EPA 510-Z-91-001
Friday
September 27, 1991
Part VII
Environmental
Protection Agency
40 CFR Part 24
Issuance of and Administrative Hearings
on RCFIA Section 9003(h) Corrective
Action Orders for Underground Storage
Tanks; Final Rule
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40 CFR Part 24
IFRL-4012-4J
Issuance of and Administrative
Hearings on RCRA Section 9003(n)
Corrective Action Orders for
Underground Storage Tanks
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: The Hazardous and Solid
Waste Amendments of 1984 (HSWA)
added to the Resource Conservation and
Recovery Act (RCRA) a new Subtitle I
which provides for the regulation of
underground storage tanks (USTs),
Section 9Q03(h), which was added to
Subtitle I by the Superfund Amendments
and Reauthorization Act of 1986
(SARA], authorizes EPA to issue orders
requiring owners and operators to take
corrective action in response to releases
from their USTs. This rule establishes
procedures governing the issuance of
administrative corrective action orders
issued under authority contained in
section 9003(hJ of RCRA, and conduct of
administrative hearings requested by
recipients of such orders.
EFFECTIVE DATE: This rule becomes
effective October 28,1891.
FOR FURTHER INFORMATION CONTACT:
RCRA/SUPERFUND Hotline at (800J
424-9346; or In Washington, DC at (202)
382-3000.
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
I. Authority
11. Background
A; Subtitle I of RCRA
B. Summary of Proposed Rule
III. Analysis of Today's Rule
A. Statutory Mandate
B. Due Process Issues
C. Procedures for the Hearing Process
IV. Economic and Regulatory Impacts
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
List of Subjects in 40 CFR Part 24
I. Authority
Thejules governing issuance of and
administrative hearings on corrective
action orders, 40 CFR part 24, were
promulgated on April 13,1988, at (53 FR
12256), under the authority of sections
2002 and 3008 of the Solid Waste
Disposal Act, commonly referred to as
the Resource Conservation and
Recovery Act, (RCRA), as amended by
the Hazardous and Solid Waste
Amendments of 1984 (HSWA], 42 U.S.C,
6912 and 6928. This amendment to 40
CFR part 24 is issued under the
authority of sections 2002 and 9003 of
RCRA, as amended, 42 U.S.C. 6912 and
6991b.
II. Background
A. Subtitle I of RCRA
On November 8,1984, the President
signed into law the Hazardous and Solid
Waste Amendments of 1984. The
amendments added to RCRA a new
Subtitle I, sections 9001 through 9010,
which establishes a federal program for
the regulation of underground storage
tanks (USTs). Section 9006(a) authorizes
EPA to issue administrative orders that
require compliance and/or assess
penalties for violations of Subtitle I.
Section 9003(h) authorizes EPA to issue
administrative orders requiring owners
or operators of leaking USTs to
undertake corrective action.
Under section 9006(b), any
administrative order issued under
section 9Q06(a) shall become final in 30
days unless the recipient requests an
administrative hearing. Section 9003(h)
states that corrective action orders
issued under section 9003(h) shall be
subject to the same requirements as
9Q06(a) brders. Thus, recipients of
9003(h) corrective action orders
maintain the right for 30 days to request
a hearing.
The procedures for issuing
administrative compliance orders and
conducting administrative hearings
pursuant to RCRA section 3008{a) are
governed by 40 CFR part 22. On
February 24.1988, EPA amended the
part 22 procedures to include orders
issued pursuant to section 9006(a) (53 ER
S373J. The Agency subsequently
developed more streamlined procedures
at 40 CFR part 24 for corrective action
orders issued pursuant to section 3008(h)
,- of RCRA. These streamlined procedures
were published April 13,1988 (53 FR
12256) and applied to 300B(h) corrective
.action orders only.
.- In the absence of Congressional
requirements, the Agency has the
ability, circumscribed by constitutional
due process considerations, to decide
what administrative procedures are
appropriate to be followed for 9003(h)
corrective action orders. Because EPA
believes that the part 24 procedures are
consistent with the statute and its goal
of minimizing the environmental risks
posed by leaking USTs, it feels that part
24 should be employed for corrective
action orders issued pursuant to section
9003(h) and for administrative hearings
requested by recipients of such orders.
