Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Notices 365

Directors, and CSO communities can

take to address their concerns.

The objective of this guidance is to lay

a strong foundation for integrating CSO

long-term control planning with water

quality standards reviews. Reaching

early agreement among CSO

communities, States, EPA, and the

public on the data to be collected and

the analyses to be conducted to support

the long-term control plan development

and water quality standards reviews can

facilitate the review of water quality

standards and the reconciliation of

water quality standards with an

affordable, well-designed and operated

CSO control programs.

The guidance describes the process

for integrating LTCP development and

implementation with the water quality

standards review. This process is the

centerpiece of EPA’s renewed

commitment to assure that both

communities with combined sewer

systems and States participate in

implementing the water quality-based

provisions in the CSO Control Policy.

The CSO Control Policy anticipates the

‘‘review and revision, as appropriate, of

water quality standards and their

implementation procedures when

developing CSO control plans to reflect

site-specific impacts of CSOs.’’

Integrating CSO long-term control

planning with water quality standards

reviews requires extensive coordination

among CSO communities, States, EPA,

and the public. Although this

coordination is an intensive iterative

process, it provides greater assurance

that CSO communities will implement

affordable CSO control programs that

support the attainment of appropriate

water quality standards.

Dated: December 20, 2000.

J. Charles Fox,

Assistant Administrator for Water.

[FR Doc. 01–113 Filed 1–2–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6928–8]

Draft Guidance for National Hazardous

Waste Ombudsman and Regional

Superfund Ombudsmen Program

AGENCY: Environmental Protection

Agency.

ACTION: Notice of available draft

guidance with request for comment.

SUMMARY: The Environmental Protection

Agency (EPA) has developed and is

requesting comment on the ‘‘Draft

Guidance for National Hazardous Waste

Ombudsman and Regional Superfund

Ombudsmen Program.’’ The Office of

Solid Waste and Emergency Response

(OSWER) National Hazardous Waste

and Superfund Ombudsman (National

Ombudsman) and the Regional

Superfund Ombudsmen (Regional

Ombudsmen) were established to

provide help to the public in resolving

issues and concerns raised about the

solid and hazardous waste programs

administered by OSWER.

The purpose of this draft guidance is

to explain the role of the Ombudsmen,

their scope of activity, and the

guidelines under which they coordinate

and carry out their responsibilities. EPA

believes this draft guidance will

improve the effectiveness of this

program by giving the Ombudsmen and

those who may contact them a clear and

consistent set of operating policies and

expectations.

DATES: To make sure we consider your

comments we must receive them by

March 5, 2001. Comments received after

that date will be considered to the

extent feasible; however, EPA will not

delay finalizing the guidance to

accommodate late comments.

ADDRESSES: You may request copies of

the ‘‘Draft Guidance for National

Hazardous Waste Ombudsman and

Regional Superfund Ombudsmen

Program’’ by any of the following ways:

Mail: write to: Docket Coordinator,

Headquarters, U.S. EPA, CERCLA

Docket Office, (Mail Code 5201G), Ariel

Rios Building, 1200 Pennsylvania

Avenue, NW, Washington, D.C. 20460.

Phone: call: (703) 603–9232, or (800)

424–9346.

Internet: http://www.epa.gov/

swerrims/whatsnew.htm 

If you wish to send us comments on

the guidance, you must send them in

any one of the following ways:

Mail: Docket Coordinator,

Headquarters, U.S. EPA, CERCLA

Docket Office, (Mail Code 5201G), Ariel

Rios Building, 1200 Pennsylvania

Avenue, NW, Washington, D.C. 20460.

Express Mail or courier (such as

Federal Express, other overnight

delivery, or courier): Docket

Coordinator, Headquarters, U.S. EPA,

CERCLA Docket Office, 1235 Jefferson

Davis Highway, Crystal Gateway #1,

First Floor, Arlington, Virginia, 22202.

E-mail: in ASCII format only to:

superfund.docket@epa.gov.

