[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Rules and Regulations]
[Pages 48076-48077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23204]
[[Page 48075]]
_______________________________________________________________________
Part V
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 142 and 135
Public Water System Program; Removal of Obsolete Rule and Safe Drinking
Water Public Water System Program; Citizen Collection Action; Notice of
Complaint Seeking Review of Penalty Order; Rule and Proposed Rule
Federal Register / Vol. 63, No. 173 / Tuesday, September 8, 1998 /
Rules and Regulations
[[Page 48076]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 142
[FRL-6121-7]
Public Water System Program; Removal of Obsolete Rule
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is today amending
its regulations to remove from the Code of Federal Regulations (CFR)
rules pertaining to the issuance of proposed administrative compliance
orders pursuant to Section 1414(g)(2) of the Safe Drinking Water Act,
as amended in 1986 (1986 Act). Enactment of the Safe Drinking Water Act
Amendments of 1996 (1996 Act) eliminated the statutory requirement in
the 1986 Act that administrative compliance orders against violators of
the Public Water Systems program be issued only after proposal and
subsequent opportunity for public hearing.
EFFECTIVE DATE: This final rule takes effect on September 8, 1998. In
accordance with 40 CFR 23.7, this regulation will be considered final
Agency action for purposes of judicial review at 1:00 p.m. eastern time
on September 8, 1998.
FOR FURTHER INFORMATION CONTACT: David Drelich (2243A), Water
Enforcement Division, Office of Enforcement and Compliance Assurance,
401 M Street SW., Washington, DC 20460, (202) 564-2949.
SUPPLEMENTARY INFORMATION:
I. Background
The 1986 Act amended Section 1414 of the Safe Drinking Water Act
(SDWA) to provide for the issuance of administrative compliance orders
against violators of the regulations implementing the public water
supply system (PWSS) program:
(g) Administrative order requiring compliance; notice and hearing *
* *
(2) An order issued under this subsection shall not take effect
until after notice and opportunity for public hearing and, in the
case of a State having primary enforcement responsibility for public
water systems in that State, until after the Administrator has
provided the State with an opportunity to confer with the
Administrator regarding the proposed order. A copy of any order
proposed to be issued under this subsection shall be sent to the
appropriate State agency of the State involved if the State has
primary enforcement responsibility for public water systems in that
State. Any order issued under this subsection shall state with
reasonable specificity the nature of the violation. In any case in
which an order under this subsection is issued to a corporation, a
copy of such order shall be issued to appropriate corporate
officers. [Emphasis supplied.]
Section 1414(g)(2) of 1986 Act; 42 U.S.C. 300g-3(g)(2) (1995). The
emphasized language in the citation above was repealed by the 1996 Act.
Safe Drinking Water Act, as amended 1996; Sec. 113(a)(3)(B), Pub. L.
104-182; 110 Stat. 1613 (42 U.S.C. 300g-3(g)(2)) (1996). The repeal has
the effect of eliminating the requirement for the issuance of a
proposed PWSS compliance order, as well as the notice and opportunity
for a public hearing on the proposal.
The hearings described in the regulations being deleted today were
promulgated as 40 CFR Part 142 Subpart J on January 30, 1991. See 56 FR
3755. The procedures being deleted today are information-gathering
rather than adjudicatory in nature. This was noted in the proposed
rulemaking for the regulations: ``The procedures proposed for section
1414(g)(2) compliance orders provide an opportunity for informal,
information-gathering, nonadjudicatory hearings prior to the issuance
of the orders.'' 54 FR 29517 (July 12, 1989). Because PWS compliance
orders do not result in the deprivation of any constitutionally
protected interest, see generally Mathews v. Eldridge, 424 U.S. 319
(1976) and Preamble to 40 CFR Part 142, Subpart J (1991), the
opportunity for hearings on the proposed orders was not
constitutionally mandated.
EPA has issued numerous proposed administrative compliance orders
in this program, and has received relatively few requests for public
hearings. It is unaware of any such hearings now pending. If the
deletion of Subpart J occurs during the pendency of such an
information-gathering hearing, EPA has the discretion to go forward
with the hearing, although it would no longer be mandated by law.
