Restoration Advisory Boards (RABs)

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