[Federal Register Volume 64, Number 46 (Wednesday, March 10, 1999)]
[Notices]
[Pages 11881-11884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5958]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6308-8]
Notice of Availability: Y2K Enforcement Policy
AGENCY: Environmental Protection Agency.
ACTION: Notice of Availability: Y2K Enforcement Policy.
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SUMMARY: On November 30, 1998, EPA issued an enforcement policy
designed to encourage prompt testing of computer-related equipment to
ensure that environmental compliance is not impaired by the Y2K
computer bug. Under the policy (published on the Internet at
www.epa.gov/year2000), EPA stated its intent to waive 100% of the civil
penalties that might otherwise apply, and to recommend against criminal
prosecution, for environmental violations caused during specific tests
that are designed to identify and eliminate Y2K-related malfunctions.
The policy also stated that the civil penalty waiver and recommendation
against criminal prosecution are limited to testing-related violations
disclosed to EPA by February 1, 2000, and are subject to certain
conditions, such as the need to design and conduct the tests well in
advance of the dates in question, the need to conduct the tests for the
shortest possible period of time necessary, the need to correct any
testing-related violations immediately, and other conditions to ensure
that protection of human health and the environment is not compromised.
Today's notice publishes the entire policy for the first time in the
Federal Register, to increase public awareness of this incentive to
test computer-related systems and to incorporate several minor
revisions aimed at clarifying the policy in response to public comment.
The policy published today contains no major changes to the eligibility
criteria announced on November 30, 1998.
ADDRESSES: Additional copies of the policy can be obtained on the
Internet at www.epa.gov/year2000, and through EPA's Enforcement and
Compliance Docket Information Center (ECDIC), 1200 Pennsylvania Ave.,
N.W., Room
[[Page 11882]]
4033, Washington, D.C. 20004. Copies of any case settlements resolved
pursuant to the policy and a summary of responses to public comments
may be obtained from the ECDIC, by calling 202-564-2614 or 202-564-
2119, or by sending a request via FAX to 202-501-1011 or an e-mail
message to docket.oeca@epamail.epa.gov.
FOR FURTHER INFORMATION CONTACT: Any general comments on this policy
may be directed to Gary A. Jonesi, Office of Regulatory Enforcement, at
202-564-4002 (202-564-0011 FAX) (jonesi.gary@epa.gov). Individual
facility-specific concerns also may be directed to the EPA regional
offices listed at the end of this notice.
SUPPLEMENTARY INFORMATION:
Background
The Y2K issue arises because a number of computerized functions
require recognition of a specific year, day, and time, but many
computers and computerized equipment recognize only the last two digits
of a year's date (i.e., 1998 is 98; 2000 is 00). Therefore, when the
calendar changes to the year 2000, computers and equipment with
embedded computer chips may have difficulty interpreting the correct
date. They may interpret the year to be 1900 or some other year. As a
result, some computers and equipment containing embedded computer chips
could become permanently unable to function properly. Others may
continue to operate, but erroneously, while others simply may stop and
need to be restarted. Some may create data that look correct, but in
reality contain errors, and some may continue to operate correctly. In
addition, some technical experts warn that certain computer-related
systems may have trouble functioning properly on more than a dozen
other dates arising over the next two years (see www.epa.gov/year2000/
append1.htm for a listing of such dates). For example, as to September
9, 1999, the digital representation of that date, 9/9/99 (``four 9s''),
may be interpreted as the end of a file or infinity, and, thus, may
have unintended consequences. This policy encompasses concerns over
computer-related testing problems that may arise as a result of any of
the dozen or more dates. Together, these dates are referred to as Y2K
for purposes of this enforcement policy.
Emphasis on Testing
The public expects compliance with the nation's environmental laws,
and the regulated community must take all steps necessary to anticipate
and resolve potential environmental compliance problems that may result
from Y2K-related equipment problems by the dates in question (e.g.,
9/9/99 and 1/1/00). In an effort to ensure timely compliance, EPA has
adopted this enforcement policy to encourage any necessary testing of
computer systems and their related environmental components (e.g,
monitoring and pollution control devices) well in advance of these
dates. Under this policy, EPA reiterates its commitment to firm yet
fair enforcement of environmental requirements regardless of any
potential Y2K-related problems. At the same time, this policy
recognizes that regulated facilities can benefit from having an
additional measure of predictability concerning how EPA intends to
react if such testing results in environmental violations under any of
the regulatory enforcement statutes that EPA implements.
