United States
Environmental Protection
Agency ' <
Office of
Solid Waste and
Ernergency Response
&EPA
*
DIRECTIVE NUMBER: 984i.iA
IITLet Administrative Penalty Procedures
APPROVAL DATE:- Mav 16, 1989
EFFECTIVE DATE: May 16, 1989
ORIGINATING OFFICE: Office of Enforcement
B FINAL
D DRAFT
LEVEL OF DRAFT
O~A Signed by AA or DAA
D B Signed by Office Director
DC Review & Comment
REFERENCE (other documents):
S WER OS WE ft OSWER
DIRECTIVE DIRECTIVE Dl
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' united States environmental Protection Agency
Washington. DC 20480
OSWER Directive Initiation Request
1. Directive Numbe
9841.1A
2. Originator Information
Name o( Contact Person
Sandra C
onnors
,LEl3lS Enforcement
3. Title
Administrative Penalty Proce'd'ares
4. Summary ol Directive (include bnef statement ol purpose) ~ , . .
The rule provides that the Administrative assessment of CERCLA section 109
penalties and EPCRA section 325 penalties will be governed by EPA's f
Consolidated Rules of Practice Governing the Administrative Assessment of
Civil Penalties dnd by supplemental rules relating specifically to penalty
assessments under section 109 of CERCLA and section 325 of EPCRA.
5. Keywords
Civil Penalties
ot. goes ints directive supersede Previous Uirecuveis;/,-;
b. Does It Supplement Previous Dlrtctlve(s)?
, -*'/v |. | No (x| Yes What directive (number, title) 9841.1
Interim Guidance on Use of
Dl 1 Administrative Penalty
No | I Yes What directive (number, tltte) Provisions
of Section 109 of CERCLA and §325 of SARA
7. Draft Level
A-SlgnedbyAA/DM f~~~l B - Signed by Office Director [ | C-For Review & Comment | | D - ft Development
8. Document to be distributed to States by Headquarters?
D
No
This Request Meets OSWER Directives System Format Standards.
9. Signature ol Lead Office Directives Coordinator
1 0. Name and Title of Approving Official
Date
Date -^
EPA Form 1315-17 (Rev. 5-«7) Previous editions art obsdete.-
OSWER OSWEfi OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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"OSWER Directive
21174 Federal Register / Vol. 54. No. 93 / Tuesday. May 16. 1989 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 22
[FRL-3464-2J
Administrative Penalty Procedures.
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Interim final rule
SUMMARY: EPA is today promulgating an
interim final rule establishing
procedures for the administrative
assessment of civil penalties under (1)
section 109 of the Comprehensive
Environmental Response.
Compensation, and Liability Act
(CERCLA), 42 U.S.C. 9601 et seq., as
amended by the Superfund Amendments
and Reauthorization Act (SARA) of
1988, Pub. L Xo. 99-499. for violations of
provisions specified in section 109 of
CERCLA, including failing to report
releases of hazardous substances, and
"(2) section 325 of the Emergency
Planning and Community Right-To-
Know Act (EPCRA). 42 U.S.C. 11001 et
seq.. for violations of provisions
specified in section 325 of EPCRA. The
rule provides that the administrative
assessment of CERCLA section 109
penalties and EPCRA section 325
penalties will be governed fay EPA's
Consolidated Rules of Practice
Governing the Administrative
Assessment of Civil Penalties and by
supplemental rules relating specifically
to penalty assessments under section
109 of CERCLA and section 325 of
EPCRA. EPA is taking this action In
response to amendments to CERCLA
made by SARA, which authorize the
President to assess administrative
penalties for certain violations of
CERCLA and which authorize the
Administrator of EPA to assess
administrative penalties for violations of
EPCRA. The authority granted to assess
administrative penalties was effective
upon the date of enactment of SARA.
which was October.17,1S36.
DATES: Comments on this interim final
rule must be submitted oh or before July
17.1989. This interim final rule is
effective on May 18.1989, and governs
all proceedings for the administrative
assessment of a civil penalty under
section 109 of CERCLA or section 325 of
EPCRA for which an administrative
complaint is filed after May 16.1989.
EPA will use this rule as guidance for
conducting these proceedings prior to
the date it becomes effective on an
interim final basis. .
. Connors, Office of Enforcement and .
Compliance Monitoring, Hazardous
Waste Division (LE-134S). Room 3219L,
U.S. Environmental Protection Agency,
401 M Street SW.. Washington. DC
20460. Persons may inspect comments at
that address.
