[Federal Register Volume 59, Number 84 (Tuesday, May 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10197]
[[Page Unknown]]
[Federal Register: May 3, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 59
[FRL-4877-6]
Field Citation Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Clean Air Act, as amended (the Act), authorizes EPA to
implement a field citation program, as part of the Agency's recently-
granted authority for the administrative assessment of civil penalties.
The Act authorizes EPA to issue field citations for appropriate
minor violations, defined in todays proposal as those violations
determined to be minor in nature after consideration of various
specified factors. EPA also proposes a maximum penalty of $5,000 per
day for each violation cited, and a maximum cumulative penalty in the
range of $15,000 to $25,000 per citation.
Upon receipt of a field citation, a respondent must either pay the
proposed penalty or submit a request for a hearing. Hearing procedures
are also proposed in this document.
EPA expects to implement this program such that in the great
majority of cases the issuance of a field citation will lead to a quick
correction of a clear violation and a payment of the assessed penalty.
DATES: Comments: Comments must be received on or before July 5, 1994. A
public hearing will be held on June 8, 1994 from 1 p.m. to 4 p.m.
If a written request for a public hearing is received by the Agency
before June 2, 1994, the Agency will hold a hearing on June 8, 1994
from 1 p.m. until 4 p.m.
ADDRESSES: Written comments should be submitted in duplicate (if
possible) to: U.S. Environmental Protection Agency (6102), Attention:
Air Docket Number A-91-63, 401 M Street, SW., Washington, DC 20460.
Comments received on this proposed rule will be available for
inspection from 8 a.m. to 4 p.m., Monday through Friday, excluding
legal holidays, in Room M-1500, First Floor Waterside Mall, at 401 M
Street, SW., Washington, D.C. A reasonable fee may be charged by the
Agency for copying docket materials, pursuant to 40 CFR part 2. The
docket control number for the field citation rulemaking is A-91-63. All
written comments on this rule must be identified with this number
Public Hearing Information. If requested, a public hearing will be
held at the EPA Education Center Auditorium, which is located on the
northwest corner of the First Floor of Waterside Mall at 401 M Street,
SW., Washington, DC. Oral and written statements will be accepted
during the hearing. However, a person who wishes to make an oral
presentation must:
(i) Notify the Agency in writing, and
(ii) Bring a written copy of the complete comments for inclusion in
the official record.
Written requests to schedule or speak at a public hearing shall be
addressed to: Jane Engert, Field Citation Public Participation Officer,
Stationary Source Compliance Division (6306W), Office of Air and
Radiation, US EPA, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Jane Engert, Stationary Source
Compliance Division (6306W), Office of Air and Radiation, US EPA, 401 M
Street, SW., Washington, DC 20460, (703) 308-8677.
SUPPLEMENTARY INFORMATION:
I. Introduction
This preamble discusses the major issues raised by today's proposed
action, and EPA's justification for each proposed provision. Sections
II and III, which follow this introduction, contain a brief outline of
the proposals statutory authority and background. Section IV outlines
the major program considerations and the rationale for EPA's proposal
on each, while Section V presents a section-by-section analysis of the
proposed rule. The final section in this preamble, Section VI, outlines
specific regulatory impact analyses.
II. Statutory Authority
Today's rule is proposed under authority of sections 113(d) and
301(a) of the Act (42 U.S.C. 7413(d) and 7601(a)).
III. Background of Proposed Rule
Prior to the passage of the Clean Air Act Amendments of 1990,\1\
EPA enforced Clean Air Act provisions through civil or criminal
judicial enforcement actions and the issuance of administrative orders
for compliance.\2\ The 1990 Amendments expanded EPA's range of
enforcement tools by authorizing EPA to issue administrative penalty
orders (section 113(d)(1) of the Act) and to administratively assess
civil penalties through field citations issued for minor violations
(section 113(d)(3) of the Act). EPA expects that these new enforcement
options will enhance the Agency's ability to enforce the Act. Where
appropriate, EPA will be able to respond quickly to a violation by
issuing an administrative penalty order or a field citation, rather
than commencing a civil judicial enforcement action for penalties.
While civil and criminal judicial enforcement actions will remain an
important component of EPA's enforcement program, EPA's new
administrative authorities will enable it to effectively pursue a broad
range of violations without the expenditure of resources associated
with judicial action.
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\1\Pub. L. No. 101-549, 104 Stat. 2399 (1990)
\2\See CAA sections 113 (c)(1), (c)(2), and (b), prior to their
amendment in 1990.
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Section 113(d)(3) of the Act authorizes EPA to implement a field
citation program to enforce the Act through regulations which establish
appropriate minor violations for which field citations may be issued.
The Act requires that the Agency consult with the Attorney General and
the States, that the maximum civil penalty for a minor violation not
exceed $5,000 per day of violation, and that field citations be issued
only by EPA officers or employees designated by the Administrator.
Section 113(d)(3) of the Act also provides that any person to whom
a field citation is issued may elect either to pay the proposed penalty
or to request a hearing in accordance with procedures specified in the
regulations. It further provides that the penalty assessed in the field
citation becomes final if a request for a hearing is not made within
the time specified in the implementing regulations. The Act specifies
that hearings shall not be subject to the requirements of the
Administrative Procedure Act (APA), 5 U.S.C. 554 or 556, but shall
provide a reasonable opportunity to be heard and to present evidence.
The Act also specifies that payment of a field citation penalty
shall not be a defense to further enforcement by the United States or a
State to correct a violation, or to assess the statutory maximum
penalty pursuant to other authorities in the Act, if the violation
continues.
IV. Program Considerations
A. Appropriate Minor Violations for Issuance of Field Citations
EPA expects the field citation program to exhibit several important
characteristics. First, field citations should be issued for violations
that are clear cut and truly minor in nature. Second, field citations
should, in general, be issued shortly after a violation is discovered,
if not upon discovery. Third, the amount of the penalty assessed and
other aspects of the program should induce quick correction of the
violation and payment of the penalty. As required by section 113(d)(3),
EPA is proposing a definition of minor violation for which field
citations may be issued. This definition is designed to help implement
these goals.
EPA considered several regulatory options for establishing
appropriate minor violations as directed in the statute. One option was
inclusion in the rule of a comprehensive list of all possible
violations suitable for field citations. This approach would appear to
have several advantages. Explicitly listing each minor violation in the
rule would provide clear, objective criteria for the issuance of field
citations, thereby limiting inspector discretion. An inspector would
need only check the list of appropriate minor violations to determine
whether a field citation could be issued. This approach would appear to
both streamline the program and help to achieve national consistency in
its application.
A major problem with this option became clear, however, when
attempts were made to develop such a list of ``minor violations.''
Almost any violation might be considered significant or minor depending
on the circumstances. A regulatory list of all or nearly all possible
minor violations would therefore be too long to be of any real use, or
in the alternative, would exclude violations which, given the right
circumstances, would properly be considered minor.
In addition, it became clear that an exercise of discretion was
almost unavoidable in determining whether a violation was minor. This
was inherent in the view that the specific circumstances, along with
the kind of violation, were critical in determining whether or not it
was minor.
Thus, the option of listing all or nearly all minor violations in
the regulations would result in a list that was either too long or too
short to be of significant value. It would also not provide a mechanism
for channeling the exercise of discretion that appears inherent in the
decision on whether a violation is minor, and consequently would not
appear to foster national consistency.
A second option considered by EPA would define as minor those
violations limited to particular categories of regulatory requirements
(e.g., recordkeeping, reporting, labeling, monitoring, workpractice
standards, etc.). This option, however, exhibits the same basic
problems as the first option. Here again, violations within these broad
categories could be considered significant or minor depending on the
circumstances. This second approach still did not provide a method for
determining when a violation in one of the broad categories would be
considered minor.
Given the importance of the specific circumstances of a violation
in categorizing it as significant or minor, EPA considered and is today
proposing a third option. In todays proposal a minor violation would be
defined as one that is minor in nature, in light of a list of factors
that must be considered as a whole. This list contains such factors as
whether the violation is readily recognizable by an officer or employee
of EPA; the risk and degree of environmental harm resulting from the
violation; the time, effort, or expense required to correct the
violation; the frequency and duration of the violation; and the
importance of the violated requirement to the regulatory program. For
example, determinations that the violation is manifest; that it poses
little risk of environmental harm; that it has not been identified in a
previous enforcement action against the respondent; that it occurred
once or only for a short period of time; or that correcting it should
require little time, effort, or expense would be indicators of the
minor nature of a violation.
EPA recognizes that this list is not exhaustive of all factors that
may be relevant to whether a violation is minor in nature. Therefore,
the definition includes a provision for consideration of other
appropriate factors. However, the list is indicative of the types of
factors that EPA will consider in determining whether a violation is
minor.
While EPA considers these factors as relevant to determining
whether or not a violation is minor in nature, information may not be
available on all of these factors when decisions are made regarding the
propriety of issuing a field citation. If information is not available
for any of the factors noted in the proposed list of factors, then that
factor would be treated as neutral on the issue of whether a violation
is minor in nature. In addition, EPAs proposal calls for evaluating the
factors as a whole. Specific requirements are not proposed for each of
the factors individually, i.e., EPA has not proposed a specific time
requirement for ``duration of violation'' or a dollar amount for
``expense required to correct a violation.'' The specific circumstances
of the violation would be considered in light of all of these factors
taken as a whole.
A final factor has been added to the definition of minor violation
to make clear that EPA reserves all rights to determine the appropriate
enforcement response to a violation. A violation is not a minor
violation under the definition proposed today unless it is minor in
nature as described above, and unless the Agency, in its descretion,
decides to address it as a minor violation. This is to make it clear
that the field citation regulations proposed today do not provide a
basis for respondents to claim that an alleged violation is minor in
nature and therefore EPA's only available enforcement mechanism is
issuance of a field citation. Today's proposed regulations are not
intended to limit in any way EPA's ability to fully exercise its
enforcement discretion. The Agency reserves the right to determine
what, if any, enforcement approach is appropriate in a specific case.
EPA believes this is consistent with Congressional intent for the field
citation program, as section 113(d)(3) provides that ``[t]he
Administrator may implement * * * a field citation program through
regulations establishing appropriate minor violations for which field
citations * * * may be issued by officers or employees designated by
the Administrator.'' (emphasis supplied)
It is important to note that there are circumstances under which
EPA might conclude that a field citation is not the most appropriate
enforcement response. For example, if a person or source is the subject
of an ongoing EPA investigation or if a person or source has an
aggregation of many minor violations, each of which, if considered
individually, would be suitable for a field citation, EPA may
appropriately decide to address those violations through its section
113(d) administrative penalty authority or through its section 113(b)
civil judicial authority. A more detailed description of the process
for determining whether a violation is minor will be presented in the
guidance document to be developed for implementing this rule.
B. Maximum Penalty
Under section 113(d)(3), civil penalties assessed in a field
citation may not exceed ``$5,000 per day of violation.'' EPA proposes
to interpret this provision such that the maximum $5,000 penalty
applies for each day, for each separate violation cited in the field
citation. This interpretation is consistent with the statutory text and
structure of section 113, and is supported by its legislative history.
EPA's proposed interpretation of the phrase ``per day of
violation'' as used in section 113(d)(3) is quite reasonable, given
EPA's long history of interpreting an identical penalty provision in
this manner, the civil penalty provision of section 113(b) as it stood
prior to enactment of the 1990 amendments.\3\ That prior interpretation
has found support in several judicial decisions.\4\ By using the same
language as previously found in section 113(b), Congress clearly
authorized EPA to continue this interpretation for purposes of the new
field citation program.
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\3\Prior to revision in 1990, section 113(b) stated that ``[t]he
Administrator shall [for owners or operators of major stationary
sources], and may, in the case of any other person, commence a civil
action * * * to assess and recover a civil penalty of not more than
$25,000 per day of violation * * *''
\4\U.S. v. SCM Corp., 667 F. Supp. 110 (D. Md. 1987); United
States v. Chevron U.S.A., Inc., 639 F. Supp. 770 (W.D. Tex. 1985).
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This interpretation is also consistent with Congress' apparent
objectives for the field citation program as indicated by various
provisions in section 113 relating to field citations. Congress limited
the field citation program to ``appropriate minor violations,''
established a maximum penalty amount of ``$5,000 per day of
violation,'' provided a right to a non-APA hearing, and required that
penalties in this program be assessed after consideration of the
penalty assessment criteria of section 113(e). These provisions
indicate that Congress wanted to provide EPA with a flexible
enforcement tool that would focus on the less significant, presumably
simpler and less complex violations, with assessment of significantly
lower penalties than expected through two other civil penalty
provisions of section 113, administrative penalty orders (section
113(d)(1)) and judicial civil penalty actions (section 113(b)).
EPA's proposed interpretation of the maximum penalty amount for the
field citation program, $5,000 per day for each violation, will lead to
significantly lower penalty assessments in comparison to these other
two programs, primarily because of the large reduction in the maximum
penalty from $25,000 to $5,000, the minor nature of the violations, and
the penalty assessment criteria in section 113(e). Interpreting ``per
day of violation'' to mean per day for each violation allows EPA to
fairly and flexibly implement a field citation program in a manner
consistent with Congress' apparent objectives for this program. While a
more restrictive interpretation, such as $5,000 per day of violation no
matter how many different violations on a specific day, might lead to
even lower penalty assessments in certain cases, Congress' apparent
objectives for the field citation program can be met without adopting
this approach. In fact, a more restrictive interpretation might hinder
implementation of these goals.
