[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Rules and Regulations]
[Pages 77637-77639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28359]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 22

[FRL-7855-6]


Clarification of Address for Documents Filed With EPA's 
Environmental Appeals Board

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending the regulations that pertain to filing appeals 
and other documents with the Environmental Appeals Board (EAB) under 
the Consolidated Rules of Practice Governing the Administrative 
Assessment of Civil Penalties and the Revocation/Termination or 
Suspension of Permits (CROP). Specifically, EPA is amending two 
regulations that specify the addresses where notices of appeal, 
accompanying briefs, and other documents must be filed, to provide that 
any filings made through the U.S. mail service must be addressed to the 
EAB's mailing address, and that any filings made by hand-delivery or 
courier must be made to the EAB's hand-delivery address. The amendments 
are intended to make the regulations consistent with current Agency 
practice and to provide clear guidance on the proper address to use 
under various circumstances.

EFFECTIVE DATE: This final rule is effective on December 28, 2004.

FOR FURTHER INFORMATION CONTACT: Eurika Durr, Clerk of the Board. 
Telephone number: (202) 233-0122. E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This action is directed to the public in

[[Page 77638]]

general and to anyone who may want to file documents with the EAB. If 
you have questions regarding the applicability of this action to a 
particular entity or action, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

I. Background

A. What Action Is the Agency Taking?

    The Consolidated Rules of Practice Governing the Administrative 
Assessment of Civil Penalties and the Revocation/Termination or 
Suspension of Permits (CROP), 40 CFR part 22, govern the filing of 
certain appeals with the EAB, and provide, in pertinent part, that:

    [A]ny party may appeal any adverse order or ruling of the 
Presiding Officer by filing an original and one copy of a notice of 
appeal and an accompanying appellate brief with the Environmental 
Appeals Board (Clerk of the Board (Mail Code 1103B), United States 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460. Hand deliveries may be made at Suite 600, 1341 
G Street, NW.

40 CFR 22.30(a)(l). The regulation could be read as implying that hand 
deliveries may be made at either of the two specified addresses. 
However, the address referenced in the regulation as ``1200 
Pennsylvania Avenue, NW.'' is that of the EPA mailing center, which no 
longer accepts hand deliveries of mail addressed to the EAB. The EPA 
mailing center will reject any document addressed to the EAB that is 
delivered by hand or courier, and such document will not be properly 
filed until it has been re-delivered to the physical offices of the EAB 
at Suite 600, 1341 G Street, NW., Washington, DC 20005. The purpose of 
the amendment is to delete the regulatory language at 40 CFR 
22.30(a)(1) quoted above, and to replace it with the following 
language:

    [A]ny party may appeal any adverse order or ruling of the 
Presiding Officer by filing an original and one copy of a notice of 
appeal and an accompanying appellate brief with the Environmental 
Appeals Board. Appeals filed through the U.S. Postal Service (except 
by U.S. Postal Express Mail) shall be addressed to the Environmental 
Appeals Board at its official mailing address: Clerk of the Board 
(Mail Code 1103B), United States Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460. Appeals 
delivered by hand or courier (including deliveries by U.S. Postal 
Express Mail or by a commercial delivery service) shall be delivered 
to Suite 600, 1341 G Street, NW., Washington, DC 20005.

    The CROP further provides, in pertinent part, that:

    The original and one copy of each document intended to be part 
of the record shall be filed * * * with the Clerk of the Board when 
the proceeding is before the Environmental Appeals Board. A document 
is filed when it is received by the appropriate Clerk.

40 CFR 22.5(a)(1). According to 40 CFR 22.3, the Clerk of the Board 
``means the Clerk of the Environmental Appeals Board, Mail Code 1103B, 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460.'' The purpose of the amendment is to amend 40 CFR 
22.5(a)(I) by adding the following sentence after the regulatory 
language quoted above:

    Documents filed in proceedings before the Environmental Appeals 
Board shall either be sent by U.S. mail (except by U.S. Express 
Mail) to the official mailing address of the Clerk of the Board set 
forth at 22.3 or delivered by hand or courier (including deliveries 
by U.S. Postal Express or by a commercial delivery service) to Suite 
600, 1341 G Street, NW., Washington, DC 20005.

B. How Can I Get Additional Information About This Action?

    You may obtain additional information about this action on the 
EAB's Internet home page at http://www.epa.gov/eab.

C. What Is the Agency's Authority for Taking This Action?

    EPA is issuing this document under its general rulemaking 
authority. Reorganization Plan No. 3 of 1970 (5 U.S.C. app.). In 
addition, section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
this amendment is technical and non-substantive, and therefore, that 
there is good cause under 5 U.S.C. 553(b)(B) for making this rule final 
without prior proposal and opportunity for comment. EPA also finds good 
cause under 5 U.S.C. 553(d) to make this rule effective on the date of 
publication.

