Field Citation Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 59

[FRL-4877-6]

Field Citation Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Clean Air Act, as amended (the Act), authorizes EPA to

implement a field citation program, as part of the Agency's recently-

granted authority for the administrative assessment of civil penalties.

The Act authorizes EPA to issue field citations for appropriate

minor violations, defined in todays proposal as those violations

determined to be minor in nature after consideration of various

specified factors. EPA also proposes a maximum penalty of $5,000 per

day for each violation cited, and a maximum cumulative penalty in the

range of $15,000 to $25,000 per citation.

Upon receipt of a field citation, a respondent must either pay the

proposed penalty or submit a request for a hearing. Hearing procedures

are also proposed in this document.

EPA expects to implement this program such that in the great

majority of cases the issuance of a field citation will lead to a quick

correction of a clear violation and a payment of the assessed penalty.

DATES: Comments: Comments must be received on or before July 5, 1994. A

public hearing will be held on June 8, 1994 from 1 p.m. to 4 p.m.

If a written request for a public hearing is received by the Agency

before June 2, 1994, the Agency will hold a hearing on June 8, 1994

from 1 p.m. until 4 p.m.

ADDRESSES: Written comments should be submitted in duplicate (if

possible) to: U.S. Environmental Protection Agency (6102), Attention:

Air Docket Number A-91-63, 401 M Street, SW., Washington, DC 20460.

Comments received on this proposed rule will be available for

inspection from 8 a.m. to 4 p.m., Monday through Friday, excluding

legal holidays, in Room M-1500, First Floor Waterside Mall, at 401 M

Street, SW., Washington, D.C. A reasonable fee may be charged by the

Agency for copying docket materials, pursuant to 40 CFR part 2. The

docket control number for the field citation rulemaking is A-91-63. All

written comments on this rule must be identified with this number

Public Hearing Information. If requested, a public hearing will be

held at the EPA Education Center Auditorium, which is located on the

northwest corner of the First Floor of Waterside Mall at 401 M Street,

SW., Washington, DC. Oral and written statements will be accepted

during the hearing. However, a person who wishes to make an oral

presentation must:

(i) Notify the Agency in writing, and

(ii) Bring a written copy of the complete comments for inclusion in

the official record.

Written requests to schedule or speak at a public hearing shall be

addressed to: Jane Engert, Field Citation Public Participation Officer,

Stationary Source Compliance Division (6306W), Office of Air and

Radiation, US EPA, 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Jane Engert, Stationary Source

Compliance Division (6306W), Office of Air and Radiation, US EPA, 401 M

Street, SW., Washington, DC 20460, (703) 308-8677.

SUPPLEMENTARY INFORMATION:

I. Introduction

This preamble discusses the major issues raised by today's proposed

action, and EPA's justification for each proposed provision. Sections

II and III, which follow this introduction, contain a brief outline of

the proposals statutory authority and background. Section IV outlines

the major program considerations and the rationale for EPA's proposal

on each, while Section V presents a section-by-section analysis of the

proposed rule. The final section in this preamble, Section VI, outlines

specific regulatory impact analyses.

II. Statutory Authority

Today's rule is proposed under authority of sections 113(d) and

301(a) of the Act (42 U.S.C. 7413(d) and 7601(a)).

III. Background of Proposed Rule

Prior to the passage of the Clean Air Act Amendments of 1990,\1\

EPA enforced Clean Air Act provisions through civil or criminal

judicial enforcement actions and the issuance of administrative orders

for compliance.\2\ The 1990 Amendments expanded EPA's range of

enforcement tools by authorizing EPA to issue administrative penalty

orders (section 113(d)(1) of the Act) and to administratively assess

civil penalties through field citations issued for minor violations

(section 113(d)(3) of the Act). EPA expects that these new enforcement

options will enhance the Agency's ability to enforce the Act. Where

appropriate, EPA will be able to respond quickly to a violation by

issuing an administrative penalty order or a field citation, rather

than commencing a civil judicial enforcement action for penalties.

While civil and criminal judicial enforcement actions will remain an

important component of EPA's enforcement program, EPA's new

administrative authorities will enable it to effectively pursue a broad

range of violations without the expenditure of resources associated

with judicial action.

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\1\Pub. L. No. 101-549, 104 Stat. 2399 (1990)

\2\See CAA sections 113 (c)(1), (c)(2), and (b), prior to their

amendment in 1990.

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Section 113(d)(3) of the Act authorizes EPA to implement a field

citation program to enforce the Act through regulations which establish

appropriate minor violations for which field citations may be issued.

The Act requires that the Agency consult with the Attorney General and

the States, that the maximum civil penalty for a minor violation not

exceed $5,000 per day of violation, and that field citations be issued

only by EPA officers or employees designated by the Administrator.

Section 113(d)(3) of the Act also provides that any person to whom

a field citation is issued may elect either to pay the proposed penalty

or to request a hearing in accordance with procedures specified in the

regulations. It further provides that the penalty assessed in the field

citation becomes final if a request for a hearing is not made within

the time specified in the implementing regulations. The Act specifies

that hearings shall not be subject to the requirements of the

Administrative Procedure Act (APA), 5 U.S.C. 554 or 556, but shall

provide a reasonable opportunity to be heard and to present evidence.

The Act also specifies that payment of a field citation penalty

shall not be a defense to further enforcement by the United States or a

State to correct a violation, or to assess the statutory maximum

penalty pursuant to other authorities in the Act, if the violation

continues.

IV. Program Considerations

A. Appropriate Minor Violations for Issuance of Field Citations

EPA expects the field citation program to exhibit several important

characteristics. First, field citations should be issued for violations

that are clear cut and truly minor in nature. Second, field citations

should, in general, be issued shortly after a violation is discovered,

if not upon discovery. Third, the amount of the penalty assessed and

other aspects of the program should induce quick correction of the

violation and payment of the penalty. As required by section 113(d)(3),

EPA is proposing a definition of minor violation for which field

citations may be issued. This definition is designed to help implement

these goals.

EPA considered several regulatory options for establishing

appropriate minor violations as directed in the statute. One option was

inclusion in the rule of a comprehensive list of all possible

violations suitable for field citations. This approach would appear to

have several advantages. Explicitly listing each minor violation in the

rule would provide clear, objective criteria for the issuance of field

citations, thereby limiting inspector discretion. An inspector would

need only check the list of appropriate minor violations to determine

whether a field citation could be issued. This approach would appear to

both streamline the program and help to achieve national consistency in

its application.