First, an interpretation that ``per day of violation'' in section
113(d)(3) imposes a maximum penalty of $5,000 not withstanding the
number of violations in a day would in certain cases minimize if not
remove the Agency's ability to fully account for important differences
between violators when assessing penalties under this program. Two
violators with different numbers of minor violations on the same day
would both face the same maximum penalty, possibly removing EPA's
ability to reflect this difference in the amount of penalty imposed.
This would appear to run counter to the requirement in section 113(e)
that EPA consider such differences when assessing penalties under
section 113(d)(3). Second, in that situation there would be an
incentive for EPA to issue an administrative penalty order in lieu of a
field citation, to avoid the apparent unfairness resulting from the
limitation in discretion embodied in the more restrictive
interpretation.
It is unlikely that Congress intended either of these results, and
EPA's proposed interpretation avoids them without in any way
sacrificing full implementation of Congress' goals for this program.
The Agency will be able to fully consider all the factors required
under section 113(e), including the number of violations, and the field
citation program will still involve significantly lower penalty amounts
than the other civil penalty programs in section 113.
EPA's interpretation is supported by the legislative history in
section 113(d)(3). The field citation provisions finally adopted by
Congress originated in the House of Representatives. While an early
version of the provision called for a maximum penalty of ``$5,000 per
day for each violation,'' this was changed without explanation to a
maximum penalty of ``5,000 per day of violation.''\5\ While the House
Committee Report fails to explain this change in language, it is
important to note that the phrase ``per day of violation'' had long
been interpreted by the Agency as establishing a maximum civil penalty
for each day, for each separate violation. Various judicial decisions
were consistent with this interpretation.\6\ Congress' adoption of
language with a long-standing Agency interpretation is strong evidence
that despite the difference in language between section 113(a) and
section 113(d)(3), Congress did not preclude EPA's proposed
interpretation but instead authorized the Agency to adopt the same
interpretation for the field citation program that EPA had long
employed for the maximum penalty provision found in the pre-1990
version of section 113(a).
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\5\As originally introduced, the field citation program
contained a limit of $5,000 ``per day for each violation.'' H.R.
3030, 101st Cong., 1st Sess. 283 (1989). A similar provision was
employed for civil judicial penalties under Sec. 113(b) and the new
authority for administrative penalty orders under Sec. 113(d)(1).
The Subcommittee on Health and the Environment of the Committee on
Energy and Commerce retained this provision for judicially imposed
civil penalties, but for the field citations program limited field
citations to $5,000 ``per day of violation,'' adopting language from
the judicial civil penalty provision in the then current Clean Air
Act. House Subcommittee on Health and the Environment, 101st Cong.,
1st Sess. Amendment in the Nature of a Substitute of H.R. 3030 at
309 (Comm. Print, November 9, 1989). This version of the field
citation penalty provision was later reported out by the Committee,
adopted by the House and finally included in the Clean Air Act
Amendments of 1990. Pub. L. No. 101-549, 104 Stat. 2399 (1990).
\6\Supra n. 2.
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The legislative history in the Senate also makes it clear that
Congress intended to authorize EPA's proposed interpretation. In the
Senate, the bill reported out by the Senate Committee on Environment
and Public Works authorized a field citation program with a maximum
civil penalty of ``$5,000 per day for each violation.''\7\ The bill
passed by the Senate contained a very different provision, establishing
a $5,000 maximum ``per inspection.''\8\ In conference, the Senate's
clear mandate for a maximum dollar amount, no matter the number of
violations, was rejected in favor of the version passed by the House.
This indicates that Congress did not intend to mandate a similar
interpretation for the field citation program.
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\7\S. Rep. No. 101-228, 101st Cong., 1st Sess. 550 (1989).
\8\S. 1630, 101st Cong., 2d Sess. (1990).
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Finally, EPA's interpretation is supported by the legislative
history of title II's enforcement provisions. As reported out of the
Senate Committee on Environment and Public Works, sections 211(d)(1)
and 205(c) of the Act authorized administrative assessment of civil
penalties of no more than ``$25,000 per day of violation.''\9\ In
describing this authority, the Committee Report states that ``[t]his
section of the bill changes the section 211(d) penalty amount * * * to
a maximum penalty of $25,000 per day of violation. This penalty amount
applies to each day for each violation.'' (emphasis supplied)\10\ This
shows that when Congress used the term ``per day of violation'' in
amending section 113 it had no intention of barring an EPA
interpretation that such term meant ``per day for each violation.''
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\9\S. Rep. No. 101-228, 101st Cong., 1st Sess. 636 (1989).
\10\S. Rep. No. 101-228, 101st Cong., 1st Sess. 126 (1989).
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On a separate issue, EPA considered several different ways to
structure the field citation program so that as clear a line as
possible would be drawn indicating when it was appropriate to issue a
field citation, and when one of the other civil penalty authorities
would be more appropriate. This is important, among other things, given
the decentralized nature of this program and the authority to issue
citations in the field. One option considered was issuance of internal
Agency guidance on this point. As discussed in section D of this
notice, EPA does intend to issue guidance on a wide variety of matters
related to this program, and an important component of this will
include guidance on when to issue a citation and when to employ other
enforcement tools open to the Agency.
EPA also considered and is proposing establishing a maximum
cumulative dollar amount that may be assessed in an individual
citation. This would have the advantage of providing an objective
indication in the regulations themselves that a more serious compliance
problem exists and other, more stringent enforcement mechanisms would
generally be more appropriate. This maximum penalty amount could be
reached by, for example, a combination of many violations (whether
occurring on the same or separate days), with low amounts per
violation, or a smaller number of violations combined with larger
penalty amounts per violation. Either of these circumstances would
serve to indicate that a stronger enforcement approach may well be
appropriate. While such a cap could be included in internal Agency
guidance, a regulatory cap will provide greater structure for this
program, at least initially.
As a variation on the above, EPA considered establishing a maximum
number of violations that could be included in an individual citation.
This option, however, might preclude issuance of a field citation where
the number of violations exceeded the maximum, even if the violations
were all very minor and would receive a low penalty assessment. For
this reason EPA is not currently proposing this form of a cap.
EPA is proposing that the maximum cumulative penalty in an
individual citation not exceed a dollar amount in the range of $15,000
to $25,000. EPA invites comment on this range, and whether such a
dollar cap should be in the regulations or in Agency guidance. EPA is
also considering and invites comment on whether the penalty cap should
``sunset'' after a pre-set time period, ranging from one or two years
to a longer period. Before the cap expired of its own terms, EPA would
reevaluate whether it should continue, and if appropriate, would revise
the regulations to extend the cap or some more useful version thereof.
C. Penalty Assessment Policy
The regulations proposed today define minor violation, establish
the maximum penalty amount per violation, and address matters
concerning hearings to contest assessment of a civil penalty through a
field citation. EPA plans to develop detailed guidance that will
address many of the other issues concerning implementation of the field
citation program. The following section discusses important aspects of
EPA's planned guidance on the penalty amounts to be assessed by field
citations.
Penalty assessment under the field citation program will be
designed to achieve expeditious compliance with the applicable Clean
Air Act requirements. Although only minor violations of the Act will be
subject to the program, the penalties must be significant enough to
deter violations and to ensure a high rate of compliance. On the other
hand, penalties will generally be significantly lower than amounts that
could be assessed through other enforcement means. EPA plans to
incorporate these objectives into a field citation penalty assessment
policy, which will become a component of the Agency's Clean Air Act
civil penalty assessment policy.
The penalty assessment guidance will explain how the Agency intends
to evaluate the penalty assessment criteria in section 113(e) of the
Act when determining penalty amounts. The Agency is considering
assigning standardized penalty amounts to specific categories of
violations. These standard amounts might then be modified by means of a
penalty matrix, which would take into account such factors as the
seriousness of the violation; the degree of environmental harm; or
other appropriate criteria.
EPA expects that its penalty assessment guidance will limit the
discretion of inspectors and others in setting penalty amounts. For
example, any matrix approach as described above would constrain the
person issuing the field citation to operate within the limits of the
matrix. In addition, EPA expects the guidance will establish that where
the amount of a penalty would be based on specific characteristics of
the violation and the person issuing the citation has not obtained
evidence relating to one of the characteristics, then that
characteristic would be treated as neutral for purposes of penalty
assessment.
D. Program Implementation
In addition to guidance on the penalty amounts assessed through the
field citation program, EPA plans to issue guidance addressing a wide
variety of other implementation issues. This guidance would be
carefully designed to spell out and restrict the day-to-day practice
under this program. EPA believes this approach will facilitate
achievement of the goals for this program, and still provide the
flexibility necessary for an enforcement program designed to address a
wide variety of factual circumstances. This section describes EPA's
current ideas on certain elements of this program guidance.
Field citations may be issued either in the field or from an EPA
office. Violations of reporting requirements, for example, will
typically involve desk issuance since discovery of these violations
normally occurs not in the field, but in an office designated to
receive such reports. Even where a violation is discovered in the
field, an inspector may elect to return to the office for further
review or discussion with management prior to issuing a field citation.
In order to promote consistency, inspectors will be encouraged to
return to the office for clarification whenever there is any doubt
regarding the nature of a violation or the appropriate penalty amount.
During the initial phase of program implementation, the Agency
anticipates that most field citations will be issued from an EPA
office, based on field inspections. After a suitable period of
experience with the program, it is expected that the majority of
inspection-based citations will be issued on-site. The Agency will then
establish guidelines for particular situations in which office-only
issuance would still be recommended, e.g., based on penalties exceeding
a specified dollar amount, or for other relevant considerations.
Although State and local employees may not issue federal field
citations pursuant to this regulation, EPA employees may rely on
information gathered during State and local inspections as a basis for
issuing field citations.
Following discovery of a minor violation and issuance of a field
citation, the respondent will have thirty days in which to either pay
the assessed penalty or to request a hearing. EPA reserves the right to
revoke a field citation, in whole or in part, at any time prior to
payment of the assessed penalty.
EPA believes this authority is a necessary safeguard in this
program. It will allow a reevaluation, before the process has gone very
far, of whether a citation should have been issued. For example, this
could involve a reevaluation of whether a filed citation is the most
appropriate enforcement tool, or could involve the early resolution of
a citation issued in error.
As noted above, EPA will prepare detailed guidance for the
implementation of the field citation program. The guidance will cover
such broad areas as coordination of inspections with State and local
agencies, desk issuance as opposed to field issuance, determination of
whether a violation is minor, and calculation of penalty amounts. The
guidance will also cover such issues as how to revoke a field citation,
and how field citations will be recorded and tracked. Finally, the
guidance will include procedures for determining appropriate penalty
amounts, and an actual sample of the design and format of the field
citation.
E. Field Citations as Distinguished From Other Enforcement Authorities
Under section 113(b) of the Act, the Agency is authorized to
commence civil judicial enforcement actions against certain violators
to assess and recover civil penalties of up to $25,000 per day for each
violation, and/or to seek temporary or permanent injunctions. Civil
actions under section 113(b) are most advantageous when:
(1) A compliance schedule or other injunctive relief is necessary
and an administrative compliance order under section 113(a) is either
unavailable or inappropriate;
(2) The violator's compliance history indicates that the compliance
schedule should be subject to court supervision and contempt remedies;
or
(3) Substantial civil penalties are appropriate.
In 1990, Congress amended section 113 of the Act, providing new
authority for the Administrator to issue administrative penalty orders
under section 113(d)(1). These administrative penalty orders, which may
assess civil penalties of up to $25,000 per day of violation, may be
issued where:
(1) The total penalty sought does not exceed $200,000; and
(2) The first alleged date of violation occurred no more than
twelve months prior to initiation of the administrative action. The
Administrator and the Attorney General may, however, jointly determine
that an administrative penalty action is appropriate for either a
larger penalty or a longer period of violation.
Administrative penalties under section 113(d)(1) are most
advantageous where:
(1) The violator does not have a compliance history of multiple or
repeat violations; and
(2) Court-supervised injunctive relief is not appropriate.
Additionally, civil judicial action is preferred over administrative
action where extensive post-filing discovery will be necessary to fully
develop the circumstances associated with one or more violations, and
where new legal issues are presented by a case.
The field citation program under section 113(d)(3) is another new
enforcement authority provided by the November 15, 1990 Amendments. As
indicated elsewhere in this preamble, the field citation program
involves the issuance of citations that assess civil penalties, not
exceeding $5,000 per day of violation, for minor violations of the Act.
The focus of the field citation program will be to ensure
compliance with regulatory requirements that often remain unaddressed
due to limited Agency resources. The opportunity for streamlined,
expedited enforcement to address minor violations should save Agency
resources, reduce court backlogs, and send a clear enforcement message
to violators that minor violations will not be overlooked.