FOR FURTHER INFORMATION CONTACT:
Sandra Connors, Office of Enforcement
and Compliance Monitoring, Hazardous
Waste Division (LE-134S). U.S. ' -
Environmental Protection Agency, 401M
Street SW.. Washington. DC 20460,202^- "
382-3110. ; ' - : '
SUPPLEMENTARY INFORMATION:.'..-,.
Statutory Background ' '.-.-,.
On October 17,1988, the Superfund
Amendments and Reauthorization Act
(SARA) of 1988, Pub. L No, 99-499. was '
enacted. Title I of SARA amended the
Comprehensive Environmental " .
Response, Compensation, and Liability
Act of 1980 (CERCLA). 42 U.S.C. 9601 et
seq., by revising section 109,42 U.S.C. '
9609, which authorizes the President to;
assess administrative penalties for ;
violations of specified provisions of -'-*, ^-
CERCLA. Title ffl of SARA is the'H I.; '
Emergency Planning and Community "
Right-to-Know Act of 1988 (EPCRA).
Section 325{b) of EPCRA, 42 U.S.C.
11045(b), authorizes the Administrator of
EPA to assess administrative penalties '
for violations of emergency notification
under section 304 of EPCRA. Section '
325(c) of EPCRA authorizes the ;r ;
Administrator of EPA to assess -::
administrative penalties for reporting . .
violations under sections 311.312,313. :
322 or 323 of EPCRA. Section 325(d) ofv :
EPCRA authorizes the Administrator of
EPA to assess administrative penalties .
for frivolous trade secret claims made in
violation of section 322 of EPCRA.
Section 109 and section 325(b)
established two "classes" of ,;.v-
administrative penalties, which differ .
with respect to allowable procedure and ;
maximum assessment The provisions y -:
for Class I penalties allow for a -':
maximum penalty of 525,000 per
violation and the Respondent must be /< ;
provided notice and an opportunity for.
hearing. The provisions for Class II --vj.7;
penalties authorize a maximum penalty
of $25,000 per day for each day during
which the violation continues and atf""f-'.
maximum penalty of $75,000 per day for
each day during which the violation
continues for a second or subsequent
violation and are explicitly made
subject to the requirements of the
Administrative Procedure Act (APA), 5
U.S.C. 554.558. Class fl proceedings are
similar to administrative adjudicator/ *
,-tm^oorJineo omMrvor} Kv tVio Acrorirv
which are subject to section 554 of the
APA.
Sections 325 (c) and (d) of EPCRA are
silent as to the type of administrative
hearing procedures to be employed for
the assessment of penalties under these
sections. Section 325(c)(l) authorizes a
maximum penalty of 325,000 per day for
each day during which the violation
continues and section 325(c)(2)
authorizes a maximum of $10,000 per
day for each day during which the
violation continues. The penalties under
section 325(c] may be assessed on a
... daily basis. Section 325(d) of EPCRA
. authorizes a penalty of $25,000 per
- frivolous trade secret claim.
Under section 109(a) of CERCLA. a
Class I penalty requires only notice and
opportunity for hearing: A Class II
penalty under section 109(b) of CERCLA
may be assessed by the President
through an order issued after
opportunity for a hearing on the record
in accordance with section 554 of the
Administrative Procedure Act (APA), 5
U.S.C. 554. The authority to assess
». penalties under CERCLA section 109 has
been delegated to EPA (see Executive
i Order 12580 of January 23,1987. 52 FR
2923 (January 29.1987).
Class I and Class II civil penalties
under section 109 may be assessed for
(1) a violation of the emergency release
notification requirements of section 103
(a) or (b); (2) a violation of section
. 103(d)(2) (relating to recordkeeping); (3)
a violation of the requirements of
section 108. the regulations issued under
section 108. or with any denial or
detention order under section 108
(relating to financial responsibility); (4)
a violation of an order under section
122(d){3) (relating to settlement
agreements for action under section
104(b)); or (5) any failure or refusal
referred to in section 122(1) (relating to
violations of administrative orders.
- consent decrees, or agreements with
: federal facilities under section 120).
Under section 325(b)(2) of EPCRA. a
.Class H penalty is assessed and
> collected by the Administrator in the
.same.manner, and subject to the same
provisions, as in the case of civil
" penalties assessed and collected under
section 16 of the Toxic Substances
Control Act. 15 U.S.C. 2615. Those
penalties are assessed by an order
issued after opportunity for a hearing on
the record in accordance with section
554 of the APA. A Class I penalty under
section 325(b)(l) of EPCRA requires only
... notice and opportunity for a hearing.