Relationship to Y2K Dates
Although the focus of this policy is on testing-related violations
that may occur prior to January 1, 2000, EPA notes that with respect to
violations occurring after January 1, 2000, the Agency's longstanding
enforcement response and penalty policies will continue to recognize a
facility's good faith efforts and other potentially mitigating factors
in determining an appropriate enforcement response. In that regard,
facilities that test in accordance with the terms of this policy are
likely to be in a more favorable position than facilities that do not,
in the event that, despite a facility's best efforts at testing, the
facility cannot correct all Y2K-related deficiencies in a timely
manner.
Use of Existing Testing Procedures
Under EPA's Y2K enforcement policy, regulated facilities who wish
to test in advance of the Y2K dates are encouraged first to utilize any
existing regulatory or permit procedures that are applicable and that
can provide a timely and effective process for testing. For example,
the Resource Conservation and Recovery Act (RCRA) regulations provide
for trial burn testing of hazardous waste (40 CFR 266.102), research,
development, and demonstration permits (Sec. 270.65), and land
treatment demonstrations (Sec. 270.63). To the extent that existing
procedures under any statutory program are appropriate, their use will
help to ensure that the federal, state, and/or local agencies and
programs that already are best situated to oversee facility testing can
remain involved in that process. This enforcement policy does not
modify, revoke, or otherwise affect any existing federal, state, or
local permit, regulatory, or other (e.g., consent agreement)
obligations, including but not limited to any public notice and comment
requirements.
Criteria Justifying Application of This Policy
If no existing procedures are applicable, or if none are
appropriate given the need to expedite testing, this Y2K enforcement
policy states that EPA expects to exercise its discretion to waive 100%
of the civil penalties that might otherwise apply and to recommend
against criminal prosecution for violations resulting from specific
tests, where the facility can meet its burden of demonstrating to EPA
that it has satisfied all of the nine criteria below. (Because this
policy anticipates immediate correction of violations (see # 5 below),
any test-period noncompliance that qualifies for a 100% civil penalty
waiver or recommendation against criminal prosecution will not create a
significant economic benefit, since compliance costs will not have been
avoided or delayed.)
(1) Systematic Design of Testing Protocols. Written testing
protocols were designed in advance of the testing period, approved by
the facility's responsible official, reflect a conscientious effort to
evaluate the facility's Y2K-related environmental compliance status and
not to circumvent environmental compliance, and were designed to
prevent or limit violations that may result from such testing (e.g.,
through adoption or revision of appropriate contingency plans.)
(2) Violations Caused By Testing. The specific Y2K-related testing
was the direct and proximate cause of the potential violations.
(3) Testing Need, Timing and Length. The specific testing that
caused the potential violations was:
(a) Necessary to determine the effectiveness of specific Y2K-
related modifications in ensuring environmental compliance;
(b) Part of a comprehensive testing program designed to correct all
Y2K deficiencies at the facility;
(c) Conducted well in advance of the Y2K dates in question (i.e.,
normally at least 30 days in advance of the dates in question); and
(d) Conducted for the shortest possible period of time in order to
determine the effectiveness of such modifications, ordinarily not to
exceed a testing period of 24 hours in duration.
Where a facility, without making any modifications, tests existing
equipment
[[Page 11883]]
in order to determine whether Y2K-related problems may affect its
environmental compliance status, the specific testing was:
(e) Necessary to determine the effectiveness of its existing
operations in ensuring environmental compliance;
(f) Part of a comprehensive testing program designed to correct all
Y2K-related deficiencies at the facility;
(g) Conducted well in advance of the Y2K dates in question (i.e.,
normally at least 30 days in advance of the dates in question); and
(h) Conducted for the shortest possible period of time in order to
ascertain the effectiveness of its existing operations in ensuring
environmental compliance, ordinarily not to exceed a testing period of
24 hours in duration.
(4) Absence of Harm. The violations that may have occurred during
testing did not result in creation of a potentially imminent and
substantial endangerment (as EPA defines such threats under its RCRA
section 7003 policies), or serious actual harm. Notwithstanding any
civil penalty waivers or recommendations against criminal prosecution
that may be appropriate under this policy, EPA retains its authority to
seek any injunctive relief that it deems necessary, regardless of the
level of harm, potential harm, or lack thereof.
(5) Immediate Correction. All violations ceased as soon as
possible, not later than at the end of the test or immediately
thereafter (within 24 hours).
(6) Expeditious Remediation. The facility expeditiously remediated
any releases or other adverse health or environmental consequences as
soon as possible, in accordance with any timing or other considerations
that EPA may have specified (in the event that the Agency is involved
in the remedial process).
(7) Reporting. The facility has met in a timely fashion all legal
requirements for reporting the violations (e.g., CERCLA section 103).
