[Federal Register Volume 60, Number 55 (Wednesday, March 22, 1995)]
[Proposed Rules]
[Pages 15208-15209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7067]
[[Page 15207]]
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Part VI
Environmental Protection Agency
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40 CFR Part 22
Hazardous Waste: Technical Revision for the Federal Facility Compliance
Act of 1992 Amendments; Proposed Rule
Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 /
Proposed Rules
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[[Page 15208]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 22
[FRL-5175-8]
Hazardous Waste: Technical Revision for the Federal Facility
Compliance Act of 1992 Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is today proposing a
rule in response to a requirement established by section 6001 of the
Resource Conservation and Recovery Act (RCRA), as amended by the
Federal Facility Compliance Act of 1992 (FFCA). The FFCA includes
explicit authority to the Administrator of the EPA to commence
administrative enforcement actions against any department, agency, or
instrumentality of the executive, legislative, or judicial branch of
the Federal Government that is in violation of requirements under RCRA.
The FFCA further provides that no administrative enforcement order
issued to a department, agency, or instrumentality of the Federal
Government becomes final until the department, agency, or
instrumentality has an opportunity to confer with the EPA
Administrator. Today's proposal is a technical revision of the Agency's
administrative rules of practice to provide a federal department,
agency, or instrumentality which is the subject of an administrative
enforcement order, with the opportunity to confer with the
Administrator, as provided under the FFCA.
DATES: Comments on this proposed rule must be received on or before
April 21, 1995.
ADDRESSES: Commenters must each send an original and two copies of
their comments to EPA RCRA Docket (5305); Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460. Place the Docket
Number F-95-TRFA-FFFFF on the comments. The docket is located in the
EPA RCRA Docket Room M2616. The docket is open from 9 a.m. to 4 p.m.,
Monday through Friday except for public holidays. To review docket
materials, make an appointment by calling 202-260-9327. The public may
obtain copies of docket materials as provided for in 40 CFR part 2.
There may be charges for copying services.
FOR FURTHER INFORMATION CONTACT: For general information contact the
RCRA/CERCLA Hotline at 1-800-424-9346 or in the Washington Metropolitan
Area at 703-412-9810. For information on specific aspects of this
proposed rule, contact Sally Dalzell, Federal Facilities Enforcement
Office (2261), U.S. Environmental Protection Agency, 401 M Street SW.,
Washington, DC 20460, 202-260-9808.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority
II. Background
III. Content of the Rule
IV. Regulatory Analysis
I. Statutory Authority
This regulation is issued under the authority of sections 2002 and
6001(b) of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act (RCRA), as amended by the Federal
Facility Compliance Act (FFCA), 42 U.S.C. 6912 and 6961(b).
II. Background
The FFCA clarified that EPA has explicit authority to issue
administrative enforcement orders to other federal agencies that are in
violation of RCRA. In the past, where EPA found RCRA violations at a
federal facility, it primarily relied on a negotiated Federal Facility
Compliance Agreement to bring the federal facility into compliance. The
FFCA amended RCRA to expressly authorize the EPA Administrator to
commence an administrative enforcement action against federal
facilities pursuant to the Agency's RCRA enforcement authorities. RCRA
section 6001(b)(1), 42 U.S.C. 6961(b)(1). Moreover, the FFCA requires
the Administrator to initiate administrative enforcement actions
against federal facilities ``* * * in the same manner and under the
same circumstances as an action would be initiated against another
person.'' Id. The legislative history makes it clear that Congress
intends that the Agency issue administrative complaints pursuant to
RCRA section 3008(a) to federal facilities to address violations that
are of the same types that are found at private companies or
municipalities. H.R. No. 102-886, 102nd Cong. 2nd Sess. at 19 (1992).
Finally, the FFCA provides that before any such administrative
enforcement order issued to a federal facility becomes final, the
recipient department, agency, or instrumentality must have the
opportunity to confer with the Administrator. RCRA section 6001(b)(2),
42 U.S.C. 6961(b)(2).
The adjudication process for all administrative enforcement
complaints issued pursuant to RCRA section 3008(a) is governed by the
Agency's Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension of
Permits, 40 CFR part 22, and the Supplemental Rules of Practice
governing the administrative assessment of civil penalties under the
Solid Waste Disposal Act, 40 CFR 22.37. Under current regulations, the
initial decision of a Presiding Officer shall become the final order of
the Environmental Appeals Board within 45 days after its service upon
the parties and without further proceedings unless an appeal is taken
to the Environmental Appeals Board or the Environmental Appeals Board
elects, sua sponte, to review the initial decision. 40 CFR 22.27(c). If
the Presiding Officer's initial decision is appealed to the
Environmental Appeals Board or if the Environmental Appeals Board
elects, sua sponte, to review the initial decision, then the
Environmental Appeals Board issues a final order as soon as practicable
after receiving the appellate briefs or oral argument, which ever is
later. 40 CFR 22.31.
These rules currently have no provisions which accommodate the
statutory requirement that no such administrative enforcement order
issued to a federal facility shall become final until the recipient
agency has had an opportunity to confer with the Administrator. The
purpose of today's proposed rule is to revise 40 CFR part 22 to reflect
a federal agency's right to an opportunity to confer with the
Administrator before an administrative enforcement order issued to that
agency becomes a final order.
