[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Rules and Regulations]
[Pages 48076-48077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23204]



[[Page 48075]]

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Part V





Environmental Protection Agency





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40 CFR Parts 142 and 135



Public Water System Program; Removal of Obsolete Rule and Safe Drinking 
Water Public Water System Program; Citizen Collection Action; Notice of 
Complaint Seeking Review of Penalty Order; Rule and Proposed Rule

  Federal Register / Vol. 63, No. 173 / Tuesday, September 8, 1998 / 
Rules and Regulations  

[[Page 48076]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 142

[FRL-6121-7]


Public Water System Program; Removal of Obsolete Rule

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is today amending 
its regulations to remove from the Code of Federal Regulations (CFR) 
rules pertaining to the issuance of proposed administrative compliance 
orders pursuant to Section 1414(g)(2) of the Safe Drinking Water Act, 
as amended in 1986 (1986 Act). Enactment of the Safe Drinking Water Act 
Amendments of 1996 (1996 Act) eliminated the statutory requirement in 
the 1986 Act that administrative compliance orders against violators of 
the Public Water Systems program be issued only after proposal and 
subsequent opportunity for public hearing.

EFFECTIVE DATE: This final rule takes effect on September 8, 1998. In 
accordance with 40 CFR 23.7, this regulation will be considered final 
Agency action for purposes of judicial review at 1:00 p.m. eastern time 
on September 8, 1998.

FOR FURTHER INFORMATION CONTACT: David Drelich (2243A), Water 
Enforcement Division, Office of Enforcement and Compliance Assurance, 
401 M Street SW., Washington, DC 20460, (202) 564-2949.

SUPPLEMENTARY INFORMATION:

I. Background

    The 1986 Act amended Section 1414 of the Safe Drinking Water Act 
(SDWA) to provide for the issuance of administrative compliance orders 
against violators of the regulations implementing the public water 
supply system (PWSS) program:
    (g) Administrative order requiring compliance; notice and hearing * 
* *

    (2) An order issued under this subsection shall not take effect 
until after notice and opportunity for public hearing and, in the 
case of a State having primary enforcement responsibility for public 
water systems in that State, until after the Administrator has 
provided the State with an opportunity to confer with the 
Administrator regarding the proposed order. A copy of any order 
proposed to be issued under this subsection shall be sent to the 
appropriate State agency of the State involved if the State has 
primary enforcement responsibility for public water systems in that 
State. Any order issued under this subsection shall state with 
reasonable specificity the nature of the violation. In any case in 
which an order under this subsection is issued to a corporation, a 
copy of such order shall be issued to appropriate corporate 
officers. [Emphasis supplied.]

Section 1414(g)(2) of 1986 Act; 42 U.S.C. 300g-3(g)(2) (1995). The 
emphasized language in the citation above was repealed by the 1996 Act. 
Safe Drinking Water Act, as amended 1996; Sec. 113(a)(3)(B), Pub. L. 
104-182; 110 Stat. 1613 (42 U.S.C. 300g-3(g)(2)) (1996). The repeal has 
the effect of eliminating the requirement for the issuance of a 
proposed PWSS compliance order, as well as the notice and opportunity 
for a public hearing on the proposal.
    The hearings described in the regulations being deleted today were 
promulgated as 40 CFR Part 142 Subpart J on January 30, 1991. See 56 FR 
3755. The procedures being deleted today are information-gathering 
rather than adjudicatory in nature. This was noted in the proposed 
rulemaking for the regulations: ``The procedures proposed for section 
1414(g)(2) compliance orders provide an opportunity for informal, 
information-gathering, nonadjudicatory hearings prior to the issuance 
of the orders.'' 54 FR 29517 (July 12, 1989). Because PWS compliance 
orders do not result in the deprivation of any constitutionally 
protected interest, see generally Mathews v. Eldridge, 424 U.S. 319 
(1976) and Preamble to 40 CFR Part 142, Subpart J (1991), the 
opportunity for hearings on the proposed orders was not 
constitutionally mandated.
    EPA has issued numerous proposed administrative compliance orders 
in this program, and has received relatively few requests for public 
hearings. It is unaware of any such hearings now pending. If the 
deletion of Subpart J occurs during the pendency of such an 
information-gathering hearing, EPA has the discretion to go forward 
with the hearing, although it would no longer be mandated by law.
    One provision of Subpart J being deleted today, 40 CFR 142.208, 
provides that any penalty sought by the Administrator pursuant to 
Section 1414(g)(3)(B) of the SDWA (relating to penalty complaints for 
violations of PWS administrative compliance orders) shall be assessed 
pursuant to the procedures set forth at 40 CFR part 22. This provision 
is consistent with the statutory instructions in an unamended sentence 
of Section 1414(g)(3)(B), which provided that such an administrative 
penalty was to be assessed ``after notice and opportunity for a hearing 
on the record in accordance with section 554 of Title 5.'' 42 U.S.C. 
300g-3(g)(3)(B). Part 22 establishes procedures consistent with the 
requirements set forth by the Administrative Procedure Act, 5 U.S.C. 
551 et seq. (APA). Section 1414(g)(3)(B) of the SDWA, as amended by the 
1996 Act, however, now states