II. Do Any of the Regulatory Assessment Requirements Apply to This 
Action?

    No. This final rule implements a technical amendment to 40 CFR part 
22 to provide clear guidance on the hand-delivery address for filings 
with the EAB, and does not otherwise impose or amend any requirements. 
This action is not a ``significant regulatory action'' and is therefore 
not subject to review by the Office of Management and Budget under 
Executive Order 12866, entitled Regulatory Planning and Review (58 FR 
51735, October 4, 1993). This rule does not contain any information 
collection requirements that require review and approval by OMB 
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). Because this action is not economically significant as defined 
by section 3(f) of Executive Order 12866, this action is not subject to 
Executive Order 13045, Protection of Children from Environmental Health 
Risks and Safety Risks (62 FR 19885, April 23, 1997). Since the Agency 
has made a ``good cause'' finding that this action is not subject to 
notice-and-comment requirements under the APA or any other statute, 
this action is not subject to provisions of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded 
Mandate Reform Act of 1995 (UMRA) (Public Law 104-94). 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 UMRA of 1995. This rule will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, entitled Federalism (64 FR 43255, 
August 10, 1999). Similarly, this rule will not have substantial direct 
effects on tribal governments, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes, as 
specified in Executive Order 13175, entitled Consultation and 
Coordination with Indian Tribal Governments (65 FR 67249, November 6, 
2000). This action does not involve any technical standards that 
require the Agency's consideration of voluntary consensus standards 
pursuant to section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 
U.S.C. 272 note). This rule is not subject to Executive Order 13211, 
entitled Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), 
because this action is not a significant regulatory action under 
Executive Order 12866.

III. Will EPA Submit This Final Rule to Congress and the Comptroller 
General?

    Yes. The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., 
generally provides that, before a rule may take effect, the agency that 
promulgates the rule must submit a rule report, which includes a copy 
of the rule, to each

[[Page 77639]]

House of the Congress and to the Comptroller General of the United 
States. CRA section 808 provides that the issuing agency may make a 
rule effective sooner than otherwise provided by the CRA if the agency 
makes a good cause finding that notice and public procedure are 
impracticable, unnecessary, or contrary to the public interest. EPA has 
made such a good cause finding, including the reasons therefor, and has 
established the date of publication as the effective date. As stated 
previously, 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 United States, 
prior to publication of the rule in the Federal Register. This action 
is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 22

    Environmental protection, Administrative practice and procedure, 
Courts.

    Dated: December 20, 2004.
Richard McKeown,
Chief of Staff.

0
40 CFR Part 22 is amended as follows:
0
1. The authority citation for part 22 continues to read as follows:

    Authority: 7 U.S.C. 136(l); 15 U.S.C. 2615; 33 U.S.C. 1319, 
1342, 1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928, 
6991e and 6992d, 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and 
7607(a), 9609, and 11045.


0
2. Section 22.5 is amended by adding a sentence after the second 
sentence in paragraph (a)(1) to read as follows:


Sec.  22.5  Filing, service, and form of all filed documents, business 
confidentiality claims.

    (a) * * *
    (1) * * * Documents filed in proceedings before the Environmental 
Appeals Board shall either be sent by U.S. mail (except by U.S. Express 
Mail) to the official mailing address of the Clerk of the Board set 
forth at Sec.  22.3 or delivered by hand or courier (including 
deliveries by U.S. Postal Express or by a commercial delivery service) 
to Suite 600, 1341 G Street, NW., Washington, DC 20005. * * *
* * * * *

0
3. Section 22.30 is amended by removing the first two sentences of 
paragraph (a)(1) and adding three new sentences in their place to read 
as follows:


Sec.  22.30  Appeal from or review of initial decision.

    (a) * * *
    (1) Within 30 days after the initial decision is served, any party 
may appeal any adverse order or ruling of the Presiding Officer by 
filing an original and one copy of a notice of appeal and an 
accompanying appellate brief with the Environmental Appeals Board. 
Appeals sent by U.S. mail (except by U.S. Postal Express Mail) shall be 
addressed to the Environmental Appeals Board at its official mailing 
address: Clerk of the Board (Mail Code 1103B), United States 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460. Appeals delivered by hand or courier (including 
deliveries by U.S. Postal Express Mail or by a commercial delivery 
service) shall be delivered to Suite 600, 1341 G Street, NW., 
Washington, DC 20005. * * *
* * * * *
[FR Doc. 04-28359 Filed 12-27-04; 8:45 am]
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