FOR FURTHER INFORMATION CONTACT:

Caroline Previ, phone number (202)

260–2593, Office of Solid Waste and

Emergency Response (Mail Code 5101),

U.S. Environmental Protection Agency,

Ariel Rios Building, 1200 Pennsylvania

Avenue, N.W., Washington, D.C. 20460,

or the Superfund Hotline, phone

number (800) 424–9346 or (703) 412–

9810 in the Washington, D.C.

metropolitan area.

SUPPLEMENTARY INFORMATION:

I. Introduction

The program managers and staff in the

Regions and at Headquarters are

committed to implementing the federal

solid waste and hazardous waste

statutes managed by EPA, being

responsive to the public, and resolving

issues and concerns brought to their

attention. In some cases, the individual

or group raising a given concern does

not believe the official problem solving

channels dealt fairly or fully with their

situation. In such cases, the individual

or group may request assistance from

the Office of Solid Waste and

Emergency Response (OSWER)

Ombudsman, an Agency official

designated to receive inquiries and

complaints about the administration of

OSWER programs. The National and

Regional Ombudsmen receive many

calls for assistance each year—ranging

from routine questions about hazardous

waste laws to specific complaints about

allegedly improper activities conducted

at a site or facility.

Today’s Federal Register notice

introduces a policy entitled ‘‘Draft

Guidance for National Hazardous Waste

Ombudsman and Regional Superfund

Ombudsmen Program’’ which explains

the role and conduct of the OSWER

National Ombudsman and the Regional

Superfund Ombudsmen, scope of their

activity, and the guidelines under which

they coordinate and carry out their

responsibilities. The main objective in

issuing this guidance is to improve the

effectiveness of this program by giving

the Ombudsmen and those who may

contact them a clear and consistent set

of operating policies and expectations.

This draft guidance would cover only

the Ombudsmen who work on OSWER

related issues, and staff who supply

primary support or assistance to the

Ombudsmen.

This guidance, when finalized, is not

intended to be, and should not be

construed as a rule. Use of the guidance

would not be legally binding on EPA

managers or staff or on other parties.

EPA is seeking public comment at this

time to ensure hearing the widest range

of views and obtaining all information

relevant to the development of the

guidance.

II. Background

The hazardous and solid waste

management laws passed by Congress

created some of the most complex

programs administered by EPA and the

366 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Notices

States. Recognizing this, Congress

established a National Ombudsman

function in 1984 as part of amendments

to the Resource Conservation and

Recovery Act (RCRA) so that the public

would have someone to come to with

questions and concerns about the RCRA

program. Soon after, we issued the

‘‘Hazardous Waste Ombudsman

Handbook’’ to help the newly created

National Ombudsman administer, and

the public understand what to expect

from, the Ombudsman program. During

the initial years of the National

Ombudsman program, most of the

assistance sought by the public was for

help understanding the complex RCRA

program. The Ombudsman spent most

of his time responding to general

questions and directing requests to the

appropriate sources. The handbook

reflected this role.

When the statutory authority for the

National Ombudsman program expired

in 1989, OSWER retained the function

as a matter of policy. In 1991, OSWER

broadened the National Ombudsman’s

scope of activity to include other

programs administered by OSWER,

particularly the Superfund program.

The National Ombudsman is located in

the EPA Headquarters office in

Washington, DC.

In 1995, EPA created a Regional

Superfund Ombudsman position in

each EPA Regional office as part of the

Superfund Administrative Reforms. The

Regional Ombudsmen program, at a

minimum, operates in support of the

Superfund program, but—depending on

the Region—may also provide support

to other programs, including RCRA,

Underground Storage Tanks (UST), and

chemical emergency prevention and

preparedness.

Over the years, the public gained a

better understanding of EPA’s

hazardous waste programs. Requests for

answers to basic questions more

frequently became requests for

resolution of complaints. The

Ombudsman function evolved to reflect

these changes. The existing guidance no

longer reflects the Ombudsman function

as it has evolved.

In the Fall of 1999, the EPA

established an internal workgroup to

update the ‘‘Hazardous Waste

Ombudsman Handbook.’’ In preparing

the updated guidance, the workgroup

met with representatives of the U.S.

