Notice of Availability of Class Deviation; Disputes Resolution Procedures Related to Enforcement Actions Associated With Leaking Underground Storage Tank (LUST) Cooperative Agreements Distributing Funds Under the American Reinvestment and Recovery Act of 2009 (ARRA), 35799-35800 [2010-15222]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Notices]
[Pages 35799-35800]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-15222]



[[Page 35799]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9166-1]


Notice of Availability of Class Deviation; Disputes Resolution 
Procedures Related to Enforcement Actions Associated With Leaking 
Underground Storage Tank (LUST) Cooperative Agreements Distributing 
Funds Under the American Reinvestment and Recovery Act of 2009 (ARRA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

-----------------------------------------------------------------------

SUMMARY: This document provides notice of availability of a Class 
Deviation from EPA's assistance agreement dispute procedures and also 
sets forth the procedures that will apply to the resolution of disputes 
that may arise in connection with certain enforcement actions taken by 
EPA on State cooperative agreements awarded under section 9003(h) of 
the Solid Waste Disposal Act with LUST funds appropriated by the ARRA. 
Enforcement actions affected by this alternative dispute resolution 
procedure are those actions, including suspension of performance and 
potential partial or complete cooperative agreement termination, 
associated with the obligation and expenditure of funds under the 
following term and condition: ``The recipient shall obligate funds for 
contracts, subgrants or similar transactions for at least 35 percent of 
funds, and expend at least 15 percent of funds within nine months of 
this award. EPA will consider the recipient's failure to comply with 
this requirement as a material failure to perform, which may warrant 
appropriate enforcement action under 40 CFR 31.43'' (hereafter referred 
to as the 35/15 term and condition).
    Currently, with respect to States and local governments, assistance 
agreement disputes and disagreements are resolved in accordance with 
EPA assistance agreement disputes procedures at 40 CFR 31.70. EPA has 
determined, however, through a Class Deviation, that these procedures 
are not practicable to use for LUST disputes and that it is appropriate 
to replace those procedures with the procedures contained in this 
document. EPA's preferred course of action would be for the Agency and 
the State to resolve issues associated with the 35/15 term and 
condition by mutual consent and should the need arise to partially or 
completely terminate the cooperative agreement by mutual agreement. If 
appropriate, EPA will take additional enforcement actions due to the 
State's noncompliance with the 35/15 term and condition.

DATES: These procedures are effective as of June 23, 2010.

FOR FURTHER INFORMATION CONTACT: Steven McNeely, (703) 603-7164.

SUPPLEMENTARY INFORMATION: OMB guidance issued under section 1512 of 
the Recovery Act of the interim final regulations for implementing the 
Recovery Act, Code of Federal Regulations (CFR) in 2 CFR 176.20(c) 
provides that EPA ``shall'' take ``appropriate'' enforcement or 
termination action under 40 CFR 31.43 if recipients of Recovery Act 
Funds fail to comply with reporting requirements or other terms and 
conditions. EPA's Office of Underground Storage Tanks (OUST) issued the 
``Guidance to Regions for Implementing the LUST Provisions of The 
American Recovery and Reinvestment Act of 2009'' on June 11, 2009. 
Terms and conditions outlined in that guidance specify that ``the 
recipient shall obligate funds for contracts, subgrants, or similar 
transactions for at least 35 percent of funds, and expend at least 15 
percent of the funds within nine months of their award.'' EPA must 
obligate LUST Recovery Act resources by awarding assistance agreements, 
contracts or interagency agreements by September 30, 2010 if not 
sooner.
    EPA's Office of Grants and Debarment has authority under 40 CFR 
31.6(d) to approve class deviations from EPA program specific 
regulations. EPA's dispute resolution procedures at 40 CFR 31.70 are 
not prescribed by OMB Circular A-102 and are therefore specific to EPA 
programs.
    As described in 40 CFR 31.70, the dispute resolution process can 
involve up to four levels of review and take several months to 
complete. Specifically, an entity disputing a decision can attempt to 
resolve the issue at the lowest level possible, request a final Agency 
decision, and request a reconsideration of the final decision. A 
possible fourth step is an EPA headquarters discretionary review of a 
final Regional decision. This timeframe is too long to permit the 
Agency to meet ARRA requirements for timely enforcement action and 
reallocation of potentially de-obligated ARRA funds.
    EPA's Office of Grants and Debarment has therefore issued a Class 
Deviation under 40 CFR 31.6(d) to streamline the 40 CFR 31.70 
procedures. The Class Deviation will allow the Agency to comply with 
ARRA requirements and at the same time provide States with a meaningful 
disputes resolution process in the event a State disagrees with 
enforcement action decisions associated with the 35/15 term and 
condition.
    Statutory and Executive Order Reviews: Under Executive Order 12866 
(58 FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and is therefore not subject to OMB review. Because 
this grant action is not subject to notice and comment requirements 
under the Administrative Procedures Act or any other statute, it is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or 
sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) 
(Pub. L. 104-4). In addition, this action does not significantly or 
uniquely affect small governments. This action does not have tribal 
implications, as specified in Executive Order 13175 (63 FR 67249, 
November 9, 2000). This action will not have federalism implications, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866. This action 
does not involve technical standards; thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This action does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional 
Review Act, 5 U.S.C. 801 et seq. generally provides that before certain 
actions may take affect, the agency promulgating the action must submit 
a report, which includes a copy of the action, to each House of the 
Congress and to the Comptroller General of the United States. Since 
this final grant action contains legally binding requirements, it is 
subject to the Congressional Review Act, and EPA will submit this 
action in its report to Congress under the Act.

