08/10/87

Interim Final Rules of Practice Governing the Administrative Assessment of Class II Civil Penalties Under the Clean Water Act

                      ENVIRONMENTAL PROTECTION AGENCY

                              40 CFR Part 22

    For the reasons set out in the preamble, and under authority of 33 USC
1361, 40 CFR is amended on an interim basis effective September 16, 1987, as
follows:

PART 22-( AMENDED )

    1.  The authority citation for Part 22 is revised to read as follows

    Authority:  Sec. 16 of the Toxic Substances Control Act: secs. 211 and
501 of the Clean Air Act: secs. 14 and 25 of the Federal Insecticide,
Fungicide, and Rodenticide Act: secs. 105 and 108 of the Manne Protection,
Research, and Sanctuaries Act: secs. 2002 and 3008 of the Solid Waste
Disposal Act, and sec. 501 of the Clean Water Act.

    2.  Section 22.01 is amended by revising paragraph (a)(5) and by adding
paragraph (a)(6) to read as follows:

Section 22.01  Scope of these rules.

    (a) * * *

    (5) The assessment of any civil penalty conducted under section 16(a) of
the Toxic Substances Control Act ( 15 USC 2615(a) ):

    (6) The assessment of any Class II penalty under section 309(g) of the
Clean Water Act ( 33 USC 1319(g) ).

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

    3.  Add a new Section 22.38 to read as follows:

Section 22.38  Supplemental rules of practice governing the administrative
assessment of Class II penalties under the Clean Water Act.

    (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 Class II civil penalty under section 309(g) of the Clean
Water Act ( 33 USC 1319(g) ).

    (b) Consultation with States.  The Administrator will consult with the
State in which he alleged violation occurs before assessing a Class II civil
penalty.

    (c) Public notice.  Before issuing an order assessing a Class II civil
penalty, the Administrator will provide public notice of the proposed
issuance of such order.

    (d) Comment by a person who is not a party.  A person not a party to the
Class II proceeding who wishes to comment upon a proposed assessment must
file written comment with the Regional Hearing Clerk within thirty days
after public notice of the proposed order and serve a copy of the comment
upon each party.  For good cause shown the Administrator, the Regional
Administrator, or the Presiding Officer, as appropriate, may accept late
comments.  the Administrator will give any person who comments on a proposed
assessment notice of any hearing and notice of the order assessing a
penalty.  Although commenters may be heard and present evidence at any
hearing held pursuant to section 309(g) of the Act, commenters shall not be
accorded party status with right of cross examination unless they formally
move to intervene and are granted party status under Section 22.11.

    (e) Administrative procedure and judicial review.  Action of the
Administrator with respect to which review could have been obtained under
section 509(b)(1) of the Act shall not be subject to review in an
administrative proceeding for the assessment of a Class II civil penalty
under section 309(g).

    (f) Petitions to set aside an order and to provide a hearing.  If no
hearing is held before issuance of an order assessing a Class II civil
penalty, any person who commented on the proposed assessment may petition
within 30 days after issuance of the order, the Administrator to set aside
the order and to provide a hearing on the penalty.  If the evidence
presented by the petitioner in support of the petition is material and was
not considered in the issuance of the order, the Administrator will
immediately set aside such order and provide a hearing in accordance with
the Consolidated Rules of Practice and these Supplemental rules of practice.

If the Administrator denies a hearing under section 309(g)(4)(C) of the Act,
the Administrator will provide to the petitioner, and publish in the Federal
Register, notice of and the reasons for such denial.

( FR Doc. 87-18399 Filed 8-14-87; 8:45 am )

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