A major problem with this option became clear, however, when

attempts were made to develop such a list of ``minor violations.''

Almost any violation might be considered significant or minor depending

on the circumstances. A regulatory list of all or nearly all possible

minor violations would therefore be too long to be of any real use, or

in the alternative, would exclude violations which, given the right

circumstances, would properly be considered minor.

In addition, it became clear that an exercise of discretion was

almost unavoidable in determining whether a violation was minor. This

was inherent in the view that the specific circumstances, along with

the kind of violation, were critical in determining whether or not it

was minor.

Thus, the option of listing all or nearly all minor violations in

the regulations would result in a list that was either too long or too

short to be of significant value. It would also not provide a mechanism

for channeling the exercise of discretion that appears inherent in the

decision on whether a violation is minor, and consequently would not

appear to foster national consistency.

A second option considered by EPA would define as minor those

violations limited to particular categories of regulatory requirements

(e.g., recordkeeping, reporting, labeling, monitoring, workpractice

standards, etc.). This option, however, exhibits the same basic

problems as the first option. Here again, violations within these broad

categories could be considered significant or minor depending on the

circumstances. This second approach still did not provide a method for

determining when a violation in one of the broad categories would be

considered minor.

Given the importance of the specific circumstances of a violation

in categorizing it as significant or minor, EPA considered and is today

proposing a third option. In todays proposal a minor violation would be

defined as one that is minor in nature, in light of a list of factors

that must be considered as a whole. This list contains such factors as

whether the violation is readily recognizable by an officer or employee

of EPA; the risk and degree of environmental harm resulting from the

violation; the time, effort, or expense required to correct the

violation; the frequency and duration of the violation; and the

importance of the violated requirement to the regulatory program. For

example, determinations that the violation is manifest; that it poses

little risk of environmental harm; that it has not been identified in a

previous enforcement action against the respondent; that it occurred

once or only for a short period of time; or that correcting it should

require little time, effort, or expense would be indicators of the

minor nature of a violation.

EPA recognizes that this list is not exhaustive of all factors that

may be relevant to whether a violation is minor in nature. Therefore,

the definition includes a provision for consideration of other

appropriate factors. However, the list is indicative of the types of

factors that EPA will consider in determining whether a violation is

minor.

While EPA considers these factors as relevant to determining

whether or not a violation is minor in nature, information may not be

available on all of these factors when decisions are made regarding the

propriety of issuing a field citation. If information is not available

for any of the factors noted in the proposed list of factors, then that

factor would be treated as neutral on the issue of whether a violation

is minor in nature. In addition, EPAs proposal calls for evaluating the

factors as a whole. Specific requirements are not proposed for each of

the factors individually, i.e., EPA has not proposed a specific time

requirement for ``duration of violation'' or a dollar amount for

``expense required to correct a violation.'' The specific circumstances

of the violation would be considered in light of all of these factors

taken as a whole.

A final factor has been added to the definition of minor violation

to make clear that EPA reserves all rights to determine the appropriate

enforcement response to a violation. A violation is not a minor

violation under the definition proposed today unless it is minor in

nature as described above, and unless the Agency, in its descretion,

decides to address it as a minor violation. This is to make it clear

that the field citation regulations proposed today do not provide a

basis for respondents to claim that an alleged violation is minor in

nature and therefore EPA's only available enforcement mechanism is

issuance of a field citation. Today's proposed regulations are not

intended to limit in any way EPA's ability to fully exercise its

enforcement discretion. The Agency reserves the right to determine

what, if any, enforcement approach is appropriate in a specific case.

EPA believes this is consistent with Congressional intent for the field

citation program, as section 113(d)(3) provides that ``[t]he

Administrator may implement * * * a field citation program through

regulations establishing appropriate minor violations for which field

citations * * * may be issued by officers or employees designated by

the Administrator.'' (emphasis supplied)

It is important to note that there are circumstances under which

EPA might conclude that a field citation is not the most appropriate

enforcement response. For example, if a person or source is the subject

of an ongoing EPA investigation or if a person or source has an

aggregation of many minor violations, each of which, if considered

individually, would be suitable for a field citation, EPA may

appropriately decide to address those violations through its section

113(d) administrative penalty authority or through its section 113(b)

civil judicial authority. A more detailed description of the process

for determining whether a violation is minor will be presented in the

guidance document to be developed for implementing this rule.

B. Maximum Penalty

Under section 113(d)(3), civil penalties assessed in a field

citation may not exceed ``$5,000 per day of violation.'' EPA proposes

to interpret this provision such that the maximum $5,000 penalty

applies for each day, for each separate violation cited in the field

citation. This interpretation is consistent with the statutory text and

structure of section 113, and is supported by its legislative history.

EPA's proposed interpretation of the phrase ``per day of

violation'' as used in section 113(d)(3) is quite reasonable, given

EPA's long history of interpreting an identical penalty provision in

this manner, the civil penalty provision of section 113(b) as it stood

prior to enactment of the 1990 amendments.\3\ That prior interpretation

has found support in several judicial decisions.\4\ By using the same

language as previously found in section 113(b), Congress clearly

authorized EPA to continue this interpretation for purposes of the new

field citation program.

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\3\Prior to revision in 1990, section 113(b) stated that ``[t]he

Administrator shall [for owners or operators of major stationary

sources], and may, in the case of any other person, commence a civil

action * * * to assess and recover a civil penalty of not more than

$25,000 per day of violation * * *''

\4\U.S. v. SCM Corp., 667 F. Supp. 110 (D. Md. 1987); United

States v. Chevron U.S.A., Inc., 639 F. Supp. 770 (W.D. Tex. 1985).

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This interpretation is also consistent with Congress' apparent

objectives for the field citation program as indicated by various

provisions in section 113 relating to field citations. Congress limited

the field citation program to ``appropriate minor violations,''

established a maximum penalty amount of ``$5,000 per day of

violation,'' provided a right to a non-APA hearing, and required that

penalties in this program be assessed after consideration of the

penalty assessment criteria of section 113(e). These provisions

indicate that Congress wanted to provide EPA with a flexible

enforcement tool that would focus on the less significant, presumably

simpler and less complex violations, with assessment of significantly

lower penalties than expected through two other civil penalty

provisions of section 113, administrative penalty orders (section

113(d)(1)) and judicial civil penalty actions (section 113(b)).