    In a case in which a civil penalty sought by the Administrator 
under this paragraph [Sec. 1414(g)] does not exceed $5,000, the 
penalty shall be assessed by the Administrator after notice and 
opportunity for a public hearing (unless the person against whom the 
penalty is assessed requests a hearing on the record in accordance 
with section 554 of title 5, United States Code). In a case in which 
a civil penalty sought by the Administrator under this paragraph 
exceeds $5,000, but does not exceed $25,000, the penalty shall be 
assessed by the Administrator after notice and opportunity for a 
hearing on the record in accordance with section 554 of title 5, 
United States Code.

The Agency has proposed to amend 40 CFR part 22 to implement this new 
provision of law in permanent form. See 63 FR 9464 (February 25, 1998). 
Consequently, Section 142.208 is being deleted. In the interim period 
between the deletion of this section and a final promulgation of 
conforming amendments to 40 CFR part 22, EPA will continue to use the 
part 22 procedures as guidance when on the record hearings are required 
by the terms of Section 1414(g)(3)(B), and will provide interim 
guidance on what procedures EPA shall follow in instances of non-APA 
adjudicatory hearings.

II. Good Cause Exemption from Notice-and-Comment Rulemaking 
Procedures

    The Administrative Procedure Act general requires agencies to 
provide prior notice and opportunity for public comment before issuing 
a final rule. 5 U.S.C. 553(b). Rules are exempt from this requirement 
if the issuing agency finds for good cause that notice and comment are 
unnecessary. 5 U.S.C. 553(b)(3)(B).
    EPA has determined that providing prior notice and opportunity for 
comment on the deletion of these rules from the CFR is unnecessary. The 
statutory requirement underlying the promulgation of these regulations 
has been repealed. As discussed above, EPA is unaware of any hearing 
pending under these rules, but during this interim period may 
nonetheless continue to provide the opportunity for such an 
information-gathering hearing even in the absence of this regulatory 
subpart.
    For the same reasons, EPA believes there is good cause for deleting 
these rules from the CFR effective immediately. See 5 U.S.C. 553(d).

[[Page 48077]]

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant'' regulatory action. It also does not 
impose any federal mandate on State, local or tribal governments or the 
private sector within the meaning of the Unfunded Mandates Act of 1995. 
Further, this action would not impose any requirements under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., require prior 
consultation with State officials as specified by Executive Order 12875 
(58 FR 58093, October 28, 1993), or involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994).
    The Agency has determined that this rule is not subject to the 
Regulatory Flexibility Act (``RFA''), which generally requires any 
agency to conduct a regulatory flexibility analysis of any significant 
impact the rule will have on a substantial number of small entities. By 
its terms, the RFA applies only to rules subject to notice-and-comment 
rulemaking requirements under the Administrative Procedure Act 
(``APA'') or any other statute. As explained above, this rule is not 
subject to notice and comment requirements under the APA or any other 
statute.
    The Agency has nonetheless assessed the potential of this rule to 
adversely impact small entities. Because this rule change does not 
effect any change in the law applicable to small entities, but only 
concerns Agency practice and procedure, it has no adverse impact on 
small entities.
    Pursuant to 5 U.S.C. 801(a)(1)(A), as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office; however, in accordance with 5 U.S.C. 808(2), 
this rule is effective on September 8, 1998. This rule is not a ``major 
rule'' as defined in 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 142

    Environmental protection, Administrative practice and procedure.

    Dated: August 24, 1998.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 142--[AMENDED]

    1. The authority citation for part 142 continues to read as 
follows:

    Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4, and 300j-9.

    2. Part 142 is amended by removing and reserving Subpart J 
(Secs. 142.201 through 142.208).

[FR Doc. 98-23204 Filed 9-4-98; 8:45 am]
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