[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Rules and Regulations]
[Pages 49414-49417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20086]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 35
[FRL-9189-1]
RIN 2050-AG58
Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rule amends the regulation by allowing interim progress
reports to be due in 60 days, instead of the current 30-day
requirement, following the close of the quarterly and semi-annual
reporting periods. In addition, this amendment allows the recipient of
a Superfund State Contract (SSC) to request that EPA apply any
overpayment of cost share to another site. The revisions affect States,
Indian Tribes, intertribal consortia, and political subdivisions. The
revisions will improve the administration and effectiveness of
Superfund Cooperative Agreements and Superfund State Contracts.
DATES: This rule is effective October 12, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-SFUND-2010-0085. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the CERCLA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the CERCLA docket is (202) 566-0276.
FOR FURTHER INFORMATION CONTACT: Angelo Carasea, Assessment and
Remediation Division, Office of Superfund Remediation and Technology
Innovation, (5204P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460; telephone number: (703) 603-8828; fax
number: (703) 603-9112; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. Applicability
III. Background
IV. Description of Key Changes
V. Section-by-Section Analysis
VI. Statutory and Executive Order Reviews
I. Statutory Authority
This rule is issued under section 104(a)-(j) of the Comprehensive
Environmental Response,
[[Page 49415]]
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) as
amended (hereinafter CERCLA).
II. Applicability
The final regulation requirements shall apply to all new
Cooperative Agreements and Superfund State Contracts, funded under
CERCLA, which EPA signs on or after the effective date of this
regulation. EPA may agree to amend existing Cooperative Agreements or
Superfund State Contracts to make the final regulation requirements
applicable to work performed on and after the date EPA signs the
amendment.
III. Background
CERCLA launched the nation's first centralized and substantial
commitment to clean up hazardous substance sites. CERCLA, or Superfund,
provided federal authority and resources to respond directly to
releases (or threatened releases) of hazardous substances, pollutants,
or contaminants that could endanger human health or the environment.
The law also authorized enforcement action and cost recovery from those
responsible for a release of a hazardous substance.
CERCLA authorizes two types of Superfund response agreements for
State, Tribal (including intertribal consortium) and political
subdivision participation in CERCLA implementation: Cooperative
Agreements and Superfund State Contracts. These agreements ensure State
and Tribal involvement, consistent with section 121 of CERCLA, 42
U.S.C. 9621 (hereinafter section 121), and section 126 of CERCLA, 42
U.S.C. 9626 (hereinafter section 126), and are used to obtain State
assurances required under section 104 of CERCLA, 42 U.S.C. 9604,
(hereinafter section 104) before EPA begins a remedial action.
EPA uses Cooperative Agreements to transfer funds to a State,
political subdivision, or Indian Tribe that assumes responsibility as
the lead or support agency for Superfund responses. Core Program
Cooperative Agreements are used to fund non-site-specific activities
that support a State or Indian Tribe's involvement in CERCLA responses.
A Superfund State Contract is used to document a State's CERCLA
section 104 assurances when either EPA or a political subdivision has
the lead role in the implementation of a remedial action.
The role of States, Indian Tribes, and political subdivisions (also
described as recipients) in Superfund has evolved substantially since
1990 when the original 40 CFR part 35 subpart O regulation was
promulgated. The recipients' cleanup programs have matured and become
more sophisticated. In addition, EPA has actively sought to fulfill
CERCLA's mandate in sections 121 and 126 to provide States and Indian
Tribes a ``substantial and meaningful involvement'' in Superfund by
providing Core Program funding for the development of State and Tribal
infrastructure.
On May 2, 2007, EPA promulgated a final regulation, which amended
40 CFR part 35 subpart O, to reduce the burden on recipients to receive
and administer Cooperative Agreements and Superfund State Contracts.
This rule amends 40 CFR part 35 subpart O to further reduce the
recipients' burden by allowing interim progress reports to be due in 60
days, instead of 30 days, following the close of the quarterly and
semi-annual reporting periods. Also, this rule amends 40 CFR part 35
subpart O so that under a Superfund State Contract, a recipient may
request the overpayment of cost share from one site be applied to meet
the cost share requirement of another site.
