[Federal Register Volume 61, Number 53 (Monday, March 18, 1996)]
[Rules and Regulations]
[Pages 11090-11093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6449]




[[Page 11089]]

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Part III





Environmental Protection Agency





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40 CFR Part 22



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

  Federal Register / Vol. 61, No. 53 / Monday, March 18, 1996 / Rules 
and Regulations  

[[Page 11090]]


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 22

[FRL-5426-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is today 
promulgating 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 rule 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.

EFFECTIVE DATE: This rule is effective on March 18, 1996.

ADDRESSES: The public docket for this rule is in room M2616, U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460. Call 202-260-9327 for an appointment to review docket materials.

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 rule, 
contact Sally Dalzell or Melanie Garvey, Federal Facilities Enforcement 
Office (2261A), Office of Enforcement and Compliance Assurance, U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460, 202-564-2510.

SUPPLEMENTARY INFORMATION: EPA is today finalizing a rule that revises 
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) also establishes 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 contents of today's preamble are listed in the following 
outline:

Table of Contents

I. Statutory Authority
II. Effective Date
III. Background
IV. Final Rule
V. Response to Comments
VI. 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), Pub. L. 102-386, 42 U.S.C. 6912 and 
6961(b).

II. Effective Date

    This rule will be effective on March 18, 1996.

III. 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, whichever 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 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.

IV. Final Rule

    The rule revises 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

[[Page 11091]]
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 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 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 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 rule.

V. Response to Comments

    EPA received three sets of comments on the March 22, 1995 proposed 
rule. First, one commenter suggested that regarding to the conference 
with the Administrator, ``there is no indication that such a conference 
will be put on hold pending action on a request for reconsideration 
submitted within the 10 day time frame to the Board.'' EPA believes it 
has addressed this concern in the preamble to the proposed rule. In the 
proposal, EPA stated that ``the Administrator can always take into 
account a motion for reconsideration filed with the Environmental 
Appeals Board (EAB), when scheduling a requested conference.'' 60 FR 
15209. Moreover, if the Administrator feels a conference would be 
useful prior to the EAB's ruling, the conference should be able to 
proceed. EPA suggests, however, that a request for a conference should 
note that a motion for reconsideration has been filed and indicate a 
preference as to the timing of the conference either prior to or after 
the EAB's ruling on the motion for reconsideration. We believe this 
approach preserves the Administrator's discretion while at the same 
time minimizing the possibility that a conference is held prematurely. 
Therefore, the Agency has decided not to make the suggested change in 
the final rule.
    Another commenter suggested that ``in instances where a dispute 
involves a policy concern, the litigation-oriented procedures of Part 
22 are at best inappropriate, and may in fact prevent both EPA and 
other federal agencies from addressing in a timely manner the real 
issues in dispute.'' To solve this issue, the commenter suggests that 
the informal settlement provisions of 40 CFR 22.18(a) be amended to 
provide timely access to the Administrator to resolve policy questions. 
EPA does not believe that such an amendment is warranted or 
appropriate. It is often difficult to separate a policy dispute from a 
question of law or fact. EPA envisions that the Part 22 hearing will 
clearly define the issues in dispute such that, if a conference is 
necessary, the issues potentially before the Administrator will be 
fully ripe for her participation. Otherwise, issues may reach her 
prematurely. In addition, adopting the commenter's approach would 
inevitably lead to disagreements over whether a dispute presents a 
policy issue which undoubtedly would cause delays in resolving the 
dispute. Therefore, the Agency has decided not to adopt the commenter's 
approach.
    Two commenters suggested that the rule prohibit the Administrator 
from delegating the duty to confer to any other EPA employee. One of 
the two commenters would allow such delegation with the express consent 
of the affected agency. EPA does not interpret the statute as 
prohibiting the Administration from delegating the duty to confer to 
any other EPA employee. However, in EPA's July 1993 ``Final Enforcement 
Guidance on Implementation of The Federal Facility Compliance Act,'' 
EPA determined that, as a matter of policy, the conference should be at 
the Administrator's level. This policy is further reflected in the 
rule.
    Another comment received suggested that EPA measure the time period 
by when a Federal agency must request a conference with the 
Administrator from the date the Federal respondent receives service as 
evidenced by the receipt from certified mail. 40 CFR 22.06 indicates 
that copies of all Environmental Appeals Board rulings, decisions, or 
orders ``shall be served personally or by certified mail, return 
receipt requested upon all parties. * * *'' EPA believes the current 
time period provisions are sufficient and need not be changed. 
Therefore, EPA will begin the clock depending on the method of service. 
If the service shall be certified mail, return receipt requested, EPA 
will begin counting the thirty days 5 days from the date of mailing as 
provided in 40 CFR 22.07. However, if the ruling, decision, or order is 
served personally, EPA will begin counting the thirty days from the 
date of service.
    Another comment suggested that contractor operators be given the 
same opportunity to confer with the Administrator as is given to a 
Federal agency. The opportunity to confer is given to a Federal agency 
in order to preserve the President's ability to resolve disputes within 
the Executive Branch. There is no similar concern with contractor 
operators. EPA issued on January 7, 1994 its ``EPA Enforcement Policy 
for GOCO Facilities.'' In that guidance EPA considers contractors that 
meet the statutory definition of operators to be separate from the 
Federal government. As a result, EPA may pursue an enforcement action 
against the Federal agency, the contractor operator, or both.
    One comment suggested that EPA address the impact of the rule and 
the Federal Facility Compliance Act

[[Page 11092]]
enforcement process on state authorized programs. Neither EPA's 
issuance of orders to Federal agencies nor the opportunity to confer 
apply to anyone other than to other Federal agencies. Again, the 
purpose of the conference is to preserve the President's ability to 
resolve disputes within the Executive Branch. Disputes between states 
and Federal agencies do not present this concern.
    Finally, a commenter suggested that the Administrator consult with 
OMB and her counterpart in the Federal agency as part of the 
conference. As the conference is with the Administrator's counterpart 
in the affected agency, a change to the rule requiring consultation is 
not necessary. In addition, the Administrator is not prohibited from 
consulting with anyone of her choosing in making her decision. To 
mandate consultation with OMB on all issues is overly restrictive and 
may cause delays unnecessarily. Therefore, EPA will not amend the rule 
to require the Administrator's inclusion of OMB in the conference.

VI. Regulatory Analysis

A. Executive Order No. 12866

    Under Executive Order 12866 [58 FR 51,735 (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 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.
    Because the rule is merely a technical amendment to the Part 22 
procedures and adds no economic burdens, 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. 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. 

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. When a written statement is needed for an EPA rule, section 
205 of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable 
duties on any of these governmental entities or the private sector.

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 12, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 22 is 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 a conference

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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. 96-6449 Filed 3-15-96; 8:45 am]
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