[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Proposed Rules]
[Pages 48078-48080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23205]



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

[[Page 48078]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 135

[FRL-6121-6]
RIN 2020-AA35


Safe Drinking Water Public Water System Program; Citizen 
Collection Action; Notice of Complaint Seeking Review of Penalty Order

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Safe Drinking Water Act Amendments of 1996 (``1996 
Amendments'') amended Section 1449 of the Safe Drinking Water Act 
(SDWA) to authorize any person to bring suit to collect for the United 
States an outstanding penalty assessed by the Administrator that a 
federal agency has failed to pay for at least eighteen months. The 
Amendments also require as a precondition to the collection action that 
the citizen plaintiff shall give sixty days' notice of its complaint to 
the Attorney General and the federal agency, and that the Administrator 
shall prescribe the manner of such notice by regulation.
    EPA is today proposing regulations governing the manner in which 
parties in citizen suits must provide such sixty day notice under this 
new provision.
    The 1996 Amendments also amended Section 1447 of the SDWA to 
authorize any interested person to obtain review of an administrative 
penalty order issued under that section of the law by filing a 
complaint with either the United States District Court for the District 
of Columbia or the United States District Court for the district in 
which the violation is alleged to have occurred within the thirty day 
period beginning on the date the penalty order becomes final, and by 
requiring such a person to simultaneously send a copy of the complaint 
by certified mail to the Administrator and to the Attorney General.
    EPA is also today proposing regulations governing the manner in 
which such a petitioner must provide copies of such a complaint.

DATES: Comments on the proposed rule must be received by October 23, 
1998.

ADDRESSES: Send comments to: David Drelich (2243A), Water Enforcement 
Division, Office of Enforcement and Compliance Assurance, U.S. 
Environmental Protection Agency, 401 M Street, S.W. Washington, D.C. 
20460. Persons may, upon reasonable notice, inspect all comments and 
the record of this rulemaking at Room 3124A, Ariel Rios Building, 12th 
and Pennsylvania Avenue, N.W. during normal Agency working hours.

FOR FURTHER INFORMATION CONTACT: David Drelich at (202) 564-2949, or at 
the address provided above.

SUPPLEMENTARY INFORMATION: Section 1449 of the Safe Drinking Water Act 
(SDWA or the Act) (42 U.S.C. 300j-8) authorizes any person on his own 
behalf to commence a civil action against any federal agency that fails 
to pay an administrative penalty by eighteen months after the effective 
date of such an administrative penalty order issued under the Act by 
the Administrator. No such action may be commenced under this citizen 
suit provision prior to 60 days after the citizen plaintiff has given 
notice to the Attorney General and the federal agency of the intent to 
file the collection action.
    Specifically, Congress amended SDWA Section 1449(a), 42 U.S.C. 
300j-8(a), by adding to it a paragraph (a)(3) that reads:

    ``(3) for the collection of a penalty by the United States 
Government (and associated costs and interest) against any Federal 
agency that fails, by the date that is 18 months after the effective 
date of a final order to pay a penalty assessed by the Administrator 
under section 300j-8 of this title [sic],1 to pay the 
penalty.''

    \1\ Since ``section 300j-8 of this title'' is self-referential 
and has no collateral relevance to administrative enforcement 
against Federal agencies, EPA understands this reference to be a 
typographical error, intended instead to refer to section 300j-6 of 
title 42 (Section 1447 of the Act), which includes the pertinent 
provision relating to the Agency's imposition of an administrative 
civil penalty against a Federal agency. 3 C. Sands, Sutherlands 
Statutes and Statutory Construction Sec. 60.01-.05 (4th ed. 
1973)(all words of a law are to be read to have an effect). A 
predecessor cross-reference in the earlier Committee Print of the 
Conference Report of the 1996 SDWA Amendments was unhelpful; it 
referred to a different, unrelated provision that EPA also 
understands to have been a typographical error. That reference was 
to Section 1429(b) of the Act, which relates to the State 
Groundwater Protection Grants program.
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Congress also amended Section 1449(b) of the Act, 42 U.S.C. 300j-8(b), 
by striking the period at the end of paragraph (2) and inserting ``; 
or'' and by adding the following new paragraph (3):

``under subsection (a)(3) prior to 60 days after the plaintiff has 
given notice of such action to the Attorney General and to the 
Federal agency.''