:' "Under section 325(c)(4) of EPCRA. the
Administrator may assess by
administrative order any civil penalty
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section 325{c). Under section 325(c)(l). a
penalty of not more than S25.000 for
each violation may be assessed for
violations of the right-to-know reporting
requirements under sections 312 or 313
of EPCRA. Under section 325(c)(2), a
penalty of not more than SlO.OOO for
each violation may be assessed for
violations of section 311 or 323(b)
requirements or for failure to furnish
information under section 322(a){2). For
purposes of section 325(c). each day a
violation continues constitutes a
separate violation. Under section 325(d)
of EPCRA, the Administrator may
E53°ss by ad.T.ir.is'.rative order a penalty
of $25,000 per frivolous trade secret
claim made under section 322(d)(4).
Both sections 109 and 325 authorize
EPA to issue subpoenas to obtain the
attendance and testimony of witnesses
and the production of documents. A
person subject to an order assessing a
Class II penalty under section 109 may
seek judicial review of the order with
the appropriate United States Court of
Appeals. A person subject to an order
assessing a Class I penalty under
section 109 or a penalty under section
325 may seek judicial review of the
order with the appropriate United States
District Court. .
Description of Final Rule
This interim final rule applies formal
APA hearing procedures at this time to
all EPA administrative penalty
authorities under CERCLA section 109
and EPCRA section 325. The Agency is
currently considering developing
procedures for assessing Class I
penalties that would be less formal than
the Part 22 procedures and that would
apply to penalties under section
109(b){l) of CERCLA, section 325(b)(l)
of EPCRA, section 325(d) of EPCRA. and
to certain civil penalties under section
325(c) of EPCRA.
EPA promulgated Consolidated Rules
of Practice Governing the
Administrative Assessment of Civil
Penalties and Revocation or Suspension
of Permits at 40 CFR Part 22. Those rules
govern the administrative assessment of
penalties under other statutes .
administered by EPA subject to the
adjudicatory hearing requirements of the
APA or for which EPA has determined
such procedures are appropriate. The -"
Consolidated Rules are designed to
provide a common set of procedural
section 32o penalties by an order issued
after opportunity for a hearing on the
record. EPA has concluded that the
Consolidated Rules should be followed.
on an interim final basis, as the
procedural framework to assess
penalties under section 109 of CERCLA
and section 325 of EPCRA. Accordingly.
this interim final rule provides that the
Consolidated Rules will govern
adjudicatory proceedings for the
assessment of civil administrative
. penalties under section 109 of CERCLA
and section 325 of EPCRA.
In addition, as part of today's
rule.tiaking, EPA is promulgating, on an
interim final basis, supplements to the
Consolidated Rules which apply to
CERCLA section 109 and EPCRA section
325 penalty procedures. The
supplemental rule is necessary because
of requirements specific to provisions of
the two statutes. The supplemental rules
codify subpoena requirements and the
procedures for seeking judicial review of
penalty assessments, and describe
certain procedures for payment and
collection of penalties assessed.
EPA requests comments on any of the
above matters.
Interim Final Rule
EPA is issuing the rule on an interim
final basis pursuant to 5 U.S.C. 553(b)
(A] and (B), which allows the issuance
of rules without prior notice and
comment where the rules concern
agency practice or procedure or where
the Agency finds for good cause that .
prior notice and comment is
unnecessary. Both of these criteria are
met by these rules. The statutes
specifically identify the type of hearing
to be accorded for assessment of Class
II penalties, i.e. formal adjudications
under section 554 of the APA. Although
other sections are silent as to the type of
procedures or specifically authorize a
less formal set of procedures, the
Agency has elected to apply the formal
adjudications requirements to all
penalty actions at this time. EPA has
long-established regulations
implementing section 554 hearings for
civil penalty assessment under several
other environmental statutes. The
regulations, codified at 40 CFR Part 22, :
were promulgated after notice and
opportunity to comment. Because the
statute leaves little discretion with
rules for certain of EPA's administrative ^jrespect to the type of procedure to be . .
penalty programs, in order to reduce ^ ^"afforded for Class II violations and this
paperwork, inconsistency, and the
burden on the regulated community. See
45 FR 24360 (April 9,1980).
Under the Consolidated Rules of
Practice. EPA will assess CERCLA
section 109 penalties and EPCRA
rule makes well-established rules
providing full adjudicatory procedures .
applicable to all penalty proceedings
under section 109 of CERCLA and
section 325 of EPCRA. EPA believes that
notice and comment on this rule is
"unnecessary" under section 553 of ihe
APA.
