        DEPARTMENT OF TRANSPORTATION
        Pipeline and Hazardous Materials Safety Administration
        49 CFR Parts 190, 192, 195, and 198
        [Docket No. PHMSA-2009-0192]
        RIN 2137-AE43
        Pipeline Safety: Pipeline Damage Prevention Programs

          AGENCY:
          Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT).

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:

          This Advance Notice of Proposed Rulemaking (ANPRM) initiates a rulemaking procedure to establish criteria for determining adequate state enforcement of pipeline damage prevention laws. Under the Pipeline Inspection, Protection, Safety, and Enforcement (PIPES) Act of 2006, establishment of these criteria is a prerequisite should PHMSA find it necessary to conduct an enforcement proceeding against an excavator for violation of one-call damage prevention laws in the absence of enforcement action by the state where the events occurred. This notice is issued to solicit feedback and comments regarding the criteria and procedures PHMSA should use to determine if a state's enforcement of its damage prevention laws is adequate. These procedures will encourage states to develop effective excavation damage prevention enforcement programs to protect gas and hazardous liquid pipelines, but also allow federal enforcement authority should any state fail to do so.

          DATES:
          Persons interested in submitting written comments on this ANPRM must do so by December 14, 2009. PHMSA will consider late filed comments so far as practicable.

          ADDRESSES:
          Comments should reference Docket No. PHMSA-2009-0192 and may be submitted in the following ways:
          • E-Gov Web Site: http://www.regulations.gov. This site allows the public to enter comments on any Federal Register notice issued by any agency.
          • Fax: 1-202-493-2251.
          • Mail: DOT Docket Operations Facility (M-30), U.S. Department of Transportation, West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590.
          • Hand Delivery: DOT Docket Operations Facility, U.S. Department of Transportation, West Building, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays.

            Instructions: Identify the docket number, PHMSA-2009-0192, at the beginning of your comments. If you mail your comments, we request that you send two copies. To receive confirmation that PHMSA received your comments, include a self-addressed stamped postcard. Note: All comments are electronically posted without changes or edits, including any personal information provided.

        Privacy Act Statement

        Anyone can search the electronic form of comments received in response to any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). DOT's complete Privacy Act Statement was published in the Federal Register on April 11, 2000 (65 FR 19477).

          FOR FURTHER INFORMATION CONTACT:

          Steve Fischer, Director of Program Development, PHMSA by e-mail at steve.fischer@dot.gov; or Larry White, Attorney-Advisor, PHMSA by e-mail at lawrence.white@dot.gov.

        SUPPLEMENTARY INFORMATION:
        I. Objective
        Excavation damage is a leading cause of pipeline failure incidents. Better, more effective enforcement of state damage prevention laws is seen as a key to making further reductions in pipeline damage incidents.
        PHMSA is seeking to encourage states to strengthen their excavation damage prevention laws and to adequately enforce those laws. Toward this goal and in response to language included in the Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006 (Pub. L. 109-468), PHMSA intends to issue criteria and procedures, through a rulemaking proceeding, for determining whether states are adequately enforcing their damage prevention laws, and for conducting federal enforcements if necessary. This ANPRM seeks feedback and comments regarding the development of those criteria and procedures.
        II. Background
        A. PHMSA Damage Prevention Efforts
        PHMSA has made extensive efforts over many years to improve excavation damage prevention as it pertains to pipeline safety. These have included outreach to and cooperative efforts with a wide spectrum of damage prevention stakeholders, including:

        • Public and community organizations
        • Excavators and property developers
        • Emergency responders
        • Local, state and federal government agencies
        • Pipeline and other underground facility operators
        • Industry trade associations
        • Consensus standards organizations
        • Environmental organizations
        Current PHMSA programs and recent initiatives sponsored and/or supported by PHMSA designed to enhance pipeline safety through improvements in excavation damage prevention include:
        • State Pipeline Safety Partners—Supported by funding agreements with PHMSA, state agencies can assume safety jurisdiction for intrastate and/or interstate gas and hazardous liquid pipeline operators. To assume jurisdiction, states must publish regulations that meet or exceed the federal safety regulations. Our state pipeline safety partners are represented by the National Association of Pipeline Safety Representatives (NAPSR), which strives to strengthen state pipeline safety programs through promotion of improved pipeline safety standards, education, training, and technology. PHMSA frequently consults with NAPSR, especially for issues concerning intrastate pipelines.
        • Grants to States and Communities—Each state has established laws, regulations, and procedures shaping the state damage prevention program. PHMSA provides grant opportunities intended to help states improve their damage prevention programs to protect pipelines. States seeking damage prevention program grants must incorporate the nine elements of effective damage prevention programs identified in the PIPES Act of 2006 into their programs. PHMSA also offers Technical Assistance Grants (TAG) to communities. Informed communities play a vital role in the safety and reliability of pipeline operations. PHMSA's TAG program offers new opportunities to strengthen the depth and quality of public participation in pipeline safety and damage prevention matters.

        • Consensus Standards—Office of Pipeline Safety (OPS) works closely with several national consensus standards organizations, such as the American Society of Mechanical Engineers (ASME), the American Petroleum Institute (API) and the National Association of Corrosion Engineers (NACE). These organizations include members from various stakeholder groups and produce effective standards balanced through a consensus process. PHMSA recognizes the value of stakeholder consensus and appreciates the hard work required to develop and publish consensus technical safety standards. When these standards complement or enhance federal pipeline safety regulations, they may be incorporated into the regulations by reference. One example of an incorporated consensus standard intended to help improve pipeline damage prevention is American Petroleum Institute (API) Recommended Practice (RP) 1162, Public Awareness Programs for Pipeline Operators.

        • Research and Development (R&D)—PHMSA technical review committees identify R&D priorities and select projects for funding. PHMSA's R&D program goal is to drive improvements in various aspects of pipeline safety, including damage prevention. The program focuses on the rapid conversion of new technology into tools pipeline stakeholders can use to improve pipeline safety. Completed R&D projects often provide the technical basis for regulations and consensus safety standards. Other R&D projects summarize information necessary for well-informed decisions by pipeline safety stakeholders.
        • Public Awareness Programs—Pipeline safety regulations address all aspects of public awareness communications. Pipeline operators are required to implement public awareness programs in communities traversed by their pipelines. They must inform stakeholders, including the public, excavators, emergency responders, and local officials, on how to recognize pipeline failures and of what actions to take in such an event. Operators must develop plans for carrying out their public awareness activities and must evaluate the effectiveness of their programs to identify needed improvements. These requirements are reflected in PHMSA's adoption of API RP 1162 into the pipeline safety regulations, as noted above.

