[Federal Register Volume 64, Number 46 (Wednesday, March 10, 1999)]
[Notices]
[Pages 11881-11884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5958]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6308-8]


Notice of Availability: Y2K Enforcement Policy

AGENCY: Environmental Protection Agency.

ACTION: Notice of Availability: Y2K Enforcement Policy.

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SUMMARY: On November 30, 1998, EPA issued an enforcement policy 
designed to encourage prompt testing of computer-related equipment to 
ensure that environmental compliance is not impaired by the Y2K 
computer bug. Under the policy (published on the Internet at 
www.epa.gov/year2000), EPA stated its intent to waive 100% of the civil 
penalties that might otherwise apply, and to recommend against criminal 
prosecution, for environmental violations caused during specific tests 
that are designed to identify and eliminate Y2K-related malfunctions. 
The policy also stated that the civil penalty waiver and recommendation 
against criminal prosecution are limited to testing-related violations 
disclosed to EPA by February 1, 2000, and are subject to certain 
conditions, such as the need to design and conduct the tests well in 
advance of the dates in question, the need to conduct the tests for the 
shortest possible period of time necessary, the need to correct any 
testing-related violations immediately, and other conditions to ensure 
that protection of human health and the environment is not compromised. 
Today's notice publishes the entire policy for the first time in the 
Federal Register, to increase public awareness of this incentive to 
test computer-related systems and to incorporate several minor 
revisions aimed at clarifying the policy in response to public comment. 
The policy published today contains no major changes to the eligibility 
criteria announced on November 30, 1998.

ADDRESSES: Additional copies of the policy can be obtained on the 
Internet at www.epa.gov/year2000, and through EPA's Enforcement and 
Compliance Docket Information Center (ECDIC), 1200 Pennsylvania Ave., 
N.W., Room

[[Page 11882]]

4033, Washington, D.C. 20004. Copies of any case settlements resolved 
pursuant to the policy and a summary of responses to public comments 
may be obtained from the ECDIC, by calling 202-564-2614 or 202-564-
2119, or by sending a request via FAX to 202-501-1011 or an e-mail 
message to [email protected].

FOR FURTHER INFORMATION CONTACT: Any general comments on this policy 
may be directed to Gary A. Jonesi, Office of Regulatory Enforcement, at 
202-564-4002 (202-564-0011 FAX) ([email protected]). Individual 
facility-specific concerns also may be directed to the EPA regional 
offices listed at the end of this notice.

SUPPLEMENTARY INFORMATION:

Background

    The Y2K issue arises because a number of computerized functions 
require recognition of a specific year, day, and time, but many 
computers and computerized equipment recognize only the last two digits 
of a year's date (i.e., 1998 is 98; 2000 is 00). Therefore, when the 
calendar changes to the year 2000, computers and equipment with 
embedded computer chips may have difficulty interpreting the correct 
date. They may interpret the year to be 1900 or some other year. As a 
result, some computers and equipment containing embedded computer chips 
could become permanently unable to function properly. Others may 
continue to operate, but erroneously, while others simply may stop and 
need to be restarted. Some may create data that look correct, but in 
reality contain errors, and some may continue to operate correctly. In 
addition, some technical experts warn that certain computer-related 
systems may have trouble functioning properly on more than a dozen 
other dates arising over the next two years (see www.epa.gov/year2000/
append1.htm for a listing of such dates). For example, as to September 
9, 1999, the digital representation of that date, 9/9/99 (``four 9s''), 
may be interpreted as the end of a file or infinity, and, thus, may 
have unintended consequences. This policy encompasses concerns over 
computer-related testing problems that may arise as a result of any of 
the dozen or more dates. Together, these dates are referred to as Y2K 
for purposes of this enforcement policy.

Emphasis on Testing

    The public expects compliance with the nation's environmental laws, 
and the regulated community must take all steps necessary to anticipate 
and resolve potential environmental compliance problems that may result 
from Y2K-related equipment problems by the dates in  question  (e.g.,  
9/9/99  and 1/1/00). In an effort to ensure timely compliance, EPA has 
adopted this enforcement policy to encourage any necessary testing of 
computer systems and their related environmental components (e.g, 
monitoring and pollution control devices) well in advance of these 
dates. Under this policy, EPA reiterates its commitment to firm yet 
fair enforcement of environmental requirements regardless of any 
potential Y2K-related problems. At the same time, this policy 
recognizes that regulated facilities can benefit from having an 
additional measure of predictability concerning how EPA intends to 
react if such testing results in environmental violations under any of 
the regulatory enforcement statutes that EPA implements.

