[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Rules and Regulations]
[Pages 67779-67780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32684]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 1

[FRL-6200-1]


Changes to Regulations Concerning Membership of EPA's 
Environmental Appeals Board

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA amends its regulations establishing the Environmental 
Appeals Board by increasing the limit on the number of Board members 
from three to four. The workload of the Environmental Appeals Board has 
increased since it was established. This action ensures that the Board 
can respond effectively to the growing workload.

EFFECTIVE DATE: These regulations are effective on December 9, 1998.

FOR FURTHER INFORMATION CONTACT: Ronald L. McCallum, Esq., 
Environmental Appeals Board, 401 M Street, SW., Washington, DC 20460, 
(202) 501-7060.

SUPPLEMENTARY INFORMATION: On February 13, 1992, EPA promulgated 
regulations establishing the Agency's Environmental Appeals Board. The 
regulations contemplated a three-member Board. In recognition of the 
Board's increasing workload, the Agency is through this rule increasing 
the limit on the number of Board members from three to four.

Reasons for Change

    The past several years have seen a significant increase in the 
Environmental Appeals Board's workload. The cause of the workload 
increase has been two-fold. First, there has been an increase in the 
number of appeals to the Board pursuant to the authorities which were 
part of the original delegation to the Board in the 1992 regulations. 
For example, the number of appeals of Prevention of Significant 
Deterioration (PSD) permits issued under the Clean Air Act has 
increased dramatically. During FY 1995, only two PSD appeals were 
received by the Board. In sharp contrast, twenty-four PSD appeals were 
received during FY 1997, and twenty-nine such appeals were received 
during FY 1998. Second, the Board's jurisdiction has expanded over the 
past several years to encompass such matters as petitions for 
reimbursement filed under Section 106 of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), 
further increasing the Board's workload. Other areas in which the 
Board's jurisdiction has expanded include, for example, acid rain 
appeals under 40 CFR Part 78, Title V federal permit appeals under 40 
CFR Part 71, and certain Safe Drinking Water Act penalty appeals. 
Notably, the Agency currently has underway a number of rulemakings 
which can be expected to further tax the Board as currently 
constituted.
    Through this rule, the Agency is responding to this increasing 
workload by raising the limit on the number of Board members from three 
to four. The current regulations envision the Board sitting as a panel 
on cases pending before it. They provide that, while ordinarily all 
three members will sit as a panel, the Board can proceed with two 
members if all three are not available because of recusal or absence. 
In the event that a two-member panel results in a tie, the matter is 
referred to the Administrator to break the tie.
    The changes made today envision the Board typically sitting in 
three-member panels drawn, on a rotating basis, from a four member 
Board. The ``off'' member will then be able to dedicate his/her 
energies to bringing other matters to conclusion. In addition to 
leaving the Board better positioned to respond to its workload, this 
change, while preserving the capacity of the Board to act with two 
members, will increase the probability of three-member panels 
notwithstanding absences and recusals, and will concomitantly decrease 
the probability of the Administrator's being required to break a tie.

Administrative Requirements

    EPA has found that good cause exists under 5 U.S.C. 553 (b)(3) (A), 
(B) and (d)(3) for waiving, as unnecessary and contrary to the public 
interest, the general notice of proposed rulemaking and the 30-day 
delay in effectiveness as to these rules and revocations. This 
rulemaking is related solely to EPA's organization, procedure, and 
practice. Under Executive Order 12866 (58 FR 51735, October 4, 1993), 
this action is not a ``significant regulatory action'' and is therefore 
not subject to review by the Office of Management and Budget. In 
addition, this action does not impose any enforceable duty, contain any 
unfunded mandate, or impose any significant or unique impact on small 
governments as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4). This rule also does not require prior consultation 
with State, local, and tribal government officials as

[[Page 67780]]

specified by Executive Order 12875 (58 FR 58093, October 28, 1993) or 
Executive Order 13084 (63 FR 27655 (May 10, 1998)), or involve special 
consideration of environmental justice related issues as required by 
Executive Order 12898 (59 FR 7629, February 16, 1994). Because this 
action is not subject to notice-and-comment requirements under the 
Administrative Procedure Act or any other statute, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.). This rule also is not subject to Executive 
Order 13045 (62 FR 19885, April 23, 1997) because EPA interprets E.O. 
13045 as applying only to those regulatory actions that are based on 
health or safety risks, such that the analysis required under section 
5-501 of the Order has the potential to influence the regulation.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of agency organization, procedure, or practice 
that does not substantially affect the rights or obligations of non-
agency parties. EPA has determined that the Paperwork Reduction Act (44 
U.S.C. chapter 35) does not apply because the regulation does not 
contain any information collection requirements that require the 
approval of the Office of Management and Budget.

List of Subjects in 40 CFR Part 1

    Environmental protection, Statement of Organization and General 
Information.

    Dated: December 3, 1998.
Carol M. Browner,
Administrator, Environmental Protection Agency.
    For the reasons set forth in the preamble, title 40, Chapter I 
of the Code of Federal Regulations is amended as follows:

PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION:

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

    Authority: 5 U.S.C. 552.

    2. Section 1.25 is amended by revising paragraph (e)(1) to read as 
follows:


Sec. 1.25  Staff Offices.

* * * * *
    (e)(1) Environmental Appeals Board. The Environmental Appeals Board 
is a permanent body with continuing functions composed of no more than 
four Board Members designated by the Administrator. The Board shall 
decide each matter before it in accordance with applicable statutes and 
regulations. The Board typically shall sit on matters before it in 
three-Member panels, and shall decide each matter by a majority vote. 
In the event that absence or recusal prevents a three-Member panel, the 
Board shall sit on a matter as a panel of two Members, and two Members 
shall constitute a quorum under such circumstances. The Board in its 
sole discretion shall establish panels to consider matters before it. 
The Board's decisions regarding panel size and composition shall not be 
reviewable. In the case of a tie vote, the matter shall be referred to 
the Administrator to break the tie.
* * * * *
[FR Doc. 98-32684 Filed 12-8-98; 8:45 am]
BILLING CODE 6560-50-P