        • Focused Damage Prevention Initiatives—PHMSA invests considerable resources in identifying damage prevention best practices and in raising stakeholder awareness regarding pipeline damage prevention. PHMSA's Stakeholder Communications Web site (http://primis.phmsa.dot.gov/comm) provides additional information on these and other recent PHMSA damage prevention initiatives, including:
        ○ Damage Prevention Best Practices—In 1999, PHMSA sponsored the landmark Common Ground Study to identify “best practices” to prevent damage to pipelines and other underground facilities. The nonprofit Common Ground Alliance (CGA) now provides stewardship to ensure the Damage Prevention Best Practices are maintained, updated, and promoted for implementation. The CGA Best Practices are recognized nationally and internationally.
        ○ Common Ground Alliance—The CGA promotes damage prevention across all underground facility damage prevention stakeholder groups. Its individual members and member/sponsor organizations represent the diverse spectrum of these stakeholders. PHMSA supported the formation and incorporation of the CGA and continues to support its efforts toward pipeline damage prevention through grants and cooperative agreements.
        ○ 811—PHMSA supported and championed the national 3-digit dialing number to provide a standard and easily remembered number for excavators to call to access the local one-call damage prevention center.
        ○ Community Assistance and Technical Services (CATS) Managers—PHMSA established the CATS program and deploys CATS personnel in each of its five regions. CATS Managers provide community assistance and technical services to all stakeholders. The main focus of the CATS program is to foster effective communications regarding pipeline safety among PHMSA and other stakeholders, and assist permitting agencies issuing permits required for safety-related pipeline repairs and construction projects.
        ○ VA Pilot Project—PHMSA sponsors and supports the Virginia Pilot Project for Incorporating Global Positioning System (GPS) Technology to Enhance One-Call Damage Prevention. The report for Phase I of the VA Pilot Project is available from PHMSA's Stakeholder Communications Web site.
        ○ Pipelines and Informed Planning Alliance (PIPA)—PIPA was initiated by and is supported by PHMSA. It is driven by requirements in the Pipeline Safety Improvement Act of 2002 (PSIA) and recommendations in the Transportation Research Board (TRB) Special Report 281. The PIPA initiative aims to improve damage prevention and pipeline safety by enhancing communication between pipeline operators and property owners/developers, and to ensure that decisions about land use and development near transmission pipelines are risk-informed.
        ○ Damage Prevention Assistance Program (DPAP)—PHMSA has developed guidance, “Strengthening State Damage Prevention Programs,” to assist stakeholders. The guidance draws on the definition of effective damage prevention programs found in the PIPES Act of 2006. It examines the nine elements specified in the PIPES Act and makes suggestions for implementing them at the state level. State programs can be improved by incorporating the nine elements and by identifying and implementing positive changes in processes, procedures, technologies and damage prevention laws.
        These efforts are producing benefits. Data from PHMSA Significant Incident Files dated July 14, 2009, indicates that serious pipeline incidents caused by excavation damage have begun to trend downward. However, despite these efforts and the efforts of the states, pipeline operators, and other stakeholders, excavation damage to gas and hazardous liquid pipelines continues to be the single leading cause of pipeline incidents. Based on data provided to PHMSA,1
           during a recent 10-year period, from 1998-2008, excavation damage alone was cited as the cause in almost 26 percent of significant incidents for all pipeline systems. Better, more effective enforcement of state damage prevention laws is seen as a key to making further reductions in pipeline damage incidents.

            1 PHMSA Significant Incidents Files, April 15, 2009.

        While excavation damage is the cause in a significant portion of all pipeline failure incidents, it is cited as the cause in a relatively higher portion of natural gas distribution incidents. To look at this issue, PHMSA initiated and sponsored in 2005 an investigation of the risks and threats to gas distribution systems. This investigation was conducted through the efforts of four joint work/study groups, each of which included representatives of the stakeholder public, the gas distribution pipeline industry, state pipeline safety representatives, and PHMSA. The areas of their investigations included excavation damage prevention. The Distribution Integrity Management for Gas Distribution, Report of Phase I Investigations (DIMP Report) was issued in December 2005. As noted in the DIMP Report, the Excavation Damage Prevention work/study group reached four key conclusions.
        • Excavation damage poses by far the single greatest threat to distribution system safety, reliability and integrity; therefore, excavation damage prevention presents the most significant opportunity for distribution pipeline safety improvements.
        • States with comprehensive damage prevention programs that include effective enforcement have a substantially lower probability of excavation damage to pipeline facilities than states that do not. The lower probability of excavation damage translates to a substantially lower risk of serious incidents and consequences resulting from excavation damage to pipelines.
        • A comprehensive damage prevention program requires nine important elements be present and functional for the program to be effective. All stakeholders must participate in the excavation damage prevention process. The elements are:
        1. Enhanced communication between operators and excavators.

        2. Fostering support and partnership of all stakeholders in all phases (enforcement, system improvement, etc.) of the program.

        3. Operator's use of performance measures for persons performing locating of pipelines and pipeline construction.
        4. Partnership in employee training.
        5. Partnership in public education.
        6. Enforcement agencies' role as partner and facilitator to help resolve issues.
        7. Fair and consistent enforcement of the law.
        8. Use of technology to improve all parts of the process.
        9. Analysis of data to continually evaluate/improve program effectiveness.
        • Federal legislation is needed to support the development and implementation of damage prevention programs that include effective enforcement as a part of the state's pipeline safety program. This is consistent with the objectives of the state pipeline safety programs, which are to ensure the safety of the public by addressing threats to the distribution infrastructure. The legislation will not be effective unless it includes provisions for ongoing funding such as federal grants to support these efforts. This funding is intended to be in addition to, and independent of, existing federal funding of state pipeline safety programs.
        Another recent report prepared on behalf of PHMSA 2
           concluded that excavation damage continues to be a leading cause of serious pipeline failures and that better one-call enforcement is a key gap in damage prevention. In that regard, the Mechanical Damage Report noted that most jurisdictions have established laws to enforce one-call notification compliance; however, it noted that many pipeline operators consider lack of enforcement to be degrading the effectiveness of one-call programs. The report also noted that administrative enforcement measures managed through government departments are relatively easy to implement and have proven to be effective. It cited that in Massachusetts, 3,000 violation notices were issued from 1986 to the mid-1990s, contributing to a decrease of third-party damage incidents on all types of facilities from 1,138 in 1986 to 421 in 1993. The report also cited findings from another study that enforcement of the one-call notification requirement was the most influential factor in reducing the probability of pipeline strikes and that the number of pipeline strikes is proportionate to the degree of enforcement.

