Attendance of members at meetings.
[[Page 40770]]
Frequency of meetings.
Additions or removals of RAB members.
Length of service of members and co-chairs.
Methods for dispute resolution.
Review and responses to public comments.
Participation of the public.
Keeping the public informed.
With regards to keeping the public informed, DoD proposes that the
installation prepare meeting minutes summarizing the topics discussed
at the meeting. This is needed to ensure dissemination of the results
to community members and interested parties. DoD also proposes that, at
a minimum, the minutes should be distributed to the information
repositories established under the installation's CRP. Although not
required, DoD recommends that the installation consider mailing copies
of the minutes to all community members who attended the meeting,
existing TRC members, and/or to people identified on the installation's
community relations mailing list.
4. Training RAB Members
DoD is not proposing a requirement for training members of the RAB.
However, DoD believes that RAB members may need some initial
orientation training to enable them to fulfill their responsibilities.
DoD recommends that the installation should work with EPA, the state,
and environmental groups to develop methods to quickly inform and
educate the RAB members and to promote the rapid formation of a fully
functioning RAB.\1\
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\1\ Further guidance on training RAB community members may be
found in ``Restoration Advisory Board Guidelines, DoD/EPA September
1994.''
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DoD notes that under this proposed rule, only certain types of
training will be considered within the scope of administrative support
for RABs, and therefore, financed using funds allocated to the
administrative expenses of RABs. DoD further discusses training in
context of administrative support eligible for available funding in
section C.1.b. of this preamble.
5. Conducting RAB Meetings
DoD believes the meeting format of each RAB will vary and be
dictated by the needs of the participants. Therefore, DoD is not
proposing specific procedures for conducting RAB meetings.\2\
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\2\ For further guidance on meeting formats see ``Restoration
Advisory Board Implementation Guidelines, DoD/EPA September 1994.''
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Regarding the nature of discussions at RAB meetings, DoD will
consider all advice provided by the RAB whether consensus in nature or
provided on an individual basis, including advice given that represents
the minority view of members. While voting or polling the members may
facilitate RAB discussions, such votes should be advisory only and not
binding on agency decisionmakers. Group consensus is not a prerequisite
for RAB input; each member of the RAB should provide advice as an
individual. At the same time, while group consensus is not required or
asked of advisory board members, it is recognized that in the natural
course of discussions, consensus may evolve.
C. Administrative Support, Funding, and Reporting Requirements
1. Administrative Support and Eligible Expenses
a. Administrative support. Section 324 of Pub. L. 104-106 amended
section 2705(d)(3), title 10, United States Code, authorizes the CO of
an installation, or if there is no such commander, an appropriate DoD
official, to pay for routine administrative expenses of a RAB
established at an installation. To implement this provision, this
proposed rule requires that the installation provide administrative
support to establish and operate a RAB, subject to the availability of
funds. Securing ongoing administrative support is especially important
for closing or closed installations.
DoD proposes to define the scope of activities that are unique to
the establishment and operation of RABs, and therefore eligible for
funds as RAB administrative expenses.
b. Eligible administrative expenses. In order for an activity to be
considered as an eligible RAB administrative cost, the activity must be
unique to and directly associated with establishing and operating the
RAB. For example, producing a fact sheet as part of obtaining a
hazardous waste storage permit under RCRA or hosting an installation
open house as specified by the community relations plan under CERCLA,
may not necessarily be relevant to a RAB's mission statement or
operations. The costs incurred in preparing and distributing such a
fact sheet or holding the open house would not be considered
administrative support required for a RAB.
While DoD cannot identify all possible examples of activities
unique to and directly associated with establishing and operating a
RAB, DoD proposes to consider the following activities as typical of
administrative support required for a RAB:
RAB establishment.
Membership selection.
Certain types of training.
Meeting announcements.
Meeting facility.
Facilitators, including translators.
Preparation of meeting agenda materials and minutes.
Maintenance of a RAB mailing list and mailing of RAB
materials.
Which regards to training RAB members, DoD clarifies that in order
for training to be considered an eligible administrative cost, it must
mutually benefit the mission and all members of a RAB and be relevant
to the environmental restoration activities occurring at the
installation. For example, if the installation were to hold an
orientation training for members of a RAB, costs incurred in preparing
training manuals, slides, or other presentation materials would be
considered an allowable administrative expense, because such training
is unique to and mutually beneficial to the mission and members of the
RAB.
A type of training that would not qualify as a RAB administrative
support includes specialized training for an individual member of a
RAB, such as an off-site workshop on building leadership capabilities.
DoD does not consider such training to be unique to and mutually
beneficial to the establishment and operation of a RAB. However, DoD
notes that types of training that are not eligible for funding as a RAB
administrative expense may qualify and be eligible for funding as
technical assistance.