IV. Description of Key Changes
EPA made limited revisions to certain sections of the regulation.
The following is a brief description of the key changes.
A. Progress Reports
This rule revises 40 CFR part 35 subpart O by amending the current
reporting requirements that require the interim progress report to be
due within 30 days after the reporting period. In the revised
regulation, interim progress reports are now due within 60 days after
the reporting period. This change codifies a recommendation under EPA
initiative, ``Burden Reduction Initiative'' (See http://www.epa.gov/burdenreduction/index.htm for information about EPA's Burden Reduction
Initiative.)
B. Financial Reports
This revision corrects a citation error to CFR 31.41(b)(3) for
quarterly and semiannual financial reports requirement. The correct
citation is CFR 31.41(b)(4), which requires quarterly and semiannual
financial reports due 30 days after the reporting period.
C. Overpayment
In the revised regulation, a State may also direct EPA to use the
excess cash cost share funds (overmatch) at one site to meet the cost
share obligations at another State site. This change was made to
provide greater flexibility to a State on how it wants to address the
overmatch of cost share under a Superfund State Contract.
V. Section-by-Section Analysis
Section 35.6650 Progress Reports
Paragraph (a) is revised to read, ``Reporting frequency. The
recipient must submit progress reports as specified in the Cooperative
Agreement. Progress reports will be required no more frequently than
quarterly, and will be required at least annually. Notwithstanding 40
CFR 31.41(b)(1), the reports shall be due within 60 days after the
reporting period. The final progress report shall be due 90 days after
expiration or termination of the Cooperative Agreement.'' The reporting
period for quarterly and semiannual progress reports was changed from
30 to 60 days.
Section 35.6670 Financial Reports
Paragraph (b)(2)(i) is revised to read, ``If a Financial Status
Report is required annually, the report is due 90 days after the end of
the Federal fiscal year or as specified in the Cooperative Agreement.
If quarterly or semiannual Financial Status Reports are required,
reports are due in accordance with 40 CFR 31.41(b)(4).'' The reference
citation to 40 CFR 31.41(b)(3) was changed to 40 CFR 31.41(b)(4), and
the redundant statement, ``due 30 days after the reporting period,''
was deleted. 40 CFR 31.41(b)(4) requires quarterly and semiannual
reports to be due 30 days after the reporting period.
Section 35.6805 Contents of an SSC
Paragraph (k) is revised to read, ``Reconciliation provision, which
states that the SSC remains in effect until the financial settlement of
project costs and final reconciliation of response costs (including all
change orders, claims, overmatch of cost share, reimbursements, etc.)
ensures that both EPA and the State have satisfied the cost share
requirement contained in section 104 of CERCLA, as amended. The
recipient may direct EPA to return the overmatch or to use the excess
cost share payment at one site to meet the cost share obligation at
another site in accordance with Sec. 35.6285(d). Reimbursements for
any overpayment will be made to the payer identified in the SSC.'' The
revised regulation permits the recipient also to request the overmatch
be applied to the cost share requirements of another site. Under the
current regulation, EPA must return the overpayment to the recipient.
On May 2, 2007, EPA promulgated a final regulation, amending Sec.
35.6285(d),
[[Page 49416]]
``Excess cash cost share contribution/overmatch,'' which permitted a
state to request the overmatch be applied to the cost share
requirements of another site when using a remedial cooperative
agreement. This change makes the overmatch requirements the same for an
SSC as for a remedial cooperative agreement.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Reviews
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden,
because it makes only minimal changes in the current 40 CFR part 35
subpart O requirements. However, the Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations in 40 CFR part 35 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2050-0179. The OMB control numbers for
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
Today's final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. This rule
is not subject to notice and comment requirements under the APA or any
other statute because this rule pertains to grants which the APA
expressly exempts from notice and comment rulemaking requirements under
5 U.S.C. 553(a)(2). Moreover, CERCLA also does not require EPA to issue
a notice of proposed rulemaking prior to issuing this rule.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. UMRA excludes from the definition of ``Federal
intergovernmental mandate'' duties that arise from participation in a
voluntary Federal program. Therefore, this action is not subject to the
requirements of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. Participation by
small governments in this program is voluntary and is funded by EPA.