            2 Mechanical Damage Final Report, Michael Baker Jr., Inc., April 2009.

        With respect to the effectiveness of current regulations, the Mechanical Damage Report stated that an estimated two-thirds of pipeline excavation damage is caused by third parties and found that the problem is compounded if the pipeline damage is not promptly reported to the pipeline operator so that corrective action can be taken. It also noted “when the oil pipeline industry developed the survey for its voluntary spill reporting system—known as the Pipeline Performance Tracking System (PPTS)—it also recognized that damage to pipelines, including that resulting from excavation, digging, and other impacts, is also precipitated by operators (“first parties”) and their contractors (“second parties”)”.
        Finally, the report found that for some pipeline excavation damage data that was evaluated, “in more than 50 percent of the incidents, one-call associations were not contacted first” and that “failure to take responsible care, to respect the instructions of the pipeline personnel, and to wait the proper time accounted for another 50 percent of the incidents.”
        B. The Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006
        On December 29, 2006, the Pipeline and Hazardous Materials Safety Administration's pipeline safety program was reauthorized for an additional four years, through 2010, by enactment of the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 (Pub. L. 109-468). The PIPES Act of 2006 provides for enhanced safety and environmental protection in pipeline transportation, enhanced reliability in the transportation of the Nation's energy products by pipeline, and other purposes. Major portions of the PIPES Act were focused on damage prevention including additional resources and clear program guidelines as well as additional enforcement authorities to assist states in developing effective excavation damage prevention programs.
        With respect to resources, the PIPES Act of 2006 provides incentives through funding grants for states to improve the overall quality and effectiveness of their damage prevention programs. It provides an increased funding level up to 80% for state agencies that submit an annual certification and participate in the pipeline and/or hazardous liquid safety programs. As noted in 49 U.S.C. 60105(b), each certification submitted must state that the state authority “(4) is encouraging and promoting the establishment of a program designed to prevent damage by demolition, excavation, tunneling, or construction activity to the pipeline facilities to which the certification applies that subjects persons who violate the applicable requirements of that program to civil penalties and other enforcement actions that are substantially the same as are provided under this chapter.* * *”

        PHMSA's damage prevention grants will facilitate the establishment of comprehensive damage prevention programs in states that do not have such programs and will help improve damage prevention programs in states that do. PHMSA posted a Grants.gov opportunity in November 2007, with a $100,000 maximum grant per state and $1.5 million in total grant funding available. During 2008-2009, PHMSA awarded 27 grants to state agencies or one-call centers under state authority for improvements in their state damage prevention programs. The grant awards covered a wide scope of projects. Examples include: A study on the scope and effectiveness of the underground utility damage prevention system within the state; the design and implementation of a computer-based system that tracks, measures, analyzes and reports the overall effectiveness of damage prevention training programs; staff training; development of software and world wide web applications; development of a state-of-the-art plastic pipe locating device; and additional staff positions and equipment purchases to enhance enforcement of the state damage prevention laws and regulations. Summaries of these projects are available at http://primis.phmsa.dot.gov/comm/DamagePreventionGrantsToStates.htm.

        With respect to program guidelines and authorities, the PIPES Act of 2006 identifies nine elements that effective damage prevention programs will include. These are, essentially, identical to those nine elements noted in the DIMP Report discussed in the previous subsection.

        Of particular note, relevant to this ANPRM, is Element 7, which identifies effective enforcement of state damage prevention laws and regulations, including the use of civil penalties for violations, as a key part of an effective state program. The PIPES Act also provided PHMSA with limited authority to conduct civil enforcement proceedings against excavators who damage pipelines in a state that has failed to adequately enforce its damage prevention laws. Specifically, Section 2 of the PIPES Act established 49 U.S.C. 60114 to provide that the Secretary of Transportation may take civil enforcement action against excavators who (1) fail to use a one-call system before excavating, or (2) who fail to regard the location information or markings established by a pipeline facility operator, and (3) who cause damage to a pipeline facility that may endanger life or cause serious bodily harm or damage to property and fail to promptly report the damage and fail to call 911 if the damage results in a release of pipeline products. The PIPES Act limited the Secretary's ability to take civil enforcement action against these excavators, in that the Secretary may not conduct an enforcement proceeding for a violation within the boundaries of a state that has the authority to impose penalties described in 49 U.S.C. 60134(b)(7) against persons who violate that state's damage prevention laws, unless the Secretary has determined that the state's enforcement is inadequate to protect safety, consistent with this chapter, and until the Secretary issues, through a rulemaking proceeding, the procedures for determining inadequate state enforcement of penalties. This ANPRM initiates that rulemaking procedure. Following is citation of these additions from the PIPES Act.

          SEC. 2. PIPELINE SAFETY AND DAMAGE PREVENTION.
          (a) ONE CALL CIVIL ENFORCEMENT.—
          (1) PROHIBITIONS.—Section 60114 is amended by adding at the end the following:
          (d) PROHIBITION APPLICABLE TO EXCAVATORS.—A person who engages in demolition, excavation, tunneling, or construction—
          (1) May not engage in a demolition, excavation, tunneling, or construction activity in a state that has adopted a one-call notification system without first using that system to establish the location of underground facilities in the demolition, excavation, tunneling, or construction area;
          (2) May not engage in such demolition, excavation, tunneling, or construction activity in disregard of location information or markings established by a pipeline facility operator pursuant to subsection (b); and
          (3) Who causes damage to a pipeline facility that may endanger life or cause serious bodily harm or damage to property—
          (A) May not fail to promptly report the damage to the owner or operator of the facility; and
          (B) If the damage results in the escape of any flammable, toxic, or corrosive gas or liquid, may not fail to promptly report to other appropriate authorities by calling the 911 emergency telephone number.
          (e) PROHIBITION APPLICABLE TO UNDERGROUND PIPELINE FACILITY OWNERS AND OPERATORS.—Any owner or operator of a pipeline facility who fails to respond to a location request in order to prevent damage to the pipeline facility or who fails to take reasonable steps, in response to such a request, to ensure accurate marking of the location of the pipeline facility in order to prevent damage to the pipeline facility shall be subject to a civil action under section 60120 or assessment of a civil penalty under section 60122.
          (f) LIMITATION.—The Secretary may not conduct an enforcement proceeding under subsection (d) for a violation within the boundaries of a state that has the authority to impose penalties described in section 60134(b)(7) against persons who violate that state's damage prevention laws, unless the Secretary has determined that the state's enforcement is inadequate to protect safety, consistent with this chapter, and until the Secretary issues, through a rulemaking proceeding, the procedures for determining inadequate state enforcement of penalties.