Relationship to Y2K Dates

    Although the focus of this policy is on testing-related violations 
that may occur prior to January 1, 2000, EPA notes that with respect to 
violations occurring after January 1, 2000, the Agency's longstanding 
enforcement response and penalty policies will continue to recognize a 
facility's good faith efforts and other potentially mitigating factors 
in determining an appropriate enforcement response. In that regard, 
facilities that test in accordance with the terms of this policy are 
likely to be in a more favorable position than facilities that do not, 
in the event that, despite a facility's best efforts at testing, the 
facility cannot correct all Y2K-related deficiencies in a timely 
manner.

Use of Existing Testing Procedures

    Under EPA's Y2K enforcement policy, regulated facilities who wish 
to test in advance of the Y2K dates are encouraged first to utilize any 
existing regulatory or permit procedures that are applicable and that 
can provide a timely and effective process for testing. For example, 
the Resource Conservation and Recovery Act (RCRA) regulations provide 
for trial burn testing of hazardous waste (40 CFR 266.102), research, 
development, and demonstration permits (Sec. 270.65), and land 
treatment demonstrations (Sec. 270.63). To the extent that existing 
procedures under any statutory program are appropriate, their use will 
help to ensure that the federal, state, and/or local agencies and 
programs that already are best situated to oversee facility testing can 
remain involved in that process. This enforcement policy does not 
modify, revoke, or otherwise affect any existing federal, state, or 
local permit, regulatory, or other (e.g., consent agreement) 
obligations, including but not limited to any public notice and comment 
requirements.

Criteria Justifying Application of This Policy

    If no existing procedures are applicable, or if none are 
appropriate given the need to expedite testing, this Y2K enforcement 
policy states that EPA expects to exercise its discretion to waive 100% 
of the civil penalties that might otherwise apply and to recommend 
against criminal prosecution for violations resulting from specific 
tests, where the facility can meet its burden of demonstrating to EPA 
that it has satisfied all of the nine criteria below. (Because this 
policy anticipates immediate correction of violations (see # 5 below), 
any test-period noncompliance that qualifies for a 100% civil penalty 
waiver or recommendation against criminal prosecution will not create a 
significant economic benefit, since compliance costs will not have been 
avoided or delayed.)
    (1) Systematic Design of Testing Protocols. Written testing 
protocols were designed in advance of the testing period, approved by 
the facility's responsible official, reflect a conscientious effort to 
evaluate the facility's Y2K-related environmental compliance status and 
not to circumvent environmental compliance, and were designed to 
prevent or limit violations that may result from such testing (e.g., 
through adoption or revision of appropriate contingency plans.)
    (2) Violations Caused By Testing. The specific Y2K-related testing 
was the direct and proximate cause of the potential violations.
    (3) Testing Need, Timing and Length. The specific testing that 
caused the potential violations was:
    (a) Necessary to determine the effectiveness of specific Y2K-
related modifications in ensuring environmental compliance;
    (b) Part of a comprehensive testing program designed to correct all 
Y2K deficiencies at the facility;
    (c) Conducted well in advance of the Y2K dates in question (i.e., 
normally at least 30 days in advance of the dates in question); and
    (d) Conducted for the shortest possible period of time in order to 
determine the effectiveness of such modifications, ordinarily not to 
exceed a testing period of 24 hours in duration.
    Where a facility, without making any modifications, tests existing 
equipment

[[Page 11883]]

in order to determine whether Y2K-related problems may affect its 
environmental compliance status, the specific testing was:
    (e) Necessary to determine the effectiveness of its existing 
operations in ensuring environmental compliance;
    (f) Part of a comprehensive testing program designed to correct all 
Y2K-related deficiencies at the facility;
    (g) Conducted well in advance of the Y2K dates in question (i.e., 
normally at least 30 days in advance of the dates in question); and
    (h) Conducted for the shortest possible period of time in order to 
ascertain the effectiveness of its existing operations in ensuring 
environmental compliance, ordinarily not to exceed a testing period of 
24 hours in duration.
    (4) Absence of Harm. The violations that may have occurred during 
testing did not result in creation of a potentially imminent and 
substantial endangerment (as EPA defines such threats under its RCRA 
section 7003 policies), or serious actual harm. Notwithstanding any 
civil penalty waivers or recommendations against criminal prosecution 
that may be appropriate under this policy, EPA retains its authority to 
seek any injunctive relief that it deems necessary, regardless of the 
level of harm, potential harm, or lack thereof.
    (5) Immediate Correction. All violations ceased as soon as 
possible, not later than at the end of the test or immediately 
thereafter (within 24 hours).
    (6) Expeditious Remediation. The facility expeditiously remediated 
any releases or other adverse health or environmental consequences as 
soon as possible, in accordance with any timing or other considerations 
that EPA may have specified (in the event that the Agency is involved 
in the remedial process).
    (7) Reporting. The facility has met in a timely fashion all legal 
requirements for reporting the violations (e.g., CERCLA section 103). 
Where the violations are not legally required to be reported, the 
facility nevertheless reported the violations to EPA as expeditiously 
as practicable under the circumstances (ordinarily no more than 30 days 
after when the violations occurred absent unusual circumstances 
justifying a longer period), but in all cases no later than February 1, 
2000.
    (8) Retesting. Any retesting conducted prior to the Y2K dates in 
question met all the criteria outlined in this policy and included 
modifications to earlier testing and/or operating conditions that are 
reasonably designed to achieve full compliance.
    (9) Cooperation. The facility provides any information requested by 
EPA as necessary to determine whether a 100% penalty waiver or 
recommendation against criminal prosecution is appropriate, consistent 
with the facility's legitimate legal rights and privileges.