E. Executive Order 13132: Federalism
This final rule does not have federalism implications. This action
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various level of
government, as specified in Executive Order 13132. This final rule
makes minor changes to the regulation, under which the 40 CFR part 35
subpart O program has been operating since May 2007. Apart from the
minor changes, this rule adds new provisions that increase State
flexibility, so it does not have federalism implications as that phrase
is defined for purposes of Executive Order 13132. Further, because this
is a rule that primarily conditions the use of Federal assistance, it
does not impose substantial direct compliance costs on States. Thus
Executive Order 13132 does not apply to this final rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have
substantial direct effects on Tribal governments, on the relationship
between the Federal government and Indian Tribes, or the distribution
of power between and responsibilities between the Federal government
and Indian tribes. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211 (Energy Effects)
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse energy effects.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involved technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health and environmental
effects on minority or low-income populations because it does
[[Page 49417]]
not affect the level of protection provided to human health or the
environment. This rule amends 40 CFR part 35 subpart O by allowing
interim progress reports to be due in 60 days, instead of the current
30-day requirement. In addition, this amendment allows the recipient of
a Superfund State Contract to request that EPA apply any overpayment of
cost share to another site. The regulation 40 CFR part 35 subpart O
codified: (1) Recipient requirements for administering Cooperative
Agreements awarded pursuant to section 104(d)(1) of CERCLA; and (2)
requirements for administering Superfund State Contracts for non-State-
lead remedial responses undertaken pursuant to section 104 of CERCLA.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. While this action is not a ``major rule'' as defined by 5
U.S.C. 804(2), the final rule becomes effective 60 days after
publication in the Federal Register on October 12, 2010.
List of Subjects in 40 CFR Part 35
Administrative practices and procedures, Environmental protection,
Grant programs--environmental protection, Reporting and recordkeeping.
Dated: August 9, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons set out in the preamble, 40 CFR part 35 is amended as
follows:
PART 35--STATE AND LOCAL ASSISTANCE
0
1. The authority citation for 40 CFR part 35, subpart O continues to
read as follows:
Authority: 42 U.S.C. 9601 et seq.
Subpart O--Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions
0
2. Amend Sec. 35.6650 by revising paragraph (a) to read as follows:
Sec. 35.6650 Progress reports.
(a) Reporting frequency. The recipient must submit progress reports
as specified in the Cooperative Agreement. Progress reports will be
required no more frequently than quarterly, and will be required at
least annually. Notwithstanding 40 CFR 31.41(b)(1), the reports shall
be due within 60 days after the reporting period. The final progress
report shall be due 90 days after expiration or termination of the
Cooperative Agreement.
* * * * *
0
3. Amend Sec. 35.6670 by revising paragraph (b)(2)(i) to read as
follows:
Sec. 35.6670 Financial reports.
* * * * *
(b) * * *
(2) * * *
(i) If a Financial Status Report is required annually, the report
is due 90 days after the end of the Federal fiscal year or as specified
in the Cooperative Agreement. If quarterly or semiannual Financial
Status Reports are required, reports are due in accordance with 40 CFR
31.41(b)(4);
* * * * *
0
4. Amend Sec. 35.6805 by revising paragraph (k) to read as follows:
Sec. 35.6805 Contents of an SSC.
* * * * *
(k) Reconciliation provision, which states that the SSC remains in
effect until the financial settlement of project costs and final
reconciliation of response costs (including all change orders, claims,
overmatch of cost share, reimbursements, etc.) ensures that both EPA
and the State have satisfied the cost share requirement contained in
section 104 of CERCLA, as amended. The recipient may direct EPA to
return the overmatch or to use the excess cost share payment at one
site to meet the cost share obligation at another site in accordance
with Sec. 35.6285(d). Reimbursements for any overmatch will be made to
the recipient identified in the SSC.
* * * * *
[FR Doc. 2010-20086 Filed 8-12-10; 8:45 am]
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