        III. Purpose and Scope of the ANPRM
        PHMSA is a strong supporter of expanded state damage prevention enforcement to protect pipelines. PHMSA strongly believes that individual states should retain the primary responsibility to effectively enforce damage prevention laws. PHMSA's goal is to minimize the need to take federal enforcement action against excavators that damage pipelines by encouraging states to strengthen their damage prevention laws to include the authority to impose penalties against persons who violate those laws and to adequately enforce those laws through the use of civil penalties. However, PHMSA must follow Congressional direction and assume that responsibility if it is determined that a state is not doing so adequately. In order to do so, PHMSA must have procedures in place to evaluate state programs to make such determinations. These procedures will enable PHMSA to conduct civil enforcement proceedings against excavators who damage pipelines, in accordance with the limitations prescribed in 49 U.S.C. 60114(f), as noted above. The procedures to be used to determine if a state is adequately enforcing its one-call damage prevention laws will necessarily include a means of allowing a state the opportunity to contest a determination that it is not adequately enforcing its damage prevention laws and will provide an adjudication process to be used if PHMSA determines that an excavator is to be subject to federal enforcement as the result of a violation of the damage prevention requirements cited in 49 U.S.C. 60114. These procedures will enhance pipeline safety and will encourage states to develop effective damage prevention programs.
        The purpose of this ANPRM is to enable PHMSA to begin the process of rulemaking to establish procedures for determining the adequacy of state enforcement of damage prevention requirements and to articulate a proposed process for federal enforcement. To that purpose, PHMSA is soliciting feedback and comments regarding: (1) The criteria for determining the adequacy of a state's enforcement program; (2) the procedures PHMSA will use to make this determination; (3) the federal standards to be enforced against an excavator in the event PHMSA determines a state to have inadequate enforcement; and (4) the administrative process for imposing fines or penalties on an excavator alleged to have violated the applicable standards.
        IV. Issues on Which PHMSA Seeks Comment
        Pipeline operators, excavators, states and the public are urged to carefully consider the appropriate procedures for determining the adequacy of state damage prevention enforcement programs, as well as the need for federal enforcement in the absence of an adequate state program. Commenters should be aware that the information and data generated in response to this ANPRM could result in a notice of proposed rulemaking. We invite commenters to submit data and information on the following:
        A. Considerations for Determining the Adequacy of State Damage Prevention Enforcement Programs
        A threshold criterion for determining the adequacy of a state's damage prevention enforcement program will be whether the state has established and excercised its authority to assess civil penalties for violations of its one-call laws. PHMSA will likely consider the following issues in further evaluating the enforcement component of state damage prevention programs:
        • Current federal pipeline safety regulations, 49 CFR 192.614 and 49 CFR 195.442, require that gas and hazardous liquid pipeline operators, respectively, comply with certain damage prevention requirements through participation in a qualified one-call system. Specifically, this involves the receipt and recordation of notifications from excavators of planned excavation activities and performing their locating and marking responsibilities. Does state law contain similar requirements for operators to be members of and participate in the state's one-call system?
        • Does state law require all excavators to use the state's one-call system and request that underground utilities in the area of the planned excavation be located and marked prior to digging?

        • Has the state avoided giving exemptions to its one-call damage prevention laws to state agencies, municipalities, agricultural entities, railroads, and other groups of excavators?
        • Are the state's requirements detailed and specific enough to allow excavators to understand their responsibilities before and during excavating in the vicinity of a pipeline?
        • Are excavators required to report all pipeline damage incidents to the affected pipeline operators?
        • Does state law contain a provision requiring that 911 be called if a pipeline damage incident causes a release of hazardous products?
        • Has the responsible state agency established a reliable mechanism to ensure that it receives reports of pipeline damage incidents on a timely basis? Damage reports should include documentation of the consequences of any product release, including the extent of service interruptions, product loss, property damage, evacuations, injuries, fatalities, and environmental damage, and copies of the reports should be made available to the appropriate PHMSA Regional Office.
        • Does the responsible state agency conduct investigations of all excavation damage to pipeline incidents to determine whether the excavator appropriately used the one-call system to request a facility locate, whether a dig ticket was generated, how quickly the pipeline operator responded, whether the pipeline operator followed all of its applicable written procedures, whether the excavator waited the appropriate time for the facilities to be located and marked, whether the pipeline operator's markings were accurate, and whether the digging was conducted in a responsible manner?

        • Does the state's damage prevention law provide enforcement authority including the use of civil penalties, and are the maximum penalties similar to the federal maximums (see 49 U.S.C. 60122(a))?
        • Has the state designated a state agency with responsibility for administering the damage prevention laws?
        • Does the state official responsible for determining whether or not to proceed with enforcement action document the reasons for the decision in a transparent and accountable manner? Are the records of these investigations and enforcement decisions made available to PHMSA?
        • With respect to cases where enforcement action is taken, is the state actually exercising its civil penalty authority? Does the amount of the civil penalties assessed reflect the seriousness of the incident? Are remedial orders given to the violator legally enforceable?
        • Are annual statistics on the number of excavation damage incidents, investigations, enforcement actions, penalties proposed, and penalties collected by the state made available to PHMSA and the public?
        Commenters are invited to provide comment on these considerations and may also offer additions and alternatives that may be equally suitable for the purpose of evaluating the adequacy of state damage prevention enforcement programs.
        B. Administrative Process

        PHMSA seeks comment on the administrative procedures available to a state that elects to contest a notice of inadequacy should it receive one. The procedures would likely involve a “paper hearing” process where PHMSA would notify a state that it considers its damage prevention enforcement inadequate (i.e., following its annual review), and the state would then have an opportunity to submit written materials and explanations. PHMSA would then make a final written determination including the reasons for the decision. The administrative procedures would also likely provide for an opportunity for the state to petition for reconsideration of the decision. If the state's enforcement program is ultimately deemed inadequate, direct federal enforcement against an excavator who violated the state's damage prevention law and damaged a pipeline in that state could proceed. The procedures would also likely give states the right to make a showing at a later time that it has improved its damage prevention enforcement program to an adequate level and request that PHMSA discontinue federal enforcement in that state.
        Commenters are invited to submit their views on this process or suggest alternatives. In particular, does this process strike the right balance between the Congressional directive to PHMSA to undertake federal enforcement where necessary while providing a state with a fair and efficient means of showing that the state's enforcement program is adequate? PHMSA will likely evaluate state damage prevention enforcement programs on an annual basis, considering factors such as those set forth in paragraph A above. This annual review will likely include a review of all of the enforcement actions taken by the state over the previous year. For states that have been deemed to have inadequate programs in their most recent annual reviews and in accordance with the process outlined in paragraph B, PHMSA could conduct federal enforcement without further process.
        With respect to a state that has been deemed nominally adequate in its most recent annual review, should the process also enable PHMSA to evaluate a state enforcement decision concerning an individual incident during the course of the year and potentially conduct federal enforcement where a state decided not to undertake enforcement for an incident that PHMSA believes may warrant enforcement action?
        C. Federal Standard for Excavators
        PHMSA also seeks comment on the establishment of the federal standards for excavators that PHMSA would be enforcing in a state that has been found to have an inadequate enforcement program. At a minimum the standards will directly reflect the words in the U.S. Code cited above and include requirements for an excavator to: Use an available one-call system before digging, wait the required time, excavate with proper regard for location information or markings established by the pipeline operator, promptly report any damage to the pipeline operator, and report any release of hazardous products to appropriate authorities by calling 911.
        Commenters are invited to submit their views on these standards or to suggest alternatives. For example:
        • Should the federal standards for excavators be limited to the minimum requirements reflected in the above-referenced statute or should they be more detailed and extensive?
        • Will implementing the 911 requirement cause any unintended consequences in practice?
        • Are there suggested alternatives to these standards?
        The Common Ground Alliance Best Practices and API Recommended Practice 1166, Excavation Monitoring and Observation (November 2005), could be used to inform the development of such standards.
        D. Adjudication Process