F. Role of Inspectors
1. Issuance by Officers/Employees
Under the Act, field citations ``may be issued by officers or
employees designated by the Administrator.'' It is the Agency's
position that section 113(d)(3) does not authorize delegation of
section 113 field citation authority to State and local officials. The
legislative history supports this interpretation.\11\ Comments on the
Agency's position, including any alternative legal analyses or
interpretations of the statute, are invited.
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\11\``The citations are to be issued by Federal officers or
employees designated by EPA.'' H.R. Rep. No. 101-490, 101st Cong.,
2d Sess. 393 (1990).
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2. Training and Guidance for Inspectors and Enforcement Officers
The success of the field citation program will depend on well-
trained inspectors and enforcement officers, skilled at both
recognizing minor violations and determining appropriate penalty
amounts. Before implementing this program, EPA will offer a number of
Regional inspector training sessions to ensure that inspectors and
enforcement personnel are completely familiar with the program and
understand the limits of its applicability. In particular, employees
will be trained to identify minor violations based on the criteria set
forth in this regulation. They will also be trained to identify
circumstances in which particular violations might indicate a more
serious compliance problem that should be handled through a more
stringent enforcement action.
In addition to training, inspectors and enforcement officers will
be given a detailed guidance document containing recommended penalty
ranges associated with specific categories of violations. In this way,
inspectors will have a ready reference if they are unsure about a
particular violation. Moreover, the establishment of appropriate
penalty amounts in guidance will help to ensure national consistency.
Whenever there are doubts regarding how to characterize a suspected
violation, inspectors will be directed to return to the office for
further evaluation and consultation.
G. Rules Governing Hearings on Field Citations
In addition to authorizing EPA to implement a field citation
program, section 113(d)(3) of the Act addresses certain basic
procedural issues involving hearings on field citations. First, it
provides that any person to whom a civil penalty is assessed through a
field citation may elect either to pay the civil penalty or to request
a hearing on the field citation. Any request for a hearing must be
within the time period prescribed by the Administrator through
regulation, and if a hearing is not requested within such time then the
penalty assessment in the field citation becomes final. Second, this
section explicitly provides that the hearing on a field citation shall
not be subject to the Administrative Procedure Act (APA) provisions on
formal adjudications (5 U.S.C. 554 or 556), but shall provide a
reasonable opportunity to be heard and to present evidence.
EPA is proposing three distinct alternatives to implement these
statutory provisions and establish fair and reasonable procedures to
govern hearings on field citations. These alternatives are: (1) EPA's
consolidated, APA penalty assessment procedures under 40 CFR part 22,
with appropriate revisions; (2) EPA's proposed consolidated, non-APA
penalty assessment procedures under 40 CFR part 28, with appropriate
revisions; and (3) new streamlined administrative procedures contained
in today's proposal. The following section discusses and evaluates each
of these alternatives. The Agency requests comment on the propriety of
each of these penalty assessment procedures.
Procedures for the assessment of field citation penalties must
reasonably implement the requirements of section 113(d)(3), including
providing a reasonable opportunity to be heard and to present evidence,
and must also satisfy procedural due process considerations under the
Constitution. Determining compliance with both of these requirements
requires a close comparison between the proposed procedures, the
factual and legal situations that are expected to arise under this
program, and the interests at issue, both private and governmental.
Congress specifically limited field citations to minor violations,
as defined by the Agency. While EPA's proposed definition of minor
violation does not specify each and every violation that might be
considered minor, it does set clear limits on the kinds of violations
that will be considered minor violations. The many different kinds of
violations that may meet the definition of minor violation will exhibit
common features. For example, the typical minor violation will involve
a clear and straightforward violation, both factually and legally, of
limited frequency or duration and limited environmental impact. The
factual and legal issues that EPA expects to arise in field citation
assessments are, overall, expected to be simple and uncomplicated.
The basic private interest at stake is the assessment of civil
penalties of up to a maximum of $5,000 per day for each violation, as
well as the resources needed to contest such assessments where
considered appropriate. The maximum penalty is significantly lower than
the maximum administrative or judicial civil penalties authorized under
sections 113, 205 and 211 of the Act. The primary governmental interest
is implementation of a program that fairly fills a gap in EPA's
enforcement programs, without undue drain on EPA's limited enforcement
resources. EPA believes this interest is best served by addressing
minor violations in a straightforward and direct manner, somewhat akin
to a traffic enforcement program. The deterrence effect from this
program will come in large part from the issuance of a citation
immediately upon or shortly after detection of a violation, with final
assessment of the penalty occurring shortly after issuance of the
citation.
EPA has considered these and other factors in evaluating the three
options proposed today for hearing procedures, and believes all three
fully implement Congressional intent and satisfy due process
requirements. The three options draw different balances between
complexity and simplicity, formality and informality, but are all
designed to implement a program aimed at simple and uncomplicated
violations, involving penalties significantly lower than others
authorized in the Act, and requiring straightforward, quick and fair
adjudication to obtain the desired deterrent effect without undue drain
on limited Agency resources.
1. Modified 40 CFR Part 22--Consolidated Rules of Practice Governing
the Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Under the first Agency proposal, administrative hearings on field
citations would be conducted pursuant to the procedures established by
EPAs consolidated APA rules of practice for the administrative
assessment of civil penalties, 40 CFR part 22. In a separate
rulemaking, the Agency would propose to amend part 22, where
appropriate, to make that regulation applicable to field citations.
Basis for Hearing Procedures
Although the Act explicitly indicates that hearings in field
citation cases are not subject to the provisions for formal APA
adjudication, it does not prohibit the Agency from exercising its
discretion and providing such procedural rights. There are two primary
benefits in using part 22 to govern hearings on field citations: (1) It
would consolidate Clean Air Act administrative penalty hearings under
one set of procedural rules, minimizing the need for the Agency and the
regulated community to learn and become proficient in more than one set
of procedures; and (2) it would use a penalty assessment procedure with
which both the Agency and the regulated community have a great deal of
experience.
The Act as amended in 1990 authorizes the Administrator to issue
administrative penalty orders under section 113(d)(1). These
administrative penalty orders, which may assess civil penalties of up
to $25,000 per day of violation, are generally limited to situations
where the total penalty sought does not exceed $200,000 and where the
first alleged date of violation occurred no more than twelve months
prior to initiation of the administrative action. Similar authority was
provided under sections 205(c) and 211(d)(1) of the Act.
The penalties contained in administrative penalty orders issued
under section 113(d)(1) are assessed pursuant to the part 22
procedures, as are administrative penalties assessed under sections
205(c) and 211(d)(1). Part 22 was amended to incorporate these
provisions on February 4, 1992 (57 FR 4318). Thus, using part 22 to
govern hearings on field citations issued under section 113(d)(3) would
consolidate all of the Clean Air Act administrative penalty hearings
under one set of procedures.
Additionally, the Agency has used part 22 for assessing
administrative penalties under other environmental statutes since 1980.
Consequently, both the regulated community and the Agency have
considerable experience with these procedures, thereby simplifying the
implementation of the field citation program. As discussed later, minor
revisions to part 22 procedures would be adopted to account for certain
statutory provisions in section 113(d)(3) and to account for the types
of violations and penalties associated with field citations.
Proposed Hearing Procedures
Under part 22, the field citation would be issued by an EPA officer
or employee as an administrative complaint. Within twenty days after
service of the citation, the Respondent must file an answer. In the
answer, the Respondent may contest the facts in the complaint, the size
of the penalty, or claim that the Respondent is entitled to judgment as
a matter of law. If requested by the Respondent, a hearing will be held
on the issues raised in the citation and answer. The Presiding Officer
has the discretion to allow the Respondent to amend his answer. A
default order, which allows the full proposed penalty to be collected,
may be issued upon motion if the Respondent fails to file an answer.
The Respondent may simultaneously pursue informal settlement and a
hearing. During settlement negotiations, the parties may informally
exchange information, if appropriate. For example, the Agency may
supply copies of the documentation used to support its case and the
Respondent might provide any evidence that would tend to disprove the
allegations or to mitigate the penalty. A written Consent Agreement and
a proposed Consent Order are submitted for approval by the Regional
Administrator, if the parties reach a settlement of the claim.
Either party may file a preliminary motion for an accelerated
decision if no genuine issues of material fact exist. The Respondent
may file a motion for dismissal of the citation.
A mandatory prehearing conference is held to simplify issues; to
limit the number of potential witnesses; and to address other matters
that may expedite the hearing. An exchange of witness lists and
documents occurs at the prehearing conference.
The hearing is held for the presentation of evidence and testimony
concerning the facts relating to the violation and to the size of the
penalty. Except as otherwise provided by the Presiding Officer,
witnesses are to be examined orally, under oath or affirmation, at the
hearing. The parties have the right to cross-examine witnesses who
testify at the hearing. The Presiding Officer may take notice of any
matter judicially noticed in the Federal courts and of any facts
falling within the specialized knowledge and expertise of the Agency.
At the hearing, the Agency has the burden of going forward and
proving that the violation occurred and that the proposed penalty is
appropriate. After a prima facie case is established, the Respondent
has the burden of presenting and going forward with any defense to the
allegations in the citation. The matters in controversy are determined
by the Presiding Officer upon a preponderance of evidence.
The hearing must be transcribed. Within twenty days after the
transcript is available, the parties may submit proposed findings of
fact and conclusions of law with supporting briefs. Reply briefs are
also authorized.
The Presiding Officer issues the initial decision, which consists
of findings of fact, conclusions of law, and recommended civil penalty.
In reaching an initial decision, the Presiding Officer is required to
consider the statutory penalty assessment criteria listed in section
113(e), section 205(c) or section 211(d) of the Act, as appropriate.
For section 113(e), these criteria include: The size of the business;
the economic impact of the penalty on the business; the Respondent's
full compliance history; the Respondent's good faith efforts to comply;
the duration of the violation as established by any credible evidence;
payment by the Respondent of penalties previously assessed for the same
violation; the economic benefit of noncompliance; the seriousness of
the violation; and such other factors as justice may require.
If the Presiding Officer recommends a penalty different from the
one proposed by the citation, the initial decision must set forth the
specific reasons for the increase or decrease. Either party may file a
motion to reopen the hearing within twenty (20) days of service of the
initial decision.
Unless a party appeals to the Environmental Appeals Board (the
Board) within twenty (20) days of service, or unless the Board elects
to review it sua sponte, the Presiding Officer's initial decision
becomes a final order of the Board within forty-five (45) days after
service. A final order of the Board shall adopt, modify or set aside
the findings and conclusions of the initial decision. The Board is
authorized to increase or decrease the assessed penalty, except in the
case of a default order. A motion for reconsideration of the final
order may be filed with the Board within ten (10) days after service of
the final order.
Procedural Due Process
EPA analyzed the issue of procedural due process with its
consolidated APA rules of practice when they were promulgated. See 52
FR 2922 (August 6, 1987) (NPRM) and 57 FR 4316 (February 4, 1992)
(FRM). In that analysis EPA evaluated and balanced the three factors
specified by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319
(1976) for determining whether the administrative procedure provided to
an individual prior to the deprivation of a property interest meets the
due process requirements of the Fifth Amendment: the magnitude and
nature of the individual interest at stake, the risk of an erroneous
deprivation of that interest and the benefit of additional procedures
in reducing that risk, and the governmental interest in not providing
such additional procedures.
EPA's APA style hearing procedures would certainly satisfy
procedural due process considerations as well as statutory requirements
if employed for hearings on field citations. By statute APA
adjudication procedures are not required. The violations are by
definition minor in nature and should involve simple and
straightforward factual and legal situations. In fact, EPA believes
these procedures provide significantly more process than required by
the Fifth Amendment for hearings on field citations, and are proposed
as an option not because of due process considerations but because of
the expected benefits of having a single set of procedures governing
all administrative penalty proceedings under the Clean Air Act.
EPA is also considering certain revisions to the Part 22 procedures
to account for the minor nature of the violations at issue under the
field citation program. First, EPA is considering using presiding
officers that are not administrative law judges. As with other non-APA
situations, the agency's presiding officers would conduct the hearings
and take other actions. This would help to conserve the agency's
administrative law judge resources for APA hearings, with no expected
reduction in the accuracy of the hearing process. The Agency is also
considering such revisions as making the prehearing conference optional
and changing the deadline for default from twenty to thirty days
following service.
In addition, EPA is considering limiting appeals from the presiding
officer to the EAB. Appeals from the initial decision on a field
citation would not be of right, but would be at the discretion of the
EAB. For example, a party seeking an appeal from the initial decision
would file a motion with the EAB seeking leave to appeal. There would
only be an appeal to the EAB if they granted such motion, or reviewed
the initial decision sua sponte. Absent such review by the EAB, the
initial decision of the presiding officer would become the final order
of the Agency. EPA expects that in the typical situation the EAB would
not hear an appeal from either party given the expected nature of the
minor violations. Appeals typically would be limited to cases with
unique factual or legal circumstances. This would conserve the Agency's
resources for hearing and deciding administrative appeals, and allow
their use for APA cases and more complex cases. At the same time, where
appropriate the EAB could hear an appeal. This would minimize the
chance of an erroneous deprivation of an individual interest, and at
the same time maximize the efficient use of scarce Agency resources.