EPA's proposed interpretation of the maximum penalty amount for the

field citation program, $5,000 per day for each violation, will lead to

significantly lower penalty assessments in comparison to these other

two programs, primarily because of the large reduction in the maximum

penalty from $25,000 to $5,000, the minor nature of the violations, and

the penalty assessment criteria in section 113(e). Interpreting ``per

day of violation'' to mean per day for each violation allows EPA to

fairly and flexibly implement a field citation program in a manner

consistent with Congress' apparent objectives for this program. While a

more restrictive interpretation, such as $5,000 per day of violation no

matter how many different violations on a specific day, might lead to

even lower penalty assessments in certain cases, Congress' apparent

objectives for the field citation program can be met without adopting

this approach. In fact, a more restrictive interpretation might hinder

implementation of these goals.

First, an interpretation that ``per day of violation'' in section

113(d)(3) imposes a maximum penalty of $5,000 not withstanding the

number of violations in a day would in certain cases minimize if not

remove the Agency's ability to fully account for important differences

between violators when assessing penalties under this program. Two

violators with different numbers of minor violations on the same day

would both face the same maximum penalty, possibly removing EPA's

ability to reflect this difference in the amount of penalty imposed.

This would appear to run counter to the requirement in section 113(e)

that EPA consider such differences when assessing penalties under

section 113(d)(3). Second, in that situation there would be an

incentive for EPA to issue an administrative penalty order in lieu of a

field citation, to avoid the apparent unfairness resulting from the

limitation in discretion embodied in the more restrictive

interpretation.

It is unlikely that Congress intended either of these results, and

EPA's proposed interpretation avoids them without in any way

sacrificing full implementation of Congress' goals for this program.

The Agency will be able to fully consider all the factors required

under section 113(e), including the number of violations, and the field

citation program will still involve significantly lower penalty amounts

than the other civil penalty programs in section 113.

EPA's interpretation is supported by the legislative history in

section 113(d)(3). The field citation provisions finally adopted by

Congress originated in the House of Representatives. While an early

version of the provision called for a maximum penalty of ``$5,000 per

day for each violation,'' this was changed without explanation to a

maximum penalty of ``5,000 per day of violation.''\5\ While the House

Committee Report fails to explain this change in language, it is

important to note that the phrase ``per day of violation'' had long

been interpreted by the Agency as establishing a maximum civil penalty

for each day, for each separate violation. Various judicial decisions

were consistent with this interpretation.\6\ Congress' adoption of

language with a long-standing Agency interpretation is strong evidence

that despite the difference in language between section 113(a) and

section 113(d)(3), Congress did not preclude EPA's proposed

interpretation but instead authorized the Agency to adopt the same

interpretation for the field citation program that EPA had long

employed for the maximum penalty provision found in the pre-1990

version of section 113(a).

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\5\As originally introduced, the field citation program

contained a limit of $5,000 ``per day for each violation.'' H.R.

3030, 101st Cong., 1st Sess. 283 (1989). A similar provision was

employed for civil judicial penalties under Sec. 113(b) and the new

authority for administrative penalty orders under Sec. 113(d)(1).

The Subcommittee on Health and the Environment of the Committee on

Energy and Commerce retained this provision for judicially imposed

civil penalties, but for the field citations program limited field

citations to $5,000 ``per day of violation,'' adopting language from

the judicial civil penalty provision in the then current Clean Air

Act. House Subcommittee on Health and the Environment, 101st Cong.,

1st Sess. Amendment in the Nature of a Substitute of H.R. 3030 at

309 (Comm. Print, November 9, 1989). This version of the field

citation penalty provision was later reported out by the Committee,

adopted by the House and finally included in the Clean Air Act

Amendments of 1990. Pub. L. No. 101-549, 104 Stat. 2399 (1990).

\6\Supra n. 2.

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The legislative history in the Senate also makes it clear that

Congress intended to authorize EPA's proposed interpretation. In the

Senate, the bill reported out by the Senate Committee on Environment

and Public Works authorized a field citation program with a maximum

civil penalty of ``$5,000 per day for each violation.''\7\ The bill

passed by the Senate contained a very different provision, establishing

a $5,000 maximum ``per inspection.''\8\ In conference, the Senate's

clear mandate for a maximum dollar amount, no matter the number of

violations, was rejected in favor of the version passed by the House.

This indicates that Congress did not intend to mandate a similar

interpretation for the field citation program.

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\7\S. Rep. No. 101-228, 101st Cong., 1st Sess. 550 (1989).

\8\S. 1630, 101st Cong., 2d Sess. (1990).

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Finally, EPA's interpretation is supported by the legislative

history of title II's enforcement provisions. As reported out of the

Senate Committee on Environment and Public Works, sections 211(d)(1)

and 205(c) of the Act authorized administrative assessment of civil

penalties of no more than ``$25,000 per day of violation.''\9\ In

describing this authority, the Committee Report states that ``[t]his

section of the bill changes the section 211(d) penalty amount * * * to

a maximum penalty of $25,000 per day of violation. This penalty amount

applies to each day for each violation.'' (emphasis supplied)\10\ This

shows that when Congress used the term ``per day of violation'' in

amending section 113 it had no intention of barring an EPA

interpretation that such term meant ``per day for each violation.''

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\9\S. Rep. No. 101-228, 101st Cong., 1st Sess. 636 (1989).

\10\S. Rep. No. 101-228, 101st Cong., 1st Sess. 126 (1989).

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On a separate issue, EPA considered several different ways to

structure the field citation program so that as clear a line as

possible would be drawn indicating when it was appropriate to issue a

field citation, and when one of the other civil penalty authorities

would be more appropriate. This is important, among other things, given

the decentralized nature of this program and the authority to issue

citations in the field. One option considered was issuance of internal

Agency guidance on this point. As discussed in section D of this

notice, EPA does intend to issue guidance on a wide variety of matters

related to this program, and an important component of this will

include guidance on when to issue a citation and when to employ other

enforcement tools open to the Agency.

EPA also considered and is proposing establishing a maximum

cumulative dollar amount that may be assessed in an individual

citation. This would have the advantage of providing an objective

indication in the regulations themselves that a more serious compliance

problem exists and other, more stringent enforcement mechanisms would

generally be more appropriate. This maximum penalty amount could be

reached by, for example, a combination of many violations (whether

occurring on the same or separate days), with low amounts per

violation, or a smaller number of violations combined with larger

penalty amounts per violation. Either of these circumstances would

serve to indicate that a stronger enforcement approach may well be

appropriate. While such a cap could be included in internal Agency

guidance, a regulatory cap will provide greater structure for this

program, at least initially.