        PHMSA also seeks comment from the excavator community on the adjudication process that would be used if an excavator were cited by PHMSA for failure to comply with the standards established as discussed in section C above in a state in which the enforcement has been deemed inadequate. At a minimum, an excavator that allegedly violated the applicable requirement would have the right to: Receive written notice of the allegations, including a description of the factual evidence the allegations are based on; file a written response to the allegations; request an informal hearing; be represented by counsel if he or she chooses; examine the evidence; submit relevant information and call witnesses on his or her behalf; and otherwise contest the allegations of violation. Hearings would likely be held at one of PHMSA's five regional offices or via teleconference. The hearing officer would be an attorney from the PHMSA Office of Chief Counsel. The excavator would also likely have the opportunity to petition for reconsideration of the agency's administrative decision and judicial review of final agency action would be available to the same extent it is available to a pipeline operator.
        Commenters are invited to submit their views on this process or suggest alternatives. For example:
        • Is the process too formal in the sense that excavators contesting a citation would have to prepare a written response for the record and potentially appear before a hearing officer?
        • Is the process not formal enough in the sense that it does not provide for formal rules of evidence, transcriptions, or discovery? Or does this process strike the right balance by being efficient and at the same time providing enough formality that excavators feel the process is fair and their due process rights are maintained?
        • How should the civil penalty considerations found in 49 U.S.C. 60122(b) apply to excavators?
        E. Existing Requirements Applicable to Owners and Operators of Pipeline Facilities
        Commenters are also invited to submit their feedback and comments on the adequacy of PHMSA's existing requirements for pipeline operators to participate in one-call organizations, respond to dig tickets, and perform their locating and marking responsibilities. Under existing pipeline safety regulations 49 CFR 192.614 for gas pipelines and 49 CFR 195.442 for hazardous liquid pipelines, operators are required to have written damage prevention programs that require, in part, that the operator provide for marking its pipelines in the area of an excavation for which a locate request has been submitted by the excavator.
        Comments could address, for example, whether PHMSA should consider making the existing regulatory requirements more detailed and explicit in terms of:
        • The amount of time for responding to locate requests,
        • The accuracy of facility locating and marking, or
        • Making operator personnel available to consult with excavators following receipt of an excavation notification.
        V. Regulatory Notices
        A. Executive Order 12866 and DOT Regulatory Policies and Procedures
        E.O. 12866 requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” We therefore request comments, including specific data if possible, concerning the costs and benefits of evaluating state damage prevention programs and enforcing federal requirements.
        B. Executive Order 13132: Federalism
        Executive Order 13132 requires agencies to assure meaningful and timely input by state and local officials in the development of regulatory policies that may have a substantial, direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Because evaluating the effectiveness of state damage prevention enforcement programs necessarily involves states, we invite state and local governments with an interest in this rulemaking to comment on the effect that adoption of criteria for effective damage prevention programs and enforcement requirements may have on state pipeline safety programs.
        C. Regulatory Flexibility Act
        Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), we must consider whether a proposed rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. If your business or organization is a small entity and if adoption of specific requirements applicable to using one-call systems could have a significant economic impact on your operations, please submit a comment to explain how and to what extent your business or organization could be affected.
        D. National Environmental Policy Act
        The National Environmental Policy Act of 1969 (NEPA) requires federal agencies to consider the consequences of federal actions and that they prepare a detailed statement analyzing if the action significantly affects the quality of the human environment. Interested parties are invited to address the potential environmental impacts of this ANPRM. We are particularly interested in comments about compliance measures that would provide greater benefit to the human environment or on alternative actions the agency could take that would provide beneficial impacts.
        E. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
        Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and that impose “substantial and direct compliance costs” on such communities. We invite Indian tribal governments to provide comments on any aspect of this ANPRM that may affect Indian communities.
        F. Paperwork Reduction Act
        Under 5 CFR Part 1320, PHMSA analyzes any paperwork burdens if any information collection will be required by a rulemaking. We invite comment on the need for any collection of information and paperwork burdens, if any.

          Authority:
           49 U.S.C. 60101 et seq.; 49 CFR 1.53.

          Issued in Washington, DC, on October 26, 2009.
          Jeffrey D. Wiese,
          Associate Administrator for Pipeline Safety.

      [FR Doc. E9-26099 Filed 10-28-09; 8:45 am]
      BILLING CODE 4910-60-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 1
        [GN Docket Nos. 12-268, 13-185; WT Docket No. 05-211; DA 14-414]
        Wireless Telecommunications Bureau Seeks Comment on Request for Clarification or Waiver of the Commission's Attributable Material Relationship Rule

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Petition for clarification or waiver, comment requested.

          SUMMARY:
          In this document, the Wireless Telecommunications Bureau seeks comment on a request for clarification or waiver of the Commission's “attributable material relationship” rule.

          DATES:
          Comments are due on or before April 25, 2014, and reply comments are due on or before May 9, 2014.

          ADDRESSES:
          All filings in response to this notice must refer to GN Docket Nos. 12-268, 13-185 and WT Docket No. 05-211. The Wireless Telecommunications strongly encourages interested parties to file comments electronically using the Commission's Electronic Comment Filing System (ECFS). Comments may be submitted by any of the following methods:

          • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
          • Paper Filers: Parties who choose to file by paper must file an original and five copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Attn: WTB/ASAD, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

            People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

          All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. Parties should also send a copy of their filings to Kelly A. Quinn, by email to kelly.quinn@fcc.gov. Parties must also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via email to fcc@bcpiweb.com.

          FOR FURTHER INFORMATION CONTACT:

            Wireless Telecommunications Bureau, Auctions and Spectrum Access Division: Kelly A. Quinn at (202) 418-7384 or kelly.quinn@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a summary of a public notice released on March 27, 2014 by the Wireless Telecommunications Bureau, Federal Communications Commission. The complete text of the public notice, including all related Commission documents, is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The public notice also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, fax 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. Copies of the public notice, the request for clarification and waiver that is the subject of the public notice and related documents also are available on the Commission's Web site at: http://www.fcc.gov/cgb/ecfs/.
        1. On March 4, 2014, Grain Management, LLC filed a request for clarification or waiver of the Commission's “attributable material relationship” rule, 47 CFR 1.2110(b)(3)(iv)(A).
        2. The Wireless Telecommunications Bureau invites interested parties to file comments on the request.