Other Potentially Relevant Enforcement Policies

    Other existing EPA self-policing and compliance assistance policies 
may continue to be utilized where they are not inconsistent with this 
policy. For example, EPA's Audit Policy (formally entitled, 
``Incentives for Self-Policing: Discovery, Correction and Prevention of 
Violations,'' 60 FR 66706 (Dec. 22, 1995)) and Small Business Policy 
(formally entitled, ``Policy on Compliance Incentives for Small 
Business,'' 61 FR 27984 (June 3, 1996)) potentially could be applied to 
any violations that result from Y2K-related equipment problems that 
occur during and/or after the testing period described in this policy. 
In addition, EPA's criminal enforcement policies guiding both the 
exercise of investigative discretion (formally entitled, ``The Exercise 
of Investigative Discretion,'' Jan. 12, 1994) and implementation of 
EPA's Audit Policy (formally entitled, ``Implementation of the 
Environmental Protection Agency's Self-Policing Policy for Disclosures 
Involving Potential Criminal Violations,'' Oct. 1, 1997) may be 
relevant in certain cases during and/or after the testing period 
described in this policy.

Public Disclosure of Y2K-Related Testing Violations

    Similar to EPA's January 1997 memorandum concerning Confidentiality 
of Information Received Under Agency's Self-Disclosure Policy, EPA will 
make publicly available any disclosures under this Y2K enforcement 
policy, consistent with EPA's confidential business information (CBI) 
provisions found at 40 CFR part 2, but only after these matters are 
formally resolved.

Cooperation With States, Territories, and Tribal Governments

    EPA encourages States, territories, and tribal governments to adopt 
this or a similar approach for addressing violations of environmental 
programs that they implement and enforce. EPA will coordinate closely 
with such governments concerning Y2K-related testing violations.

Disclaimer

    This enforcement policy does not constitute final Agency action. It 
does not create any rights, duties, obligations, or defenses, implied 
or otherwise, in any persons or entities. It sets forth factors that 
EPA intends to use in the exercise of its enforcement discretion, and 
it is not intended for use in pleading, at hearing, at trial, or in any 
adjudicatory context.

Specific Compliance Concerns

    Individual facility-specific concerns may be directed to the EPA 
regional offices listed below:

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             Region                        States                  Contact & phone No.              FAX No.
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Region I........................  CT, ME, MA, NH, RI, VT..  Director, Office of Environmental       617-565-1141
                                                             Stewardship 617-565-3800.
Region II.......................  NJ, NY, PR, VI..........  Director, Division of Enforcement       212-637-4035
                                                             and Compliance Assistance 212-
                                                             637-4000.
Region III......................  DE, DC, MD, PA, VA, WV..  Director, Office of Enforcement,        215-814-2905
                                                             Compliance & Environmental
                                                             Justice 215-814-2627.
Region IV.......................  AL, FL, GA, KY, NC, MS,   Regional Counsel, 404-562-9655...       404-562-9663
                                   SC, TN.
Region V........................  IL, IN, MI, MN, OH, WI..  Regional Counsel, 312-886-2944...       312-886-0747
Region VI.......................  AR, LA, NM, OK, TX......  Regional Counsel, 214-665-2125...       214-665-2182
Region VII......................  IA, KS, MO, NE..........  Regional Counsel, 913-551-7010...       913-551-7925
Region VIII.....................  CO, MT, ND, SD, UT, WY..  Director, Legal Enforcement             303-312-6953
                                                             Program, Office of Enforcement,
                                                             Compliance, and Environmental
                                                             Justice, 303-312-6890.
Region IX.......................  AZ, CA, HI, NV, AS, GU..  Regional Counsel, 415-744-1365...       415-744-1041
Region X........................  AK, ID, OR, WA..........  Regional Counsel, 206-553-1073...       206-553-0163
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[[Page 11884]]

    Dated: February 27, 1999.
Sylvia Lowrance,
Acting Assistant Administrator for Enforcement and Compliance 
Assurance.
[FR Doc. 99-5958 Filed 3-9-99; 8:45 am]
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