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OSWER Directive #9841.1 A
Administrative Penalty Procedures.
Vol. 54, N 93
Tuesday May 6, 1989
AGENCY: Environmental Protection Agency (EPA).
DOC TYPE: Rules and Regulations
CFR: 40 CFR Part 22
NUMBER: FRL-3464-2
ACTION: Interim final rale
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 etseq.,
as amended by the Supedund Amendments and Reauthorization Act (SARA) of 1986, Pub. L. No.
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 me administrative assessment of
CERCLA section 109 penalties and EPCRA section 325 penalties .will be governed by
EPA's Consolidated Rules of Practice Governing the Administrative Assessment of Civil
Penalties and by supplemental rales relating specifically to penalty assessments under section 109 of
CERCLA and section 325 of EPCRA. EPA is taking mis 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, 1986.
DATES: Comments on this interim final rule must be submitted on or before July 17, 1989. This
interim final rale is effective on May 16, 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 rale as guidance for
conducting these proceedings prior to die date it becomes effective on an interim final basis.
ADDRESS: Persons may mail comments on mis interim final rale to Sandra Connors, Office of
Enforcement and Compliance Moni-jnng, 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.
POM FURTHER INFORMATION CONTACT: Sandra Connors, Office of Enforcement and
Compliance Monitoring, Hazardous Waste Division (LE-134S), U.S. Environmental Protection
Agency, 401 M Street SW., Washington, DC 20460, 202-382-3110.
SUPPLEMENTARY INFORMATION:
Statutory Background , .
On October 17, 1986, the Supedund Amendment:, wd Reauthorization Act (SARA), jf 1986,
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.,\>y
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40 CFP ?»rt 22 Admiriutrativt Penalty Procedures
revising section 109, 42 U.S.C. 9609, which authorizes the President to assess administrative
penalties for violations of specified provisions of CERCLA, Title HI of SARA is the Emergency
Planning and Community RighMo-Know Act of 1986 (EPCRA). Section 32S(b) of EPCRA, 42
U.S.C. 11045(b)» authorizes the Administrator of EPA to assess administrative penalties for
violations o! mergen,/ notification under section 304 r cFCRA. Section 325(c) of EPCRA
authorizes the Administrator of EPA to assess admini?*7t,dve penalties for reporting violations under,
sectioi; 311, 312, 313, 322 or 323 of EPCRA, Seetic 325(d) of 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 administrative penalties,
which differ with respect to allowable procedure and maximum assessment. The provisions for
Class I penalties allow for a maximum penalty of $25,000 per violation and the Respondent
must be provided notice and an opportunity for hearing. The provisions for Class n penalties
authorize a maximum penalty of $25,000 per day for each day during which the violation
continues and ajnaximum 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, 556. Class II proceedings are similar
to administrative adjudicawry proceedings employed by the Agency under other environmental
statutes, 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 $25,000 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 n 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 > CERGLA section 109 has been delegated to EPA (see Executive Oder 12580 of January 23,
1987, 52 PR 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 recordlteeping); (3) a violation of die 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 facilLies under section 120). ;
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40 CFR Put 22 . Administrative Finally Procedures
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,Has 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 accc lance with section 554 of the APA. A Oar I penalty under section 325(b)(l) of E?™ *
requites ot.7 notice and opportunity for a hearing.
Under section 325(cX4) of EPCRA, the Administrator may assess by administrative order
any civil penalty for which a person is liable under section 325(c). Under section 325(c)(l), a penalty
of not more than $25,000 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 $10,000 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 se^.,«D violation. Under section
325(d) of EPCRA, the Administrator may assess by administrative order a penalty of $25,000 per
frivolous trade secret claim made under section 322(dX4).
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Both sections 109 and 325 authorize EPA to issue supoenas to obtain the attendance and
testimony of witnesses and the production of documents. A person subject to an order assessing a
Class n 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 ail 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 man the Part 22 procedures and that would apply to penalties under section I09(b)(l)
of CERCLA, section 325(bXI) 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 Consolida&d Rules are designed to provide a
common set of procedural rules for certain of EPA's administrative penalty programs, in order
to reduce paperwork, inconsistency, and the burden on the regulated community. See 45 FR
24360 (April 9, 1980).
