[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Rules and Regulations]
[Pages 9646-9648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5710]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 112, 114, and 117
[FRL-5432-9]
Oil Discharge Program; Removal of Legally Obsolete Rules
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is today removing
from the Code of Federal Regulations (CFR) rules pertaining to the oil
and hazardous substances discharge program promulgated under the Clean
Water Act (``CWA'') which apply only to violations that occurred prior
to enactment of the Oil Pollution Act of 1990 (``OPA''). Because EPA is
unaware of any on-going penalty actions for pre-OPA violations, it is
deleting these rules from the CFR.
EFFECTIVE DATE: This final rule takes effect on March 11, 1996.
FOR FURTHER INFORMATION CONTACT: Kevin Mould, Office of Emergency and
Remedial Response, U.S. Environmental Protection Agency, 401 M Street
SW., Washington, DC 20460, mail code 5202G, phone (703) 603-8728; or
the RCRA/Superfund Hotline, phone (800) 424-9346 or (703) 603-9232 in
the Washington, DC metropolitan area.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 4, 1995 the President directed all Federal agencies and
departments to conduct a comprehensive review of the regulations they
administer and, by June 1, 1995 to identify those rules that are
obsolete or unduly burdensome. EPA has conducted a review of all of its
rules, including rules issued under the CWA. 33 U.S.C. 1251 et seq.
Based upon this review, EPA is today eliminating the following obsolete
CWA rules from the CFR: 40 CFR section 112.6, Part 114, and section
117.22.
II. Obsolete Rules
Civil Penalties for Violation of the Oil Pollution Prevention
Regulations (Section 112.6 and Part 114)
The civil penalty provision of the oil pollution prevention
regulations (40 CFR 112.6), and the related civil penalty provisions
and procedures at 40 CFR part 114 were promulgated in 1974 pursuant to
section 311(j) of the CWA. 39 FR 31602, August 29, 1974. Part 112 sets
out, for onshore and offshore non-transportation-related facilities,
requirements designed to prevent discharges of oil into or upon
``navigable waters and adjoining shorelines.'' 40 CFR 112.6 and 114.1
each provide that violations of the oil pollution prevention
regulations may result in the assessment of an administrative penalty
of not more than $5,000 per day of violation. 40 CFR 112.6 and 114.1
are based on authority in CWA section 311(j)(2), which, before its
amendment by the Oil Pollution Act of 1990 (OPA), limited civil
penalties assessed for violations of regulations issued under section
311(j) to ``not more than $5,000 for each such violation.''
OPA repealed CWA section 311(j)(2) and amended CWA section
311(b)(6) to provide that violators of CWA section 311(j) may be
assessed a Class I penalty of up to $10,000 per violation (up to a
maximum assessment of $25,000), or a Class II penalty of up to $10,000
per day of violation (up to a maximum assessment of $125,000). Further,
section 311(b)(6) now provides for different administrative proceedings
for these two classes of penalties. Respondents in Class I cases are
given a reasonable opportunity to be heard and to present evidence, but
the hearing need not meet the requirements of the Administrative
Procedure Act (APA) for formal adjudications (5 U.S.C. 554). Class II
hearings, however, are on the record and subject to 5 U.S.C. 554.
As a result of these OPA-enacted changes in both the penalty
amounts and the procedures needed to be followed in issuing penalties,
EPA amended section 112.6 and Part 114 to ensure that the provisions
would be applicable only to violations of the Oil Pollution Prevention
regulations contained in 40 CFR Part 112 which occurred prior to
enactment of OPA (August 18, 1990). 57 FR 52704 (Nov. 4, 1992). At the
present time--more than five years after enactment of OPA--EPA is
unaware on any on-going penalty actions for violations of the Part 112
regulations which occurred prior to August 18, 1990. EPA is therefore
deleting section 112.6 and Part 114 from the CFR.
