[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Proposed Rules]
[Pages 48078-48080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23205]
Federal Register / Vol. 63, No. 173, Tuesday, September 8, 1998 /
Proposed Rules
[[Page 48078]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 135
[FRL-6121-6]
RIN 2020-AA35
Safe Drinking Water Public Water System Program; Citizen
Collection Action; Notice of Complaint Seeking Review of Penalty Order
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Safe Drinking Water Act Amendments of 1996 (``1996
Amendments'') amended Section 1449 of the Safe Drinking Water Act
(SDWA) to authorize any person to bring suit to collect for the United
States an outstanding penalty assessed by the Administrator that a
federal agency has failed to pay for at least eighteen months. The
Amendments also require as a precondition to the collection action that
the citizen plaintiff shall give sixty days' notice of its complaint to
the Attorney General and the federal agency, and that the Administrator
shall prescribe the manner of such notice by regulation.
EPA is today proposing regulations governing the manner in which
parties in citizen suits must provide such sixty day notice under this
new provision.
The 1996 Amendments also amended Section 1447 of the SDWA to
authorize any interested person to obtain review of an administrative
penalty order issued under that section of the law by filing a
complaint with either the United States District Court for the District
of Columbia or the United States District Court for the district in
which the violation is alleged to have occurred within the thirty day
period beginning on the date the penalty order becomes final, and by
requiring such a person to simultaneously send a copy of the complaint
by certified mail to the Administrator and to the Attorney General.
EPA is also today proposing regulations governing the manner in
which such a petitioner must provide copies of such a complaint.
DATES: Comments on the proposed rule must be received by October 23,
1998.
ADDRESSES: Send comments to: David Drelich (2243A), Water Enforcement
Division, Office of Enforcement and Compliance Assurance, U.S.
Environmental Protection Agency, 401 M Street, S.W. Washington, D.C.
20460. Persons may, upon reasonable notice, inspect all comments and
the record of this rulemaking at Room 3124A, Ariel Rios Building, 12th
and Pennsylvania Avenue, N.W. during normal Agency working hours.
FOR FURTHER INFORMATION CONTACT: David Drelich at (202) 564-2949, or at
the address provided above.
SUPPLEMENTARY INFORMATION: Section 1449 of the Safe Drinking Water Act
(SDWA or the Act) (42 U.S.C. 300j-8) authorizes any person on his own
behalf to commence a civil action against any federal agency that fails
to pay an administrative penalty by eighteen months after the effective
date of such an administrative penalty order issued under the Act by
the Administrator. No such action may be commenced under this citizen
suit provision prior to 60 days after the citizen plaintiff has given
notice to the Attorney General and the federal agency of the intent to
file the collection action.
Specifically, Congress amended SDWA Section 1449(a), 42 U.S.C.
300j-8(a), by adding to it a paragraph (a)(3) that reads:
``(3) for the collection of a penalty by the United States
Government (and associated costs and interest) against any Federal
agency that fails, by the date that is 18 months after the effective
date of a final order to pay a penalty assessed by the Administrator
under section 300j-8 of this title [sic],1 to pay the
penalty.''
\1\ Since ``section 300j-8 of this title'' is self-referential
and has no collateral relevance to administrative enforcement
against Federal agencies, EPA understands this reference to be a
typographical error, intended instead to refer to section 300j-6 of
title 42 (Section 1447 of the Act), which includes the pertinent
provision relating to the Agency's imposition of an administrative
civil penalty against a Federal agency. 3 C. Sands, Sutherlands
Statutes and Statutory Construction Sec. 60.01-.05 (4th ed.
1973)(all words of a law are to be read to have an effect). A
predecessor cross-reference in the earlier Committee Print of the
Conference Report of the 1996 SDWA Amendments was unhelpful; it
referred to a different, unrelated provision that EPA also
understands to have been a typographical error. That reference was
to Section 1429(b) of the Act, which relates to the State
Groundwater Protection Grants program.
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Congress also amended Section 1449(b) of the Act, 42 U.S.C. 300j-8(b),
by striking the period at the end of paragraph (2) and inserting ``;
or'' and by adding the following new paragraph (3):
``under subsection (a)(3) prior to 60 days after the plaintiff has
given notice of such action to the Attorney General and to the
Federal agency.''