Ombudsman Association, and evaluated

and considered guidance documents

from this organization, as well as other

organizations with Ombudsman

programs and the American Bar

Association’s draft Standards for the

Establishment and Operation of

Ombudsman Offices. To the extent

possible, EPA has drafted guidelines

which reflect key aspects of various

external models in a manner that

supports the Ombudsman’s

independent operation within the

context of a civil service position within

the Federal government structure. EPA

developed these procedures to meet the

specific needs of the OSWER

Ombudsman program and they may not

be completely consistent with

Ombudsmen principles established by

other organizations.

The draft guidance explains to the

public the role of the National

Hazardous Waste and Superfund

Ombudsman and Regional Superfund

Ombudsmen today, their scope of

activity, and the guidelines under which

they coordinate and carry out their

responsibilities. We believe the draft

guidance will provide for effective and

fair implementation of OSWER’s

Ombudsman program.

III. Summary of Draft Guidance

The draft ‘‘Guidance for the National

Hazardous Waste and Superfund

Ombudsman and Regional Superfund

Ombudsmen Program’’ puts forth our

philosophy concerning the basic

operating principles and procedures for

the OSWER Ombudsman program.

Ombudsmen functioning under this

guidance are authorized to provide

information and look into complaints

and grievances related to OSWER’s

administration of the programs

implemented under the following

authorities:

• Comprehensive Environmental

Response, Compensation and Liability

Act (CERCLA) or Superfund

• Resource Conservation and

Recovery Act (RCRA), including

Underground Storage Tanks (UST)

• Emergency Planning and

Community Right-To-Know Act

(EPCRA) or Superfund Amendments

and Reauthorization Act, Title III

• Oil Pollution Act

• Clean Air Act, Section 112r

The Ombudsman may be called to

serve in a number of capacities: (1)

providing information and facilitating

informal contact with EPA staff, (2)

conducting informal inquiries and

developing recommendations to address

difficult problems, (3) helping to

mediate disputes, and (4) making

recommendations to Agency senior

management regarding procedural and

policy changes aimed at improving the

program. The goal of the Ombudsman

program is to respond to requests in an

appropriate, transparent and objective

manner as promptly, informally and

discretely as possible. The guidance

briefly discusses each of these

functions, but we anticipate that a

significant amount of the Ombudsman’s

time will be dedicated to looking into

issues raised by the public concerning

decisions that EPA has made. Because

of this, most of the draft guidance is

devoted to outlining the Ombudsman’s

responsibilities in carrying out this

activity. Overall, the Ombudsman’s role

is to listen to all sides in an impartial,

objective manner, to provide assistance

in trying to understand and resolve the

problem, and, if necessary, to

recommend possible solutions to senior

Agency managers. It is important to note

that the Ombudsman does not have

authority to change decisions made by

program managers or staff.

Generally, the National Ombudsman

handles cases of national significance.

The Regional Ombudsmen handle the

more routine requests for assistance and

conducts more informal inquiries to

investigate complaints. The guidance

explains how the Ombudsman will

evaluate requests for assistance, and

how inquiries will be conducted.

Whatever capacity the Ombudsman is

serving in, he is expected to act with

independence, impartiality and

confidentiality—the basic operating

principles of all Ombudsmen. The

guidance provides a brief description of

how the Ombudsman will demonstrate

these responsibilities effectively and

discusses limitations with respect to

confidentiality imposed by existing laws

and regulations that the OSWER

Ombudsman must abide by as federal

civil servant.

Our goal is to receive feedback on the

draft guidance from the widest range of

interested parties possible. We welcome

comments on any or all aspects of the

guidance. Your comments will help us

improve this document. We invite you

to provide your comments on our

approach and your ideas on alternative

approaches we have not considered.

Explain your views as clearly as

possible and provide a summary of the

reasoning you used to arrive at your

conclusions. Tell us which parts of the

guidance you support, as well as the

parts with which you disagree. Your

comments must be submitted by March

5, 2001. EPA will review the public

comments received on the guidance and

where appropriate, incorporate changes

responsive to those comments.