2. Modified 40 CFR Part 28--Consolidated Rules of Practice Governing
the Administrative Assessment of Civil Penalties Under Various Statutes
Under the second option considered and proposed by the Agency, the
hearings on field citations would be conducted pursuant to the
procedures in EPAs proposed non-APA, consolidated rules of practice for
the administrative assessment of penalties, with appropriate revisions
to conform with the Clean Air Act. (See proposed 40 CFR part 28, 56 FR
29996 (July 1, 1991)). In a separate rulemaking, the Agency would
propose to amend Part 28, where appropriate, to make that regulation
applicable to field citations.
Basis for Hearing Procedures
The rules of procedure proposed as 40 CFR Part 28 are intended to
consolidate under uniform rules of practice the following non-APA
administrative penalty programs that are currently administered by the
Agency: Class I administrative penalties under sections 309(g) and
311(b)(6) of the Clean Water Act, section 109(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), and section 325(b) of the Emergency Planning and Community
Right-toKnow Act (EPCRA); and administrative penalties under section
1423(c) of the Safe Drinking Water Act and sections 325 (c) and (d) of
EPCRA.
Part 28 was proposed to consolidate and harmonize certain EPA
procedural rules and guidance for the administrative assessment of
civil penalties under various statutes, where Congress gave EPA
authority to conduct non-APA hearings. In line with this Congressional
intent, proposed part 28 is designed to provide streamlined
administrative penalty procedures that are designed to assure the
protection of basic constitutional rights. Section 113(d)(3) of the Act
explicitly states that hearings on field citations are not subject to
the APA provisions for hearings (5 U.S.C. 554), and that recipients of
a field citation must be provided a reasonable opportunity to be heard
and to present evidence.
The basic hearing requirements of the field citation program are
therefore similar in structure to those programs proposed for inclusion
under 40 CFR part 28.
Inclusion of hearings on CAA field citations in part 28 would be
consistent with the goals stated by EPA when it proposed these
consolidated rules for non-APA hearing procedures under various
statutes--reduction of confusion by Agency decision makers and
enforcement staffs, provision for the regulated community of an
essentially uniform set of procedural rules, and conformity with
Congress' and EPA's desire to employ expedited penalty assessment
procedures. At the same time, the proposed part 28 procedures are
designed to provide non-APA hearing procedures under a wide range of
statutory provisions, involving civil penalties ranging from $5,000 for
each day of violation to $25,000 per violation. This contrasts with the
field citation program, involving no more than $5,000 per day of
violation for minor violations of the Act or its implementing
regulations. In addition, adoption of part 28 procedures for the field
citation program would also involve two separate procedures for
administrative assessment of civil penalties under the CAA, parts 28
and 22. Adding the field citation program to part 28, however, would
promote a greater potential for non-APA multimedia enforcement actions
by providing a common administrative forum. As with the part 22 option,
the currently proposed part 28 procedures would be modified in certain
ways to account for certain aspects of the field citation program.
These are discussed later.
Proposed Hearing Procedures
Under the modified part 28, the field citation would be issued as
an administrative complaint. Unlike proposed part 28, however, the
field citation complaints would not require certification by an Agency
attorney. Within thirty days after service of the citation, the
Respondent must file a response requesting a hearing. A 90-day
extension of time to respond may be granted by the complainant.
As in part 22 practice, the Respondent may simultaneously pursue
informal settlement and a hearing. During settlement negotiations, the
parties may informally exchange information, if appropriate. For
example, the Agency may supply copies of the documentation used to
support its case and the Respondent might provide any evidence that
would tend to disprove the allegations or to mitigate the requested
penalty.
EPA's experience has been that the great majority of its
administrative penalty actions conclude by a settlement. Part 28
explicitly provides settlement procedures and, unlike part 22, would
allow field citation cases to settle by the simple agreement of the
parties in a consent order or, if the Respondent chooses, by the
Respondent's payment of the amount requested by the Agency in the field
citation itself (or in any superseding pleading). Under part 28, a
settlement may be reached at any time, even before the deadline for a
response has passed. In cases of settlement, there is no further
administrative review, and the Respondent waives its rights to appeal
the administrative penalty to the appropriate federal court. Pursuant
to the language of the CAA, consent orders under the Part 28 field
citation program would allow for the compromise, modification, or
remission by the Agency, with or without conditions, of any penalty
requested in the administrative complaint.
Part 28 would be revised such that failure of the Respondent to
affirmatively request a hearing in the response would lead to
assessment of the penalty proposed in the field citation. Under section
113(d)(3) of the Act, the penalty assessed by the field citation
becomes final if the Respondent fails to request a hearing within the
time required by the implementing regulation. Part 28 would also be
revised to require Agency counsel to file a written explanation for the
penalty imposed by the field citation no later than five days following
a Respondent's default by failure to request a hearing. This would
ensure an adequate administrative record for the penalty imposed.
Upon the request of a party, or on his own initiative, the
Presiding Officer may make a summary adjudication of the allegations,
without further proceedings, whenever he finds that there are no
material facts in dispute and that a party is entitled to judgment as a
matter of law. In the same manner, the Presiding Officer may accelerate
the transmittal of his recommended decision to the Regional
Administrator if there is no compelling need for additional fact-
finding on remedy issues.
Either party may request a summary determination or an accelerated
recommended decision at any time after service of the response, up
until thirty days before the time set for a hearing. Alternatively, the
Presiding Officer may summarily determine any of the allegations after
the time for the exchange of information has run, and after he has
examined the entire administrative record. The Presiding Officer may
accelerate the transmittal of the recommended decision, upon finding
liability in a summary determination or upon stipulation as to
liability by the parties, if there is no need for further fact-finding
as to remedy.
In reaching a recommended decision, the Presiding Officer is
required to consider the statutory penalty assessment criteria listed
in section 113(e) of the Act. These criteria include the size of the
business; the economic impact of the penalty on the business; the
Respondent's full compliance history; the Respondent's good faith
efforts to comply; the duration of the violation as established by any
credible evidence; payment by the Respondent of penalties previously
assessed for the same violation; the economic benefit of noncompliance;
the seriousness of the violation; and such other factors as justice may
require. The Respondent is afforded the opportunity to provide evidence
of the relevant statutory criteria, including evidence concerning the
duration of the violation. Part 28 would be revised to incorporate
these statutory penalty assessment criteria.
Other than by a motion for summary determination or by a motion for
an accelerated recommended decision, a field citation may be settled
preliminarily by a consent order. The consent order includes a penalty
settlement which has the force and effect of a final order issued by
the Regional Administrator, except that the consent order is not
appealable. Part 28 would be revised to provide that, consistent with
the authority under section 113(d)(2)(B), the consent order may be
issued with or without conditions.
Part 28 establishes deadlines to ensure that administrative cases
do not languish.
Not later than thirty days following the Respondent's response, the
Presiding Officer is required to hold a prehearing conference at which
the parties meet to consider matters which may expedite the disposition
of the proceedings. The Presiding Officer also sets the time and place
for further proceedings and schedules an information exchange during
the prehearing conference, if one is requested.
The authority to require discovery is limited to exchange of
certain information. The required information that may be exchanged is
limited to: (1) Documents intended to be introduced at the proceedings
under Part 28 that have not already been filed with the Hearing Clerk;
(2) witness lists, qualifications of expert witnesses and the subject
matter of intended witness testimony; and (3) information known to the
Respondent relating to the Respondent's inability to pay a civil
penalty or relating to any economic advantage accruing to the
Respondent as a result of his alleged violations of law. Part 28 would
be revised to expand this last category, by allowing the Agency to
include the Respondent's good faith efforts to comply with the
applicable Clean Air Act requirements. Other forms of discovery,
including interrogatories and the taking of depositions, are not
permitted unless stipulated to by the parties.
Except for supplemental materials, the information exchange must
conclude no later than sixty days following the prehearing conference.
Since new information concerning witnesses or documents may develop
after an information response deadline passes, the parties may
supplement the original information, but not later than seven days
prior to the hearing.
In order to provide the parties with incentives to cooperate during
the discovery phase, there are both mandatory and discretionary
sanctions for failure to comply with the information exchange
requirements. For example, if a party fails to timely provide the name
and all supporting information regarding any witness it intends to
present at a hearing, such witness may not be presented. Similarly, if
a party fails to timely produce a document it intends to introduce at
such a hearing, that document may not be introduced to prove the truth
of what it asserts. Part 28 would be revised to provide that if the
Respondent fails to timely provide information regarding its good faith
efforts to comply with the Act, then that information may not be used
by the Respondent at the hearing. The Presiding Officer may also impose
additional appropriate sanctions on a party that fails to fully comply
with these requirements.
In conducting the hearing, the Presiding Officer may limit the
number of witnesses and the scope and extent of both the direct
examination and cross-examination. Cross-examination is limited to the
scope of the direct examination. The Presiding Officer may take
testimony in the form that is the most efficient under the
circumstances. No matter what form of testimony is permitted, however,
the Presiding Officer will make adequate provision to ensure that each
party retains its right of cross-examination if the witness is
available to testify or is subject to a subpoena.
The hearing is generally limited to resolving disputed allegations
as to liability. Remedy issues are generally addressed in the parties'
closing arguments, unless there is a compelling need for remedy
testimony. Such need could arise where the underlying facts which are
material to the statutory penalty assessment factors are disputed.
As is typical in administrative proceedings, strict adherence to
the Federal Rules of Evidence is not required under part 28. Testimony
or documentation that is ``relevant, material or of significant
probative value'', including hearsay, is admissible, as long as the
witness presenting the information is subject to cross-examination by
any opposing party. The Presiding Officer has the discretion to take
official notice of certain facts, exclusive either of facts relating to
settlement or relating to a person's challenge to a final State or
Agency action.
The proposed part 28 rules contemplate that each party will have an
opportunity to make an opening statement (with the Agency making its
opening statement first); that the Agency will put on its prima facie
case; and that the Respondent thereafter will have an opportunity to
present its defense.
Participants may present oral closing arguments at the discretion
of the Presiding Officer, and such arguments may address both liability
and remedy issues. The participants may submit supporting documentation
regarding remedy. If the Presiding Officer does not allow oral closing
arguments, the Agency anticipates that he would solicit the submission
of written proposed recommended findings of fact and conclusions of law
as to liability and remedy.
Under part 28, the Presiding Officer would be required to: (1)
Certify the administrative record as complete and as being in
compliance with the requirements of part 28; (2) make the
administrative record available to the Regional Administrator; and (3)
prepare and transmit a recommended decision to the Regional
Administrator. The Presiding Officer's authority to prescribe a remedy
would be limited to recommending the withdrawal of the field citation
or recommending the issuance of an order.
The decision of the Regional Administrator must be based on
applicable law and on the administrative record, which includes the
recommended decision of the Presiding Officer. Upon receipt of the
Presiding Officer's recommended decision, the Regional Administrator
may either withdraw the field citation, if he concludes that the Agency
has not sustained its burden of proof, or issue an order granting the
requested relief, in whole or in part. Any decision by the Regional
Administrator must be in writing, supported by clear reasons based on
the administrative record and applicable law, and include a statement
of the right to judicial review and of the procedures and deadlines for
obtaining judicial review. If the Regional Administrator rejects the
recommendation of the Presiding Officer, the explanation for that
rejection must be in writing and made part of the administrative
record.
The Regional Administrator's order must include a discussion of the
applicable penalty factors which were considered in the assessment of a
penalty under the Act, and set forth the penalty assessed. Part 28
would be revised to limit the Regional Administrator's authority to
issue a default order by excluding those based on a default for failure
to respond or to request a hearing (which would become final, pursuant
to section 113(d)(3) of the CAA, by operation of law).
Any order issued by the Regional Administrator becomes effective
thirty days after issuance, unless either the Environmental Appeals
Board (the Board) suspends the implementation of the order pursuant to
its sua sponte review authority, or a judicial appeal is taken pursuant
to section 113(d)(4) of the Act. No person may stay the effective date
of an administrative order by attempting to appeal it administratively.
The decision of the Regional Administrator to issue a final
decision constitutes final Agency action (subject to sua sponte review
by the Board) on its effective date, for purposes of any judicial
appeal. Withdrawal of the field citation, however, would not constitute
final Agency action, unless it occurs without prejudice.
The Board, on behalf of the Administrator, is authorized to review
part 28 rulings by Regional Administrators, sua sponte, on issues of
law. The Board may not become involved in factfinding; second guess the
penalty amount issued by the Regional Administrator; or review orders
issued on consent. The Agency anticipates that this review authority
will be exercised infrequently, but believes that the authority is
necessary to ensure consistent Agency positions on the applicable law.
The Board may withdraw a Regional Administrator's order if it
determines that the Agency lacks jurisdiction to assess a penalty, or
if it determines that the Respondent is not liable under applicable
law. The Board shall remand an administrative order if it determines
that elements of the Respondent's liability are different from those
found by the Regional Administrator. Under such a remand, the remedy
should be conformed to the amended conclusions of law. The order shall
also be remanded if the Board finds that the order fails to provide
clear reasons for the decision. The Board shall allow the Regional
Administrator's order to issue unchanged if it finds that the order is
legally sufficient and it agrees with all material conclusions of law.
