[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] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 59 [FRL-4877-6] Field Citation Program AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \7\S. Rep. No. 101-228, 101st Cong., 1st Sess. 550 (1989). \8\S. 1630, 101st Cong., 2d Sess. (1990). --------------------------------------------------------------------------- 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.'' --------------------------------------------------------------------------- \9\S. Rep. No. 101-228, 101st Cong., 1st Sess. 636 (1989). \10\S. Rep. No. 101-228, 101st Cong., 1st Sess. 126 (1989). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \12\Given the minor nature of the violations at issue, EPA rarely expects review by the Board. --------------------------------------------------------------------------- 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