We specifically request your

comments on the following three topics

related to the independence of the

Ombudsman. These issues emerged as

key issues during the development of

this guidance.

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Notices 367

1. Does the Organizational Structure of

the Ombudsman Program Impact the

Independence of the Ombudsman?

One of the main principles an

Ombudsman operates under is the

ability to work independently in

determining which complaints to

investigate, how an inquiry should

proceed and what are the findings of an

inquiry. EPA recognizes the importance

of an Ombudsman being and appearing

to be independent from the organization

he/she is investigating. EPA believes

both the National Ombudsman and the

Regional Ombudsmen are able to look

independently into problems and

facilitate the communication that can

lead to a solution. We do not select

which cases the Ombudsman will take,

nor direct how the Ombudsman will

investigate a complaint. We do not

interfere with or attempt to influence

the Ombudsman as he formulates his

findings and recommendations.

From the time Congress established

the National Ombudsman, this function

has been a federal government employee

reporting to a senior Agency official.

Because the Ombudsman is a federal

employee, he/she cannot be completely

independent in the normal course of

relations between a supervisor and his/

her employee. Currently, the National

Ombudsman reports directly to the

Assistant Administrator for OSWER. We

believe this is the appropriate reporting

structure for the National Ombudsman.

The Assistant Administrator for OSWER

is the senior presidential appointee

responsible for the programs the

Ombudsman is looking into and he/she

is in the best position to use the advice

of the National Ombudsman. For the

most part, each Regional Ombudsman

reports to the appropriate Regional

Superfund division director, directly or

through an intermediate supervisor. No

matter what capacity an Ombudsman is

serving in at any given time, we have

worked to ensure the Ombudsman’s

ability to operate with maximum

independence.

The organizational location and

operation of the National Ombudsman

and the Regional Ombudsmen is a

matter of EPA discretion. We agree that

it is very important that the

Ombudsman be and appear to be

independent from the organization he is

investigating.

Does this structure ensure the

appropriate level of interaction between

the OSWER Ombudsman and senior

EPA officials while maintaining enough

independence for the Ombudsman to

operate effectively?

2. Should the Ombudsman Have Sole

Discretion To Decide How Cases Are To

Be Handled?

The guidance states that the National

and Regional Ombudsmen have the

discretion either to accept a request for

assistance or decline to act. While the

National Ombudsman and the Regional

Ombudsmen work fairly autonomously,

coordination in this area is crucial.

Requests for assistance may come

directly to either the National or a

Regional Ombudsman. To avoid

duplication of effort, the guidance lays

out general procedures for evaluating

incoming requests.

The guidance requires that before

conducting an inquiry that is primarily

related to one Region, the National

Ombudsman will consult with the

relevant Regional Ombudsman. We

believe this consultation will help the

National Ombudsman make a fully

informed decision about whether it is

more appropriate for him/her to handle

the matter, to refer it to the Regional

Ombudsman, or to decline to

investigate. Similarly, a Regional

Ombudsman is expected to notify the

National Ombudsman if he/she has been

requested to conduct an inquiry that

may be nationally significant. The

Regional Ombudsman should discuss

with the National Ombudsman how he/

she plans to proceed with the inquiry,

including the level of involvement that

the National Ombudsman wishes to

have in the inquiry.

We expect that a Regional

Ombudsman and the National

Ombudsman almost always will agree

on who should handle an inquiry. In

those rare situations when there is not

agreement the Assistant Administrator

or Deputy Assistant Administrator for

OSWER will resolve the dispute. The

guidance requires the Regional

Ombudsman (in consultation with the

appropriate Regional Administrator or

Deputy Regional Administrator) and the

National Ombudsman will each forward

a memorandum to the Assistant

Administrator for OSWER, or jointly

hold a conference call explaining his/

her perspective on the disagreement.

The Assistant Administrator or Deputy

Assistant Administrator for OSWER will

then make the decision about who

should handle the inquiry.

Is this the appropriate way to resolve

such disputes?