Thus, EPA proposed that the part 24
procedures be amended to include
corrective action orders issued pursuant
to section 9003(h). The proposed
amendment was published in the
Federal Register on August 15,1990 (55
FR 33430) along with an invitation to
interested members of the public to
comment on the proposed rule.
B. Summary of Proposed Rule
EPA believes that use of the part 24
procedures is the most appropriate way ~
to handle the issuance of and
administrative hearings on 9003(h)
corrective action orders and,-thus,
proposed to extend the scope of part 24
to include such orders. The Agency
believes that the uncomplicated,
streamlined nature of the administrative
procedures under part 24 make it more
suitable than part 22 for issuing
corrective action orders. The primary
difference between the two sets of
proceedings is that part 22 requires full,
adjudicatbry hearings with discovery
and examination of witnesses, while
part 24 provides instead for the
respondent's full review of the
administrative record. Other differences
between the proceedings are illustrated
in the flowcharts (Figure 1).
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Federal Register / Vol. 56. No. 188 / Friday, September 27, 1991 / Rules and Regulations 49377
Flowchart of Processes Under 40 CFR Parts 22 and 24
Part 22
Complaint issued
i
Part 24
Initial order issued
Does
owner/operator
file answer?
Yes
PO appointed
(ALJ)
-Pre-hearing
conference
,
Additional
motions
i
Hearing
Proposed findings/
PO's initial decision
PO certifies ruling
for Administrator
review
Administrator
review and decision
Informal
settlement
conference
Does
owner/operator
appeal?
Subpart BX \Subpart C
RPmay
submit
argument
Optional
Informal
settlement
conference
PO sends
recommendation
toRA
RP may submit
comment on
recommendation
RA makes
final decision
PO -Presiding Oftar
AU - Adrnnatntivi Law Judge
RP - flMponwM* Party
RA - Ragiontl Adminalrmtor
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49378 Federal Register / Vol. 56, No. 188 / Friday, September 27, 1991 / Rules and Regulations
Because of their nature and purpose,
part 24 proceedings are less formal and
resource-intensive than part 22
proceedings. In part 22, EPA decision-
makers are required to adjudicate
specific factual issues relating to the
violation in question. However, the
primary purpose of part 24 proceedings
is to establish that a release has
occurred, not that a specific violation
has occurred, and to determine the most
appropriate corrective measures for the
release, Because the part 24 proceedings
do not allow examination and cross-
examination of witnesses, less time and
fewer resources are needed for
preparation and conduct of the hearings.
This approach is congruous with the
UST program's philosophy, where the
primary goals include reducing the risks
from UST releases as quickly as
possible. Thus, EPA believes that using
part 24 procedures for 9003(h) corrective
action orders would avoid unnecessary
time delays and expenditures of Agency
or respondent's resources, and would
provide a more suitable framework for
issuing corrective action orders than
would the part 22 procedures.
In its August 1990 proposal, the
Agency's intent was to amend 40 CFR
part 24 by expanding the scope of
coverage of the rule to include 9003(h)
orders. Consistent with use of part 24 for
RCRA section 3008(h) orders, EPA
proposed that the part 24 procedures be
used only when issuing a 9003(h)
eerrective action order alone. If a
9QQ3(h) corrective action order is issued
in conjunction with a 9006 order to
compel compliance with specific
requirements or to assess civil penalties,
the part 22 procedures will be followed.
This allows for the full adjudicatory
proceedings under part 22 in those cases
where issues of fact are most likely to
be in dispute, Table 1 illustrates when to
follow part 22 and part 24 procedures.
TABLE 1
TABLE 1 Continued
Typo of order
Sectors 9003(h| Corrective
Action Ofifer requiring in-
vestigations, studies, and."
or corrective action,
Section 9003(h) Corrective
Action Order »«u«d in con-
junction with a 9006£a)
Compliance Order requiring
eorapiianee with specific re-
quirements,
Section 9003
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Federal Register / Vol. 56. No. 188 / Friday. September 27. 1991 / Rules and Regulations
^^^^^^^^^^^^^^'"'^""'""^^^^'^^^^^^^^^^^__^^_^^°
49379
orders for releases from petroleum
USTs. The Agency disagrees, because
section 9003(h)(4) also includes orders
"to carry out regulations under
subsection (c)(4) of this section," and
that section (and the regulations issued
pursuant thereto) includes both
petroleum and hazardous substance
USTs. Therefore, the Agency is
promulgating the rule as proposed.
