Daily Rules, Proposed Rules, and Notices of the Federal Government
EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment as 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. By updating language used to describe permitted technology, the lead agency will be able 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. However, in the “Proposed Rules” section of today's
If EPA receives adverse comment, we will publish a timely withdrawal in the
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In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to releases or substantial threats of releases of hazardous substances into the environment or releases or substantial threats of releases into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare.
To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases or substantial threats of releases of hazardous substances into the environment and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).
Under CERCLA section 113(k)(1) and 40 CFR 300.800(a), the lead agency is required to establish an administrative record that “* * * contains the documents that form the basis for the selection of a response action.” These documents are further described in 40 CFR 300.810. In addition, CERCLA section 113(k)(2)(A) requires that EPA establish “* * * procedures for the appropriate participation of interested persons in the development of the administrative record * * * ” for a removal action. For remedial actions, EPA “* * * shall provide for the participation of interested persons, including potentially responsible parties, in the development of the administrative record * * *” CERCLA section 113(k)(2)(B). That is, EPA should provide the public with an opportunity to participate in the selection of a response action. In addition, CERCLA section 117 requires EPA to allow for public comment on certain aspects of a proposed remedial action. Participation by interested persons (including affected communities) ensures that EPA (or the lead agency, if not EPA) has considered the concerns of the public, including potentially responsible parties (PRPs), in the selection of a response action.
CERCLA section 113(k)(1) requires that a copy of the administrative record be available to the public “* * * at or near the facility at issue.” 40 CFR 300.805(a). In addition, a docket containing the administrative record file should be located at the Regional office or other central location. 40 CFR 300.805(a). In the case of an emergency removal, the administrative record need only be available for public inspection at the central location, unless otherwise requested (
The administrative record file located at or near the site should be placed in one of the information repositories that may already exist for community involvement purposes. An information repository contains documents that relate to a Superfund site and the Superfund program in general. An information repository is required at all remedial action sites and any site where a removal action is likely to extend beyond 120 days.
This direct final rule amends 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, to acknowledge advancements in technologies used to manage and convey information to the public. Specifically, this revision will add 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 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. 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.
Since the passage of the CERCLA
As of 2010, 99% of the over 16,800 public libraries in the U.S. had public computers connected to the internet, with an average of 16 computer stations per library. Over 85% of these libraries had public wireless internet access, with approximately 6% planning to add access over the next year.
EPA conducted an assessment of Superfund information repositories (IR) as part of the Office of Solid Waste and Emergency Response Community Engagement Initiative, Action 13, Part B.
This assessment found that despite the careful attention and time dedicated to appropriately locating and maintaining an information repository, it appears to be an under-utilized and outdated source of information for most communities. In general, community members inquire about information repositories relatively infrequently (between 1-6 times per year). The frequency of repository use seems to be highest for newly listed National Priorities List (NPL) sites and during the pre-Record of Decision phase in the Superfund remedial process. New materials and instructions are sent by the lead agency to the repository, and the repository staff is responsible for adding and removing documents. Due to the variation in organization and maintenance of repositories, there can be inconsistency between repositories. Most repositories contain useful information and are organized in such a way that specific documents can be found. However, some repositories lack important documents or are poorly organized due to public usage over the years.
In almost all repositories visited for this assessment, computers are available. Some of these computers did not have CD drives to avoid the introduction of viruses into the library computer system, or the CD drives were not functional. All of the libraries that were visited had internet access.
Permitting the lead agency to provide the administrative record file to the public via computer telecommunications or other electronic means could help to alleviate situations with document access that have been known to sometimes occur with disorganized or misplaced paper files. Electronic access to site documents will also make this information more widely available and accessible to a broader public audience. The presence of an electronic- or computer telecommunications-based repository does not preclude establishing a traditional paper-based repository. The lead agency should always assess the capacity and resources of the specific community 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. Community preferences and access to technological resources may be gleaned through community interviews or community technical needs assessments conducted as part of the planning for the Community Involvement Plan at a site.
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
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For the reasons set out above, title 40, chapter I of the Code of Federal Regulations is amended as follows:
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.
(c) The lead agency may make the administrative record file available to the public in microform, computer telecommunications, or other electronic means.