Parties are not permitted under part 28 to administratively appeal
adverse rulings, either to the Regional Administrator or to the
Environmental Appeals Board.
Procedural Due Process
EPA recognizes that the administrative imposition of penalties for
minor violations of the Act may affect constitutionally protected
interests of those against whom actions have been taken. Part 28
includes precautions to ensure that individuals subject to a finding of
liability for a civil penalty will have all of the protections that due
process of law requires. These precautions include an impartial
Presiding Officer; the right to a hearing on liability, with a right of
cross-examination; and a final Agency action based solely on the
administrative record and applicable law. For a detailed due process
discussion concerning part 28, see the July 1, 1991 proposal at 56 FR
29997 et seq.
The part 28 procedures provide all of the procedure necessary to
meet constitutional due process requirements under the leading Supreme
Court case, Mathews v. Eldridge, 424 U.S. 319 (1976). In that case, the
Supreme Court set out a three-part test for determining whether the
administrative procedure provided to an individual prior to the
deprivation of a property interest by the government meets the due
process requirements of the Fifth Amendment. The Mathews test involves
balancing the magnitude and nature of the individual interest at stake;
the benefit of additional procedures in reducing the risk of erroneous
deprivation of that interest; and the governmental interest in not
providing such additional procedures. Although the part 28 procedures
streamline the adjudicatory process provided for analogous
administrative hearings under the APA, those procedures do not
eliminate any of the constitutional elements of such hearings. The part
28 procedures grant the person receiving the field citation a full
opportunity to review the evidence of minor violations, as well as
address the propriety of the assessed penalty. Since these procedures
allow for complete adjudication of liability issues, there would be
little benefit to the Respondent in more extensive or attenuated
procedures, and disproportionate cost to the Agency and to the public.
The field citation program will typically address violation and
penalty issues that are simple and straightforward matters. Since these
cases should not be complex, their resolution is well-suited to the
expedited administrative penalty proceedings mandated by Congress and
included in part 28. For these reasons as well as those noted in the
July 1, 1991 proposal, EPA believes the proposed part 28 procedures
would adequately provide for due process in the assessment of penalties
under the field citation authority.
3. 40 CFR Part 59--Rules Governing Administrative Hearings on Field
Citations
The third Agency proposal involves using new procedures for
conducting administrative hearings requested by persons to whom field
citations have been issued under section 113(d) of the Act.
Background
Section 113(d) of the Act provides that any person to whom a field
citation is issued may either elect to pay the penalty assessment or to
request a hearing, in accordance with procedures specified in the
regulation which implements the field citation program. Section 113(d)
further provides that the penalty assessed in the field citation
becomes final unless the person to whom it is issued requests a hearing
within the time specified in the implementing regulation. Section
113(d)(3) explicitly provides that the hearing is not subject to the
requirements of a formal adjudicatory hearing under the Administrative
Procedure Act (APA), 5 U.S.C. 554 or 556. Instead, the hearing must
provide a reasonable opportunity to be heard and to present evidence.
Basis for Hearing Procedures
The Congressional intent to afford the Respondent a less formal,
non-APA hearing is explicit in the legislation. Although such hearing
must provide the Respondent with a reasonable opportunity to be heard
and to present evidence, such hearing shall not be subject to the
procedures under sections 554 or 556 of the APA.
On July 1, 1991, the Agency proposed non-APA consolidated rules of
practice for the administrative assessment of civil penalties at 40 CFR
part 28 (56 FR 29,996). Although the part 28 rules are intended to
consolidate all other non-APA administrative penalty programs currently
administered by the Agency under uniform rules of practice, the field
citation program was excluded from those proposed rules. Programs
covered by part 28 include Class I administrative penalties under
section 309(g) of the Clean Water Act, section 109(a) of CERCLA, and
section 325(b) of EPCRA; and administrative penalties under section
1423(c) of the Safe Drinking Water Act and sections 325(c) and (d) of
EPCRA.
There are several compelling reasons for developing hearing
procedures that are better suited to the field citation program than
those provided either by proposed part 28 or the consolidated APA rules
of practice promulgated at 40 CFR part 22, 45 FR 24363 (April 9, 1980).
The part 28 rules provide many of the same procedural rights in part 22
that are designed to comport with APA requirements. These rights
include prehearing conferences; subpoena authority; discovery rights;
and cross-examination. The major differences between the two rules are
that part 28 provides for a Presiding Officer instead of an
Administrative Law Judge; imposes page limits on written submissions;
and eliminates the right to appeal the decision of the Presiding
Officer or Regional Administrator to the Administrator.
Under the part 28 procedures, resolution of an administrative
penalty proceeding could take seven or eight months. This lengthy time
period would diminish the utility of the field citation program in
addressing minor violations quickly and efficiently.
Most of the penalty programs covered by the part 28 procedures
provide for maximum per day per violation penalties well in excess of
the $5,000 limit authorized for field citations. Using the part 28
hearing procedures could result in spending more money to adjudicate
field citation appeals than would be justified by the expected monetary
recovery.
Based on the foregoing reasons, the Agency is considering using a
more streamlined set of hearing procedures drafted specifically to
apply to the field citation program.
Today's proposal relies on some of the part 28 provisions which
ensure expedited proceedings. This proposed option also relies on the
rules at 33 CFR subpart 1.07, 43 FR 54186 (November 20, 1978), which
govern hearings on statutory penalties imposed by the Coast Guard.
Under section 311(b)(6) of the Clean Water Act, the Coast Guard is
authorized to assess a civil penalty of up to $5,000 against any owner,
operator or person in charge of a facility or vessel that discharges
either oil or a hazardous substance. The violator may challenge the
penalty assessment at a hearing governed by the subpart 1.07
procedures. The similarities between this program and the field
citation program make the subpart 1.07 regulations an appropriate model
for hearing procedures. These Coast Guard procedures were found to
satisfy due process under the Constitution in U.S. v. Independent Bulk
Transport, 480 F. Supp. 474 (1979).
The part 28 regulations were used as a model for the following
major provisions of the proposed part 59 hearing procedures: the
Presiding Officer's duties and responsibilities; consent orders;
prehearing conference; information exchange; post-hearing submissions;
and review of the Regional Administrator's decision by the
Environmental Appeals Board.
The subpart 1.07 regulations were used as a model for the following
provisions: certain preliminary matters; confidential business
information; hearing procedures; and the scope of the Regional
Administrator's authority for issuing a decision.
The relevant part 28 provisions were selected to ensure fundamental
fairness while streamlining the procedures available to Respondents.
The Presiding Officer under part 28 is authorized to exercise a great
deal of discretion to expedite the presentation of evidence in
administrative cases. In that regard, the most pertinent authority
adopted from the part 28 regulations allows the Presiding Officer to
limit the number of witnesses and the extent of direct examination and
cross-examination.
The provisions adopted from subpart 1.07 further streamline the
administrative process for penalty assessment, while guaranteeing
fundamental rights. The Respondent is allowed under subpart 1.07 to
submit written arguments and evidence in lieu of requesting a hearing.
Such response allows the Presiding Officer to make a determination on
the administrative record without the delays inherent in conducting the
prehearing conference, information exchange, and hearing.
Additionally, the subpart 1.07 provisions allow the Presiding
Officer to determine the appropriate form of testimony: oral; written;
or recorded. Subpart 1.07 also simplifies the hearing process by
allowing the Respondent to present facts, statements, documents and
other relevant evidence. The relatively informal nature of the
proceeding provides the opportunity for expedited penalty assessment.
Proposed Hearing Procedures
Under proposed part 59, the field citation would be issued during
or shortly after an inspection by an EPA officer or employee. The
citation is subsequently served upon the Respondent by first class mail
or equivalent. Within thirty days after service of the citation, the
Respondent must either request a hearing; provide written evidence and
arguments in lieu of a hearing; or pay the penalty.
If the Respondent fails either to request a hearing or to submit
evidence in lieu of a hearing, he would be in default under section
113(d)(3) of the Act. That section states that the penalty assessed by
the field citation becomes final where the Respondent fails to request
a hearing within the time required by the implementing regulation. In
the case of a Respondent's default by failure to request a hearing,
Agency counsel is required under this proposal to file, within ten
days, a written justification for the penalty imposed by the field
citation.
At any time prior to final Agency action, a disputed field citation
may be settled by a consent order. The consent order may conclude the
citation in whole or in part, and may contain conditions. Upon service,
the consent order constitutes a final order that is not appealable.
Additionally, the field citation may be revoked by the Agency, in whole
or in part and without prejudice, prior to payment of the penalty.
Under the proposed part 59 procedures, the prehearing conference is
optional. The purposes of the conference, which must be held no later
than thirty days after the Respondent's response, are to simplify
issues and to attempt to reach stipulations of fact. The Presiding
Officer may also set the time and place for the hearing and schedule an
information exchange during the prehearing conference. Within twenty
days following the prehearing conference, the Presiding Officer may
issue a written prehearing order to memorialize the rulings made at the
conference.
Each party has the authority to require that the other provide it
with certain information. The information that may be exchanged is
limited to: (1) Documents intended to be introduced at the hearing that
have not already been filed with the Hearing Clerk; (2) witness lists,
qualifications of expert witnesses and the subject matter of intended
witness testimony; and (3) information known to the Respondent relating
to the Respondent's inability to pay a civil penalty, economic benefit
of noncompliance; and good faith efforts to comply with the applicable
Clean Air Act requirements.
The hearings on field citations will be conducted by an impartial
Presiding Officer who, in most cases, will be the Judicial Officer or
the Regional Judicial Officer. Such Judicial Officer will be an Agency
employee who may perform other functions within the Agency, but who has
no prior connection with the case being presided over.
The Presiding Officer and other officials involved in deciding the
case are prohibited under today's rule from engaging in ex parte
contacts with interested parties both inside and outside of the Agency.
The prohibition applies to the Regional Administrator as well as to his
advisors.
The Presiding Officer is required to schedule a hearing
expeditiously. An extension of time for scheduling the hearing is only
authorized for good cause and if no prejudice results.
The hearing procedures provide that the Respondent may be
represented by counsel. The Agency representative initiates the hearing
by introducing into evidence the field citation and the relevant
material supporting its issuance. The Respondent or his counsel may
then provide facts, statements, arguments, documents, testimony and
other exculpatory evidence responding to the evidence presented.
Although the Presiding Officer may limit the number of witnesses and
determine the appropriate form of testimony, either party has the right
to cross-examine a witness who has provided direct testimony. The
opportunity for rebuttal, and response to rebuttal, falls within the
Presiding Officer's discretion.
Consistent with the informal nature of the proceedings, the
Presiding Officer is not bound by the Federal Rules of Evidence. The
Presiding Officer is, however, authorized to take administrative notice
of pertinent matters.
Section 113(e) of the Act contains criteria that must be used in
assessing whether the field citation penalty is appropriate. Under
today's proposal, the Presiding Officer is required to consider these
criteria when reviewing the assessed penalty. Those criteria include:
The size of the business; the economic impact of the penalty on the
business; the Respondent's full compliance history; the Respondent's
good faith efforts to comply; the duration of the violation as
established by any credible evidence; payment by the Respondent of
penalties previously assessed for the same violation; the economic
benefit of noncompliance; the seriousness of the violation; and such
other factors as justice may require. Some or all of these criteria may
be relevant to the issues presented in the case before the Presiding
Officer. The burden of proof with respect to these criteria is assigned
to the party with access to information concerning the particular
factor. Consequently, the Agency must provide evidence regarding the
duration and seriousness of the violation, and the Respondent must
provide evidence regarding the other criteria.
EPA is considering adopting a similar approach where the penalty
assessment becomes final under section 113(d)(3) of the Act because a
respondent fails either to request a hearing or submit evidence in lieu
of a hearing within the time required by the regulations. When such a
default occurs, the penalty assessed by the field citation becomes
final by operation of section 113(d)(3). As previously discussed, under
the proposed procedures, Agency counsel would then submit a written
justification for the record concerning the amount of the assessed
penalty. EPA is considering adopting a regulatory presumption that in
cases of such default the penalty assessed in the field citation would
be presumed to be appropriate with respect to those penalty assessment
criteria where the regulations would place the burden of going forward
on the respondent if a hearing had been requested. The purpose of this
presumption would be to clarify the requirements of section 113(e) in
such a default situation, and at the same time, reflect the authority
of the agency to establish reasonable presumptions based on the
circumstances of a case.
The hearing will normally be tape recorded, unless the parties
decide otherwise in the interests of preventing a serious delay in the
proceedings. Tape recording the proceedings is desirable to develop a
clear administrative record for later review. Transcription of the
proceedings is not required, but may be made by a party, at its own
expense, or may be ordered by the Presiding Officer. Any party causing
a transcript to be made must provide copies to the other party and to
the Presiding Officer. The transcript then becomes a part of the
administrative record.
The parties are permitted to submit a written statement for the
Presiding Officer's consideration within a reasonable time after the
hearing. The written statements, which may only address matters raised
at the hearing, may be in the form of proposed findings of fact and
conclusions of law.