Where the violations are not legally required to be reported, the
facility nevertheless reported the violations to EPA as expeditiously
as practicable under the circumstances (ordinarily no more than 30 days
after when the violations occurred absent unusual circumstances
justifying a longer period), but in all cases no later than February 1,
2000.
(8) Retesting. Any retesting conducted prior to the Y2K dates in
question met all the criteria outlined in this policy and included
modifications to earlier testing and/or operating conditions that are
reasonably designed to achieve full compliance.
(9) Cooperation. The facility provides any information requested by
EPA as necessary to determine whether a 100% penalty waiver or
recommendation against criminal prosecution is appropriate, consistent
with the facility's legitimate legal rights and privileges.
Other Potentially Relevant Enforcement Policies
Other existing EPA self-policing and compliance assistance policies
may continue to be utilized where they are not inconsistent with this
policy. For example, EPA's Audit Policy (formally entitled,
``Incentives for Self-Policing: Discovery, Correction and Prevention of
Violations,'' 60 FR 66706 (Dec. 22, 1995)) and Small Business Policy
(formally entitled, ``Policy on Compliance Incentives for Small
Business,'' 61 FR 27984 (June 3, 1996)) potentially could be applied to
any violations that result from Y2K-related equipment problems that
occur during and/or after the testing period described in this policy.
In addition, EPA's criminal enforcement policies guiding both the
exercise of investigative discretion (formally entitled, ``The Exercise
of Investigative Discretion,'' Jan. 12, 1994) and implementation of
EPA's Audit Policy (formally entitled, ``Implementation of the
Environmental Protection Agency's Self-Policing Policy for Disclosures
Involving Potential Criminal Violations,'' Oct. 1, 1997) may be
relevant in certain cases during and/or after the testing period
described in this policy.
Public Disclosure of Y2K-Related Testing Violations
Similar to EPA's January 1997 memorandum concerning Confidentiality
of Information Received Under Agency's Self-Disclosure Policy, EPA will
make publicly available any disclosures under this Y2K enforcement
policy, consistent with EPA's confidential business information (CBI)
provisions found at 40 CFR part 2, but only after these matters are
formally resolved.
Cooperation With States, Territories, and Tribal Governments
EPA encourages States, territories, and tribal governments to adopt
this or a similar approach for addressing violations of environmental
programs that they implement and enforce. EPA will coordinate closely
with such governments concerning Y2K-related testing violations.
Disclaimer
This enforcement policy does not constitute final Agency action. It
does not create any rights, duties, obligations, or defenses, implied
or otherwise, in any persons or entities. It sets forth factors that
EPA intends to use in the exercise of its enforcement discretion, and
it is not intended for use in pleading, at hearing, at trial, or in any
adjudicatory context.
Specific Compliance Concerns
Individual facility-specific concerns may be directed to the EPA
regional offices listed below:
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Region States Contact & phone No. FAX No.
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Region I........................ CT, ME, MA, NH, RI, VT.. Director, Office of Environmental 617-565-1141
Stewardship 617-565-3800.
Region II....................... NJ, NY, PR, VI.......... Director, Division of Enforcement 212-637-4035
and Compliance Assistance 212-
637-4000.
Region III...................... DE, DC, MD, PA, VA, WV.. Director, Office of Enforcement, 215-814-2905
Compliance & Environmental
Justice 215-814-2627.
Region IV....................... AL, FL, GA, KY, NC, MS, Regional Counsel, 404-562-9655... 404-562-9663
SC, TN.
Region V........................ IL, IN, MI, MN, OH, WI.. Regional Counsel, 312-886-2944... 312-886-0747
Region VI....................... AR, LA, NM, OK, TX...... Regional Counsel, 214-665-2125... 214-665-2182
Region VII...................... IA, KS, MO, NE.......... Regional Counsel, 913-551-7010... 913-551-7925
Region VIII..................... CO, MT, ND, SD, UT, WY.. Director, Legal Enforcement 303-312-6953
Program, Office of Enforcement,
Compliance, and Environmental
Justice, 303-312-6890.
Region IX....................... AZ, CA, HI, NV, AS, GU.. Regional Counsel, 415-744-1365... 415-744-1041
Region X........................ AK, ID, OR, WA.......... Regional Counsel, 206-553-1073... 206-553-0163
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[[Page 11884]]
Dated: February 27, 1999.
Sylvia Lowrance,
Acting Assistant Administrator for Enforcement and Compliance
Assurance.
[FR Doc. 99-5958 Filed 3-9-99; 8:45 am]
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