Furthermore, use of the Consolida'.ed
Rules on an interim basis will facilitate
EPA beginning prompt implementation
of the administrative penalty authority.
using uniform procedures while :
satisfying the procedural and
substantive requirements established by
CERCLA and EPCRA. EPA is, however,
making this rule "interim final" in order
to allow an opportunity for public
comment and a revision of the final rule
as necessary in the future based on
public cominents. -.
The interim final rule is effective- upon
publication in the Federal Register. The
Consolidated Rules of Practice will
govern proceedings for the assessment
of administrative penalties under
section 109 of CERCLA and section 325
of EPCRA for which a complaint is filed
after that date. The proposed interim
final rule will be used by EPA as
guidance prior to that date.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 through 612, whenever
an agency is required to publish a
general notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment.
a regulatory flexibility analysis which
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). The Administrator may
certify, however, that the rule will not
have a significant economic impact on a
substantial number of small entities. In
such circumstances, a regulatory
flexibility analysis is not required.
The expected impact of the rule on
small entities is negligible. The rule
codifies already existing statutory
provisions and is procedural. Thus, it
does hot impose additional regulatory
requirements on small entities.
Accordingly. I hereby certify that
these regulations will not have a
significant impact on a substantial
number of small entities. These
regulations, therefore, do not require a
regulatory flexibility analysis.
Executive Order Noi 12291
Under Executive Order 12291. the
Agency must judge whether a regulation
is "major" and thus subject to the
requirement to prepare a Regulatory
Impact Analysis. The notice published
today is not major because the rule will
not result in an effect on the economy of
$100 million or more, will not result in
increased costs or prices, will not have
significant adverse effects on
competition, employment, investment.
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21176 Federal Register / Vol. 54. No. 93 / Tuesday. May 16j"1989 / Roles and Regulattioh?
productivity, and innovation, and will
not significantly disrupt domestic or
export markets. Therefore, the Agency
has not prepared a Regulatory Impact
Analysis under the Executive Order.
This regulation was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order No. 12291.
Paperwork Reduction Act
These interim final rules do not
contain any information collection
requirements subject to OMB review
under the Paperwork Reduction Act of
1980 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 22
Administrative practice and
procedures, Environmental protection,
Extremely hazardous substances.
Hazardous chemicals. Hazardous
substances, Hazardous wastes.
Penalties, Superfund, Title III of SARA.
Dated: May 8.1989.
William K. Reilly,
Administrator. '
For the reasons set out in the
preamble, and under authority of section
109 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. 9609, and section
325 of the Emergency Planning and
Community Right-To-Know Act of 1966
(EPCRA), 42 U.S.C. 11045, and Executive
Order 12530. Title 40 of the Code of
Federal Regulations is amended on an
interim basis effective on May 16,1989,
as follows:
PART 22[AMENDED]
1. The authority citation for Part 22 is
revised to read as follows:
Authority: 15 U.S.C. sec. 2615; 42 U.S£.
sees. 7545 and 7601:7 U.S.C. sees. 136(1) and
(m): 33 U.S.C. sees. 1319.1415 and 1418; 42
U.S.C. sees. 6912. 6928. and 6991[e); 42 U.S.C.
sec. 9609; 42 U.S.C. sec. 11045..
* * * * * . _. "
2. Section 22.01 is amended by
re vising paragraph (a)(6) and by adding
paragraphs (a)(7) and{a)(B) to read as
follows: ,
§ 22.01 Scope oi these rules.
(a) ' * *
(6) The assessment of any Class II
penalty under section 309(g) of the Clean
Water Act (33 U.S.C. 1319(g));
(7) The assessment of any
administrative penalty under section 109
of the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980. as amended (42 U.S.C.
9009);
fal Th» assescmwrt of am/
of the Emergency Planning and
Community Right-To-Know Act of 1986
(EPCRA) (42 U.S.C. 11045).
*****
3. Add a new § 22.39, to read as
follows:
§ 22.39 Supplemental rules of practice
governing the administrative assessment
of administrative penalties under section
109 of the Comprehensive Environmental
Response, Compensation, and Liability Act
of 1930, as amended.
(a) Scope of these Supplemental rules.
These Supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of
Practice (40 CFR Part 22). administrative
proceedings for the assessment of any
civil penalty under section 109 of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C.
9609). Where inconsistencies exist
between these Supplemental rules and
the Consolidated Rules (§§ 22.01 through
22.32], these Supplemental rules shall
apply- ..:...'