As soon as practicable after the hearing, the Presiding Officer is
required to prepare a recommended decision in the case based on
substantial evidence in the administrative record as a whole. The
recommended decision will recommend either that the field citation be
affirmed, modified or withdrawn. The recommended decision must be filed
with the Regional Administrator. Within a reasonable time after receipt
of the recommended decision, the Regional Administrator may either
affirm, reverse, modify or remand the case to the Presiding Officer for
further proceedings. The Regional Administrator may compromise, modify,
or remit the penalty assessed by the field citation, with or without
conditions.
The Regional Administrator must provide the legal and factual basis
for any modification of the recommended decision. Withdrawal of the
penalty assessment, which does not constitute final Agency action,
occurs without prejudice to the Agency.
Any order issued by the Regional Administrator becomes effective
thirty days after issuance, unless either the Environmental Appeals
Board (the Board) suspends the implementation of the order pursuant to
its sua sponte review authority, or a judicial appeal is taken pursuant
to section 113(d)(4) of the Act.
The Board, on behalf of the Administrator, is authorized to review
the decisions of Regional Administrators, sua sponte, on issues of law.
The Board may not review fact-finding; second guess the penalty amount
issued by the Regional Administrator; or overturn orders issued on
consent.
The Board may withdraw a Regional Administrator's order if it
determines that the Agency lacks jurisdiction to assess a penalty, or
if it determines that the Respondent is not liable under applicable
law. The Board shall remand an administrative order if it determines
that elements of the Respondent's liability are different from those
found by the Regional Administrator. Under such a remand, the remedy
should be conformed to the amended conclusions of law. The order shall
also be remanded if the Board finds that the order fails to provide
clear reasons for the decision. The Board shall allow the Regional
Administrator's order to issue unchanged if it finds that the order is
legally sufficient and it agrees with all material conclusions of law.
Within thirty days after the penalty assessment becomes final, the
Respondent may appeal to the appropriate United States District Court.
Procedural Due Process
As noted previously, Mathews v. Eldridge requires consideration of
three factors in evaluating whether the proposed administrative
procedures satisfy the Fifth Amendment's due process requirements. The
relevant factors are: (1) The private interest that will be affected;
(2) the risk of an erroneous deprivation of this interest and the
probable value, if any, of additional or substitute procedural
safeguards; and (3) the Government's interest including the function
involved and the fiscal or administrative burdens that the additional
procedural requirements would entail.
The private interest at stake is payment of a civil penalty. The
maximum amount that may be assessed, $5,000 per day of violation, is
significantly less than the penalty that may be assessed under the
other civil penalty authorities in the Act. In addition, EPA's proposed
rules would establish a maximum amount that might be assessed in any
one citation. It is also expected that the actual penalties assessed
per violation will generally be less than the statutory maximum. The
circumstances expected in the great majority of cases is a proper focus
for assessing due process concerns. Chemical Waste Management, Inc. v.
U.S.E.P.A., 873 F.2d 1477, 1484 (D.C. Cir. 1989). In addition, the
straightforward and simple hearing procedures proposed would minimize
the cost for private parties to contest assessment of a field citation.
The procedures proposed in this third option should minimize the
risk of an erroneous deprivation of property. Under the proposed rules,
a respondent would be served with a citation that clearly identified
the alleged violation and provided a reasonable opportunity to request
a hearing. If a hearing was requested, it would be presided over by a
neutral agency official that had no prior connection with the action,
including investigative or prosecutorial functions. The Presiding
Officer also would have no interest in the outcome of the action. This
offers the respondent a hearing before a neutral and unbiased tribunal,
and clearly minimizes any risk of error from institutional or other
bias.
The parties have the right to discover, before the hearing, all the
information necessary to provide for a fair and adequate hearing.
Parties may obtain the names of all witnesses that will be presented,
along with a brief description of the witnesses qualifications and the
subject matter of the testimony, and they may obtain each document that
will be introduced by the other party. Since the violations involved
will be minor in nature and are expected to typically involve simple
and straightforward factual and legal circumstances, this should
provide a respondent with all the information needed to adequately
contest a citation. In addition, the citation would typically have been
issued immediately upon or shortly after the violation is detected,
providing respondents with ample opportunity to investigate the
circumstances of an alleged violation. In these circumstances,
additional discovery would not be expected to significantly advance the
accuracy of the final decision.
The hearing allowed under the proposed rules would provide
respondents with several options in presenting relevant evidence,
limited by the authority of the Presiding Officer to determine the
manner of testimony that is most efficient in resolving an issue.
Written and oral testimony are both acceptable, as well as testimony
provided by other means. Respondents may offer any facts, statements,
explanations, documents, testimony or other exculpatory evidence that
is relevant to issues at the hearing. A right of cross-examination is
provided, although EPA is considering limiting cross-examination to
situations determined appropriate by the Presiding Officer. This form
of hearing clearly meets the requirements of section 113(d)(3), and
provides respondents with a fair opportunity to present evidence and
argument on relevant issues. Given the simple and straightforward
nature of the minor violations expected in the program, additional
procedures would not significantly reduce the risk of an erroneous
imposition of a civil penalty. A right to cross-examine witnesses, as
compared to limiting cross examination to situations where deemed
appropriate by the Presiding Officer, would allow for additional cross-
examination only where the Presiding Officer, a neutral official, had
already determined it was inappropriate. A right to cross-examination
would increase the accuracy of the hearing only in those limited cases
where a Presiding Officer had mistakenly denied crossexamination. EPA
expects this kind of mistake would occur infrequently, and a right to
cross-examine, therefore, would not significantly increase the accuracy
of the proceedings in the great bulk of cases.
The Presiding Officer is afforded substantial discretion to tailor
the hearing procedures to the individual facts and circumstances of
each case. The Presiding Officer, may, for example, hold prehearing
conferences, regulate the course of the hearing, including the form and
extent of testimony and crossexamination, take official notice of
matters, and request a written statement from the parties post-hearing.
This flexibility should increase the accuracy of the proceedings, and
reduce the value of mandating additional procedures. See Chemical Waste
Management, 873 F.2d at 1483.
After the hearing, parties may submit written statements to the
Presiding Officer, such as recommended findings of fact and conclusions
of law, at the discretion of the Presiding Officer. The Presiding
Officer then prepares and transmits a recommended decision that is
forwarded to the Regional Administrator for issuance of a final
decision. There is no administrative appeal to the Administrator,
except the Board may review a decision sua sponte. This provides for at
least one level of review above the Presiding Officer, and in some
cases a second level of review by the Board, establishing a clear
mechanism to correct potential errors in the recommended decision. It
should also promote consistency within a region, as well as national
consistency if and when issues of national importance arise.\12\
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\12\Given the minor nature of the violations at issue, EPA
rarely expects review by the Board.
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Additional procedures, such as a right to comment on the
recommended decision, would not significantly add to the accuracy of
these procedures. Respondents would already have had a full opportunity
to present their position on the issues at the hearing, and could
submit proposed findings and conclusions at the request of the
Presiding Officer. All of this would be in the administrative record,
and available to the Regional Administrator. Additional right to
comment would not be expected to be of significant benefit, given the
minor nature of the factual and legal issues involved.
The government's primary interest, as previously described, is to
implement an effective citation program without an unnecessary drain on
limited enforcement resources. An effective program calls for issuance
of a citation immediately or shortly after detection of a violation,
with a final resolution accomplished shortly after issuance of the
citation. This will maximize the deterrent effect of the field citation
program, and minimize the amount of resources necessary to achieve this
goal. The proposed hearing procedures meet these objectives by using
simplified and streamlined procedures, with a relatively limited time
needed to complete all procedures necessary to a final decision on
assessment of a penalty.
Since the field citation program fills a gap in EPA's enforcement
program, it is reasonable to expect that a large number of citations
will be issued in each region, addressing simple, easy to prove
violations and assessing small monetary penalties. While the nature of
the violations and the penalty should act to limit the number of
hearings requested by respondents, it is reasonable to expect that a
significant number of hearings may be requested if EPA issues a large
number of citations. In that context, any additional procedures run the
risk of significantly increasing the administrative burden and length
of field citation proceedings. This could quickly make the program
inefficient and a drain on government resources, given the small
potential penalties and the limited environmental concerns involved for
most minor violations.
EPA believes the proposed part 59 procedures faithfully implement
Congressional intent for the field citation program, and satisfy
procedural due process concerns. This belief is bolstered by judicial
acceptance of similar procedures in a variety of related situations.
See Chemical Waste Management, Inc. (court upheld EPA's non-APA hearing
procedures for issuance of administrative orders concerning corrective
action orders under section 3008(h) of RCRA); United States v.
Independent Bulk Transport, Inc., 480 F. Supp. 474 (S.D. NY 1979)
(court upheld non-APA hearing held by Coast Guard in assessing less
than the maximum $5,000 civil penalty per unlawful discharge under the
Federal Water Pollution Control Act).
H. Design of Field Citations
Field citations will be of a standardized format nationwide, and
will be issued in triplicate. The following information shall be
included on the field citation:
(1) Date and time of violation(s);
(2) Inspector's name, title, and office;
(3) Name and address of source;
(4) Name and telephone number of owner/operator or his/her
representative;
(5) Specific violation(s);
(6) Location/source/description of violation(s);
(7) Proposed penalty;
(8) Notification of the 30-day deadline to either pay the penalty
or request a hearing;
(9) Address to which payment must be sent;
(10) Address to which a request for a hearing must be sent;
(11) Inspector's signature;
(12) Space for signature indicating receipt; and
(13) Citation number.
The actual format of the citation will be published in the Agency's
guidance document.
V. Section-by-Section Analysis
A. Section 59.1 Purpose and Scope
This section of the proposed rule states EPA's authority to develop
a field citation program and explains that procedures developed in this
part will be used in administering the field citation program. The
section acknowledges the twin goals of the field citation program:
ensuring compliance with the Act and providing for expedited
enforcement.
B. Section 59.2 Use of Number and Gender
This section clarifies that words in the singular also include the
plural, and those in the masculine gender also include the feminine,
and vice versa.
C. Section 59.3 Computation of Time
This section provides that any time period specified in these rules
shall begin the day following the event from which the period begins,
and shall include Saturdays, Sundays, and Federal legal holidays.
D. Section 59.4 Definitions
This section provides definitions of terms used in part 59.
E. Section 59.5 Determination of Minor Violation and Maximum Proposed
Penalty
This section describes the process that will be used to determine
whether a violation is minor. Each violation will be evaluated
according to the proposed list of factors provided. A violation will be
determined as minor through evaluation of the factors, considered as a
whole.
Criminal violations will not be addressed under the field citations
program. Criminal enforcement action may be pursued for the violations
described in section 113(c). These violations include ``knowing''
violations such as knowing endangerment, in which a person knowingly
releases a hazardous air pollutant, with the knowledge that the release
is placing another person in imminent danger of death or serious bodily
injury.
This section also provides the proposed maximum civil penalty for a
minor violation as $5,000 per day of violation, and defines a field
citation's total proposed penalty as the sum of each individual minor
violation's proposed penalty.
Subpart B--Rules Governing Hearings on Field Citations
F. Section 59.6 Scope of These Rules
This section outlines the purpose of Subpart B, which is to
establish streamlined administrative procedures for conducting hearings
under section Sec. 113(d)(3) of the Act.
G. Section 59.7 Issuance and Service of Field Citations
This section describes who may issue field citations and what
should be contained therein. The section also details requirements for
service of a field citation. The statute limits the authority to issue
field citations to EPA officers or employees.
H. Section 59.8 Presiding Officer
This section describes the role and responsibilities of the
Presiding Officer. There are no specific qualification requirements
except that the Presiding Officer be neutral to the controversy. In
most cases the Presiding Officer will be the Regional Judicial Officer.
The Presiding Officer is authorized to take certain actions, but also
must abide by the limitations imposed under subsection (c).
I. Section 59.9 Hearing Clerk
This section describes the role and responsibilities of the Hearing
Clerk, who shall be designated by the Regional Administrator.
J. Section 59.10 Representation by Counsel
This section outlines a respondent's right to be represented by
counsel. Following notification of such representation, all further
notification shall be directed to that counsel.
K. Section 59.11 Preliminary Matters
This section describes the process by which a hearing is requested
and scheduled. It also details the Presiding Officer's discretion in
granting delays, continuances, and permission to amend a response or
raise new issues prior to a scheduled hearing.
L. Section 59.12 Revocation of Field Citation
This section sets forth the Agency's authority to revoke a field
citation, in whole or in part, at any time before the penalty amount
becomes final.
M. Section 59.13 Request for Confidential Treatment
This section describes the basis for, and procedure by which a
respondent may request confidential treatment of a document or portion
thereof.
N. Section 59.14 Consent Agreements and Consent Orders
This section outlines the basis for a consent agreement, through
which the Agency and the respondent formally agree to a civil penalty,
with or without conditions. Thereafter, the Presiding Officer shall
enter a consent order in accordance with the terms of the consent
agreement. The consent order may be filed at any time prior to final
Agency action, and constitutes a final order that may not be appealed.
O. Section 59.15 Prehearing Conference
This section provides the Presiding Officer with the discretion to
conduct a prehearing conference, and sets forth matters appropriate for
discussion during such conference.