Section 1449(b) provides that notice must be given in the manner
prescribed by the Administrator. As a result, EPA is today proposing to
amend 40 CFR part 135 to spell out how notice is to be given for such
citizen collection actions, as well as for other citizen suits
authorized under the SDWA. See amended Section 1449(b). Pursuant to
this statutory duty, even though the citizen suit notice requirement of
Section 1449(b)(3) is self implementing, the Environmental Protection
Agency (EPA or the Agency) is proposing to amend 40 CFR part 135 in
order to clarify the statutory requirement and to ensure that the
amendment will be implemented consistently. Procedures for those other
types of citizen suits are set forth at 40 CFR part 135, subpart B, and
were first published at 54 FR 20771 (May 12, 1989). One purpose of this
proposed rulemaking is to propose notice procedures that will be
consistent with 40 CFR part 135, subpart B.
Today's proposed rule is straightforward. Citizen plaintiffs are
required to send copies of sixty day notices to the Attorney General of
the United States and to the officer of the federal agency who is
already in receipt of the unpaid administrative penalty order.
Penalties and interest paid as a result of a citizen suit
collection action accrue to the United States Treasury pursuant to the
Miscellaneous Receipts Act, 31 U.S.C. 3302. Payment of a penalty
elsewhere would violate the Anti-Deficiency Act, 31 U.S.C. 1512. This
limitation does not affect payment of associated costs (such as court
costs and attorneys' fees).
Section 1447 of the Act authorizes any interested person to obtain
review of an administrative penalty order issued under that section of
the law by filing a complaint with either the United States District
Court for the District of Columbia or the United States District Court
for the district in which the violation is alleged to have occurred
within the thirty day period beginning on the date the penalty order
becomes final, and by requiring such a person to simultaneously send a
copy of the complaint by certified mail to the Administrator and to the
Attorney General.
The Conference Report, Section 129(a), amended SDWA Section 1447 in
relevant part as follows:
Section 1447 (42 U.S.C. 300j-6) is amended by striking subsection *
* * (b) and inserting the following:
* * * * *
``(4) PUBLIC REVIEW. --
``(A) IN GENERAL. --Any interested person may obtain review of
an administrative penalty order issued under this subsection. The
review may be obtained in the United States District Court for the
District of Columbia or in the United States District Court for the
district in which the violation is alleged to have occurred by the
filing of a complaint with the court within
[[Page 48079]]
the 30-day period beginning on the date the penalty order becomes
final. The person filing the complaint shall simultaneously send a
copy of the complaint by certified mail to the Administrator and the
Attorney General.''
Consequently, and even though this provision of law is self
implementing, the Agency is also proposing to amend 40 CFR Part 135 in
order to clarify the statutory requirement and to ensure that the
amendment will be implemented consistently. One purpose of this
rulemaking is to propose complaint service procedures that are
consistent both with Section 1447 of the SDWA and the procedures set
forth in subpart A of part 135 (concerning complaint service under the
Clean Water Act). Today's proposal is simply stated: Petitioners for
judicial review of a Section 1447 administrative penalty order are to
send copies of the complaint to the appropriate federal officials by
certified mail on the same day that they are sent to, or filed with,
the appropriate district court.
Paperwork Reduction Act
EPA has not prepared an information collection request under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) for the reporting
requirements contained in this rule. EPA has received very few notices
of citizens suits under the SDWA annually. The public reporting burden
for individuals complying with this rule is estimated to average one
hour or less. If the number of notices under SDWA section 1449(b)(3) or
complaints under SDWA section 1447(b) received by the United States
substantially increases in succeeding years, EPA will prepare and
solicit comment on an information collection request for today's rule,
in accordance with 5 CFR 1320.14. In the meantime, any comments on the
estimate of burden or any other aspect of the information collection
requirements contained in this rule, including suggestions to reduce
the burden, should be sent to: Chief, Information Policy Branch (PM-
223), U.S. Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460 or Director, Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, D.C.
20503.
Regulatory Impact Analysis
The Administrator has determined that this is a minor regulation
under the terms of E.O. 12291 and does not require a regulatory impact
analysis.
Other Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and is
therefore not subject to review by the Office of Management and Budget.
In addition, the proposal would not impose any enforceable duty or
contain any unfunded mandate as described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or 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). Further, today's proposal would not raise any
environmental safety or health issue for children as described in
Executive Order 13045 (Children's Health Protection).
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
as amended by SBREFA, whenever EPA is required by section 553 of the
Administrative Procedure Act or any other law to public a general
notice of rulemaking for any proposed rule, EPA generally must prepare
an initial regulatory flexibility analysis describing the impact of the
rule on small entities. Under section 605(b) of the RFA, however, if
EPA certifies that the proposed rule will not have a significant
economic impact on a substantial number of small entities, EPA is not
required to prepare the analysis.
The changes to citizen suit procedures proposed today affect only
federal facilities, and therefore will have no impact on small entities
if EPA adopts them. Consequently, pursuant to section 605(b) of the
RFA, the Administrator certifies that this proposed rule, if
promulgated, will not have a significant impact on a substantial number
of small entities.
