[Federal Register Volume 73, Number 186 (Wednesday, September 24, 2008)]
[Rules and Regulations]
[Pages 54946-54947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22354]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[Docket No. ENRD 100; AG Order No. 3001-2008]


Authority To Compromise Civil Claims Under the Comprehensive 
Environmental Response, Compensation and Liability Act and To Make an 
Administrative Change to the Code of Federal Regulations

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule amends our regulations to reflect the name of the 
Environment and Natural Resources Division, which was formerly known as 
the Land and Natural Resources Division. The Department of Justice 
officially changed the name of the Division in the early 1990s, but all 
of the pertinent parts of part 0 were not amended accordingly.
    This order further amends our regulations to authorize the 
Assistant Attorney General for the Environment and Natural Resources 
Division to approve certain settlements under the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA).

DATES: Effective Date: September 24, 2008.

FOR FURTHER INFORMATION CONTACT: Bruce S. Gelber, Chief, Environmental 
Enforcement Section, Environment and Natural Resources Division, 
Department of Justice, P.O. Box 7611, Washington, DC 20044-7611 (202-
514-4624).

SUPPLEMENTARY INFORMATION: In subpart Y of 28 CFR part 0, the Attorney 
General has delegated to the various Assistant Attorneys General 
certain of his authority to compromise and close civil claims. Section 
0.160(a)(1) authorizes the various Assistant Attorneys General to 
``[a]ccept offers in compromise of claims asserted by the United States 
in all cases in which the difference between the gross amount of the 
original claim and the proposed settlement does not exceed $2,000,000 
or 15 percent of the original claim, whichever is greater.''

Administrative Changes

    In the early 1990s, the name of the Land and Natural Resources 
Division was changed to the Environment and Natural Resources Division 
to better reflect the broader responsibilities of the Division since 
its inception in 1909. The administrative change in this rule corrects 
the name of the Division throughout part 0, where the former name 
remains.

Changes to Section 0.160

    CERCLA was enacted in 1980 in response to the discovery of 
significant human health hazards at a number of sites where hazardous 
wastes had been dumped or buried. Public Law 96-510 (42 U.S.C. 9601, et 
seq.). The law created a ``Superfund'' to help pay the costs of 
investigating and cleaning up these sites, 26 U.S.C. 9507, and also 
imposed liability for the costs of cleanup on the parties who were 
responsible for creating these sites, 42 U.S.C. 9607(a). These parties 
(referred to collectively as ``potentially responsible parties'') 
include: The current owners and operators of a facility from which 
there is a release or threatened release of a hazardous substance into 
the environment; those who owned or operated the facility at the time 
hazardous substances were disposed of at that facility; those who 
generated the hazardous substances and arranged for their treatment or 
disposal by a third party; and those who transported the hazardous 
substances for treatment or disposal, if they selected the site. 42 
U.S.C. 9607(a).
    While the courts have agreed uniformly that liability under CERCLA 
is joint and several when the harm at the site is indivisible, 42 
U.S.C. 9613(f) provides for the equitable allocation of response costs 
among the jointly and severally liable parties. A single case under 
CERCLA can involve numerous (sometimes hundreds of) separate 
responsible parties whose liability can be equitably allocated or 
determined to be de minimis for purposes of reaching a settlement of 
their liability. Indeed, Congress encourages the Environmental 
Protection Agency to reach expedited settlements with de minimis 
parties. 42 U.S.C. 9622(g). However, based on the total claim at the 
site, some of these settlements will result in differences between the 
original claim and the proposed settlement that are greater than $2 
million (or 15 percent of the original claim). Many settlements are 
made with parties who do not have the financial ability to pay the 
equitable allocated amount. Some non-de minimis settlements result in 
compromises of our original claim as a result of the responsible 
party's ability to pay. These types of settlements with individual 
parties are common in multi-party CERCLA litigation and seldom raise 
issues significant enough to warrant Associate Attorney General review. 
In order to increase efficiency in the approval process, this rule 
amends Section 0.160 of Subpart Y to authorize the Assistant Attorney 
General, Environment and Natural Resources

[[Page 54947]]

Division, to approve these kinds of partial CERCLA settlements.

Administrative Procedure Act

    This rule is a rule of agency organization and procedure, and 
relates to the internal management of the Department of Justice. It is 
therefore exempt from the requirements of notice and comments and a 
delayed effective date. 5 U.S.C. 553(b), (d).

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities because it pertains to 
personnel and administrative matters affecting the Department. Further, 
a Regulatory Flexibility Analysis was not required to be prepared for 
this final rule since the Department was not required to publish a 
general notice of proposed rulemaking for this matter.

Executive Order 12866--Regulatory Planning and Review

    This action has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, Sec.  1(b), 
Principles of Regulation. This rule is limited to agency organization, 
management and personnel as described by Executive Order 12866 Sec.  
3(d)(3) and, therefore, is not a ``regulation'' or ``rule'' as defined 
by this Executive Order. Accordingly, this action has not been reviewed 
by the Office of Management and Budget.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 0

    Authority delegations (government agencies), Government employees, 
Organization and functions (government agencies), Whistleblowing.

0
For the reasons set forth in the preamble, Part 0 of Title 28, Code of 
Federal Regulations is amended to read as follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

0
1. The authority citation for Part 0 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.


0
2. In 28 CFR part 0, remove the words ``Land and Natural Resources 
Division'' and add, in their place, the words ``Environment and Natural 
Resources Division'' in the following places:
0
a. Section 0.45(a), (b) and (g);
0
b. Subpart L, consisting of Sec. Sec.  0.65 through 0.69c.
0
c. Section 0.175(b); and
0
d. Subpart Y, consisting of Sec.  0.160 through the Appendix to Subpart 
Y of Part 0.

0
3. Section 0.160 is amended by revising paragraphs (a) introductory 
text and (b), redesignating paragraph (c) as paragraph (d), and adding 
new paragraph (c) to read as follows:


Sec.  0.160  Offers that may be accepted by Assistant Attorneys 
General.

    (a) Subject to the limitations set forth in paragraph (d) of this 
section, Assistant Attorneys General are authorized, with respect to 
matters assigned to their respective divisions, to:
* * * * *
    (b) Subject to the limitations set forth in paragraph (d) of this 
section, the Assistant Attorney General, Tax Division, is further 
authorized to accept offers in compromise of, or settle 
administratively, claims against the United States, regardless of the 
amount of the proposed settlement, in all cases in which the Joint 
Committee on Taxation has indicated that it has no adverse criticism of 
the proposed settlement.
    (c) Subject to the limitations set forth in paragraph (d) of this 
section, the Assistant Attorney General, Environment and Natural 
Resources Division, is further authorized to approve settlements under 
the Comprehensive Environmental Response, Compensation and Liability 
Act, 42 U.S.C. 9601 et seq., regardless of the amount of the proposed 
settlement, with:
    (1) Parties whose contribution to contamination at a hazardous 
waste site is de minimis within the meaning of 42 U.S.C. 9622(g); or
    (2) Parties whose responsibility can be equitably allocated and 
are:
    (A) Paying at least the allocated amount; or
    (B) Unable to pay the allocated amount as confirmed by a qualified 
financial expert.
* * * * *

    Dated: September 16, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-22354 Filed 9-23-08; 8:45 am]
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