As explained in a prior Federal Register notice, EPA will use two
sets of procedures for assessing administrative penalties for
violations of CWA section 311(b)(3) occurring after August 18, 1990. 57
FR 52704 (Nov. 4, 1992). For Class I penalties, the Agency follows
generally the procedures set forth in the proposed 40 CFR 28, Non-APA
Consolidated Rules of Practice for Administrative Assessment of Civil
Penalties. 56 FR 29996 (July 1, 1991). For the assessment of CWA
section 311 Class II penalties, the Agency uses as guidance the
Consolidated Rules of Practice Governing the Administrative Assessment
of Civil Penalties and the Revocation or Suspension of Permits at 40
CFR 22.
Notification of Hazardous Substances Discharge(s) and Prohibition
Against Unauthorized Discharges
40 CFR 117 generally establishes the reportable quantities for CWA
hazardous substances designated under 40 CFR 116 for purposes of CWA
section 311. 40 CFR 117.21 sets out the notification requirement for
discharges of designated hazardous substances pursuant to CWA section
311(b)(5). 40 CFR 117.22(b) provides that violation(s) of the
notification requirement may result in a fine of not more than $10,000
[[Page 9647]]
or imprisonment for not more than one year, or both. However, 40 CFR
117.22(b) is based on language in former CWA section 311(b)(5), which
was amended by OPA. Section 4301 of OPA amended CWA section 311(b)(5)
to provide that any person convicted of violation of the notification
requirement in CWA section 311(b)(5) be ``fined in accordance with
title 18, United States Code, or imprisoned for not more than 5 years,
or both.'' 33 U.S.C. 1321(b)(5). As a result of this change in the
penalty provision enacted by OPA, EPA amended section 117.22 by making
it applicable only to violations occurring prior to August 18, 1990,
the date of enactment of the Oil Pollution Act. 40 CFR 117.22(a); see
57 FR 52704 (Nov. 4, 1992).
40 CFR 117.22(c) provides that an owner, operator or a person in
charge of a vessel or facility that has discharged a designated
hazardous substance exceeding the reportable quantity may be subject to
a civil administrative penalty assessment of up to $5,000 per
violation. The regulation also states that the Agency may pursue a
judicial civil penalty action, seeking up to $50,000 per violation;
where the discharge resulted from willful negligence or willful
misconduct, the maximum judicial civil penalty is $250,000. 40 CFR
117.22(c) is based on language in former CWA section 311(b)(6)(A),
which was amended by OPA.
As indicated above, section 4301 of OPA repealed CWA section
311(b)(6) and replaced it with a new penalty assessment framework. CWA
section 311(b)(6) now provides that violators of the prohibition
against unauthorized discharges in section 311(b)(3) may be assessed a
Class I penalty of up to $10,000 per violation (up to a maximum
assessment of $25,000) or a Class II penalty of up to $10,000 per day
of violation (up to a maximum assessment of $125,000). 33 U.S.C.
1321(b)(6)(B). Section 4301 of OPA also added CWA section 311(b)(7),
which provides for the judicial assessment of civil penalties for
violations of CWA section 311(b)(3) of up to ``$25,000 per day of
violation'' or up to ``$1,000 per barrel of oil or unit of reportable
quantity of hazardous substances.'' For violations of section 311(b)(3)
that are a result of gross negligence or willful misconduct, the
violator now is subject to a civil penalty of ``not less than $100,000
and not more than $3,000 per barrel or oil or unit of reportable
quantity or hazardous substance discharged.''
As a result of the changes in penalties for prohibited discharges
of CWA hazardous substances as enacted by the OPA, EPA amended section
117.22(c) to make it applicable only to violations of the discharge
prohibition which occurred prior to August 18, 1990, the date of
enactment of the Oil Pollution Act. 40 CFR 117.22(a); see 57 FR 52704
(Nov. 4, 1992). At the present time, EPA is unaware of any on-going
administrative penalty actions for violations of the notification
requirements in CWA section 311(b)(5) or the discharge prohibitions for
hazardous substances in CWA section 311(b)(3) which occurred prior to
August 18, 1990. All violations of the notification requirements and
discharge prohibitions which have occurred or will occur since
enactment of OPA will be subject to the different penalty provisions
contained in CWA sections 311(b)(6) and 311(b)(7), as amended by OPA.