One provision of Subpart J being deleted today, 40 CFR 142.208,
provides that any penalty sought by the Administrator pursuant to
Section 1414(g)(3)(B) of the SDWA (relating to penalty complaints for
violations of PWS administrative compliance orders) shall be assessed
pursuant to the procedures set forth at 40 CFR part 22. This provision
is consistent with the statutory instructions in an unamended sentence
of Section 1414(g)(3)(B), which provided that such an administrative
penalty was to be assessed ``after notice and opportunity for a hearing
on the record in accordance with section 554 of Title 5.'' 42 U.S.C.
300g-3(g)(3)(B). Part 22 establishes procedures consistent with the
requirements set forth by the Administrative Procedure Act, 5 U.S.C.
551 et seq. (APA). Section 1414(g)(3)(B) of the SDWA, as amended by the
1996 Act, however, now states
In a case in which a civil penalty sought by the Administrator
under this paragraph [Sec. 1414(g)] does not exceed $5,000, the
penalty shall be assessed by the Administrator after notice and
opportunity for a public hearing (unless the person against whom the
penalty is assessed requests a hearing on the record in accordance
with section 554 of title 5, United States Code). In a case in which
a civil penalty sought by the Administrator under this paragraph
exceeds $5,000, but does not exceed $25,000, the penalty shall be
assessed by the Administrator after notice and opportunity for a
hearing on the record in accordance with section 554 of title 5,
United States Code.
The Agency has proposed to amend 40 CFR part 22 to implement this new
provision of law in permanent form. See 63 FR 9464 (February 25, 1998).
Consequently, Section 142.208 is being deleted. In the interim period
between the deletion of this section and a final promulgation of
conforming amendments to 40 CFR part 22, EPA will continue to use the
part 22 procedures as guidance when on the record hearings are required
by the terms of Section 1414(g)(3)(B), and will provide interim
guidance on what procedures EPA shall follow in instances of non-APA
adjudicatory hearings.
II. Good Cause Exemption from Notice-and-Comment Rulemaking
Procedures
The Administrative Procedure Act general requires agencies to
provide prior notice and opportunity for public comment before issuing
a final rule. 5 U.S.C. 553(b). Rules are exempt from this requirement
if the issuing agency finds for good cause that notice and comment are
unnecessary. 5 U.S.C. 553(b)(3)(B).
EPA has determined that providing prior notice and opportunity for
comment on the deletion of these rules from the CFR is unnecessary. The
statutory requirement underlying the promulgation of these regulations
has been repealed. As discussed above, EPA is unaware of any hearing
pending under these rules, but during this interim period may
nonetheless continue to provide the opportunity for such an
information-gathering hearing even in the absence of this regulatory
subpart.
For the same reasons, EPA believes there is good cause for deleting
these rules from the CFR effective immediately. See 5 U.S.C. 553(d).
[[Page 48077]]
III. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant'' regulatory action. It also does not
impose any federal mandate on State, local or tribal governments or the
private sector within the meaning of the Unfunded Mandates Act of 1995.
Further, this action would not impose any requirements under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., require prior
consultation with State officials as specified by Executive Order 12875
(58 FR 58093, October 28, 1993), or involve special consideration of
environmental justice related issues as required by Executive Order
12898 (59 FR 7629, February 16, 1994).
The Agency has determined that this rule is not subject to the
Regulatory Flexibility Act (``RFA''), which generally requires any
agency to conduct a regulatory flexibility analysis of any significant
impact the rule will have on a substantial number of small entities. By
its terms, the RFA applies only to rules subject to notice-and-comment
rulemaking requirements under the Administrative Procedure Act
(``APA'') or any other statute. As explained above, this rule is not
subject to notice and comment requirements under the APA or any other
statute.
The Agency has nonetheless assessed the potential of this rule to
adversely impact small entities. Because this rule change does not
effect any change in the law applicable to small entities, but only
concerns Agency practice and procedure, it has no adverse impact on
small entities.
Pursuant to 5 U.S.C. 801(a)(1)(A), as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office; however, in accordance with 5 U.S.C. 808(2),
this rule is effective on September 8, 1998. This rule is not a ``major
rule'' as defined in 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 142
Environmental protection, Administrative practice and procedure.
Dated: August 24, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 142--[AMENDED]
1. The authority citation for part 142 continues to read as
follows:
Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4, and 300j-9.
2. Part 142 is amended by removing and reserving Subpart J
(Secs. 142.201 through 142.208).
[FR Doc. 98-23204 Filed 9-4-98; 8:45 am]
BILLING CODE 6560-50-P