2. Funding
Section 324(d) of Pub. L. 104-106 amended section 2705(g) title 10,
United States Code, prescribes the level and allocation of funds for
RAB administrative expenses. Accordingly, DoD is proposing to establish
these requirements as is. The proposed rule states that subject to
available funding, operating installations should pay for RAB
administrative expenses using funds from their Component's DERA. At
closing installations, DoD proposes that installations use BRAC funds
to pay for eligible RAB administrative expenses.
3. Technical Assistance to Community Members
Section 324(c) of Pub. L. 104-106 revised section 2705(e), title
10, United States Code, enables a RAB or TRC to request from the
private sector, technical assistance for interpreting scientific and
engineering issues with regard to the nature of environmental
[[Page 40771]]
hazards at the installation and the restoration activities conducted,
or proposed to be conducted at the installation.
This proposed rule states that community members of RABs or TRCs
seeking technical assistance in interpreting information with regard to
the restoration activities at an installation may request assistance
from such programs as EPA's TAG and TOSC programs. Section 117(e) and
311(d) of CERCLA as amended by SARA, established the TAG and TOSC
programs, respectively. These programs provide grants for groups of
individuals to hire independent technical advisors who can help them
understand technical information, findings, and recommendations related
to a site. Regulations for EPA's TAG program are found in 40 CFR part
35 subpart M.
On May 24, 1995, DoD issued a Notice of Request for Comments (60 FR
27460), in which DoD requested comments on three options for technical
assistance funding to citizens affected by environmental restoration
activities at DoD installations (referred to as the Technical
Assistance for Public Participation (TAPP) rulemaking). As the final
TAPP rulemaking will specify the selected option for providing
technical assistance for short-term training, attendance at workshops,
and the procurement of technical consultants to interpret scientific
and engineering issues with regard to the nature of environmental
hazards at an installation and the restoration activities proposed for
or conducted at the installation, DoD does not address these
requirements in this proposed rule.
Upon DoD's promulgation of TAPP regulations, community members of
RABs or TRCs may request the installation CO, or appropriate DoD
official, to obtain from private sector sources technical assistance.
4. Documenting and Reporting Activities and Expenses
Section 324(f) of Pub. L. 104-106 amends section 2706(a)(2) of
title 10, United States Code, by adding subsection (j) requiring DoD to
report to Congress on the activities of TRCs and RABs. In order to
fulfill this requirement, this proposed rule requires that the
installation at which a RAB has been established document the
activities of the RAB and track expenditures for administrative
expenses of the RAB. With regards to tracking expenses, DoD recommends
that installations tally costs according to the specific activities
identified above (see section IV.C.1.b. of the preamble) that are
typical of administrative support required for a RAB.
Although this proposed rule requires installations to document RAB
activities and track expenditures, DoD is not prescribing specific
procedures to accomplish this. In addition, DoD will use internal
department and service-specific reporting mechanisms to obtain required
information from installations on RAB activities and expenditures when
reporting to the Congress.
V. Regulatory Analysis
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), DoD
must determine whether a regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order.
DoD has determined that this proposed rule is not a ``significant
regulatory action'' because it is unlikely to:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, of State,
local, or tribal governments or communities;
(2) Create 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 program 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.
B. Regulatory Flexibility Act
It has been certified that this proposed rule is not subject to the
Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601 et seq. because
it would not, if promulgated, have a significant economic impact on a
substantial number of small entities. The primary effect of the
proposed rule will be to increase community involvement in DoD's
environmental restoration program.
C. Paperwork Reduction Act
It has been certified that the proposed rule does not impose any
reporting or recordkeeping requirements subject to the Paperwork
Reduction Act of 1995 (Pub. L. No. 104-13).
VI. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995, DoD
must prepare a statement to accompany any rule where the estimated
costs to State, local, or tribal governments in the aggregate, or to
the private sector, will be $100 million or more in any one year.
DoD has determined that this proposed rule will not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector.
List of Subjects in 32 CFR Part 202
Administrative practice and procedure, Environmental protection--
restoration, Federal buildings and facilities, Organization and
functions (Government agencies).
Title 32 of the Code of Federal Regulations, Chapter I, Subchapter
M, is amended by adding part 202 to read as follows:
PART 202--RESTORATION ADVISORY BOARDS (RABs)
Subpart A--General Requirements
Sec.
202.1 Purpose, scope, and applicability.
202.2 Criteria for establishment.
202.3 Notification.
202.4 Composition of a Restoration Advisory Board (RAB).
Subpart B--Operating Requirements
202.5 Creating a mission statement.
202.6 Selecting co-chairs.
202.7 Developing operating procedures.
Subpart C--Administrative Support, Funding, and Reporting Requirements
202.8 Administrative support and funding.
202.9 Technical assistance to community members.
202.10 Documenting and reporting activities and expenses.
Authority: 5 U.S.C. 551 et seq. and 10 U.S.C. 2705.
Subpart A--General Requirements
Sec. 202.1 Purpose, scope, and applicability.
(a) The purpose of this part is to establish regulations regarding
the characteristics, composition, funding and establishment of
Restoration Advisory Boards (RABs).