          Federal Communications Commission.
          Gary D. Michaels,
          Deputy Chief, Auctions and Spectrum Access Division, WTB.

      [FR Doc. 2014-08183 Filed 4-11-14; 8:45 am]
      BILLING CODE 6712-01-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [EPA-HQ-SFUND-1994-0009; FRL-9995-91-Region 1]
        National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the U.S. Coast Guard (USCG) Buoy Depot of the South Weymouth Naval Air Station Superfund Site

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule; notice of intent.

          SUMMARY:
          The Environmental Protection Agency (EPA) Region 1 is publishing a Notice of Intent for Partial Deletion of the U.S. Coast Guard (USCG) Buoy Depot, the South Weymouth Naval Air Station (NAS) Superfund Site (the Site) (MA2170022022) in Weymouth, Massachusetts, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This partial deletion is being published by EPA with the concurrence of the Commonwealth of Massachusetts, through the Massachusetts Department of Environmental Protection (MassDEP), because EPA has determined that all appropriate response actions at the identified parcel under CERCLA have been completed. However, this partial deletion does not preclude future actions under Superfund.
          This partial deletion pertains to the USCG Buoy Depot, Operable Unit 10, located at 65 Trotter Road, South Weymouth, Massachusetts. The remaining Operable Units of the South Weymouth NAS will remain on the NPL and are not being considered for deletion as part of this action.

          DATES:
          Comments must be received by July 31, 2019.

          ADDRESSES:
          Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1994-0009, by one of the following methods:
          • http://www.regulations.gov. Follow on-line instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit.
          • Email: lim.robert@epa.gov.

          • Mail: Robert Lim, U.S. EPA Remedial Project Manager, 5 Post Office Square, Suite 100 (Mail code: 07-3), Boston, MA 02109-3912.
          • Hand delivery: Robert Lim, U.S. EPA Remedial Project Manager, 5 Post Office Square, Suite 100 (Mail code 07-3), Boston, MA 02109-3912. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-1994-0009. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through http://www.regulations.gov. or email. The http://www.regulations.gov. Website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statue. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov, or on disk or physical copy at:

          EPA Region 1 Records Center, 5 Post Office Square, Suite 100, 1st Floor, Boston, MA 02109, Phone: 1-617-918-1440. Hours: Mon-Fri 8 a.m. to 5 p.m., excluding federal holidays

          Navy Caretaker Site Office, 223 Shea Memorial Drive, South Weymouth, MA 02190 (Records may be viewed by appointment only. Contact Mr. David Barney at 781-626-0105 or David.a.barney@navy.mil to schedule an appointment)
          Tufts Library, 46 Broad Street, Weymouth, MA 02188

          FOR FURTHER INFORMATION CONTACT:

          Robert Lim, Remedial Project Manager, U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100 (Mail code 07-3), Boston, MA 02109-3912, (617) 918-1392, email: lim.robert@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Introduction
          II. NPL Deletion Criteria
          III. Partial Deletion Procedures
          IV. Basis for Site Partial Deletion

        I. Introduction
        EPA Region 1 is publishing this Notice of Intent for Partial Deletion of the USCG Buoy Depot, designated Operable Unit 10 (OU10) within the South Weymouth Naval Air Station (NAS) Superfund Site (see Figure 1), from the NPL. This partial deletion pertains to all site media, including soil and groundwater associated with USCG Buoy Depot, which consists of approximately five acres and includes the following properties:

          4.77 acres of property owned by the United States of America (United States Coast Guard) described in Quitclaim Deed dated October 30, 1941 and recorded in book 6561, Page 513, also identified as Lot 650-1 in Tax Map 58. Approximately 0.20 acres of property owned by the United States of America (United States Navy) described in Quitclaim Deed dated January 1, 1900, also identified as Plat 597-152 in Tax Map 58. Approximately 0.04 acres of property owned by LSTAR Southfield, LLC, described in Quitclaim Deed dated July 2, 2015 and recorded in book 33279, Page 51, also identified as Plat 597-138 in Tax Map 58. Approximately 0.11 acres of property owned by LSTAR Southfield, LLC, described in Quitclaim Deed dated July 2, 2015 and recorded in book 33279, Page 51, also identified as Plat 597-137 in Tax Map 58.

        The properties are further depicted on Figure 2 of the “Remedial Action Completion Report for the U.S. Coast Guard Industrial Production Detachment, South Weymouth, MA” dated October 16, 2017 and will be referred to hereafter as “the property proposed for deletion”. All tax map references are based on the Town of Weymouth 2015 Tax Maps.

        The NPL constitutes Appendix B of the NCP (40 CFR part 300), which EPA promulgated pursuant to Section 105 of the CERCLA. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the USCG Buoy Depot within the Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the “Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List” 60 FR 55466 (Nov. 1, 1995). As described in 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund financed remedial action if future conditions warrant such actions.

        EPA will accept comments on the proposal to partially delete this site for thirty (30) days after publication of this document in the Federal Register.
        Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the property proposed for deletion and demonstrates how it meets the deletion criteria. Section V discusses EPA's proposal to delete the Site parcel from the NPL.
        II. NPL Deletion Criteria
        The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
        i. Responsible parties or other persons have implemented all appropriate response actions required;
        ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
        iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
        III. Partial Deletion Procedures
        The following procedures apply to the partial deletion of the USCG Buoy Depot from the Site:
        (1) EPA has consulted with the Commonwealth of Massachusetts prior to developing this Notice of Intent for Partial Deletion.
        (2) EPA has provided the Commonwealth 30 working days for review of this notice prior to its publication.
        (3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.
        (4) The Commonwealth, through MassDEP by a letter dated April 19, 2019 has concurred on the proposal for partial deletion of the USCG Buoy Depot from the Site.

        (5) Concurrently, with the publication of this Notice of Intent for Partial Deletion in the Federal Register,  a notice of the availability of the Notice of Intent for Partial Deletion is being published in the Patriot Ledger, a major local newspaper. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the USCG Buoy Depot from the NPL.
        (6) The EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

        If comments are received within the 30-day public comment period on this partial deletion action, EPA will evaluate and respond accordingly to the comments before making a final decision to delete the USCG Buoy Depot. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the USCG Buoy Depot of the South Weymouth Naval Air Station (NAS) Superfund Site, the EPA Regional Administrator will publish a final Notice of Partial Deletion in the Federal Register. Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and included in the site information repositories listed above.
        Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for further response actions, should future conditions warrant such actions.
        IV. Basis for Site Partial Deletion
        The following information provides EPA's rationale for deleting the USCG Buoy Depot of the South Weymouth NAS Site from the NPL:
        Site Location

        The USCG Buoy Depot is located on the South Weymouth NAS which operated from 1942 to 1997, and is located approximately 15 miles southeast of Boston, Massachusetts, in Norfolk County in the Town of Weymouth. As of the 2010 census, Weymouth has a population of 55,643.
        Site Description
        The USCG Buoy Depot, now currently operating as the USCG Industrial Production Detachment South Weymouth (IPDSW), is the USCG's principal facility in the northeast for storing, cleaning, repairing, and painting navigational buoys. The facility is owned and operated by the USCG.1
           Within the IPDSW there is a two-story, steel and concrete block building occupying approximately 20,000 square feet on the northwestern portion of the property. Asphalt and concrete paved driveways surround the building. Most of the property is a dirt and gravel-covered buoy storage area to the south and east of the building. A drainage swale exists along the southern fence line of the property. The swale and a portion of a wetland on an adjacent property were impacted by past operations and are considered part of the site.