As a variation on the above, EPA considered establishing a maximum

number of violations that could be included in an individual citation.

This option, however, might preclude issuance of a field citation where

the number of violations exceeded the maximum, even if the violations

were all very minor and would receive a low penalty assessment. For

this reason EPA is not currently proposing this form of a cap.

EPA is proposing that the maximum cumulative penalty in an

individual citation not exceed a dollar amount in the range of $15,000

to $25,000. EPA invites comment on this range, and whether such a

dollar cap should be in the regulations or in Agency guidance. EPA is

also considering and invites comment on whether the penalty cap should

``sunset'' after a pre-set time period, ranging from one or two years

to a longer period. Before the cap expired of its own terms, EPA would

reevaluate whether it should continue, and if appropriate, would revise

the regulations to extend the cap or some more useful version thereof.

C. Penalty Assessment Policy

The regulations proposed today define minor violation, establish

the maximum penalty amount per violation, and address matters

concerning hearings to contest assessment of a civil penalty through a

field citation. EPA plans to develop detailed guidance that will

address many of the other issues concerning implementation of the field

citation program. The following section discusses important aspects of

EPA's planned guidance on the penalty amounts to be assessed by field

citations.

Penalty assessment under the field citation program will be

designed to achieve expeditious compliance with the applicable Clean

Air Act requirements. Although only minor violations of the Act will be

subject to the program, the penalties must be significant enough to

deter violations and to ensure a high rate of compliance. On the other

hand, penalties will generally be significantly lower than amounts that

could be assessed through other enforcement means. EPA plans to

incorporate these objectives into a field citation penalty assessment

policy, which will become a component of the Agency's Clean Air Act

civil penalty assessment policy.

The penalty assessment guidance will explain how the Agency intends

to evaluate the penalty assessment criteria in section 113(e) of the

Act when determining penalty amounts. The Agency is considering

assigning standardized penalty amounts to specific categories of

violations. These standard amounts might then be modified by means of a

penalty matrix, which would take into account such factors as the

seriousness of the violation; the degree of environmental harm; or

other appropriate criteria.

EPA expects that its penalty assessment guidance will limit the

discretion of inspectors and others in setting penalty amounts. For

example, any matrix approach as described above would constrain the

person issuing the field citation to operate within the limits of the

matrix. In addition, EPA expects the guidance will establish that where

the amount of a penalty would be based on specific characteristics of

the violation and the person issuing the citation has not obtained

evidence relating to one of the characteristics, then that

characteristic would be treated as neutral for purposes of penalty

assessment.

D. Program Implementation

In addition to guidance on the penalty amounts assessed through the

field citation program, EPA plans to issue guidance addressing a wide

variety of other implementation issues. This guidance would be

carefully designed to spell out and restrict the day-to-day practice

under this program. EPA believes this approach will facilitate

achievement of the goals for this program, and still provide the

flexibility necessary for an enforcement program designed to address a

wide variety of factual circumstances. This section describes EPA's

current ideas on certain elements of this program guidance.

Field citations may be issued either in the field or from an EPA

office. Violations of reporting requirements, for example, will

typically involve desk issuance since discovery of these violations

normally occurs not in the field, but in an office designated to

receive such reports. Even where a violation is discovered in the

field, an inspector may elect to return to the office for further

review or discussion with management prior to issuing a field citation.

In order to promote consistency, inspectors will be encouraged to

return to the office for clarification whenever there is any doubt

regarding the nature of a violation or the appropriate penalty amount.

During the initial phase of program implementation, the Agency

anticipates that most field citations will be issued from an EPA

office, based on field inspections. After a suitable period of

experience with the program, it is expected that the majority of

inspection-based citations will be issued on-site. The Agency will then

establish guidelines for particular situations in which office-only

issuance would still be recommended, e.g., based on penalties exceeding

a specified dollar amount, or for other relevant considerations.

Although State and local employees may not issue federal field

citations pursuant to this regulation, EPA employees may rely on

information gathered during State and local inspections as a basis for

issuing field citations.

Following discovery of a minor violation and issuance of a field

citation, the respondent will have thirty days in which to either pay

the assessed penalty or to request a hearing. EPA reserves the right to

revoke a field citation, in whole or in part, at any time prior to

payment of the assessed penalty.

EPA believes this authority is a necessary safeguard in this

program. It will allow a reevaluation, before the process has gone very

far, of whether a citation should have been issued. For example, this

could involve a reevaluation of whether a filed citation is the most

appropriate enforcement tool, or could involve the early resolution of

a citation issued in error.

As noted above, EPA will prepare detailed guidance for the

implementation of the field citation program. The guidance will cover

such broad areas as coordination of inspections with State and local

agencies, desk issuance as opposed to field issuance, determination of

whether a violation is minor, and calculation of penalty amounts. The

guidance will also cover such issues as how to revoke a field citation,

and how field citations will be recorded and tracked. Finally, the

guidance will include procedures for determining appropriate penalty

amounts, and an actual sample of the design and format of the field

citation.

E. Field Citations as Distinguished From Other Enforcement Authorities

Under section 113(b) of the Act, the Agency is authorized to

commence civil judicial enforcement actions against certain violators

to assess and recover civil penalties of up to $25,000 per day for each

violation, and/or to seek temporary or permanent injunctions. Civil

actions under section 113(b) are most advantageous when:

(1) A compliance schedule or other injunctive relief is necessary

and an administrative compliance order under section 113(a) is either

unavailable or inappropriate;

(2) The violator's compliance history indicates that the compliance

schedule should be subject to court supervision and contempt remedies;

or

(3) Substantial civil penalties are appropriate.

In 1990, Congress amended section 113 of the Act, providing new

authority for the Administrator to issue administrative penalty orders

under section 113(d)(1). These administrative penalty orders, which may

assess civil penalties of up to $25,000 per day of violation, may be

issued where:

(1) The total penalty sought does not exceed $200,000; and

(2) The first alleged date of violation occurred no more than

twelve months prior to initiation of the administrative action. The

Administrator and the Attorney General may, however, jointly determine

that an administrative penalty action is appropriate for either a

larger penalty or a longer period of violation.

Administrative penalties under section 113(d)(1) are most

advantageous where:

(1) The violator does not have a compliance history of multiple or

repeat violations; and

(2) Court-supervised injunctive relief is not appropriate.