Under the Consolidated Rules of Practice, EVA will assess CERCLA section 109 penalties
and EPCRA section 325 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
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40 CFR Part Z2 Administrative Penalty Procedures
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 addi*"on, as part of today's rulernaking, EPA is omuigating, on an interim final basis,
supplement^ to the Consolidated Rules which apply to * ERCLA 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 D 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 respect
to the type of procedure to be afforded for Class II violations and this rule makes well-established
rules providing full adjudicatory procedures applicable to all penalty proceedings under
section 109 of CERCLA and section 32S of EPCRA, EPA believes that notice and comment
on this rule is "unnecessary* under section 553 of the APA.
Furthermore, use of the Consolidated Rules on an interim basis will facilitate EPA beginning
prompt implementation of the administrative penalty authority, using uniform procedures while
satisrying the procedural and substantive requirements established by CERCLA and EPCRA. EPA is,
however, .naking 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 comments.
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.
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40 CFR Ptn 22 "• • vWmJJiuwafw Ptnalfji
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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 sellable for public comment, a regvlatory ?exibillty analysis which describes the
impact of e rule pi. small entities (i.e., small bt Basses, small organizations, and:small
governments jurisdictions). Toe Administrator may cer^fy, 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 not 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 No. 12291
Under Executive Order 12291, the Agency must judge whether a regulation is "major1' and thus
subject to the requirement to prepare a Regulatory Impact Analysis. The notice published today is
not major because die 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, 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 CFM Fart 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. Rally,
Administrator. . ' •• .' . ,
' • . '"' . •-._.•*.. " •, . •
For the reasons set out in the preamble, and under aut" ority of section 109 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9609,
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40 CFR Put 22 Administrative Penalty Procedwts
and section 325 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA),
42 U.S.C. 1 1045, and Executive Order 12580, Title 40 of the Code of Federal Regulations is
amended on an interim basis effective on May 16, 1989 is follows:
PART 12 - [AMENDED]
1 . The Authority citation for Part 22 is revised to read as follows:
Authority: IS U.S.C. sec. 2615; 42 U.S.C. 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 revising paragraph (»X6) and by adding paragraphs (a)(7) and (a)(8)
to read as follows:,
Sec. 22.01 Scope of these rules.
(6) The assessment of any Class II penalty under section 309(g) of the Clean Water Act (33
U.S.C. 1319(g));
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(7) The assessment of any administrative penalty under section 109 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1920, as amended (42 U.S.C. 9609);
(8) The assessment of any administrative penalty under section 325 of the Emergency Planning
and Community Right-To-Know Act of 1986 (EPCRA) (42 U.S.C. 1 1045).
3. Add a new Sec. 22.39, to read as follows:
Sec. 22.39 Supplemental rales of practice governing the administrative assessment of
administrative penalties under section 109 of the Comprehensive Environmental
Response, Compensation, ami Liability Act of 1980, as amended.
(a) Scope of these Supplfmcnra! 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
Envirorjnental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9609).
Where inconsistencies exist between these Supplemental rules and die Consolidated Rules (Sees.
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 grout.*** and necessity therefor, and (ii) (he
materiality and relevancy of the evidence to be adduced. Requests for the production of documents
shall describe the evidence sought as specifically as practicable.
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4QimP*n22 Administrativt ftnalty Proctdurts
(2) Subpoenas shall be served in accordance with Sec. 22.0S(b)(l) of the Consolidated Rules of
Practice.
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(3) Witnesses summoned before the Presiding Officer snail be paid the same fees and mileage
that are paid witnesses in the courts of the United States. Fees shall be paid by the narty at '
whose in; ace the witness appeal?. Where a witne appears pursuant to a request initiated by the
Pres ling Officer, fees s*^(l be t
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40 CFR Pwt 22 Administrative Penalty Procedures
(2) Subpoenas shall be served in accordance with Sec. 22.05(b)(I) of the Consolidated Rules of
Practice.
1 •
(3) Witnesses summoned before the Presiding Ticer shiJI be paid the same fees and mileae-
that are pa ' witnesses in the courts of the United State 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 shall be paid by the Agency.
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(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 filing 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 die date the order making such assessment was issued. The
Administrator shall promptly file in such court a certified copy c: 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 civiJ 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. ,
[INTERNAL DATA; PR Doc, 89-11703; Filed 5-15-89; 8:45 am]
BILLING CODE 6560-50-M ,
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