            1 OU10 does include some limited areas of Navy and private property immediately adjacent to the USCG facility where contamination had historically migrated off the USCG facility as previously noted.

        Operational History
        On March 1, 1972, the USCG leased the property from the Navy which contains the Buoy Depot. Prior to development, the property was an undeveloped property of the South Weymouth NAS which closed in 1997 under the Defense Base Realignment and Closure Act of 1990 (BRAC). In October 2000, the Buoy Depot property was transferred to the USCG from the Navy through a Federal Agency to Federal Agency Transfer. Upon transfer of the property from the Navy, the USCG also assumed responsibility for the CERCLA investigation of Buoy Depot.

        The USCG Buoy Depot was constructed in 1973 and is the USCG's principal facility in the northeast for the storing, cleaning, repairing, and painting navigational buoys. Its operations have included buoy rehabilitation (e.g., shot blasting to remove old paint, welding, painting, electrical wiring); minor vehicle and equipment maintenance; waste generation (steel shot blast residue, waste oils, paint-related waste) and fuel storage; warehousing; outdoor scrap metal storage; and administrative use.
        BILLING CODE 6560-50-P

          EP01JY19.000

        BILLING CODE 6560-50-C
        The USCG stopped buying lead-based paint and primers for buoys in 1986. Because buoys are refurbished every six-to-eight years, all the USCG buoys have been cycled through the system and repainted with non-lead based paint.
        Conditions That Led to Placement on National Priorities List (NPL)

        In March 1988, the Navy conducted a Preliminary Assessment (PA) under the Installation Restoration Program. The PA consisted of a records search, site visit, and interviews. The PA Report identified five potential hazardous waste sites based on past practices: Site 1, the West Gate Landfill; Site 2, the RDA Site; Site 3, the Small Landfill (SL); Site 4, the Former Fire Training Area (FFTA); and Site 5, the Tile Leach Field (TLF).

        The Navy completed a Site Inspection (SI) in December 1991. The SI investigated the five potential sites identified in the PA as well as three additional sites the Navy added to the program: Site 6, the Fuel Farm; Site 7, the former Sewer Treatment Plant (STP); and Site 8, the Abandoned Bladder Tank Fuel Storage Area. The SI included site walkovers; geophysical surveys; installation of monitoring wells; and analysis of soil, sediment, surface water, and groundwater samples.
        The USCG Buoy Depot was part of the NPL listing for South Weymouth NAS due to contamination from facility operations that was present in the surface soil of the storage area and in an adjacent drainage swale and wetland.
        National Priorities List Designation
        The Site was proposed to the NPL on 6/23/1993 (58 FR 34018) and added to the NPL on 5/31/1994 (59 FR 27989). The listing included the USCG Buoy Depot. The CERCLIS ID for South Weymouth NAS is MA2170022022, and for USCG Buoy Depot is MA0690330758.
        Ongoing Redevelopment

        While the former South Weymouth NAS (currently referred to as “Union Point”) undergoes redevelopment due to Base Realignment and Closure process with the Southfield Redevelopment Authority implementing plans for commercial, residential, and mixed uses, along with recreational areas and open space, the USCG Buoy Depot, currently named the USCG Industrial Production Detachment South Weymouth (IPDSW), continues to operate as the USCG's principal facility in the northeast for storing, cleaning, repairing, and painting navigational buoys.
        Operable Units at the Site
        Beginning in 1995, remedial investigations at South Weymouth NAS have identified 27 operable units. The USCG Buoy Depot has been designated as Operable Unit 10 (OU10) and is described as follows:
        OU10—Former U.S. Coast Guard Buoy Depot

        Beginning in 1972, former Buoy Depot operations have included buoy rehabilitation (e.g., “shot blasting” to remove old paint, welding, painting, and electrical wiring), minor vehicle and equipment maintenance, waste generation (steel shot blast residue, waste oils, paint-related waste) and fuel storage, warehousing, outdoor scrap metal storage, and administrative use. Most of the buoys are constructed of steel and range in size from three feet (ft) to greater than 30 ft in length and can weigh up to 20,000 pounds. Old or damaged buoys that are beyond repair are stored at the current IPDSW pending sale as scrap metal.
        As a result of prior facility operations (i.e., buoy storage, refurbishment, and scrapping), lead and paint chips were present in the surface soil of the buoy storage area. Due to stormwater runoff, surface soils in the downgradient and off-site drainage swale and wetland area were impacted with metals, primarily lead, from the former Buoy Depot. The USCG ceased purchasing lead-based paint (LBP) and primers for buoys in 1986. The USCG was required to deplete this existing paint inventory by 1988. Buoys are refurbished every six-to-eight years. Therefore, most of the USCG's buoys that are now received at the current IPDSW have been cycled through the system and repainted with non-LBP multiple times.
        Remedial Investigation and Feasibility Study (RI/FS)
        The RI investigated three areas of concern at USCG Buoy Depot in 2001. It concluded that no further action was required for areas related to the septic system tank, piping, and leach field. The two other areas were addressed through removal actions in 1999, 2003, and from 2004 to 2005.
        In 1999, a time-critical removal action addressed lead-contaminated soil near a former dust collection system by removing 26 cubic yards of soil. In 2003, a non-time critical removal action addressed a floor drain system by removing 100 cubic yards of sludge piping and impacted soil. From 2004 to 2005, also as part of the non-time critical removal action beginning in 2003, the USCG excavated approximately 165 cubic yards of metals-contaminated soil from the offsite drainage swale and wetland area.
        The Human Health and Ecological Risk Assessments determined that lead in soil and sediment was the only contaminant of concern (COC) for which significant risks were identified in both adult and child lead modelling, and in ecological receptors. Groundwater quality was consistent with background conditions and, therefore, no groundwater risks were identified.
        Selected Remedy
        A Record of Decision (ROD) was finalized in September 2006 and selected land use controls (institutional and engineering controls), long-term monitoring, and five-year reviews. This decision also took into consideration the completion of removal actions prior to finalization of the ROD.
        The Response Action Objectives in the ROD included both Removal Action Objectives and Remedial Action Objectives (RAO). The following goals were developed during the EE/CA for the non-time critical removal action completed in 2005:

        • Prevention, to the extent practicable, of direct contact with and ingestion of surficial soil that presents unacceptable risks to human health and/or ecological receptors (i.e., the soil of the swale and wetlands)
        • Prevention of potential future impacts to groundwater beneath the site through removal of impacted soil and sludge-associated with existing floor drains beneath the site building
        • Prevent ongoing migration of metals (primarily lead) from the buoy storage area to the adjacent drainage ~wale and the downstream wetland, and prevention of future migration to the extent possible.