Section 1449(b) provides that notice must be given in the manner 
prescribed by the Administrator. As a result, EPA is today proposing to 
amend 40 CFR part 135 to spell out how notice is to be given for such 
citizen collection actions, as well as for other citizen suits 
authorized under the SDWA. See amended Section 1449(b). Pursuant to 
this statutory duty, even though the citizen suit notice requirement of 
Section 1449(b)(3) is self implementing, the Environmental Protection 
Agency (EPA or the Agency) is proposing to amend 40 CFR part 135 in 
order to clarify the statutory requirement and to ensure that the 
amendment will be implemented consistently. Procedures for those other 
types of citizen suits are set forth at 40 CFR part 135, subpart B, and 
were first published at 54 FR 20771 (May 12, 1989). One purpose of this 
proposed rulemaking is to propose notice procedures that will be 
consistent with 40 CFR part 135, subpart B.
    Today's proposed rule is straightforward. Citizen plaintiffs are 
required to send copies of sixty day notices to the Attorney General of 
the United States and to the officer of the federal agency who is 
already in receipt of the unpaid administrative penalty order.
    Penalties and interest paid as a result of a citizen suit 
collection action accrue to the United States Treasury pursuant to the 
Miscellaneous Receipts Act, 31 U.S.C. 3302. Payment of a penalty 
elsewhere would violate the Anti-Deficiency Act, 31 U.S.C. 1512. This 
limitation does not affect payment of associated costs (such as court 
costs and attorneys' fees).
    Section 1447 of the Act authorizes any interested person to obtain 
review of an administrative penalty order issued under that section of 
the law by filing a complaint with either the United States District 
Court for the District of Columbia or the United States District Court 
for the district in which the violation is alleged to have occurred 
within the thirty day period beginning on the date the penalty order 
becomes final, and by requiring such a person to simultaneously send a 
copy of the complaint by certified mail to the Administrator and to the 
Attorney General.
    The Conference Report, Section 129(a), amended SDWA Section 1447 in 
relevant part as follows:
    Section 1447 (42 U.S.C. 300j-6) is amended by striking subsection * 
* * (b) and inserting the following:
* * * * *
    ``(4) PUBLIC REVIEW. --
    ``(A) IN GENERAL. --Any interested person may obtain review of 
an administrative penalty order issued under this subsection. The 
review may be obtained in the United States District Court for the 
District of Columbia or in the United States District Court for the 
district in which the violation is alleged to have occurred by the 
filing of a complaint with the court within

[[Page 48079]]

the 30-day period beginning on the date the penalty order becomes 
final. The person filing the complaint shall simultaneously send a 
copy of the complaint by certified mail to the Administrator and the 
Attorney General.''

Consequently, and even though this provision of law is self 
implementing, the Agency is also proposing to amend 40 CFR Part 135 in 
order to clarify the statutory requirement and to ensure that the 
amendment will be implemented consistently. One purpose of this 
rulemaking is to propose complaint service procedures that are 
consistent both with Section 1447 of the SDWA and the procedures set 
forth in subpart A of part 135 (concerning complaint service under the 
Clean Water Act). Today's proposal is simply stated: Petitioners for 
judicial review of a Section 1447 administrative penalty order are to 
send copies of the complaint to the appropriate federal officials by 
certified mail on the same day that they are sent to, or filed with, 
the appropriate district court.

Paperwork Reduction Act

    EPA has not prepared an information collection request under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) for the reporting 
requirements contained in this rule. EPA has received very few notices 
of citizens suits under the SDWA annually. The public reporting burden 
for individuals complying with this rule is estimated to average one 
hour or less. If the number of notices under SDWA section 1449(b)(3) or 
complaints under SDWA section 1447(b) received by the United States 
substantially increases in succeeding years, EPA will prepare and 
solicit comment on an information collection request for today's rule, 
in accordance with 5 CFR 1320.14. In the meantime, any comments on the 
estimate of burden or any other aspect of the information collection 
requirements contained in this rule, including suggestions to reduce 
the burden, should be sent to: Chief, Information Policy Branch (PM-
223), U.S. Environmental Protection Agency, 401 M Street, S.W., 
Washington, D.C. 20460 or Director, Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, D.C. 
20503.

Regulatory Impact Analysis

    The Administrator has determined that this is a minor regulation 
under the terms of E.O. 12291 and does not require a regulatory impact 
analysis.

Other Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and is 
therefore not subject to review by the Office of Management and Budget. 
In addition, the proposal would not impose any enforceable duty or 
contain any unfunded mandate as described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4), or 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). Further, today's proposal would not raise any 
environmental safety or health issue for children as described in 
Executive Order 13045 (Children's Health Protection).
    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
as amended by SBREFA, whenever EPA is required by section 553 of the 
Administrative Procedure Act or any other law to public a general 
notice of rulemaking for any proposed rule, EPA generally must prepare 
an initial regulatory flexibility analysis describing the impact of the 
rule on small entities. Under section 605(b) of the RFA, however, if 
EPA certifies that the proposed rule will not have a significant 
economic impact on a substantial number of small entities, EPA is not 
required to prepare the analysis.
    The changes to citizen suit procedures proposed today affect only 
federal facilities, and therefore will have no impact on small entities 
if EPA adopts them. Consequently, pursuant to section 605(b) of the 
RFA, the Administrator certifies that this proposed rule, if 
promulgated, will not have a significant impact on a substantial number 
of small entities.
    This proposed regulation has been reviewed by the Office of 
Management and Budget.