III. Content of the Rule
The proposed rule would revise the supplemental practice rules for
RCRA administrative orders, 40 CFR 22.37, by adding a new paragraph (g)
in the nature of a technical amendment. Specifically, under new
paragraph (g), an order issued by the Environmental Appeals Board to a
federal agency for RCRA violations would not be a final order, if the
recipient federal agency made a timely request for a conference with
the Administrator. In that event, the decision by the Administrator
would be the final order. New paragraph (g) would also establish the
timing and procedure that a federal agency must follow to preserve its
right to confer with the Administrator prior to an administrative
enforcement order becoming final. The head of the recipient federal
agency would have 30 days from the Environmental Appeal Board's service
of an order or decision to request a conference with the Administrator
in writing. The request must also be served upon all parties of
[[Page 15209]] record. Finally, new paragraph (g) states that a motion
for reconsideration filed under 40 CFR 22.32 does not toll the 30-day
period for filing a request for a conference with the Administrator.
The Agency believes that placing the conference at the end of the
administrative enforcement process will enable the Agency to proceed
with an enforcement case against a Federal agency in the same manner as
it would against a private party. This procedure also best assures that
the Administrator will have a complete factual and legal record on
which to base a decision. The Agency further believes that the 30-day
request period, and the requirement that the request for a conference
be in writing and served upon the parties of record, are fair and
reasonable requirements necessary for the orderly administration of
administrative enforcement actions against federal agencies.
The Agency also believes that not tolling the period for requesting
a conference for the filing of motions for reconsideration with the
Environmental Appeals Board is consistent with 40 CFR 22.32. That
section provides that the filing of a motion for reconsideration does
not stay the effective date of an Environmental Appeals Board final
order. Moreover, the Agency sees no reason to build additional delay
into the administrative enforcement process by automatically tolling
the request period during the pendency of a motion for reconsideration
before the Environmental Appeals Board. Under the proposed rule, the
Environmental Appeals Board can grant a request to toll the time period
for filing a request for a conference; in addition, the Administrator
can always take into account a motion for reconsideration filed with
the Environmental Appeals Board, when scheduling a requested
conference.
Finally, the proposed rule is consistent with previously published
Agency guidance issued by the Office of Federal Facilities Enforcement
entitled: Federal Facility Compliance Act: Enforcement Authorities
Implementation, dated July 6, 1993 (58 FR 49044, September 12, 1993).
This guidance remains in effect for matters not covered by the proposed
rule.
IV. Regulatory Analysis
A. Executive Order No. 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-354),
requires Federal regulatory agencies to consider the impact of
rulemaking on ``small entities.'' If a rulemaking will have a
significant impact on small entities, agencies must consider regulatory
alternatives that minimize economic impact.
Today's decision does not affect any small entity. Rather, it is
merely a technical amendment to the part 22 procedures ensuring
consistency between the regulatory procedures and the Federal Facility
Compliance Act. Accordingly, this action will not add any economic
burdens to any affected entities, small or large. Therefore, a
regulatory flexibility analysis is not required. Pursuant to Section
605(b) of the RFA, 5 U.S.C. section 605(b), the Administrator certifies
that this rule will not have a significant impact on small entities.
C. Paperwork Reduction Act
This rule does not contain any information collection requirements
subject to review of the Office of Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C. 3501, et. seq.
List of Subjects in 40 CFR Part 22
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Hazardous waste,
Penalties, Pesticides and pests, Poison prevention, Water pollution
control, Federal facilities.
Dated: March 15, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 22 is proposed
to be amended as follows:
PART 22--[AMENDED]
1. The authority citation for part 22 continues to read as follows:
Authority: 42 U.S.C. 6961.
2. Section 22.37 is amended by adding a new paragraph (g) to read
as follows:
Sec. 22.37 Supplemental rules of practice governing the administrative
assessment of civil penalties under the Solid Waste Disposal Act
* * * * *
(g) Final Orders to Federal Agencies on Appeal. (1) In the case of
an administrative order or decision issued to a department, agency, or
instrumentality of the United States, such order or decision shall
become the final order for purposes of the Federal Facility Compliance
Act, 42 U.S.C. 6961(b), in accordance with Secs. 22.27(c) and 22.31
except as provided in paragraph (g)(2) of this section.
(2) In the case of an administrative order or decision issued by
the Environmental Appeals Board, if the head of the affected
department, agency, or instrumentality requests conference with the
Administrator in writing and serves a copy of the request on the
parties of record within thirty days of the Environmental Appeals
Board's service of the order or decision, a decision by the
Administrator (rather than the Environmental Appeals Board) shall be
the final order for the purposes of the Federal Facility Compliance
Act.
(3) In the event the department, agency, or instrumentality of the
United States files a motion for reconsideration with the Environmental
Appeals Board in accordance with Sec. 22.32, filing such motion for
reconsideration shall not toll the thirty-day period for filing the
request with the Administrator for a conference unless specifically so
ordered by the Environmental Appeals Board.
[FR Doc. 95-7067 Filed 3-21-95; 8:45 am]
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