        The Feasibility Study presented the following response action objectives for the buoy storage area:

        • Prevent future human (residential) exposure to lead and potential LBP chips in soil of the buoy storage area
        • Prevent COCs in on-site soil from migrating off the Buoy Depot property

        The ROD consisted of the following elements:

        • No Further Action for Area of Concern (AOC) 1 (i.e., building and adjacent areas to the south);
        • No Action for AOC 2 (i.e., septic system tank, piping, and leach field);
        • Implement LUCs for AOC 3 (area where buoy, equipment and scrap metal were stored) of the current USCG IPDSW property that include (1) Institutional Controls to prohibit current and future non-commercial/industrial uses of the current IPDSW property, and (2) Engineering Controls to prevent the migration of contaminated soil from the buoy storage area.;
        • Conduct Long-Term Monitoring of the surface soil in the stormwater drainage swale and downstream wetland area on adjacent property controlled by LSTAR Management, LLC and the Navy to ensure the long-term effectiveness of the remedy for protecting human health and the environment; and
        • Five-Year Reviews for AOC 3 (i.e., buoy, equipment, and scrap metal storage area).

        The USCG attempted to reduce the potential for recontamination of the swale and wetland through the construction of a stormwater management system, which reduced the transport of soil particles and paint chips from the buoy storage area. The surface soil was not remediated under the ROD because it did not pose an unacceptable risk for commercial/industrial use. After finalization of the ROD, the results of the long-term monitoring program determined a need for additional action which is discussed below.
        The USCG completed the first statutory Five-Year Review of the USCG Buoy Depot property in December 2011 which identified increasing concentrations of metals in the swale and wetland area downstream of the stormwater management system. The increasing trend in metals concentrations suggested that the stormwater management system was not containing the contaminants known to exist in surface soils in the buoy storage area. The Five-Year Review recommended continued O&M activities associated with the stormwater management system and continued monitoring to further evaluate contaminant concentration trends.

        Based on the increasing concentration trends found in the Five-Year Review, the USCG conducted a study to evaluate the effectiveness of the stormwater management system and to develop alternatives to enhance the control of contaminant discharge to the swale and wetland area. The report titled Evaluation of Alternatives for Minimizing Off-Site Transport of Contaminated Sediment from the Stormwater Management System (Watermark, 2014) included evaluation of the following five alternatives to effectively control contaminant discharge from the buoy storage area:
        1. Remove contaminated soil from the buoy storage area and replace with clean fill;
        2. Pave the remaining unpaved areas of the buoy storage area;
        3. Expand the upstream detention system;
        4. Install upstream filtration; and
        5. Install downstream filtration.
        Upon consideration of each alternative, the USCG determined that removal of contaminated soil in the buoy storage area and replacement with clean fill represented a permanent solution to the contaminant migration issue. The decision to conduct a soil removal action for the buoy storage area and drainage swale was based on an increasing trend in metals concentrations in a swale and wetland area which suggested that the stormwater management system was not containing the contaminants known to exist in surface soils in the buoy storage area. This study which was published in 2013 also contained alternatives to control the contaminant discharge to the swale and wetland area.
        The USCG produced an updated Engineering Evaluation/Cost Analysis (EE/CA) in February 2016 which provided a comparative analysis of the actions detailed in the 2014 Report. The EE/CA recommended Alternative 1, the removal of contaminated soil from the buoy storage area and replacement with clean fill. A Removal Action Memorandum was prepared in April 2016 to support this determination.
        From December 2016 to February 2017, USCG performed a removal action to excavate subsurface soils from with the current IPDSW fence line, drainage swale, and wetland. Over 4,125 cubic yards of soil was excavated and disposed of at a licensed facility. No contaminated soil with metals exceeding the following clean-up criteria remain on the current IPDSW following this removal effort.
        The cleanup goals for the soil remediation project were:

        • Arsenic 20 milligrams per kilogram (mg/kg)
        • Chromium 16 mg/kg
        • Copper 1,020 mg/kg
        • Lead 200 mg/kg
        • Nickel 230 mg/kg
        • Zinc 738 mg/kg

        The Final Remedial Action Completion Report documented the post-excavation soil sampling and analysis and that the soil remaining at the site meets the site cleanup criteria.
        An Explanation of Significant Differences (ESD) for the USCG Buoy Depot was finalized on September 27, 2017. The ESD documented no further action for the buoy storage area (AOC 3) of the USCG Buoy Depot because soil removal actions conducted from December 2016 to February 2017 achieved cleanup levels allowing for unlimited use and unrestricted exposure. In addition, the ESD eliminated the future need of land use controls, performing long-term monitoring, and conducting five-year reviews.
        Community Involvement
        USCG and EPA have kept the community and other interested parties informed throughout cleanup of the site. Notice of this proposal will be placed in the local newspaper, the Patriot Ledger. While the levels of community concern and involvement have been high for the South Weymouth Naval Air Station as a whole, especially with regard to redevelopment, levels of community concern have been low for Buoy Depot.
        Determination That the Criteria for Deletion Have Been Met
        The NCP specifies that EPA may delete a site from the NPL if: All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; as required by 40 CFR 300.425(e)(1)(ii). This criteria was met, as described, for the partial deletion proposed at the USCG Buoy Depot Operable Unit from the South Weymouth NAS Superfund Site. A Remedial Action Completion Report was issued on October 16, 2017 to document the completion of the Remedial Action activities for the area subject to this partial de-listing. EPA, with the concurrence of the Commonwealth of Massachusetts through MassDEP by a letter dated April 19, 2019, believes these criteria for deletion have been satisfied. Therefore, EPA is proposing the deletion of USCG Buoy Depot operable unit (OU10) from the South Weymouth NAS Superfund Site. All of the completion requirements for the property proposed for deletion at the site have been met.
        • The implemented remedies achieve the degree of cleanup or protection specified in the ROD and ESD for the area proposed for deletion.
        • The selected remedial and removal action objectives and associated cleanup levels for the areas proposed for deletion are consistent with agency policy and guidance.
        • No further Superfund response in the areas proposed for deletion are needed to protect human health and the environment.

          List of Subjects in 40 CFR Part 300
          Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

          Authority:
          33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

           Dated: June 18, 2019.
          Deborah A. Szaro,
          Acting Regional Administrator, Region 1.

      [FR Doc. 2019-14018 Filed 6-28-19; 8:45 am]
      BILLING CODE 6560-50-P