B. Due Process Issues
A number of commenters expressed
concern that the procedures under part
24 would deprive recipients of 9003(h)
orders of due process. In particular,
commenters were concerned about the
respondent's right to discover the
government's evidence or cross-examine
government witnesses, and to appeal the
order. Commenters also requested
clarification on whether orders would be
judicially reviewable.
The Agency's argument that part 24
procedures do provide due process for
corrective action orders was initially set
forth in the preamble to the final rule on
use of part 24 procedures for RCRA
section 3008(h) orders (53 FR 12256,
April 13,1988). In that preamble, the
Agency weighed the factors cited in
Mathews v. Eldridge, 424 U.S. 319 (1976),
which established how much process is
due in an administrative hearing. Those
factors were, on the one hand, EPA's
interest in avoiding (1) resource outlays
and (2) delays in responding to releases
that would result from the preparation
for and participation in full adjudicatory
hearings, and, on the other hand, (1) the
respondent's costs of undertaking
corrective action, and (2) the risk that
the respondent might be forced to incur
such costs unnecessarily, because EPA
has promulgated rules that do not
adequately provide for resolution of
factual disputes. The Agency concluded
in the preamble that given the technical
nature of corrective action cases, the
part 24 proceedings would provide
adequate resolution of technical
disputes and, thus, the risks to the
respondent would be minimal. In
addition, the corrective action
regulations in Subpart F of 40 CFR part
280, with which section 9003(h) orders
must be in conformity, provide direction
to the issuer of the order and thus
reduce the likelihood of error and,
consequently, the need for a hearing.
Furthermore, lengthy administrative
proceedings would be resource-
intensive and incompatible with the
Agency's need to accomplish clean-ups
quickly to avoid adverse health and
environmental impacts. EPA's argument
that part 24 procedures provide due
process has been upheld in Chemical
Waste Management Inc. v. EPA, in
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which the court declared that use of part
24 procedures for RCRA 3008(h)
corrective action orders did not on their
face deprive respondents of the
constitutional requirement of due
process.
Specifically, although cases involving
corrective action orders may present
some factual issues for resolution, there
will be fewer factual issues than in
cases where there are alleged regulatory
violations. Furthermore, the questions
that do arise will be more technical in
nature, and will focus on whether a
release has occurred and what
remediation should be undertaken,
rather than on specific factual issues
needed to prove whether a violation has
occurred. Such technical questions can
just as easily, and perhaps more
effectively, be resolved through careful
analysis of the administrative record
and the written submissions and oral
statements of the parties. Thus, formal
discovery will not be necessary because
part 24 provides the respondent with full
access to the administrative record. The
part 24 regulations also provide several
opportunities for a closer examination of
difficult factual issues, such as liability
for corrective action. Specifically,
§§ 24.11 and 24.15(a) allow the Presiding
Officer to address questions to either
party; § 24.11 (Subpart B) provides
opportunity for technical and legal
discussions between the parties; and
§ 24.24(d) (Subpart C) allows the
respondent (with the Presiding Officer's
permission), to submit questions in
writing to EPA prior to the hearing.
Thus, lengthy administrative hearings
that include extensive discovery and
cross-examination not only are
incompatible with the need to
accomplish clean-ups quickly, but also
are unnecessary from a due process
standpoint. .. .
The Agency believes that the part 24
proceedings also provide due process
with respect to appeals. In particular,
part 24 allows the respondent to identify
and bring to the attention of the
. Regional Administrator any factual or
legal errors in the recommended
decision, prior to the final decision.
Thus, final decisions issued under the
part 24 procedures already incorporate
review and approval by the Regional
Administrator. Furthermore, the Agency
is clarifying that the final decision made
by the Regional Administrator after the
conclusion of the hearing to either sign
or modify the Presiding Officer's
decision is final Agency action that is
not appealable to the Administrator.