(b) The regulations in this part apply to all RABs regardless of
when the board was established.
(c) The purpose of a RAB is to provide an expanded opportunity for
stakeholder input into the environmental restoration process occurring
at operating and closing installations and at formerly used defense
sites. Stakeholders are those parties that are actually or may be
potentially affected by restoration activities at the installation.
(d) A RAB will complement other community involvement efforts
[[Page 40772]]
occurring at an installation; however it does not replace other types
of community outreach and participation activities required by
applicable laws and regulations.
Sec. 202.2 Criteria for establishment.
(a) A RAB should be established when there is sufficient and
sustained community interest, and any of the following criteria are
met:
(1) The closure of an installation involves the transfer of
property to the community;
(2) At least 50 local citizens petition the installation for
creation of an advisory board;
(3) Federal, state, or local government representatives request the
formation of an advisory board; or
(4) The installation determines the need for an advisory board.
(b) To determine the need for establishing a RAB, an installation
should:
(1) Review correspondence files;
(2) Review media coverage;
(3) Consult local community members;
(4) Consult relevant government officials; and
(5) Evaluate responses to notices placed in local newspapers.
(c) The installation shall have lead responsibility for forming and
operating a RAB.
Sec. 202.3 Notification.
Prior to establishing a RAB, an installation should notify
potential stakeholders of its intent to form a RAB. In announcing the
formation of a RAB, the installation should describe the purpose of a
RAB and discuss opportunities for membership.
Sec. 202.4 Composition of a Restoration Advisory Board (RAB).
(a) Membership. At a minimum, each RAB should consist of
representatives from the Department of Defense (DoD), the U.S.
Environmental Protection Agency (EPA), state government, community, and
local government. At closing installations, the representatives of the
Base Realignment and Closure (BRAC) Cleanup Team (BCT) may also serve
as the government representative(s) of the RAB. For non-closing
installations, or installations where EPA has not been given support
resources from DoD, EPA's involvement will be at the discretion of the
Administrator of the appropriate EPA regional office.
(b) Chairmanship. Each RAB established shall have two cochairs; one
representing the DoD installation and the other a community member. Co-
chairs shall be responsible for directing and managing the operations
of the RAB.
(c) Compensation for Community Members of the Restoration Advisory
Board. The community co-chair and community members serve voluntarily,
therefore they will not be compensated by DoD for their participation.
Subpart B--Operating Requirements
Sec. 202.5 Creating a mission statement.
Each RAB should develop a mission statement that describes its
overall purpose and goals.
Sec. 202.6 Selecting co-chairs.
(a) DoD Installation Co-Chair. The DoD installation co-chair shall
be selected by the installation's Commanding Officer or in accordance
with military service-specific guidance.
(b) Community Co-Chair. The community co-chair shall be selected by
the community members of the RAB.
Sec. 202.7 Developing operating procedures.
(a) Each RAB should develop a set of operating procedures. Areas
that may be addressed in the procedures involve:
(1) Announcing meetings;
(2) Attendance of members at meetings;
(3) Frequency of meetings;
(4) Addition or removal of members;
(5) Length of service for members and co-chairs;
(6) Methods for dispute resolution;
(7) Review and responses to public comments;
(8) Participation of the public in operations of the RAB;
(9) Keeping the public informed about proceedings of the RAB.
(b) The installation and community co-chairs should prepare meeting
minutes summarizing the topics discussed at meetings of the RAB. The
installation should make the meeting minutes available in information
repositories.
Subpart C--Administrative Support, Funding, and Reporting
Requirements
Sec. 202.8 Administrative support and funding.
(a) Subject to the availability of funding, the installation shall
provide administrative support to establish and operate a RAB.
(b) Allowable Administrative Expenses for a Restoration Advisory
Board: The following activities unique to and directly associated with
establishing and operating a RAB shall qualify as an administrative
expense of a RAB:
(1) Establishment of the RAB;
(2) Membership selection;
(3) Certain types of training;
(4) Meeting announcements;
(5) meeting facility;
(6) Meeting facilitators, including translators;
(7) Preparation of meeting agenda materials and minutes;
(8) Maintenance of a mailing list for the RAB and mailings of
materials developed and used by the RAB.
(c) Funding:
(1) At operating installations, administrative expenses for a RAB
shall be paid for using funds from the Component's Environmental
Restoration Accounts.
(2) At closing installations, administrative expenses for a RAB
shall be paid using Base Realignment and Closure (BRAC) funds.
Sec. 202.9 Technical assistance to community members.
Community members of a RAB or TRC may request technical assistance
for interpreting scientific and engineering issues with regard to the
nature of environmental hazards at the installation and restoration
activities conducted, or proposed to be conduct at the installation.
Sec. 202.10 Documenting and reporting activities and expenses.
The installation, at which a RAB is established, shall document the
activities and record the administrative expenses associated with the
RAB.
Dated: July 31, 1996.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-19886 Filed 8-5-96; 8:45 am]
BILLING CODE 5000-04-M