LUST ARRA Assistance Agreement Enforcement Decision Dispute Resolution 
Procedures

    EPA establishes LUST ARRA Assistance Agreement dispute resolution 
procedures as follows:
    1. The authority citation for the LUST ARRA assistance agreement 
disputes resolution procedures in this document is the Federal Grant 
and Cooperative Agreement Act, 31 U.S.C. 6301(3) , 40 CFR 31.6(d) and 
40 CFR 31.70.
    2. The disputes resolution procedures that will apply to LUST ARRA 
assistance agreement disputes

[[Page 35800]]

associated with the 35/15 term and condition are as follows:

Dispute Resolution Procedures

    1. After receiving updated State obligations, expenditure, draw 
down data and State plans associated with the future spending of 
unobligated and unspent ARRA funds within the cooperative agreement's 
existing period of performance, EPA will identify appropriate 
enforcement actions if a State materially fails to comply with the 35/
15 term and condition. Enforcement actions could include the partial or 
complete termination of a State's LUST ARRA cooperative agreement and 
an associated amount of funding intended for de-obligation. Should the 
Agency suspend performance and seek to terminate a LUST ARRA 
cooperative agreement and de-obligate funding, it will notify the 
relevant State as soon as possible and no later than July 9, 2010, 
unless EPA waives this deadline.
    2. If a State disagrees with EPA's decision to suspend performance 
and to terminate the cooperative agreement and de-obligate funds or 
disagrees with the amount of funds that the Agency determined is 
appropriate for termination and de-obligation, then the State must file 
a written request for reconsideration within three (3) business days of 
receiving this notification of suspension of performance and intent to 
terminate the cooperative agreement and to de-obligate funding. EPA may 
grant a State a brief extension of time to submit its arguments, if the 
State demonstrates that there are compelling reasons for such an 
extension. Any detail or arguments regarding why the State disagrees 
with these decisions shall be provided with the request for 
reconsideration.
    3. The written request for reconsideration shall be sent via E-Mail 
(PDF) or Facsimile to Carolyn Hoskinson at hoskinson.carolyn@epa.gov 
with copies sent to Adam Klinger (klinger.adam@epa.gov) and Steven 
McNeely(McNeely.Steven@epa.gov) If such material is to be sent by fax, 
please direct to Mr. Steven McNeely and use 703-603-9163.
    4. The Assistant Administrator for the Office of Solid Waste and 
Emergency Response (OSWER) or his designee shall review all 
reconsideration submissions, and shall issue a decision in writing 
within three (3) business days of receiving the reconsideration 
request. This deadline may be extended briefly for good cause. This 
decision shall be the final decision of the Agency.

Howard F. Corcoran,
Director, Office of Grants and Debarment.
[FR Doc. 2010-15222 Filed 6-22-10; 8:45 am]
BILLING CODE 6560-50-P