3. Should an Ombudsman’s Scope of

Inquiry Be Restricted To Protect EPA’s

Litigation Position?

We considered three alternative

approaches to this question. The

approach we selected and which is

reflected in the draft guidance generally

precludes the Ombudsmen from

investigating an issue or dispute which

is in litigation, i.e., pending before a

court. The presumption is that

Ombudsmen should not take action on

an issue or dispute which is in litigation

since that issue is in the hands of an

independent tribunal for decision, as

provided for by the relevant statute. In

addition, the public has access to that

tribunal to raise serious concerns. For

example, in the case of a consent decree

presented to a court, public comment

will be solicited on the decree, and the

court will consider those comments and

then determine if it is in the public

interest to enter the decree. In the case

of a challenge to agency action, affected

members of the public can intervene

and present argument to the court, and

the court will decide whether we

demonstrated an adequate basis for its

action and whether we acted in a nonarbitrary manner and in accordance

with law. This approach also avoids

creating the false impression that the

Ombudsman’s office is an alternative

forum for arguing controversial issues,

which would result in confusion,

inefficiency, and potentially conflicting

statements about the Agency’s position.

The OSWER Ombudsman program is

not intended or authorized to

circumvent existing channels of

management authority or established

formal administrative avenues of

appeal.

However, we believe that there may

be situations where it is appropriate for

the Ombudsman to investigate actions

EPA has taken, even where those

actions are before a court for review. For

instance, the Ombudsman may have

information to suggest that our action at

issue in the legal proceedings is infirm

or erroneous. Or the Ombudsman may

bring to Agency management

information of significant public

concern about an Agency action at issue

in the courts. In either case, if the

Ombudsman believes an inquiry is

necessary, he/she should communicate

that information to the appropriate

Agency official before proceeding with

his/her inquiry. Such an investigation

would proceed only after concurrence

by the Assistant Administrator or

Deputy Assistant Administrator for

OSWER or the appropriate Regional

Administrator or Deputy Regional

Administrator, in consultation with

EPA’s lead litigation office, taking into

account its potential impact on pending

litigation.

It should be noted that this

presumption against investigations

applies to an ‘‘issue or dispute’’ that is

before a court for consideration. Thus,

368 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Notices

the fact that a site or facility is in

litigation does not necessarily mean that

the Ombudsman should refrain from

conducting an investigation of all issues

arising at that site or facility. For

instance, if the issue before a court is

the authority of the Agency to get access

to a piece of property, that would not

create a presumption against an

investigation of alleged deficiencies

regarding remedy selection.

For your information, we are

providing details of the two alternative

approaches to this matter we considered

but did not select. The first alternative

approach removed any restrictions on

the Ombudsman’s ability to conduct an

inquiry concerning an issue or dispute

which is in litigation. The Ombudsman

would be free to conduct an inquiry

regardless of whether an issue or

dispute was in litigation.

The second alternative approach

would restrain the Ombudsman from

conducting new fact gathering

concerning decisions made based on the

administrative record. The Ombudsman

would remain able to audit the existing

information and data that were part of

the Agency’s factual record. Under this

model, if the Ombudsman concluded

that additional fact finding and data

gathering were necessary, that would

become part of his recommendation. If

the Agency agreed with this

recommendation, it would conduct

additional information gathering by

utilizing the appropriate program staff

and established procedures. The

Ombudsman would be precluded from

undertaking separate fact finding

activities such as public meetings and

formal on-the-record interviews. This

approach would address concerns that

an Ombudsman’s activities may create a

second record outside of the official

administrative record, which could

confuse and potentially mislead the

public and could damage the Agency’s

position during litigation.

Is the chosen approach the most

appropriate?

Dated: December 27, 2000.

Michael Shapiro,

Acting Assistant Administrator, Office of

Solid Waste and Emergency Response.

[FR Doc. 01–112 Filed 1–2–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6928–3]

Clean Water Act Section 303(d):

Availability of Total Maximum Daily

Loads (TMDLs)

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of availability.