Additionally, civil judicial action is preferred over administrative

action where extensive post-filing discovery will be necessary to fully

develop the circumstances associated with one or more violations, and

where new legal issues are presented by a case.

The field citation program under section 113(d)(3) is another new

enforcement authority provided by the November 15, 1990 Amendments. As

indicated elsewhere in this preamble, the field citation program

involves the issuance of citations that assess civil penalties, not

exceeding $5,000 per day of violation, for minor violations of the Act.

The focus of the field citation program will be to ensure

compliance with regulatory requirements that often remain unaddressed

due to limited Agency resources. The opportunity for streamlined,

expedited enforcement to address minor violations should save Agency

resources, reduce court backlogs, and send a clear enforcement message

to violators that minor violations will not be overlooked.

F. Role of Inspectors

1. Issuance by Officers/Employees

Under the Act, field citations ``may be issued by officers or

employees designated by the Administrator.'' It is the Agency's

position that section 113(d)(3) does not authorize delegation of

section 113 field citation authority to State and local officials. The

legislative history supports this interpretation.\11\ Comments on the

Agency's position, including any alternative legal analyses or

interpretations of the statute, are invited.

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\11\``The citations are to be issued by Federal officers or

employees designated by EPA.'' H.R. Rep. No. 101-490, 101st Cong.,

2d Sess. 393 (1990).

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2. Training and Guidance for Inspectors and Enforcement Officers

The success of the field citation program will depend on well-

trained inspectors and enforcement officers, skilled at both

recognizing minor violations and determining appropriate penalty

amounts. Before implementing this program, EPA will offer a number of

Regional inspector training sessions to ensure that inspectors and

enforcement personnel are completely familiar with the program and

understand the limits of its applicability. In particular, employees

will be trained to identify minor violations based on the criteria set

forth in this regulation. They will also be trained to identify

circumstances in which particular violations might indicate a more

serious compliance problem that should be handled through a more

stringent enforcement action.

In addition to training, inspectors and enforcement officers will

be given a detailed guidance document containing recommended penalty

ranges associated with specific categories of violations. In this way,

inspectors will have a ready reference if they are unsure about a

particular violation. Moreover, the establishment of appropriate

penalty amounts in guidance will help to ensure national consistency.

Whenever there are doubts regarding how to characterize a suspected

violation, inspectors will be directed to return to the office for

further evaluation and consultation.

G. Rules Governing Hearings on Field Citations

In addition to authorizing EPA to implement a field citation

program, section 113(d)(3) of the Act addresses certain basic

procedural issues involving hearings on field citations. First, it

provides that any person to whom a civil penalty is assessed through a

field citation may elect either to pay the civil penalty or to request

a hearing on the field citation. Any request for a hearing must be

within the time period prescribed by the Administrator through

regulation, and if a hearing is not requested within such time then the

penalty assessment in the field citation becomes final. Second, this

section explicitly provides that the hearing on a field citation shall

not be subject to the Administrative Procedure Act (APA) provisions on

formal adjudications (5 U.S.C. 554 or 556), but shall provide a

reasonable opportunity to be heard and to present evidence.

EPA is proposing three distinct alternatives to implement these

statutory provisions and establish fair and reasonable procedures to

govern hearings on field citations. These alternatives are: (1) EPA's

consolidated, APA penalty assessment procedures under 40 CFR part 22,

with appropriate revisions; (2) EPA's proposed consolidated, non-APA

penalty assessment procedures under 40 CFR part 28, with appropriate

revisions; and (3) new streamlined administrative procedures contained

in today's proposal. The following section discusses and evaluates each

of these alternatives. The Agency requests comment on the propriety of

each of these penalty assessment procedures.

Procedures for the assessment of field citation penalties must

reasonably implement the requirements of section 113(d)(3), including

providing a reasonable opportunity to be heard and to present evidence,

and must also satisfy procedural due process considerations under the

Constitution. Determining compliance with both of these requirements

requires a close comparison between the proposed procedures, the

factual and legal situations that are expected to arise under this

program, and the interests at issue, both private and governmental.

Congress specifically limited field citations to minor violations,

as defined by the Agency. While EPA's proposed definition of minor

violation does not specify each and every violation that might be

considered minor, it does set clear limits on the kinds of violations

that will be considered minor violations. The many different kinds of

violations that may meet the definition of minor violation will exhibit

common features. For example, the typical minor violation will involve

a clear and straightforward violation, both factually and legally, of

limited frequency or duration and limited environmental impact. The

factual and legal issues that EPA expects to arise in field citation

assessments are, overall, expected to be simple and uncomplicated.

The basic private interest at stake is the assessment of civil

penalties of up to a maximum of $5,000 per day for each violation, as

well as the resources needed to contest such assessments where

considered appropriate. The maximum penalty is significantly lower than

the maximum administrative or judicial civil penalties authorized under

sections 113, 205 and 211 of the Act. The primary governmental interest

is implementation of a program that fairly fills a gap in EPA's

enforcement programs, without undue drain on EPA's limited enforcement

resources. EPA believes this interest is best served by addressing

minor violations in a straightforward and direct manner, somewhat akin

to a traffic enforcement program. The deterrence effect from this

program will come in large part from the issuance of a citation

immediately upon or shortly after detection of a violation, with final

assessment of the penalty occurring shortly after issuance of the

citation.

EPA has considered these and other factors in evaluating the three

options proposed today for hearing procedures, and believes all three

fully implement Congressional intent and satisfy due process

requirements. The three options draw different balances between

complexity and simplicity, formality and informality, but are all

designed to implement a program aimed at simple and uncomplicated

violations, involving penalties significantly lower than others

authorized in the Act, and requiring straightforward, quick and fair

adjudication to obtain the desired deterrent effect without undue drain

on limited Agency resources.

1. Modified 40 CFR Part 22--Consolidated Rules of Practice Governing

the Administrative Assessment of Civil Penalties and the Revocation or

Suspension of Permits

Under the first Agency proposal, administrative hearings on field

citations would be conducted pursuant to the procedures established by

EPAs consolidated APA rules of practice for the administrative

assessment of civil penalties, 40 CFR part 22. In a separate

rulemaking, the Agency would propose to amend part 22, where

appropriate, to make that regulation applicable to field citations.