P. Section 59.16 Information Exchange
This section outlines the responsibilities of each party, both in
serving information requests and in providing information requested by
the other party. The exchange of information shall proceed according to
the schedule established by the Presiding Officer.
Q. Section 59.17 Subpoenas
This section establishes the Presiding Officer's right to subpoena
the testimony of witnesses or the production of documents, or both, and
establishes the manner by which subpoenas shall be served.
R. Section 59.18 Hearing Procedures
This section outlines the basic requirements for the conduct of the
proceeding. It also establishes the rights and responsibilities of the
Presiding Officer and of each party in presenting or receiving
evidence, testimony, responses and rebuttals. Either party has the
right to cross-examine any witness who has provided direct testimony,
however, such crossexamination is limited to the issues presented in
direct testimony. The overall format for the proceeding is informal,
and the Presiding Officer has the discretion to offer opportunities for
rebuttal and response to rebuttal.
S. Section 59.19 Penalty Assessment Criteria
This section establishes the criteria which shall be considered by
the Presiding Officer in reviewing the penalty amount requested by the
field citation, and assigns the burden of proof for each criterion
either to the Respondent or to the Agency.
T. Section 59.20 Transcript or Recording of Hearing
This section provides that all hearings will be tape recorded
unless both parties agree and the Presiding Officer directs otherwise.
A verbatim transcript will not normally be prepared, however, this
section outlines the requirements and procedure to be followed if
either party or the Presiding Officer should specially request that
such a transcript be prepared.
U. Section 59.21 Post-Hearing Submissions
The Presiding Officer may request a written statement from each
party following the conclusion of the hearing. Such statements are
limited to those matters raised at the hearing.
V. Section 59.22 Recommended Decision
This section describes the procedural requirements for preparing,
transmitting, and filing a recommended decision.
W. Section 59.23 Decision of the Regional Administrator
The Regional Administrator must issue a final decision that either
affirms, reverses, or modifies the recommended decision, or remands the
case to the Presiding Officer for further proceedings. This section
describes the procedures the Regional Administrator shall follow in
concluding actions taken under this part. The Regional Administrator's
decision must be based on applicable law and the administrative record,
which includes the recommended decision of the Presiding Officer. The
final decision becomes effective thirty days following the date of
issuance.
X. Section 59.24 Sua Sponte Review
This section describes the role of the Environmental Appeals Board
in reviewing the Regional Administrator's decision. The thirty-day
period for this review coincides with the thirty-day period before a
final decision becomes effective.
Y. Section 59.25 Payment of Assessed Penalty
This section outlines the deadline and method of payment for civil
penalties assessed pursuant to this part.
VI. Administrative Requirements
A. Executive Order 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 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, 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 entitlements, 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
The Administrator may certify, however, that the rule will not have a
significant impact on a substantial number of small entities. In such
circumstances, a regulatory flexibility analysis is not required. The
expected impact of this proposed rule is negligible. The rule creates
no new requirements, small or large, and is procedural in nature.
Accordingly, I hereby certify that these proposed regulations will not
have a significant impact on a substantial number of small entities.
These regulations, therefore, do not require a regulatory flexibility
analysis.
C. Paperwork Reduction Act
These proposed rules do not contain any information collection
requirements subject to OMB review under the Paperwork Reduction Act of
1980 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 59
Environmental protection, Administrative practice and procedure,
Air pollution control, Labeling, Penalties, Reporting and recordkeeping
requirements.
Dated: April 15, 1994.
Carol M. Browner,
Administrator.
Part 59 is proposed to be added to 40 CFR chapter I to read as
follows:
PART 59--FIELD CITATION PROGRAM
Subpart A--Scope of Program
Sec.
59.1 Purpose and scope.
59.2 Use of number and gender.
59.3 Computation of time.
59.4 Definitions.
59.5 Determination of minor violation and maximum proposed penalty.
Subpart B--Rules Governing Hearings on Field Citations
59.6 Scope of these rules.
59.7 Issuance and service of field citations.
59.8 Presiding officer.
59.9 Hearing clerk.
59.10 Representation by counsel.
59.11 Preliminary matters.
59.12 Revocation of field citation.
59.13 Request for confidential treatment.
59.14 Consent agreements and consent orders.
59.15 Prehearing conference.
59.16 Information exchange.
59.17 Subpoenas.
59.18 Hearing procedures.
59.19 Penalty assessment criteria.
59.20 Transcript or recording of hearing.
59.21 Post-hearing submissions.
59.22 Recommended decision.
59.23 Decision of the regional administrator.
59.24 Sua Sponte review.
59.25 Payment of assessed penalty.
Authority: 42 U.S.C. 7413(d).
Subpart A--Scope of Program
Sec. 59.1 Purpose and scope.
Section 113(d)(3) of the Clean Air Act (42 U.S.C. 7413(d))
authorizes EPA to implement a field citation program. The regulations
in this part establish the standards and procedures which will apply to
all field citations issued by EPA under this authority. The field
citation program is designed both to deter minor violations of the Act
and to expedite enforcement against such violations.
Sec. 59.2 Use of number and gender.
As used in this part, words in the singular also include the plural
and words in the masculine gender also include the feminine and vice
versa, as the case may require.
Sec. 59.3 Computation of time.
In computing any period of time prescribed or allowed in this part,
except as otherwise provided, the day of the event from which the
designated period begins to run shall not be included. Saturdays,
Sundays, and Federal legal holidays shall be included. When a stated
time expires on a Saturday, Sunday or legal holiday, the stated time
period shall be extended to include the next business day.
Sec. 59.4 Definitions.
In this part:
(a) Act means the Clean Air Act, as amended (42 U.S.C. 7401 et
seq.).
(b) Agency or ``EPA'' means the United States Environmental
Protection Agency.
(c) Administrator means the Administrator of the United States
Environmental Protection Agency, or the Administrator's delegate.
(d) Complainant means the Agency, acting through any Agency
employee authorized by the Administrator to initiate an action under
this Part, or authorized to conclude such an action, in whole or in
part, upon consent.
(e) Consent agreement means a written agreement executed by
Complainant and Respondent, consisting of:
(1) Stipulations by the parties establishing subject matter
jurisdiction;
(2) An admission by Respondent that it had violated the Act as
alleged in the field citation or a statement by Respondent that it
neither admits nor denies such violation; and
(3) Agreement as to the assessment of a stated civil penalty, with
or without conditions.
(f) Consent order means an order entered by the Presiding Officer
in accordance with the consent agreement of the parties.
(g) Field citation means an administrative complaint which is
issued by the complainant as a document that:
(1) Names one or more respondents;
(2) Alleges one or more minor violations of applicable law, stating
with reasonable specificity the nature of the alleged violations; and
(3) Proposes that a penalty be assessed upon the respondent as
authorized by applicable law.
(h) Hearing clerk means the person authorized by the Administrator
or Regional Administrator to serve as hearing clerk.
(i) Minor violation means a violation which is:
(1) Minor in nature as determined by one or more relevant factors
listed in Sec. 59.5(a) and
(2) Addressed by the Agency as a minor violation.
(j) Penalty means the civil penalty assessed against a respondent
under this part for one or more minor violations of the Act.
(k) Presiding officer means the person designated by the
Administrator or Regional Administrator to preside at hearings
conducted under this part.
(l) Regional Administrator means the Administrator of the Regional
Office of the EPA Region in which the alleged violation occurred, or
any officer or employee thereof to whom his authority has been duly
delegated.
(m) Respondent means any person named in the field citation.
Sec. 59.5 Determination of minor violation and maximum proposed
penalty.
(a) The following factors shall be considered in determining
whether a violation is minor under the Act:
(1) Whether the violation is readily recognizable;
(2) Risk of environmental harm;
(3) Time required to correct the violation;
(4) Effort required to correct the violation;
(5) Expense required to correct the violation;
(6) Frequency of the violation;
(7) Duration of the violation;
(8) Importance of the violated requirement to the specific program;
and
(9) Other factors as appropriate.
Criminal violations shall not be addressed through issuance of
field citations.
(b) The maximum civil penalty which may be proposed for each minor
violation shall not exceed $5,000 per day for each violation. The total
cumulative penalty proposed in a field citation is the sum of the
proposed penalties corresponding to each minor violation alleged in the
field citation. The maximum cumulative penalty which may be proposed in
any single field citation is (insert dollar amount from $15,000 to
$25,000).
Subpart B--Rules Governing Hearings on Field Citations
Sec. 59.6 Scope of these rules.
This subpart sets forth procedures for the issuance of field
citations and for the administration of administrative hearings on
field citations under section 113(d)(3) of the Act.
Sec. 59.7 Issuance and service of field citations.
(a) A field citation may be issued by the complainant to any person
for any minor violation of the Act or for any minor violation of any
regulations promulgated under the Act.
(b) A field citation shall list:
(1) Each alleged minor violation;
(2) The penalty amount proposed for each violation;
(3) The total proposed penalty amount; and
(4) The address of the Regional office issuing the field citation;
the address of the Federal repository to which payment of the proposed
penalty may be sent; and the address of the Hearing Clerk to whom a
request for a hearing shall be submitted.
(c) A field citation shall be served on the respondent personally
or by certified mail, return receipt requested (or any other manner of
service that is no less speedy and reliable), with an attached
certificate of service. Service upon a corporation, partnership or
other unincorporated association shall be made personally, or by
certified mail, return receipt requested (or by any other manner of
service that is no less speedy and reliable), directed to an officer,
partner, managing or general agent, or to any person authorized by
appointment or by federal or State law to receive service of process.
Service upon a federal agency, State or municipal government, State or
municipal agency or other instrumentality thereof shall be made in the
manner prescribed by the applicable law for service of process.
(d) Proof of service of the field citation shall be made by
affidavit of the person making personal service, or by properly
executed return receipt, and shall be filed with the Hearing Clerk.
Sec. 59.8 Presiding officer.
(a) The Presiding Officer shall have the authority to:
(1) Issue subpoenas pursuant to Sec. 59.17 for the attendance and
testimony of witnesses and for the production of relevant information
and documents.
(2) Issue or modify a prehearing order pursuant to Sec. 59.15(c);
(3) Schedule and further limit the information exchange pursuant to
Sec. 59.16;
(4) Impose sanctions pursuant to Sec. 59.16 or to aid in the
maintenance of order and the efficient and impartial administration of
justice; and
(5) Certify the administrative record and set forth and transmit a
recommended decision pursuant to Sec. 59.22.
(b) The Presiding Officer shall, in a timely fashion:
(1) Carry out his duties as required by this part;
(2) Oversee and direct the activities of the Hearing Clerk in an
action under this part;
(3) Schedule activities of the parties pursuant to the requirements
of this part; and
(4) Take any other action necessary for the maintenance of order
and for the efficient and impartial adjudication of allegations arising
in an action under this part.
(c) The Presiding Officer shall not:
(1) Have any prior connection with the action before him, including
the performance or supervision of investigative or prosecutorial
functions;
(2) Have any interest in the outcome of the action;
(3) Grant an extension, delay or continuance to a party based on a
party's request for information pursuant to law outside the scope of
this part;
(4) Allow the introduction of any document or testimony into the
administrative record relating to settlement of the instant action; or
(5) Dismiss the field citation.
Sec. 59.9 Hearing clerk.
The Regional Administrator shall designate a Hearing Clerk. After
the filing of a field citation by the Complainant with the Regional
Hearing Clerk, the Hearing Clerk shall:
(a) Timely notify each party in writing of the name of the
Presiding Officer designated to preside over the case;
(b) Record the date of receipt of each document received regarding
the action;
(c) Timely notify the Presiding Officer of the receipt of any
document filed with the Clerk by either party;
(d) Perform such other functions as required by the Presiding
Officer to assist him in carrying out his responsibilities under this
part; and
(e) Perform such ministerial and clerical functions as required by
the Regional Administrator or by the Environmental Appeals Board to
assist each in carrying out its responsibilities under this part.
Sec. 59.10 Representation by counsel.
The respondent has the right to be represented at all stages of the
proceedings by counsel. Following notification that a respondent is
represented by counsel, all further communications regarding the
proceedings shall be directed to that counsel.
Sec. 59.11 Preliminary matters.
(a) Within 30 days after receipt of the field citation, the
respondent, or counsel for the respondent, may:
(1) Request a hearing;
(2) Provide any written evidence and arguments in lieu of a
hearing; or
(3) Pay the penalty proposed in the citation. A hearing must be
requested in writing and must specify the issues which are in dispute.
Any request for hearing shall be filed with the Hearing Clerk.
(b) The right to a hearing is waived if the respondent fails to
submit the request to the Hearing Clerk within thirty (30) days after
service of the field citation.
(c) If the respondent fails to respond to the field citation in
accordance with the provisions of this section, the penalty proposed in
the field citation shall be final and immediately payable. The Agency
shall file with the Hearing Clerk, no later than ten (10) days
following the respondent's failure to respond, a written explanation
supporting the penalty amount requested by the field citation.
(d) The Presiding Officer shall promptly schedule all hearings. The
Presiding Officer shall grant such delays or continuances as may be
necessary or desirable in the interest of fairly resolving the case.
