15208 Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 22

[FRL–5175–8]

Hazardous Waste: Technical Revision

for the Federal Facility Compliance Act

of 1992 Amendments

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) is today proposing a rule

in response to a requirement established

by section 6001 of the Resource

Conservation and Recovery Act (RCRA),

as amended by the Federal Facility

Compliance Act of 1992 (FFCA). The

FFCA includes explicit authority to the

Administrator of the EPA to commence

administrative enforcement actions

against any department, agency, or

instrumentality of the executive,

legislative, or judicial branch of the

Federal Government that is in violation

of requirements under RCRA. The FFCA

further provides that no administrative

enforcement order issued to a

department, agency, or instrumentality

of the Federal Government becomes

final until the department, agency, or

instrumentality has an opportunity to

confer with the EPA Administrator.

Today’s proposal is a technical revision

of the Agency’s administrative rules of

practice to provide a federal

department, agency, or instrumentality

which is the subject of an administrative

enforcement order, with the opportunity

to confer with the Administrator, as

provided under the FFCA.

DATES: Comments on this proposed rule

must be received on or before April 21,

1995.

ADDRESSES: Commenters must each

send an original and two copies of their

comments to EPA RCRA Docket (5305);

Environmental Protection Agency, 401

M Street, SW., Washington, DC 20460.

Place the Docket Number F–95–TRFA–

FFFFF on the comments. The docket is

located in the EPA RCRA Docket Room

M2616. The docket is open from 9 a.m.

to 4 p.m., Monday through Friday

except for public holidays. To review

docket materials, make an appointment

by calling 202–260–9327. The public

may obtain copies of docket materials as

provided for in 40 CFR part 2. There

may be charges for copying services.

FOR FURTHER INFORMATION CONTACT: For

general information contact the RCRA/

CERCLA Hotline at 1–800–424–9346 or

in the Washington Metropolitan Area at

703–412–9810. For information on

specific aspects of this proposed rule,

contact Sally Dalzell, Federal Facilities

Enforcement Office (2261), U.S.

Environmental Protection Agency, 401

M Street SW., Washington, DC 20460,

202–260–9808.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority

II. Background

III. Content of the Rule

IV. Regulatory Analysis

I. Statutory Authority

This regulation is issued under the

authority of sections 2002 and 6001(b)

of the Solid Waste Disposal Act, as

amended by the Resource Conservation

and Recovery Act (RCRA), as amended

by the Federal Facility Compliance Act

(FFCA), 42 U.S.C. 6912 and 6961(b).

II. Background

The FFCA clarified that EPA has

explicit authority to issue

administrative enforcement orders to

other federal agencies that are in

violation of RCRA. In the past, where

EPA found RCRA violations at a federal

facility, it primarily relied on a

negotiated Federal Facility Compliance

Agreement to bring the federal facility

into compliance. The FFCA amended

RCRA to expressly authorize the EPA

Administrator to commence an

administrative enforcement action

against federal facilities pursuant to the

Agency’s RCRA enforcement

authorities. RCRA section 6001(b)(1), 42

U.S.C. 6961(b)(1). Moreover, the FFCA

requires the Administrator to initiate

administrative enforcement actions

against federal facilities ‘‘* * * in the

same manner and under the same

circumstances as an action would be

initiated against another person.’’ Id.

The legislative history makes it clear

that Congress intends that the Agency

issue administrative complaints

pursuant to RCRA section 3008(a) to

federal facilities to address violations

that are of the same types that are found

at private companies or municipalities.

H.R. No. 102–886, 102nd Cong. 2nd

Sess. at 19 (1992). Finally, the FFCA

provides that before any such

administrative enforcement order issued

to a federal facility becomes final, the

recipient department, agency, or

instrumentality must have the

opportunity to confer with the

Administrator. RCRA section 6001(b)(2),

42 U.S.C. 6961(b)(2).

The adjudication process for all

administrative enforcement complaints

issued pursuant to RCRA section

3008(a) is governed by the Agency’s

Consolidated Rules of Practice

Governing the Administrative

Assessment of Civil Penalties and the

Revocation or Suspension of Permits, 40

CFR part 22, and the Supplemental

Rules of Practice governing the

administrative assessment of civil

penalties under the Solid Waste

Disposal Act, 40 CFR 22.37. Under

current regulations, the initial decision

of a Presiding Officer shall become the

final order of the Environmental

Appeals Board within 45 days after its

service upon the parties and without

further proceedings unless an appeal is

taken to the Environmental Appeals

Board or the Environmental Appeals

Board elects, sua sponte, to review the

initial decision. 40 CFR 22.27(c). If the

Presiding Officer’s initial decision is

appealed to the Environmental Appeals

Board or if the Environmental Appeals

Board elects, sua sponte, to review the

initial decision, then the Environmental

Appeals Board issues a final order as

soon as practicable after receiving the

appellate briefs or oral argument, which

ever is later. 40 CFR 22.31.

These rules currently have no

provisions which accommodate the

statutory requirement that no such

administrative enforcement order issued

to a federal facility shall become final

until the recipient agency has had an

opportunity to confer with the

Administrator. The purpose of today’s

proposed rule is to revise 40 CFR part

22 to reflect a federal agency’s right to

an opportunity to confer with the

Administrator before an administrative

enforcement order issued to that agency

becomes a final order.