Basis for Hearing Procedures

Although the Act explicitly indicates that hearings in field

citation cases are not subject to the provisions for formal APA

adjudication, it does not prohibit the Agency from exercising its

discretion and providing such procedural rights. There are two primary

benefits in using part 22 to govern hearings on field citations: (1) It

would consolidate Clean Air Act administrative penalty hearings under

one set of procedural rules, minimizing the need for the Agency and the

regulated community to learn and become proficient in more than one set

of procedures; and (2) it would use a penalty assessment procedure with

which both the Agency and the regulated community have a great deal of

experience.

The Act as amended in 1990 authorizes the Administrator to issue

administrative penalty orders under section 113(d)(1). These

administrative penalty orders, which may assess civil penalties of up

to $25,000 per day of violation, are generally limited to situations

where the total penalty sought does not exceed $200,000 and where the

first alleged date of violation occurred no more than twelve months

prior to initiation of the administrative action. Similar authority was

provided under sections 205(c) and 211(d)(1) of the Act.

The penalties contained in administrative penalty orders issued

under section 113(d)(1) are assessed pursuant to the part 22

procedures, as are administrative penalties assessed under sections

205(c) and 211(d)(1). Part 22 was amended to incorporate these

provisions on February 4, 1992 (57 FR 4318). Thus, using part 22 to

govern hearings on field citations issued under section 113(d)(3) would

consolidate all of the Clean Air Act administrative penalty hearings

under one set of procedures.

Additionally, the Agency has used part 22 for assessing

administrative penalties under other environmental statutes since 1980.

Consequently, both the regulated community and the Agency have

considerable experience with these procedures, thereby simplifying the

implementation of the field citation program. As discussed later, minor

revisions to part 22 procedures would be adopted to account for certain

statutory provisions in section 113(d)(3) and to account for the types

of violations and penalties associated with field citations.

Proposed Hearing Procedures

Under part 22, the field citation would be issued by an EPA officer

or employee as an administrative complaint. Within twenty days after

service of the citation, the Respondent must file an answer. In the

answer, the Respondent may contest the facts in the complaint, the size

of the penalty, or claim that the Respondent is entitled to judgment as

a matter of law. If requested by the Respondent, a hearing will be held

on the issues raised in the citation and answer. The Presiding Officer

has the discretion to allow the Respondent to amend his answer. A

default order, which allows the full proposed penalty to be collected,

may be issued upon motion if the Respondent fails to file an answer.

The Respondent may simultaneously pursue informal settlement and a

hearing. During settlement negotiations, the parties may informally

exchange information, if appropriate. For example, the Agency may

supply copies of the documentation used to support its case and the

Respondent might provide any evidence that would tend to disprove the

allegations or to mitigate the penalty. A written Consent Agreement and

a proposed Consent Order are submitted for approval by the Regional

Administrator, if the parties reach a settlement of the claim.

Either party may file a preliminary motion for an accelerated

decision if no genuine issues of material fact exist. The Respondent

may file a motion for dismissal of the citation.

A mandatory prehearing conference is held to simplify issues; to

limit the number of potential witnesses; and to address other matters

that may expedite the hearing. An exchange of witness lists and

documents occurs at the prehearing conference.

The hearing is held for the presentation of evidence and testimony

concerning the facts relating to the violation and to the size of the

penalty. Except as otherwise provided by the Presiding Officer,

witnesses are to be examined orally, under oath or affirmation, at the

hearing. The parties have the right to cross-examine witnesses who

testify at the hearing. The Presiding Officer may take notice of any

matter judicially noticed in the Federal courts and of any facts

falling within the specialized knowledge and expertise of the Agency.

At the hearing, the Agency has the burden of going forward and

proving that the violation occurred and that the proposed penalty is

appropriate. After a prima facie case is established, the Respondent

has the burden of presenting and going forward with any defense to the

allegations in the citation. The matters in controversy are determined

by the Presiding Officer upon a preponderance of evidence.

The hearing must be transcribed. Within twenty days after the

transcript is available, the parties may submit proposed findings of

fact and conclusions of law with supporting briefs. Reply briefs are

also authorized.

The Presiding Officer issues the initial decision, which consists

of findings of fact, conclusions of law, and recommended civil penalty.

In reaching an initial decision, the Presiding Officer is required to

consider the statutory penalty assessment criteria listed in section

113(e), section 205(c) or section 211(d) of the Act, as appropriate.

For section 113(e), these criteria include: The size of the business;

the economic impact of the penalty on the business; the Respondent's

full compliance history; the Respondent's good faith efforts to comply;

the duration of the violation as established by any credible evidence;

payment by the Respondent of penalties previously assessed for the same

violation; the economic benefit of noncompliance; the seriousness of

the violation; and such other factors as justice may require.

If the Presiding Officer recommends a penalty different from the

one proposed by the citation, the initial decision must set forth the

specific reasons for the increase or decrease. Either party may file a

motion to reopen the hearing within twenty (20) days of service of the

initial decision.

Unless a party appeals to the Environmental Appeals Board (the

Board) within twenty (20) days of service, or unless the Board elects

to review it sua sponte, the Presiding Officer's initial decision

becomes a final order of the Board within forty-five (45) days after

service. A final order of the Board shall adopt, modify or set aside

the findings and conclusions of the initial decision. The Board is

authorized to increase or decrease the assessed penalty, except in the

case of a default order. A motion for reconsideration of the final

order may be filed with the Board within ten (10) days after service of

the final order.

Procedural Due Process

EPA analyzed the issue of procedural due process with its

consolidated APA rules of practice when they were promulgated. See 52

FR 2922 (August 6, 1987) (NPRM) and 57 FR 4316 (February 4, 1992)

(FRM). In that analysis EPA evaluated and balanced the three factors

specified by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319

(1976) for determining whether the administrative procedure provided to

an individual prior to the deprivation of a property interest meets the

due process requirements of the Fifth Amendment: the magnitude and

nature of the individual interest at stake, the risk of an erroneous

deprivation of that interest and the benefit of additional procedures

in reducing that risk, and the governmental interest in not providing

such additional procedures.

EPA's APA style hearing procedures would certainly satisfy

procedural due process considerations as well as statutory requirements

if employed for hearings on field citations. By statute APA

adjudication procedures are not required. The violations are by

definition minor in nature and should involve simple and

straightforward factual and legal situations. In fact, EPA believes

these procedures provide significantly more process than required by

the Fifth Amendment for hearings on field citations, and are proposed

as an option not because of due process considerations but because of

the expected benefits of having a single set of procedures governing

all administrative penalty proceedings under the Clean Air Act.