(e) The respondent may amend the response no later than ten (10)
days prior to the scheduled hearing date. Issues raised later than ten
(10) days before the scheduled hearing may be presented only at the
discretion of the Presiding Officer.
Sec. 59.12 Revocation of field citation.
At any time before the penalty proposed by the field citation
becomes final, the Complainant may revoke the field citation, in whole
or in part, without prejudice.
Sec. 59.13 Request for confidential treatment.
(a) A request for confidential treatment of a document or portion
thereof may be made by the respondent on the basis that the information
is:
(1) Confidential financial information, trade secrets, or other
material exempt from disclosure by the Freedom of Information Act (5
U.S.C. 552);
(2) Required to be held in confidence by 18 U.S.C. 1905; or
(3) Otherwise exempt by law from disclosure.
(b) The respondent must submit the request for confidential
treatment to the Presiding Officer in writing and must state the
reasons justifying nondisclosure. Failure to make a timely request may
result in a document being considered as nonconfidential and subject to
release.
Sec. 59.14 Consent agreements and consent orders.
(a) At any time before final Agency action, the complainant and the
respondent may settle an action, in whole or in part, by agreeing upon
a civil penalty, with or without conditions. The parties shall
memorialize such an agreement in the form of a consent agreement. The
Presiding Officer shall thereafter enter a consent order in accordance
with the terms of the consent agreement. Such consent order may not be
appealed to federal court by either party.
(b) If the filing of the consent order with the Hearing Clerk
pursuant to paragraph (a) of this section does not wholly conclude the
action, the Presiding Officer shall promptly inform the parties of the
schedule of the remaining proceedings.
Sec. 59.15 Prehearing conference.
(a) Within thirty (30) days following receipt of the respondent's
response to the field citation, the Presiding Officer may, in his
discretion, hold a prehearing conference. The Presiding Officer may
conduct the conference in person or by telephone.
(b) At the prehearing conference, the Presiding Officer:
(1) May attempt to simplify issues and assist the parties in
reaching a stipulation as to facts that are not in dispute;
(2) May, upon request of either party, schedule an exchange of
information in accordance with Sec. 59.16;
(3) Shall establish a time and place for the hearing; and
(4) May discuss other appropriate matters.
(c) The Presiding Officer may issue a prehearing order to the
parties, no later than twenty (20) days following the conference, which
memorializes the rulings of the Presiding Officer made at the
prehearing conference.
Sec. 59.16 Information exchange.
(a) Subject to any limitation imposed by the Presiding Officer in a
prehearing order issued pursuant to Sec. 59.15(c) each party shall
provide, in writing, the following information:
(1) The name of each witness it intends to present at the hearing
and the subject matter of the intended testimony; and
(2) Each document it intends to introduce at the hearing.
(b) The respondent shall provide the following information in
writing, to the Agency:
(1) If the respondent contends that it is unable to pay the
proposed penalty, the respondent shall submit financial information in
support of such claim, including, but not limited to, complete copies
of its federal income tax returns for the previous three years;
(2) The respondent's net profits, delayed or avoided costs, or any
other form of economic benefit resulting from any activity or failure
to act by the respondent which is alleged in the field citation; and
(3) The respondent's good faith efforts to comply with the
applicable Clean Air Act requirements.
(c) The parties shall conduct the exchange of information according
to the schedule established by the Presiding Officer pursuant to
Sec. 59.15(c).
(d) Each party shall file its information exchange with the Hearing
Clerk and shall simultaneously serve copies thereof personally or by
certified mail (or any other manner of service that is no less speedy
and reliable), with an attached certificate of service, upon the other
party and the Presiding Officer.
(e) The Presiding Officer has the discretion to impose on any party
that fails to comply with the requirements of this section any sanction
that is just and proper.
Sec. 59.17 Subpoenas.
(a) The Presiding Officer may, on his own initiative or at the
request of either party, subpoena the testimony of witnesses or the
production of documents, or both, for a hearing conducted pursuant to
Sec. 59.16.
(b) The Presiding Officer shall serve the subpoena upon its
recipient in the manner prescribed for the service of a field citation
pursuant to Sec. 59.7(d).
(c) The Presiding Officer shall file a copy of the subpoena with
the Hearing Clerk.
Sec. 59.18 Hearing procedures.
(a) The Presiding Officer shall conduct a fair and impartial
proceeding in which each party has a reasonable opportunity to be heard
and to present evidence. Each witness shall testify in the form
determined by the Presiding Officer to be most efficient in resolving
an issue. Forms of testimony include oral testimony provided in person
or by other means, and written or otherwise recorded testimony. The
Presiding Officer may limit the number of witnesses and the scope and
extent of any direct examination or cross-examination as necessary to
protect the interests of justice and conduct a reasonably expeditious
hearing.
(b) The Agency representative shall present the field citation and
the evidence supporting its issuance, and any other material that is
pertinent to the issues to be determined by the Presiding Officer. The
respondent has the right to examine, and to respond to or rebut, the
field citation and any proffered evidence and material. The respondent
may offer any facts, documents, testimony or other exculpatory evidence
which bears on appropriate issues, or which may be relevant to the size
of an appropriate penalty. Any opposing party has a right of
crossexamination after the introduction of a witness' direct testimony.
A party shall not cross-examine regarding a matter that is outside of
the scope of the direct examination. The Presiding Officer may require
the authentication of any written exhibit or statement.
(c) At the close of the respondent's presentation of evidence, the
Presiding Officer may allow the introduction of rebuttal evidence by
the Agency representative. The Presiding Officer may allow the
respondent to respond to any such evidence submitted by the Agency.
(d) In receiving evidence, the Presiding Officer is not bound by
the Federal Rules of Evidence. In evaluating the evidence presented,
the Presiding Officer shall give due consideration to the reliability
and relevance of each item of evidence.
(e) The Presiding Officer may take notice of matters which are not
subject to reasonable dispute and are commonly known in the community,
or are capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Prior to taking notice
of a matter, the Presiding Officer shall give each party an opportunity
to show why notice should not be taken. In any case in which notice is
taken, the Presiding Officer shall place in the record a written
statement of the matter as to which notice was taken with the basis for
such notice, including either a statement that the parties consented to
notice being taken or a summary of any party's objections.
Sec. 59.19 Penalty assessment criteria.
(a) The Presiding Officer shall consider the following criteria in
reviewing the penalty proposed in the field citation:
(1) The size of the business;
(2) The economic impact of the penalty on the business;
(3) The respondent's full compliance history, and good faith
efforts by the respondent to comply;
(4) The duration of the violation as established by any credible
evidence (including evidence other than the applicable test method);
(5) Payment by the respondent of penalties previously assessed for
the same violation;
(6) The economic benefit of noncompliance;
(7) The seriousness of the violation; and
(8) Such other factors as justice may require.
(b) The burden of going forward with respect to criteria in
paragraphs (a)(1), (2), (3), (5), and (6) of this section, is on the
respondent. The burden of going forward with respect to criteria in
paragraphs (a)(4) and (7) of this section is on the Agency. The burden
of going forward with respect to criterion in paragraph (a)(8) of this
section is on the party proffering such factors. Failure of the
respondent to meet its burden with respect to any applicable criterion
shall mean that a penalty amount that is appropriate in light of other
criteria shall also be appropriate in light of such criterion for which
the respondent failed to meet its burden.
Sec. 59.20 Transcript or recording of hearing.
(a) The hearing shall be tape recorded unless the parties agree and
the Presiding Officer directs otherwise. A verbatim transcript will not
normally be prepared, but may be ordered by the Presiding Officer if
deemed necessary to permit a full and fair review and resolution of the
case. If not so ordered by the Presiding Officer, a party may, at its
own expense, cause a verbatim transcript to be made. The party causing
the verbatim transcript to be made shall submit one (1) copy to the
Presiding Officer and one (1) copy to the other party.
(b) The transcript or recording of the hearing, together with all
written submissions made by the parties, shall become part of the
administrative record for the proceeding.
Sec. 59.21 Post-hearing submissions.
The Presiding Officer may request, within a reasonable time
following the conclusion of the hearing, that the parties submit a
written statement for his consideration including, but not limited to,
proposed recommended findings of fact and conclusions of law. Such
written statement shall be limited to the matters raised at the
hearing.
Sec. 59.22 Recommended decision.
(a) Within a reasonable time after the conclusion of the hearing,
the Presiding Officer shall:
(1) Certify the administrative record as complete;
(2) Make the administrative record available to the Regional
Administrator; and
(3) Prepare and transmit a recommended decision to the Regional
Administrator. The recommended decision shall address all material
issues of fact or law properly raised by the respondent, and shall
recommend that the field citation be affirmed, modified or withdrawn.
The recommended decision shall be based on substantial evidence in the
administrative record, taken as a whole, and shall provide citations to
relevant material contained in that record.
(b) The Presiding Officer shall file a copy of the recommended
decision with the Hearing Clerk at the time of its transmittal to the
Regional Administrator. The Hearing Clerk shall immediately serve each
party with a copy of the recommended decision.
Sec. 59.23 Decision of the regional administrator.
(a) Following receipt of the recommended decision, the Regional
Administrator shall issue a final decision that either affirms,
reverses, or modifies the recommended decision or remands the case to
the Presiding Officer for further proceedings. The Regional
Administrator's decision may compromise, modify, or remit the penalty
requested by the recommended decision, with or without conditions.
(b) If the Regional Administrator rejects the recommendation of the
Presiding Officer, in whole or in part, the decision shall include a
written explanation for that rejection that states each point of
disagreement with the recommendation of the Presiding Officer. If the
Regional Administrator determines that the proposed penalty assessment
must be withdrawn, such action may be done without prejudice.
(c) The Regional Administrator's decision shall be supported by
clear reasons and by the administrative record and shall include a
statement of the right to judicial review and of the procedures and
deadlines for obtaining judicial review. The decision shall be
comprised of the Regional Administrator's findings of fact, conclusions
of law, and assessment of an appropriate penalty after taking into
account all applicable statutory and penalty factors.
(d) For purposes of appeal, the final decision of the Regional
Administrator pursuant to this part shall be deemed issued five (5)
days following the date of mailing of the decision to the respondent.
The final decision becomes effective thirty (30) days following its
date of issuance unless an appeal is taken pursuant to section
113(d)(4) of the Clean Air Act, 42 U.S.C. 7413(d)(4) before that date.
The issuance of the final decision by the Regional Administrator
pursuant to this section constitutes final Agency action on its
effective date.
Sec. 59.24 Sua Sponte review.
The Environmental Appeals Board may, on its own initiative, within
thirty (30) days of the date of issuance by the Regional Administrator
of a final decision pursuant to Sec. 59.23, suspend implementation of
such decision for the purpose of reviewing its conclusions of law or
its sufficiency under Sec. 59.23(c). The Environmental Appeals Board,
after such review, may amend its conclusions of law, withdraw the field
citation, remand the case for appropriate action to the Regional
Administrator, or may allow the decision to issue unchanged. In any
action in which the Environmental Appeals Board acts pursuant to this
section, the provisions of Sec. 59.23 shall apply, except that:
(a) The Regional Administrator who issued the final decision shall
be deemed the recommending Presiding Officer for purposes of
Sec. 59.22;
(b) Upon suspension of the final decision, the Environmental
Appeals Board shall be deemed the Regional Administrator for purposes
of Sec. 59.23;
(c) The Regional Administrator's decision, except for its findings
of fact, shall be deemed a recommended decision; the Regional
Administrator's findings of fact are findings for purposes of this part
and are not subject to review by the Environmental Appeals Board;
(d) If the Environmental Appeals Board does not amend the Regional
Administrator's conclusions of law nor determine that the order is
insufficient under Sec. 59.23(c), the Regional Administrator's penalty
determination is not subject to review. If the Environmental Appeals
Board amends the Regional Administrator's conclusions of law or
determines insufficiency, the Regional Administrator's penalty
determination shall be remanded by the Environmental Appeals Board to
the Regional Administrator for appropriate action, except that if the
Environmental Appeals Board determines that the respondent is not
liable for the violations alleged under applicable law, then the
Environmental Appeals Board shall withdraw the field citation and the
final decision of the Regional Administrator without remand;
(e) If the Environmental Appeals Board allows the final decision to
issue unchanged, the requirements of Sec. 59.23(c) shall not apply;
(f) If the Environmental Appeals Board amends or remands the
decision, the requirements of Sec. 59.23(c) to make findings of fact
and to assess the appropriate penalty shall not apply; and
(g) The Environmental Appeals Board's decision to suspend
implementation of a final decision shall not be deemed final Agency
action for the purposes of Sec. 59.23(d).
Sec. 59.25 Payment of assessed penalty.
Except as may otherwise be provided by applicable law and the
provisions of any applicable consent order, the respondent shall pay,
within thirty (30) days of the effective date of the final decision,
any civil penalty assessed pursuant to this part by forwarding to the
address provided by the field citation a cashier's or certified check,
payable to ``Treasurer, The United States of America.''
[FR Doc. 94-10197 Filed 5-2-94; 8:45 am]
BILLING CODE 6560-50-P