III. Content of the Rule

The proposed rule would revise the

supplemental practice rules for RCRA

administrative orders, 40 CFR 22.37, by

adding a new paragraph (g) in the nature

of a technical amendment. Specifically,

under new paragraph (g), an order

issued by the Environmental Appeals

Board to a federal agency for RCRA

violations would not be a final order, if

the recipient federal agency made a

timely request for a conference with the

Administrator. In that event, the

decision by the Administrator would be

the final order. New paragraph (g)

would also establish the timing and

procedure that a federal agency must

follow to preserve its right to confer

with the Administrator prior to an

administrative enforcement order

becoming final. The head of the

recipient federal agency would have 30

days from the Environmental Appeal

Board’s service of an order or decision

to request a conference with the

Administrator in writing. The request

must also be served upon all parties of
Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Proposed Rules 15209

record. Finally, new paragraph (g) states

that a motion for reconsideration filed

under 40 CFR 22.32 does not toll the 30-

day period for filing a request for a

conference with the Administrator.

The Agency believes that placing the

conference at the end of the

administrative enforcement process will

enable the Agency to proceed with an

enforcement case against a Federal

agency in the same manner as it would

against a private party. This procedure

also best assures that the Administrator

will have a complete factual and legal

record on which to base a decision. The

Agency further believes that the 30-day

request period, and the requirement that

the request for a conference be in

writing and served upon the parties of

record, are fair and reasonable

requirements necessary for the orderly

administration of administrative

enforcement actions against federal

agencies.

The Agency also believes that not

tolling the period for requesting a

conference for the filing of motions for

reconsideration with the Environmental

Appeals Board is consistent with 40

CFR 22.32. That section provides that

the filing of a motion for reconsideration

does not stay the effective date of an

Environmental Appeals Board final

order. Moreover, the Agency sees no

reason to build additional delay into the

administrative enforcement process by

automatically tolling the request period

during the pendency of a motion for

reconsideration before the

Environmental Appeals Board. Under

the proposed rule, the Environmental

Appeals Board can grant a request to toll

the time period for filing a request for

a conference; in addition, the

Administrator can always take into

account a motion for reconsideration

filed with the Environmental Appeals

Board, when scheduling a requested

conference.

Finally, the proposed rule is

consistent with previously published

Agency guidance issued by the Office of

Federal Facilities Enforcement entitled:

Federal Facility Compliance Act:

Enforcement Authorities

Implementation, dated July 6, 1993 (58

FR 49044, September 12, 1993). This

guidance remains in effect for matters

not covered by the proposed rule.

IV. Regulatory Analysis

A. Executive Order No. 12866

Under Executive Order 12866 (58 FR

51735 (October 4, 1993)) the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to Office of Management and

Budget (OMB) review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlement, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

It has been determined that this rule

is not a ‘‘significant regulatory action’’

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

of 1980 (Pub. L. 96–354), requires

Federal regulatory agencies to consider

the impact of rulemaking on ‘‘small

entities.’’ If a rulemaking will have a

significant impact on small entities,

agencies must consider regulatory

alternatives that minimize economic

impact.

Today’s decision does not affect any

small entity. Rather, it is merely a

technical amendment to the part 22

procedures ensuring consistency

between the regulatory procedures and

the Federal Facility Compliance Act.

Accordingly, this action will not add

any economic burdens to any affected

entities, small or large. Therefore, a

regulatory flexibility analysis is not

required. Pursuant to Section 605(b) of

the RFA, 5 U.S.C. section 605(b), the

Administrator certifies that this rule

will not have a significant impact on

small entities.

C. Paperwork Reduction Act

This rule does not contain any

information collection requirements

subject to review of the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501, et. seq.

List of Subjects in 40 CFR Part 22

Environmental protection,

Administrative practice and procedure,

Air pollution control, Hazardous

substances, Hazardous waste, Penalties,

Pesticides and pests, Poison prevention,

Water pollution control, Federal

facilities.

Dated: March 15, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, 40 CFR part 22 is proposed to

be amended as follows:

PART 22—[AMENDED]

1. The authority citation for part 22

continues to read as follows:

Authority: 42 U.S.C. 6961.

2. Section 22.37 is amended by

adding a new paragraph (g) to read as

follows:

§ 22.37 Supplemental rules of practice

governing the administrative assessment of

civil penalties under the Solid Waste

Disposal Act

* * * * *

(g) Final Orders to Federal Agencies

on Appeal. (1) In the case of an

administrative order or decision issued

to a department, agency, or

instrumentality of the United States,

such order or decision shall become the

final order for purposes of the Federal

Facility Compliance Act, 42 U.S.C.

6961(b), in accordance with §§ 22.27(c)

and 22.31 except as provided in

paragraph (g)(2) of this section.

(2) In the case of an administrative

order or decision issued by the

Environmental Appeals Board, if the

head of the affected department, agency,

or instrumentality requests conference

with the Administrator in writing and

serves a copy of the request on the

parties of record within thirty days of

the Environmental Appeals Board’s

service of the order or decision, a

decision by the Administrator (rather

than the Environmental Appeals Board)

shall be the final order for the purposes

of the Federal Facility Compliance Act.

(3) In the event the department,

agency, or instrumentality of the United

States files a motion for reconsideration

with the Environmental Appeals Board

in accordance with § 22.32, filing such

motion for reconsideration shall not toll

the thirty-day period for filing the

request with the Administrator for a

conference unless specifically so

ordered by the Environmental Appeals

Board.

[FR Doc. 95–7067 Filed 3–21–95; 8:45 am]

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