EPA is also considering certain revisions to the Part 22 procedures

to account for the minor nature of the violations at issue under the

field citation program. First, EPA is considering using presiding

officers that are not administrative law judges. As with other non-APA

situations, the agency's presiding officers would conduct the hearings

and take other actions. This would help to conserve the agency's

administrative law judge resources for APA hearings, with no expected

reduction in the accuracy of the hearing process. The Agency is also

considering such revisions as making the prehearing conference optional

and changing the deadline for default from twenty to thirty days

following service.

In addition, EPA is considering limiting appeals from the presiding

officer to the EAB. Appeals from the initial decision on a field

citation would not be of right, but would be at the discretion of the

EAB. For example, a party seeking an appeal from the initial decision

would file a motion with the EAB seeking leave to appeal. There would

only be an appeal to the EAB if they granted such motion, or reviewed

the initial decision sua sponte. Absent such review by the EAB, the

initial decision of the presiding officer would become the final order

of the Agency. EPA expects that in the typical situation the EAB would

not hear an appeal from either party given the expected nature of the

minor violations. Appeals typically would be limited to cases with

unique factual or legal circumstances. This would conserve the Agency's

resources for hearing and deciding administrative appeals, and allow

their use for APA cases and more complex cases. At the same time, where

appropriate the EAB could hear an appeal. This would minimize the

chance of an erroneous deprivation of an individual interest, and at

the same time maximize the efficient use of scarce Agency resources.

2. Modified 40 CFR Part 28--Consolidated Rules of Practice Governing

the Administrative Assessment of Civil Penalties Under Various Statutes

Under the second option considered and proposed by the Agency, the

hearings on field citations would be conducted pursuant to the

procedures in EPAs proposed non-APA, consolidated rules of practice for

the administrative assessment of penalties, with appropriate revisions

to conform with the Clean Air Act. (See proposed 40 CFR part 28, 56 FR

29996 (July 1, 1991)). In a separate rulemaking, the Agency would

propose to amend Part 28, where appropriate, to make that regulation

applicable to field citations.

Basis for Hearing Procedures

The rules of procedure proposed as 40 CFR Part 28 are intended to

consolidate under uniform rules of practice the following non-APA

administrative penalty programs that are currently administered by the

Agency: Class I administrative penalties under sections 309(g) and

311(b)(6) of the Clean Water Act, section 109(a) of the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980

(CERCLA), and section 325(b) of the Emergency Planning and Community

Right-toKnow Act (EPCRA); and administrative penalties under section

1423(c) of the Safe Drinking Water Act and sections 325 (c) and (d) of

EPCRA.

Part 28 was proposed to consolidate and harmonize certain EPA

procedural rules and guidance for the administrative assessment of

civil penalties under various statutes, where Congress gave EPA

authority to conduct non-APA hearings. In line with this Congressional

intent, proposed part 28 is designed to provide streamlined

administrative penalty procedures that are designed to assure the

protection of basic constitutional rights. Section 113(d)(3) of the Act

explicitly states that hearings on field citations are not subject to

the APA provisions for hearings (5 U.S.C. 554), and that recipients of

a field citation must be provided a reasonable opportunity to be heard

and to present evidence.

The basic hearing requirements of the field citation program are

therefore similar in structure to those programs proposed for inclusion

under 40 CFR part 28.

Inclusion of hearings on CAA field citations in part 28 would be

consistent with the goals stated by EPA when it proposed these

consolidated rules for non-APA hearing procedures under various

statutes--reduction of confusion by Agency decision makers and

enforcement staffs, provision for the regulated community of an

essentially uniform set of procedural rules, and conformity with

Congress' and EPA's desire to employ expedited penalty assessment

procedures. At the same time, the proposed part 28 procedures are

designed to provide non-APA hearing procedures under a wide range of

statutory provisions, involving civil penalties ranging from $5,000 for

each day of violation to $25,000 per violation. This contrasts with the

field citation program, involving no more than $5,000 per day of

violation for minor violations of the Act or its implementing

regulations. In addition, adoption of part 28 procedures for the field

citation program would also involve two separate procedures for

administrative assessment of civil penalties under the CAA, parts 28

and 22. Adding the field citation program to part 28, however, would

promote a greater potential for non-APA multimedia enforcement actions

by providing a common administrative forum. As with the part 22 option,

the currently proposed part 28 procedures would be modified in certain

ways to account for certain aspects of the field citation program.

These are discussed later.

Proposed Hearing Procedures

Under the modified part 28, the field citation would be issued as

an administrative complaint. Unlike proposed part 28, however, the

field citation complaints would not require certification by an Agency

attorney. Within thirty days after service of the citation, the

Respondent must file a response requesting a hearing. A 90-day

extension of time to respond may be granted by the complainant.

As in part 22 practice, the Respondent may simultaneously pursue

informal settlement and a hearing. During settlement negotiations, the

parties may informally exchange information, if appropriate. For

example, the Agency may supply copies of the documentation used to

support its case and the Respondent might provide any evidence that

would tend to disprove the allegations or to mitigate the requested

penalty.

EPA's experience has been that the great majority of its

administrative penalty actions conclude by a settlement. Part 28

explicitly provides settlement procedures and, unlike part 22, would

allow field citation cases to settle by the simple agreement of the

parties in a consent order or, if the Respondent chooses, by the

Respondent's payment of the amount requested by the Agency in the field

citation itself (or in any superseding pleading). Under part 28, a

settlement may be reached at any time, even before the deadline for a

response has passed. In cases of settlement, there is no further

administrative review, and the Respondent waives its rights to appeal

the administrative penalty to the appropriate federal court. Pursuant

to the language of the CAA, consent orders under the Part 28 field

citation program would allow for the compromise, modification, or

remission by the Agency, with or without conditions, of any penalty

requested in the administrative complaint.

Part 28 would be revised such that failure of the Respondent to

affirmatively request a hearing in the response would lead to

assessment of the penalty proposed in the field citation. Under section

113(d)(3) of the Act, the penalty assessed by the field citation

becomes final if the Respondent fails to request a hearing within the

time required by the implementing regulation. Part 28 would also be

revised to require Agency counsel to file a written explanation for the

penalty imposed by the field citation no later than five days following

a Respondent's default by failure to request a hearing. This would

ensure an adequate administrative record for the penalty imposed.

Upon the request of a party, or on his own initiative, the

Presiding Officer may make a summary adjudication of the allegations,

without further proceedings, whenever he finds that there are no

material facts in dispute and that a party is entitled to judgment as a

matter of law. In the same manner, the Presiding Officer may accelerate

the transmittal of his recommended decision to the Regional

Administrator if there is no compelling need for additional fact-

finding on remedy issues.