However, the final order is not judicially
reviewable until the agency seeks to
enforce the order or until the order has
been fully implemented, because the
statute, in the opinion of the Agency,
precludes pre-enforcement or pre-
implementation review. In addition, the
completion of the dispute resolution
process does not permit immediate
judicial review, for the same reasons
that a final order is not immediately
reviewable by the courts.
C. Procedures for the Hearing Process
The rules at 40 CFR part 24 use a two-
tiered set of procedures for conducting
administrative hearings. Subpart B
procedures, which are less formal and
time-consuming, are used when the
initial corrective action order directs the
respondent to undertake either studies
of the nature and extent of releases, Or
studies of the available alternatives for
remediating such releases. Subpart C
procedures are used when the initial
corrective action order directs the
respondent to undertake specific or
comprehensive corrective measures.
In the preamble to the proposed rule,
EPA suggested that 9003(h) corrective
action orders will be issued primarily in
situations when a release is suspected
to have occurred. In these cases, the
Agency typically will issue a single
order requiring the owner or operator
both to confirm the release and to
conduct corrective measures. The
Agency also indicated that procedures
for hearings requested by the recipients
of such orders would be more
appropriately governed by the subpart C
procedures. Thus, the Agency proposed
that the subpart C procedures be used
for all 9003(h) corrective actions orders,
including those rare instances when an
order would be issued that did not
instruct the owner or operator to
conduct corrective measures. However,
several commenters disagreed with the
Agency's intent to issue single orders for
both the investigation and clean-up
phases of UST remediation. In general,
the commenters indicated that such
orders would be unfair to respondents
and would be inconsistent with the
Agency's procedures for RCRA section
3008(h) orders.
With respect to releases from USTs,
the statute at section 9003(h) provides
Regional enforcement officers with the
choice of issuing either a single or joint
order. Because 9003(h) orders usually
will be issued in response to releases of
known substances (i.e., petroleum or
chemical products that contain
hazardous substances), no detailed
studies or extensive site investigations
will be needed to characterize the
substances released. Thus, the Agency
maintains that a typical 9003(h) order
will either require corrective action only,
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49380 Federal Register / Vol. 56, No. 188 / Friday, September 27, 1991 / Rules and Regulations
or will require investigations and studies
along with a directive that corrective
action mast be undertaken, if necessary,
based on the results of those studies.
Consistent with the comments
received, the Agency does acknowledge
that there may be circumstances when
an order would be issued for
investigation/study only. The comments
received on the proposed rule indicated
that there was confusion as to whether
sabpart IB or subpart C would be used in
those circumstances. To resolve this
confusion, the Agency determined that it
would be appropriate to make the rule
consistent with the procedures for
30Q8fh) orders. Thus, EPA revised the
rate to clarify that subpart B procedures
would be used in situations when an
order compels an investigation/study
only, while subpart C would be used for
joint orders or corrective action only
(see Table 2).
TABLE 2
Action required
Site
investigate!
only,
Corrective
action only.
Site
irtvettigation
and
corrective
action.
§ 3008OT; orders
Subpart B
procedures.
Subpart C
procedures.
Subpart C
procedures.
§ 9003(h) orders
Subpart B
procedures.
Subpart C
: procedures.
Subpart C
procedures.
IV. Economic and Regulatory Impacts
A. Regulatory Impact Analysis
Under Executive Order No. 12291, the
Agancy must determine whether a new
regulation is a "major'* rule and prepare
a Regulatory Impact Analysis (RIA) in
connection with a major rule* A "major"
rule is defined as one that is likely to
result in: (1) An annual effect on the
economy of $100 million or more; (2] a
major increase in costs or prices for
consumers, individual industries,
federal, state, and local government
agencies or geographical regions; or (3)
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of U,S*-based enterprises in
domestic or export markets. The notice
published here is procedural in nature,
will not have any important economic
Impacts, and will not significantly affect
the operations of regional or other
program offices. Therefore, today's rule
is not deemed to be a "major" rule and,
accordingly, does not trigger the
requirement that a regulatory impact
analysis be prepared.
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act (S
U.S.C. 601 et sag.) requires the Agency
to prepare and make available for public
comment a regulatory flexibility
analysis that describes the impact of a
proposed or final rule on small entities
(i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have
significant economic impact on a
substantial number of small entities.
