[Federal Register Volume 60, Number 55 (Wednesday, March 22, 1995)]
[Proposed Rules]
[Pages 15208-15209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7067]



      

[[Page 15207]]

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Part VI





Environmental Protection Agency





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40 CFR Part 22



Hazardous Waste: Technical Revision for the Federal Facility Compliance 
Act of 1992 Amendments; Proposed Rule

  Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / 
Proposed Rules  
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[[Page 15208]] 


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 22

[FRL-5175-8]


Hazardous Waste: Technical Revision for the Federal Facility 
Compliance Act of 1992 Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is today proposing a 
rule in response to a requirement established by section 6001 of the 
Resource Conservation and Recovery Act (RCRA), as amended by the 
Federal Facility Compliance Act of 1992 (FFCA). The FFCA includes 
explicit authority to the Administrator of the EPA to commence 
administrative enforcement actions against any department, agency, or 
instrumentality of the executive, legislative, or judicial branch of 
the Federal Government that is in violation of requirements under RCRA. 
The FFCA further provides that no administrative enforcement order 
issued to a department, agency, or instrumentality of the Federal 
Government becomes final until the department, agency, or 
instrumentality has an opportunity to confer with the EPA 
Administrator. Today's proposal is a technical revision of the Agency's 
administrative rules of practice to provide a federal department, 
agency, or instrumentality which is the subject of an administrative 
enforcement order, with the opportunity to confer with the 
Administrator, as provided under the FFCA.

DATES: Comments on this proposed rule must be received on or before 
April 21, 1995.

ADDRESSES: Commenters must each send an original and two copies of 
their comments to EPA RCRA Docket (5305); Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460. Place the Docket 
Number F-95-TRFA-FFFFF on the comments. The docket is located in the 
EPA RCRA Docket Room M2616. The docket is open from 9 a.m. to 4 p.m., 
Monday through Friday except for public holidays. To review docket 
materials, make an appointment by calling 202-260-9327. The public may 
obtain copies of docket materials as provided for in 40 CFR part 2. 
There may be charges for copying services.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA/CERCLA Hotline at 1-800-424-9346 or in the Washington Metropolitan 
Area at 703-412-9810. For information on specific aspects of this 
proposed rule, contact Sally Dalzell, Federal Facilities Enforcement 
Office (2261), U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460, 202-260-9808.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority
II. Background
III. Content of the Rule
IV. Regulatory Analysis

I. Statutory Authority

    This regulation is issued under the authority of sections 2002 and 
6001(b) of the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act (RCRA), as amended by the Federal 
Facility Compliance Act (FFCA), 42 U.S.C. 6912 and 6961(b).

II. Background

    The FFCA clarified that EPA has explicit authority to issue 
administrative enforcement orders to other federal agencies that are in 
violation of RCRA. In the past, where EPA found RCRA violations at a 
federal facility, it primarily relied on a negotiated Federal Facility 
Compliance Agreement to bring the federal facility into compliance. The 
FFCA amended RCRA to expressly authorize the EPA Administrator to 
commence an administrative enforcement action against federal 
facilities pursuant to the Agency's RCRA enforcement authorities. RCRA 
section 6001(b)(1), 42 U.S.C. 6961(b)(1). Moreover, the FFCA requires 
the Administrator to initiate administrative enforcement actions 
against federal facilities ``* * * in the same manner and under the 
same circumstances as an action would be initiated against another 
person.'' Id. The legislative history makes it clear that Congress 
intends that the Agency issue administrative complaints pursuant to 
RCRA section 3008(a) to federal facilities to address violations that 
are of the same types that are found at private companies or 
municipalities. H.R. No. 102-886, 102nd Cong. 2nd Sess. at 19 (1992). 
Finally, the FFCA provides that before any such administrative 
enforcement order issued to a federal facility becomes final, the 
recipient department, agency, or instrumentality must have the 
opportunity to confer with the Administrator. RCRA section 6001(b)(2), 
42 U.S.C. 6961(b)(2).
    The adjudication process for all administrative enforcement 
complaints issued pursuant to RCRA section 3008(a) is governed by the 
Agency's Consolidated Rules of Practice Governing the Administrative 
Assessment of Civil Penalties and the Revocation or Suspension of 
Permits, 40 CFR part 22, and the Supplemental Rules of Practice 
governing the administrative assessment of civil penalties under the 
Solid Waste Disposal Act, 40 CFR 22.37. Under current regulations, the 
initial decision of a Presiding Officer shall become the final order of 
the Environmental Appeals Board within 45 days after its service upon 
the parties and without further proceedings unless an appeal is taken 
to the Environmental Appeals Board or the Environmental Appeals Board 
elects, sua sponte, to review the initial decision. 40 CFR 22.27(c). If 
the Presiding Officer's initial decision is appealed to the 
Environmental Appeals Board or if the Environmental Appeals Board 
elects, sua sponte, to review the initial decision, then the 
Environmental Appeals Board issues a final order as soon as practicable 
after receiving the appellate briefs or oral argument, which ever is 
later. 40 CFR 22.31.
    These rules currently have no provisions which accommodate the 
statutory requirement that no such administrative enforcement order 
issued to a federal facility shall become final until the recipient 
agency has had an opportunity to confer with the Administrator. The 
purpose of today's proposed rule is to revise 40 CFR part 22 to reflect 
a federal agency's right to an opportunity to confer with the 
Administrator before an administrative enforcement order issued to that 
agency becomes a final order.