SUMMARY: This notice announces the

availability for comment of the

administrative record file for 88 TMDLs

prepared by EPA Region 6 for waters

listed in Louisiana’s Mermentau and

Vermilion/Teche river basins, under

section 303(d) of the Clean Water Act

(CWA). EPA prepared these TMDLs in

response to a Court Order dated October

1, 1999, in the lawsuit Sierra Club, et al.

v. Clifford et al., No. 96–0527, (E.D. La.).

Under this court order, EPA is required

to prepare TMDLs when needed for

waters on the Louisiana 1998 section

303(d) list by December 31, 2007.

DATES: Comments on the 88 TMDLs

must be submitted in writing to EPA on

or before February 2, 2001.

ADDRESSES: Comments on the 88

TMDLs should be sent to Ellen

Caldwell, Environmental Protection

Specialist, Water Quality Protection

Division, U.S. Environmental Protection

Agency Region 6, 1445 Ross Ave.,

Dallas, TX 75202–2733. For further

information, contact Ellen Caldwell at

(214) 665–7513. The administrative

record file for these TMDLs is available

for public inspection at this address as

well. Copies of the TMDLs and their

respective calculations may be viewed

at www.epa.gov/region6/water/

tmdl.htm, or obtained by calling or

writing Ms. Caldwell at the above

address. Please contact Ms. Caldwell to

schedule an inspection.

FOR FURTHER INFORMATION CONTACT:

Ellen Caldwell at (214) 665–7513.

SUPPLEMENTARY INFORMATION: In 1996,

two Louisiana environmental groups,

the Sierra Club and Louisiana

Environmental Action Network

(plaintiffs), filed a lawsuit in Federal

Court against the United States

Environmental Protection Agency

(EPA), styled Sierra Club, et al. v.

Clifford et al., No. 96–0527, (E.D. La.).

Among other claims, plaintiffs alleged

that EPA failed to establish Louisiana

TMDLs in a timely manner. Discussion

of the court’s order may be found at 65

FR 54032 (September 6, 2000).

EPA Seeks Comments on 88 TMDLs

By this notice EPA is seeking

comment on the following 88 TMDLs

for waters located within the

Mermentau and Vermilion/Teche

basins:

Subsegment Waterbody name Pollutant

060205 .......... Bayou Teche—Headwaters At Bayou Courtableau to I–10 ................................ Salinity/TDS.

060211 .......... West Atchafalaya Borrow Pit Canal ..................................................................... Salinity/TDS.

060301 .......... Bayou Teche—I–10 to Keystone Locks and Dam ............................................... Salinity/TDS.

Chlorides.

050201 .......... Bayou Plaquemine Brule—Head-Waters to Bayou Descannes .......................... Ammonia.

050401 .......... Mermentau River—Origin to Lake Arthur ............................................................ Ammonia.

060102 .......... Cocodrie Lake ...................................................................................................... Noxious Aquatic.

Plants & Ammonia.

Chlorides.

Sulfate.

060204 .......... Bayou Courtableau—Origin to West Atchafalaya Borrow Pit Canal ................... Ammonia.

Salinity/TDS.

060203 .......... Chicot Lake .......................................................................................................... Noxious Aquatic.

Plants & Nutrients.

050101 .......... Bayou Des Cannes—Headwaters to Mermentau River ...................................... Nutrients.

050301 .......... Bayou Nezpique—Headwaters to Mermentau River ........................................... Nutrients.

060202 .......... Bayou Cocodrie .................................................................................................... Nutrients.

060208 .......... Bayou Boeuf—Headwaters To Bayou Courtableau ............................................ Nutrients.

060211 .......... West Atchafalaya Borrow Pit Canal ..................................................................... Sulfates.

060301 .......... Bayou Teche—I–10 to Keystone Locks and Dam ............................................... Sulfates.

050101 .......... Bayou Des Cannes—Headwaters to Mermentau River ...................................... Total Suspended Solids (TSS).

050102 .......... Bayou Joe Marcel ................................................................................................ TSS.

050103 .......... Bayou Mallet ......................................................................................................... TSS.