Since this amendment merely
establishes hearing procedures and has
no significant economic impact on a
substantial number small entities, it
does not trigger the requirement in the
Regulatory Flexibility Act that a
regulatory flexibility analysis be
prepared.
C. Paperwork Reduction Act
This final amendment contains no
information collection requirements and
thus will not increase the paperwork
burden on the regulated community in
contravention of the purposes of the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq.
List of Subjects in 40 CFR Part 24
Administrative practice and
procedure, Corrective action, Hazardous
materials, Revocation of operating
authority; Underground storage tanks.
Dated: September 17,1991.
William K.ReUly,
Administrator,
For the reasons set out in the
Preamble, part 24, Chapter I, of Title 40,
Code of Federal Regulations is amended
as follows:
PART2*-[AMENDEDJ
1* The authority citation for part 24 is
revised to read as follows:
Authority: 42 U.S.C. sections 6912, 6928,
6991b.
2. Section 24.01 is amended by
redesignating paragraph (c) as (d} and
by revising paragraph (a) and adding
paragraph (c) to read as follows:
§ 24.01 Scope of these rules.
(a) These rules establish procedures
governing issuance of administrative
orders for corrective action pursuant to
sections 3008(h) and 9003(h) of the Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery
Act (the Act), and conduct of
administrative hearings on such orders,
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except as specified in paragraphs (b)
and (c) of this section.
*****
(c) The hearing procedures appearing
at 40 CFR part 22 govern administrative
hearings on any order issued pursuant to
section 9003(h) of the Act that is
contained within an administrative
order that includes claims under section
9006 af the Act.
*****
3, Section 24.02 is amended by
revising paragraph (a) to read as
follows:
§ 24.02 Issuance of initial orders;
definition of final orders and orders on
consent,
[a) An administrative action under
section 3008(h) or 9003[h) of the Act
shall be commenced by issuance of an
administrative order. When the order is
issued unilaterally, the order shall be
referred to as an initial administrative
order and may be referenced as a
proceeding under section 30Q8(h) or
9003(h) of the Act, When the order has
become effective, either after issuance
of a final order following a final decision
by the Regional Administrator, or after
thirty days from issuance if no hearing is
requested, the order shall be referred to
as a final administrative order. Where
the order is agreed to by the parties, the
order shall be denominated as a final
administrative order on consent,
* * * * *
4. Section 24.04 is amended by
revising paragraph [a) to read as
follows:
§ 24.04 Filing and service of orders,
decision*, and documents.
(a) Filing af orders, decisions, and
documents. The original and one copy of
the initial administrative order, the
recommended decision of the Presiding
Officer, the final decision and the final
administrative order, and one copy of
the administrative record and an index
thereto must be filed with the Clerk
designated for 3008{h) or 9003(h) orders.
In addition, all memoranda and
documents submitted in the proceeding
shall be filed with the clerk.
*****
5. Section 24,08 is revised to read as
follows:
§ 24.08 Selection of appropriate hearing
procedures.
(a) The hearing procedures set forth in
subpart B of this part shall be employed
for any requested hearing if the initial
order directs the respondent
(1) To undertake only a RCRA Facility
Investigation and/or Corrective
Measures Study, which may include
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monitoring, surveys, testing, information
gathering, analyses, and/or studies
(including studies designed to develop
recommendations for appropriate
corrective measures), or
(2) To undertake such investigations
and/or studies and interim corrective
measures, and if such interim corrective
measures are neither costly nor
technically complex and are necessary
to protect human health and the
environment prior to development of a
permanent remedy, or
(3) To undertake investigations/
studies with respect to a release from an
underground storage tank. >
(b) The hearing procedures set forth in
subpart C of this part shall be employed
if the respondent seeks a hearing on an
order directing that
(1) Corrective measures or such
corrective measures together with
investigations/studies be undertaken, or
(2) Corrective action or such
corrective action together with
investigations/studies be undertaken
with respect to any release from an
underground storage tank.
(c) The procedures contained in
subparts A and D of this part shall be
followed regardless of whether the
initial order directs the respondent to .
undertake an investigation pursuant to
the procedures in subpart B of this part,
or requires the respondent to implement
corrective measures pursuant to the s;
procedures in subpart C of this part.
[FR Doc. 91-23367 Filed 9-26-91; 8:45 am]
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