List of Subjects in 40 CFR Part 135

    Environmental protection, Administrative practice and procedure, 
water pollution control.

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

    It is proposed that part 135 of title 40, chapter I of the Code of 
Federal Regulations be amended as follows:

PART 135--[AMENDED]

    1. The authority citation for part 135 is revised to read as 
follows:

    Authority: Subpart A issued under sec. 504, Pub. L. 100-4; 101 
Stat. 7 (33 U.S.C. 1365). Subpart B issued under sec. 129, Pub. L. 
104-182; 110 Stat. 1613 (42 U.S.C. 300j-8).

    2. Section 135.10 is amended, by designating the existing text as 
paragraph (a); by adding paragraphs (b) and (c); and, by revising in 
newly designated paragraph (a) the phrase ``The purpose of this 
subpart'' to read ``One purpose of this subpart'', to read as follows:


Sec. 135.10  Purpose.

* * * * *
    (b) Section 1449 of the Act authorizes any person, upon no less 
than sixty days notice, to commence a civil action for the collection 
of a penalty by the United States Government (and associated costs and 
interest) against any federal agency that fails, by a date that is 18 
months after the effective date of a final order to pay a penalty 
assessed by the Administrator under the Act, to pay the penalty. No 
citizen suit may be commenced under this provision prior to both 18 
months after the effective date of a final order to a federal agency to 
pay a penalty assessed by the Administrator under the Act and sixty 
days' written notice of such action to both the Attorney General and 
the federal agency owing the assessed penalty. One purpose of this 
subpart is to prescribe procedures for giving such notice.
    (c) Section 1447 of the Act authorizes any interested person to 
obtain judicial review of an administrative penalty order issued under 
that section in the United States District Court for the District of 
Columbia or in the United States District Court for the district in 
which the violation is alleged to have occurred by filing a complaint 
with the court within the thirty day period beginning on the date the 
penalty order becomes final, and requires such person to simultaneously 
send a copy of the complaint by certified mail to the Administrator and 
the Attorney General. One purpose of this subpart is to prescribe 
procedures for the service of copies of such a complaint upon the 
Administrator and the Attorney General.
    3. Section 135.11 is amended by redesignating paragraph (c) as 
paragraph (d) and adding a new paragraph (c) to read as follows:


Sec. 135.11  Service of notice.

* * * * *
    (c) Service of notice of intent to file suit pursuant to section 
1449(a)(3) of the Act shall be accomplished by certified mail, return 
receipt requested, addressed to, or by personal service upon, all 
federal agency officials named by the Administrator as responsible in 
their official capacity for the payment of

[[Page 48080]]

the uncollected penalty order, if any, and the chief executive officer 
of such agency, and by sending a copy of the notice by certified mail 
to the Attorney General of the United States.
* * * * *
    4. Section 135.12 is amended by redesignating paragraph (c) as 
paragraph (d) and adding a new paragraph (c) to read as follows:


Sec. 135.12  Contents of notice.

* * * * *
    (c) Collection action. Notice regarding an alleged failure of a 
federal agency to have paid an administrative penalty, by a date that 
is 18 months after the effective date of a final order by the 
Administrator assessing such a penalty under the Act, shall include a 
copy of the final EPA order assessing the penalty, shall state the date 
that is 18 months following the effective date of such order, and shall 
state the full name, address and telephone number of the person giving 
notice.
* * * * *
    5. Section 135.13 is amended by revising the phrase ``section 
1449(a)(1) or (a)(2)'' to read ``section 1449(a) of the Act'' and by 
adding the following sentence after the first sentence:
    Notice may be given under section 1449(b) at any time after the 
effective date of a final order by EPA assessing a penalty against a 
federal agency, if the penalty has not been paid. * * *


Sec. 135.13  Timing of notice.

* * * * *
    6. A new Sec. 135.14 is added to read as follows:


Sec. 135.14  Service of Complaint Seeking Review of Penalty Order

    (a) An interested person filing a complaint seeking review of an 
administrative penalty order issued pursuant to section 1447(b)(4) of 
the Act shall by certified mail send a copy of such complaint to the 
Administrator of the Environmental Protection Agency, the Regional 
Administrator of the EPA Region in which the violations are alleged to 
have occurred, and the Attorney General of the United States.
    (b) Such petitioner shall by certified mail send a copy of the 
complaint on the same date on which the plaintiff files the complaint 
with the court.
    (c) In addition to complying with the service requirements of this 
subsection, such petitioner shall serve the complaint on the 
appropriate officials of the United States in accordance with relevant 
Federal law and court rules affecting service on defendants.

[FR Doc. 98-23205 Filed 9-4-98; 8:45 am]
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