(b) Subpoenas. [I] The attendance and
testimony of witnesses or the production
of relevant papers, books, and
documents may be required by
subpoena. The Presiding Officer may
grant a request for a subpoena upon a
showing of (i) the grounds and necessity
therefor, and (ii) the materiality and
relevancy of the evidence to be
adduced. Requests for the production of
documents shall describe the evidence
sought as specifically as practicable.
(2) Subpoenas shall be served in
accordance with § 22.05(b)(l) of the
Consolidated Rules of Practice.
(3) Witnesses summoned before the
Presiding Officer shall be paid the same
fees and mileage that are paid witnesses
in the courts of the United States. Fees
shall be paid by the party at whose
instance the witness appears. Where a
witness appears pursuant to a request
initiated by the Presiding Officer, fees
shall be paid by the Agency.
(c) Judicialreview. Any person who
requested a hearing with respect to a
Class II civil penalty under section 109
of CERCLA and who is the recipient of a
final order assessing a civil penalty may
file a petition for judicial review of such
order with the United States Court of- '''
Appeals for the District of Columbia or
for any other circuit in which such
person resides or transacts business.
Any person who requested a hearing
with respect to a Class I civil penalty
under section 109 of CERCLA and who
is the recipient of a final order assessing
the civil penalty may file a petition for
Judicial review of such order wfth the
States. All petitions must be filed within
30 days of the date the order making the
assessment was issued.
(d) Payment of civil penalty assessed
Payment of civil penalties finally
assessed by the Regional Administrator
shall be made by forwarding a cashier's
check, payable to the "EPA. Hazardous
Substances Superfund," in the amount
assessed, and noting the case title and
docket number, to the appropriate
regional Superfund Lockbox Depository.
Notice of payment must be sent by
Respondent to the Hearing Clerk for
inclusion as part of the administrative
record for the proceeding in which the
civil penalty was assessed Interest on
overdue payments shall be collected
pursuant to the Debt Collection Act, 37
U.S.C.3717.
4. Add a new § 22,40, to read as
follows:
§ 22.40 Supplemental rules of practice
governing the administrative assessment
of administrative penalties under section
325 of the Emergency Planning and
Community flight-To-Know Act of 1986
(EPCRA).
(a) Scope of these Supplemental
Rules. These Supplemental rules of
practice shall govern, in conjunction
with the preceding Consolidated Rules
of Practice (40 CFR Part 22).
administrative proceedings for the
assessment of any civil penalty under
section 325 for violations of the
Emergency Planning and Community
Right-To-Know Act of 1986 (EPCRA).
Where inconsistencies exist between
these Supplemental rules and the
Consolidated Rules, (§§ 22,01 through
22.32) these Supplemental rules shall
apply.
(b) Subpoenas. (1) The attendance and
testimony of witnesses or the production
of relevant papers, books, and
documents may be required by
subpoena. The Presiding Officer may
grant a request for a subpoena upon a
showing of (i) the grounds and necessity
therefore, and (ii) the materiality and
relevancy of the evidence to be
adduced. Requests for the production of
documents shall describe the evidence
sought as specifically as practicable.
(2) Subpoenas shall be served in
accordance with § 22.05(b]T.lJ of the
Consolidated Rules of Practice.
(3) Witnesses summoned before the
Presiding Officer shall be paid the same
fees and mileage that are paid witnesses
in the courts of the United States. Fees
shall be paid by the party at whose
instance the'witness appears. Where a
witness appears pursuant to request
initiated by the Presiding Officer, fees
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_Federal Register / Vol. 54. No. 93 / Tuesday. May 15. 1939 / Rules and Regulations
21177
(c) Judicial review. Any person
against whom a civil penalty is assessed
may seek judicial review in the
appropriate district court of the United
States by Tiling a notice of appeal and
by simultaneously sending a copy of
such notice by certified mail to the
Administrator. The notice must be filed
within 30 days of the date the order
making such assessment was issued.
The Administrator shall promptly file in
such court a certified copy of the record
upon which such violation was found or
such penalty imposed.
(d) Procedures for collection of civil
penalty. If any person fails to pay an
assessment of a civil penalty after it has
become a final and unappealable order
or after the appropriate court has
entered final judgment in favor of the
United States, the Administrator may
request the Attorney General of the
United States to institute a civil action
in an appropriate district court of the
United States to collect the penalty, and
such court shall have jurisdiction to hear
and decide any such action. In hearing
such action, the court shall have
authority to review the violation and the
assessment of the civil penalty on the
record. Interest on overdue payments
shall be collected pursuant to the Debt
Collection Act, 37 U.S.C. 3717.
[F'R Doc. 89-11703 Filed 5-15-89: 8:45 am)
BILLING COSE 6550-50-tl
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