III. Content of the Rule

    The proposed rule would revise the supplemental practice rules for 
RCRA administrative orders, 40 CFR 22.37, by adding a new paragraph (g) 
in the nature of a technical amendment. Specifically, under new 
paragraph (g), an order issued by the Environmental Appeals Board to a 
federal agency for RCRA violations would not be a final order, if the 
recipient federal agency made a timely request for a conference with 
the Administrator. In that event, the decision by the Administrator 
would be the final order. New paragraph (g) would also establish the 
timing and procedure that a federal agency must follow to preserve its 
right to confer with the Administrator prior to an administrative 
enforcement order becoming final. The head of the recipient federal 
agency would have 30 days from the Environmental Appeal Board's service 
of an order or decision to request a conference with the Administrator 
in writing. The request must also be served upon all parties of 
[[Page 15209]] record. Finally, new paragraph (g) states that a motion 
for reconsideration filed under 40 CFR 22.32 does not toll the 30-day 
period for filing a request for a conference with the Administrator.
    The Agency believes that placing the conference at the end of the 
administrative enforcement process will enable the Agency to proceed 
with an enforcement case against a Federal agency in the same manner as 
it would against a private party. This procedure also best assures that 
the Administrator will have a complete factual and legal record on 
which to base a decision. The Agency further believes that the 30-day 
request period, and the requirement that the request for a conference 
be in writing and served upon the parties of record, are fair and 
reasonable requirements necessary for the orderly administration of 
administrative enforcement actions against federal agencies.
    The Agency also believes that not tolling the period for requesting 
a conference for the filing of motions for reconsideration with the 
Environmental Appeals Board is consistent with 40 CFR 22.32. That 
section provides that the filing of a motion for reconsideration does 
not stay the effective date of an Environmental Appeals Board final 
order. Moreover, the Agency sees no reason to build additional delay 
into the administrative enforcement process by automatically tolling 
the request period during the pendency of a motion for reconsideration 
before the Environmental Appeals Board. Under the proposed rule, the 
Environmental Appeals Board can grant a request to toll the time period 
for filing a request for a conference; in addition, the Administrator 
can always take into account a motion for reconsideration filed with 
the Environmental Appeals Board, when scheduling a requested 
conference.
    Finally, the proposed rule is consistent with previously published 
Agency guidance issued by the Office of Federal Facilities Enforcement 
entitled: Federal Facility Compliance Act: Enforcement Authorities 
Implementation, dated July 6, 1993 (58 FR 49044, September 12, 1993). 
This guidance remains in effect for matters not covered by the proposed 
rule.

IV. Regulatory Analysis

A. Executive Order No. 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 Office of Management and Budget (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, a sector of 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 entitlement, 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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-354), 
requires Federal regulatory agencies to consider the impact of 
rulemaking on ``small entities.'' If a rulemaking will have a 
significant impact on small entities, agencies must consider regulatory 
alternatives that minimize economic impact.
    Today's decision does not affect any small entity. Rather, it is 
merely a technical amendment to the part 22 procedures ensuring 
consistency between the regulatory procedures and the Federal Facility 
Compliance Act. Accordingly, this action will not add any economic 
burdens to any affected entities, small or large. Therefore, a 
regulatory flexibility analysis is not required. Pursuant to Section 
605(b) of the RFA, 5 U.S.C. section 605(b), the Administrator certifies 
that this rule will not have a significant impact on small entities.

C. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
subject to review of the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act, 44 U.S.C. 3501, et. seq.

List of Subjects in 40 CFR Part 22

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Hazardous waste, 
Penalties, Pesticides and pests, Poison prevention, Water pollution 
control, Federal facilities.

    Dated: March 15, 1995.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 22 is proposed 
to be amended as follows:

PART 22--[AMENDED]

    1. The authority citation for part 22 continues to read as follows:

    Authority: 42 U.S.C. 6961.

    2. Section 22.37 is amended by adding a new paragraph (g) to read 
as follows:


Sec. 22.37  Supplemental rules of practice governing the administrative 
assessment of civil penalties under the Solid Waste Disposal Act

* * * * *
    (g) Final Orders to Federal Agencies on Appeal. (1) In the case of 
an administrative order or decision issued to a department, agency, or 
instrumentality of the United States, such order or decision shall 
become the final order for purposes of the Federal Facility Compliance 
Act, 42 U.S.C. 6961(b), in accordance with Secs. 22.27(c) and 22.31 
except as provided in paragraph (g)(2) of this section.
    (2) In the case of an administrative order or decision issued by 
the Environmental Appeals Board, if the head of the affected 
department, agency, or instrumentality requests conference with the 
Administrator in writing and serves a copy of the request on the 
parties of record within thirty days of the Environmental Appeals 
Board's service of the order or decision, a decision by the 
Administrator (rather than the Environmental Appeals Board) shall be 
the final order for the purposes of the Federal Facility Compliance 
Act.
    (3) In the event the department, agency, or instrumentality of the 
United States files a motion for reconsideration with the Environmental 
Appeals Board in accordance with Sec. 22.32, filing such motion for 
reconsideration shall not toll the thirty-day period for filing the 
request with the Administrator for a conference unless specifically so 
ordered by the Environmental Appeals Board.

[FR Doc. 95-7067 Filed 3-21-95; 8:45 am]
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