This proposed regulation has been reviewed by the Office of
Management and Budget.
List of Subjects in 40 CFR Part 135
Environmental protection, Administrative practice and procedure,
water pollution control.
Dated: August 24, 1998.
Carol M. Browner,
Administrator.
It is proposed that part 135 of title 40, chapter I of the Code of
Federal Regulations be amended as follows:
PART 135--[AMENDED]
1. The authority citation for part 135 is revised to read as
follows:
Authority: Subpart A issued under sec. 504, Pub. L. 100-4; 101
Stat. 7 (33 U.S.C. 1365). Subpart B issued under sec. 129, Pub. L.
104-182; 110 Stat. 1613 (42 U.S.C. 300j-8).
2. Section 135.10 is amended, by designating the existing text as
paragraph (a); by adding paragraphs (b) and (c); and, by revising in
newly designated paragraph (a) the phrase ``The purpose of this
subpart'' to read ``One purpose of this subpart'', to read as follows:
Sec. 135.10 Purpose.
* * * * *
(b) Section 1449 of the Act authorizes any person, upon no less
than sixty days notice, to commence a civil action for the collection
of a penalty by the United States Government (and associated costs and
interest) against any federal agency that fails, by a date that is 18
months after the effective date of a final order to pay a penalty
assessed by the Administrator under the Act, to pay the penalty. No
citizen suit may be commenced under this provision prior to both 18
months after the effective date of a final order to a federal agency to
pay a penalty assessed by the Administrator under the Act and sixty
days' written notice of such action to both the Attorney General and
the federal agency owing the assessed penalty. One purpose of this
subpart is to prescribe procedures for giving such notice.
(c) Section 1447 of the Act authorizes any interested person to
obtain judicial review of an administrative penalty order issued under
that section in the United States District Court for the District of
Columbia or in the United States District Court for the district in
which the violation is alleged to have occurred by filing a complaint
with the court within the thirty day period beginning on the date the
penalty order becomes final, and requires such person to simultaneously
send a copy of the complaint by certified mail to the Administrator and
the Attorney General. One purpose of this subpart is to prescribe
procedures for the service of copies of such a complaint upon the
Administrator and the Attorney General.
3. Section 135.11 is amended by redesignating paragraph (c) as
paragraph (d) and adding a new paragraph (c) to read as follows:
Sec. 135.11 Service of notice.
* * * * *
(c) Service of notice of intent to file suit pursuant to section
1449(a)(3) of the Act shall be accomplished by certified mail, return
receipt requested, addressed to, or by personal service upon, all
federal agency officials named by the Administrator as responsible in
their official capacity for the payment of
[[Page 48080]]
the uncollected penalty order, if any, and the chief executive officer
of such agency, and by sending a copy of the notice by certified mail
to the Attorney General of the United States.
* * * * *
4. Section 135.12 is amended by redesignating paragraph (c) as
paragraph (d) and adding a new paragraph (c) to read as follows:
Sec. 135.12 Contents of notice.
* * * * *
(c) Collection action. Notice regarding an alleged failure of a
federal agency to have paid an administrative penalty, by a date that
is 18 months after the effective date of a final order by the
Administrator assessing such a penalty under the Act, shall include a
copy of the final EPA order assessing the penalty, shall state the date
that is 18 months following the effective date of such order, and shall
state the full name, address and telephone number of the person giving
notice.
* * * * *
5. Section 135.13 is amended by revising the phrase ``section
1449(a)(1) or (a)(2)'' to read ``section 1449(a) of the Act'' and by
adding the following sentence after the first sentence:
Notice may be given under section 1449(b) at any time after the
effective date of a final order by EPA assessing a penalty against a
federal agency, if the penalty has not been paid. * * *
Sec. 135.13 Timing of notice.
* * * * *
6. A new Sec. 135.14 is added to read as follows:
Sec. 135.14 Service of Complaint Seeking Review of Penalty Order
(a) An interested person filing a complaint seeking review of an
administrative penalty order issued pursuant to section 1447(b)(4) of
the Act shall by certified mail send a copy of such complaint to the
Administrator of the Environmental Protection Agency, the Regional
Administrator of the EPA Region in which the violations are alleged to
have occurred, and the Attorney General of the United States.
(b) Such petitioner shall by certified mail send a copy of the
complaint on the same date on which the plaintiff files the complaint
with the court.
(c) In addition to complying with the service requirements of this
subsection, such petitioner shall serve the complaint on the
appropriate officials of the United States in accordance with relevant
Federal law and court rules affecting service on defendants.
[FR Doc. 98-23205 Filed 9-4-98; 8:45 am]
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