[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Rules and Regulations]
[Pages 67779-67780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32684]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 1
[FRL-6200-1]
Changes to Regulations Concerning Membership of EPA's
Environmental Appeals Board
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA amends its regulations establishing the Environmental
Appeals Board by increasing the limit on the number of Board members
from three to four. The workload of the Environmental Appeals Board has
increased since it was established. This action ensures that the Board
can respond effectively to the growing workload.
EFFECTIVE DATE: These regulations are effective on December 9, 1998.
FOR FURTHER INFORMATION CONTACT: Ronald L. McCallum, Esq.,
Environmental Appeals Board, 401 M Street, SW., Washington, DC 20460,
(202) 501-7060.
SUPPLEMENTARY INFORMATION: On February 13, 1992, EPA promulgated
regulations establishing the Agency's Environmental Appeals Board. The
regulations contemplated a three-member Board. In recognition of the
Board's increasing workload, the Agency is through this rule increasing
the limit on the number of Board members from three to four.
Reasons for Change
The past several years have seen a significant increase in the
Environmental Appeals Board's workload. The cause of the workload
increase has been two-fold. First, there has been an increase in the
number of appeals to the Board pursuant to the authorities which were
part of the original delegation to the Board in the 1992 regulations.
For example, the number of appeals of Prevention of Significant
Deterioration (PSD) permits issued under the Clean Air Act has
increased dramatically. During FY 1995, only two PSD appeals were
received by the Board. In sharp contrast, twenty-four PSD appeals were
received during FY 1997, and twenty-nine such appeals were received
during FY 1998. Second, the Board's jurisdiction has expanded over the
past several years to encompass such matters as petitions for
reimbursement filed under Section 106 of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),
further increasing the Board's workload. Other areas in which the
Board's jurisdiction has expanded include, for example, acid rain
appeals under 40 CFR Part 78, Title V federal permit appeals under 40
CFR Part 71, and certain Safe Drinking Water Act penalty appeals.
Notably, the Agency currently has underway a number of rulemakings
which can be expected to further tax the Board as currently
constituted.
Through this rule, the Agency is responding to this increasing
workload by raising the limit on the number of Board members from three
to four. The current regulations envision the Board sitting as a panel
on cases pending before it. They provide that, while ordinarily all
three members will sit as a panel, the Board can proceed with two
members if all three are not available because of recusal or absence.
In the event that a two-member panel results in a tie, the matter is
referred to the Administrator to break the tie.
The changes made today envision the Board typically sitting in
three-member panels drawn, on a rotating basis, from a four member
Board. The ``off'' member will then be able to dedicate his/her
energies to bringing other matters to conclusion. In addition to
leaving the Board better positioned to respond to its workload, this
change, while preserving the capacity of the Board to act with two
members, will increase the probability of three-member panels
notwithstanding absences and recusals, and will concomitantly decrease
the probability of the Administrator's being required to break a tie.
Administrative Requirements
EPA has found that good cause exists under 5 U.S.C. 553 (b)(3) (A),
(B) and (d)(3) for waiving, as unnecessary and contrary to the public
interest, the general notice of proposed rulemaking and the 30-day
delay in effectiveness as to these rules and revocations. This
rulemaking is related solely to EPA's organization, procedure, and
practice. Under Executive Order 12866 (58 FR 51735, October 4, 1993),
this action is not a ``significant regulatory action'' and is therefore
not subject to review by the Office of Management and Budget. In
addition, this action does not impose any enforceable duty, contain any
unfunded mandate, or impose any significant or unique impact on small
governments as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4). This rule also does not require prior consultation
with State, local, and tribal government officials as
[[Page 67780]]
specified by Executive Order 12875 (58 FR 58093, October 28, 1993) or
Executive Order 13084 (63 FR 27655 (May 10, 1998)), or involve special
consideration of environmental justice related issues as required by
Executive Order 12898 (59 FR 7629, February 16, 1994). Because this
action is not subject to notice-and-comment requirements under the
Administrative Procedure Act or any other statute, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.). This rule also is not subject to Executive
Order 13045 (62 FR 19885, April 23, 1997) because EPA interprets E.O.
13045 as applying only to those regulatory actions that are based on
health or safety risks, such that the analysis required under section
5-501 of the Order has the potential to influence the regulation.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 804 exempts from section 801 the following types
of rules (1) rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding today's action under section 801
because this is a rule of agency organization, procedure, or practice
that does not substantially affect the rights or obligations of non-
agency parties. EPA has determined that the Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply because the regulation does not
contain any information collection requirements that require the
approval of the Office of Management and Budget.
List of Subjects in 40 CFR Part 1
Environmental protection, Statement of Organization and General
Information.
Dated: December 3, 1998.
Carol M. Browner,
Administrator, Environmental Protection Agency.
For the reasons set forth in the preamble, title 40, Chapter I
of the Code of Federal Regulations is amended as follows:
PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION:
1. The authority citation for Part 1 continues to read as follows:
Authority: 5 U.S.C. 552.
2. Section 1.25 is amended by revising paragraph (e)(1) to read as
follows:
Sec. 1.25 Staff Offices.
* * * * *
(e)(1) Environmental Appeals Board. The Environmental Appeals Board
is a permanent body with continuing functions composed of no more than
four Board Members designated by the Administrator. The Board shall
decide each matter before it in accordance with applicable statutes and
regulations. The Board typically shall sit on matters before it in
three-Member panels, and shall decide each matter by a majority vote.
In the event that absence or recusal prevents a three-Member panel, the
Board shall sit on a matter as a panel of two Members, and two Members
shall constitute a quorum under such circumstances. The Board in its
sole discretion shall establish panels to consider matters before it.
The Board's decisions regarding panel size and composition shall not be
reviewable. In the case of a tie vote, the matter shall be referred to
the Administrator to break the tie.
* * * * *
[FR Doc. 98-32684 Filed 12-8-98; 8:45 am]
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