Furthermore, CWA section 311, as amended by OPA, itself provides all
the necessary legal authorities establishing penalties for the
violation of section 311(b)(5) notification requirements and section
311(b)(3) discharge prohibitions. EPA is therefore deleting 40 CFR
section 117.22 from the Code of Federal Regulations.
III. Good Cause Exemption From Notice-and-Comment Rulemaking
Procedures
The Administrative Procedure Act generally requires agencies to
provide prior notice and opportunity for public comment before issuing
a final rule. 5 U.S.C. Sec. 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. Sec. 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. As
discussed in Sections I and II, EPA is unaware of any proceedings
pending under these rules. Withdrawing them will affect only the few,
if any, future proceedings that may be initiated for pre-OPA
violations.
For the same reasons, EPA believes there is good cause for making
the removal of these rules from the CFR immediately effective. See 5
U.S.C. Sec. 553(d).
IV. Differentiation between Classes of Oil
The Edible Oil Regulatory Reform Act, Public Law 104-55, requires
most federal agencies to differentiate between and establish separate
classes for (1) animal fats and oils and greases, fish and marine
mammal oils, and oils of vegetable origin and (2) other greases and
oils, including petroleum, when issuing or enforcing any regulation or
establishing any interpretation or guideline relating to the
transportation, storage, discharge, release, emission, or disposal of a
fat, oil or grease. EPA has determined that no differentiation between
these classes of oil is necessary for the portions of this rule that
relate to the discharge of oil (Part 114 and section 112.6). This rule
imposes no substantive requirements; instead the rule merely deletes
provisions of the oil pollution prevention program that are legally
obsolete for the reasons stated above.
V. Analyses under E.O. 12866, the Unfunded Mandates Reform Act of 1995,
the Regulatory Flexibility Act and the Paperwork Reduction Act
For the above reasons, this action is not a ``significant''
regulatory action within the meaning of E.O. 12866. 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 Reform Act
of 1995. For the same reasons, pursuant to the Regulatory Flexibility
Act, I certify that this action would not have a significant economic
impact on a substantial number of small entities. Finally, this action
would not impose any requirements under the Paperwork Reduction Act.
List of Subjects
40 CFR Part 112
Environmental protection, Oil pollution penalties, Reporting and
recordkeeping requirements.
40 CFR Part 114
Administrative practice and procedure, Oil pollution, Penalties.
40 CFR Part 117
Hazardous substances, Penalties, Reporting and recordkeeping
requirements, Water pollution control.
Dated: February 15, 1996.
Elliott P. Laws,
Assistant Administrator Office of Solid Waste and Emergency Response.
For the reasons set out in the preamble, under the authority at 33
U.S.C. 1361(a), title 40, chapter I of the Code of Federal Regulations
is amended as follows:
PART 112--[AMENDED]
1. The authority citation for part 112 continues to read as
follows:
Authority: 33 U.S.C. 1321 and 1361; E.O. 12777 (October 18,
1991), 3 CFR, 1991 Comp., p. 351.
Sec. 112.6 [Removed]
2. Section 112.6 is removed.
[[Page 9648]]
PART 114--[REMOVED]
3. Part 114 is removed.
PART 117--[AMENDED]
4. The authority citation for part 117 continues to read as
follows:
Authority: Secs. 311 and 501(a), Federal Water Pollution Control
Act (33 U.S. C. 1251 et seq.), (``the Act'') and E.O. 11735
superseded by E.O. 12777 56 FR 54757.
Sec. 117.22 [Removed]
5. Section 117.22 is removed.
[FR Doc. 96-5710 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P