Either party may request a summary determination or an accelerated

recommended decision at any time after service of the response, up

until thirty days before the time set for a hearing. Alternatively, the

Presiding Officer may summarily determine any of the allegations after

the time for the exchange of information has run, and after he has

examined the entire administrative record. The Presiding Officer may

accelerate the transmittal of the recommended decision, upon finding

liability in a summary determination or upon stipulation as to

liability by the parties, if there is no need for further fact-finding

as to remedy.

In reaching a recommended decision, the Presiding Officer is

required to consider the statutory penalty assessment criteria listed

in section 113(e) of the Act. These criteria include the size of the

business; the economic impact of the penalty on the business; the

Respondent's full compliance history; the Respondent's good faith

efforts to comply; the duration of the violation as established by any

credible evidence; payment by the Respondent of penalties previously

assessed for the same violation; the economic benefit of noncompliance;

the seriousness of the violation; and such other factors as justice may

require. The Respondent is afforded the opportunity to provide evidence

of the relevant statutory criteria, including evidence concerning the

duration of the violation. Part 28 would be revised to incorporate

these statutory penalty assessment criteria.

Other than by a motion for summary determination or by a motion for

an accelerated recommended decision, a field citation may be settled

preliminarily by a consent order. The consent order includes a penalty

settlement which has the force and effect of a final order issued by

the Regional Administrator, except that the consent order is not

appealable. Part 28 would be revised to provide that, consistent with

the authority under section 113(d)(2)(B), the consent order may be

issued with or without conditions.

Part 28 establishes deadlines to ensure that administrative cases

do not languish.

Not later than thirty days following the Respondent's response, the

Presiding Officer is required to hold a prehearing conference at which

the parties meet to consider matters which may expedite the disposition

of the proceedings. The Presiding Officer also sets the time and place

for further proceedings and schedules an information exchange during

the prehearing conference, if one is requested.

The authority to require discovery is limited to exchange of

certain information. The required information that may be exchanged is

limited to: (1) Documents intended to be introduced at the proceedings

under Part 28 that have not already been filed with the Hearing Clerk;

(2) witness lists, qualifications of expert witnesses and the subject

matter of intended witness testimony; and (3) information known to the

Respondent relating to the Respondent's inability to pay a civil

penalty or relating to any economic advantage accruing to the

Respondent as a result of his alleged violations of law. Part 28 would

be revised to expand this last category, by allowing the Agency to

include the Respondent's good faith efforts to comply with the

applicable Clean Air Act requirements. Other forms of discovery,

including interrogatories and the taking of depositions, are not

permitted unless stipulated to by the parties.

Except for supplemental materials, the information exchange must

conclude no later than sixty days following the prehearing conference.

Since new information concerning witnesses or documents may develop

after an information response deadline passes, the parties may

supplement the original information, but not later than seven days

prior to the hearing.

In order to provide the parties with incentives to cooperate during

the discovery phase, there are both mandatory and discretionary

sanctions for failure to comply with the information exchange

requirements. For example, if a party fails to timely provide the name

and all supporting information regarding any witness it intends to

present at a hearing, such witness may not be presented. Similarly, if

a party fails to timely produce a document it intends to introduce at

such a hearing, that document may not be introduced to prove the truth

of what it asserts. Part 28 would be revised to provide that if the

Respondent fails to timely provide information regarding its good faith

efforts to comply with the Act, then that information may not be used

by the Respondent at the hearing. The Presiding Officer may also impose

additional appropriate sanctions on a party that fails to fully comply

with these requirements.

In conducting the hearing, the Presiding Officer may limit the

number of witnesses and the scope and extent of both the direct

examination and cross-examination. Cross-examination is limited to the

scope of the direct examination. The Presiding Officer may take

testimony in the form that is the most efficient under the

circumstances. No matter what form of testimony is permitted, however,

the Presiding Officer will make adequate provision to ensure that each

party retains its right of cross-examination if the witness is

available to testify or is subject to a subpoena.

The hearing is generally limited to resolving disputed allegations

as to liability. Remedy issues are generally addressed in the parties'

closing arguments, unless there is a compelling need for remedy

testimony. Such need could arise where the underlying facts which are

material to the statutory penalty assessment factors are disputed.

As is typical in administrative proceedings, strict adherence to

the Federal Rules of Evidence is not required under part 28. Testimony

or documentation that is ``relevant, material or of significant

probative value'', including hearsay, is admissible, as long as the

witness presenting the information is subject to cross-examination by

any opposing party. The Presiding Officer has the discretion to take

official notice of certain facts, exclusive either of facts relating to

settlement or relating to a person's challenge to a final State or

Agency action.

The proposed part 28 rules contemplate that each party will have an

opportunity to make an opening statement (with the Agency making its

opening statement first); that the Agency will put on its prima facie

case; and that the Respondent thereafter will have an opportunity to

present its defense.

Participants may present oral closing arguments at the discretion

of the Presiding Officer, and such arguments may address both liability

and remedy issues. The participants may submit supporting documentation

regarding remedy. If the Presiding Officer does not allow oral closing

arguments, the Agency anticipates that he would solicit the submission

of written proposed recommended findings of fact and conclusions of law

as to liability and remedy.

Under part 28, the Presiding Officer would be required to: (1)

Certify the administrative record as complete and as being in

compliance with the requirements of part 28; (2) make the

administrative record available to the Regional Administrator; and (3)

prepare and transmit a recommended decision to the Regional

Administrator. The Presiding Officer's authority to prescribe a remedy

would be limited to recommending the withdrawal of the field citation

or recommending the issuance of an order.

The decision of the Regional Administrator must be based on

applicable law and on the administrative record, which includes the

recommended decision of the Presiding Officer. Upon receipt of the

Presiding Officer's recommended decision, the Regional Administrator

may either withdraw the field citation, if he concludes that the Agency

has not sustained its burden of proof, or issue an order granting the

requested relief, in whole or in part. Any decision by the Regional

Administrator must be in writing, supported by clear reasons based on

the administrative record and applicable law, and include a statement

of the right to judicial review and of the procedures and deadlines for

obtaining judicial review. If the Regional Administrator rejects the

recommendation of the Presiding Officer, the explanation for that

rejection must be in writing and made part of the administrative

record.

The Regional Administrator's order must include a discussion of the

applicable penalty factors which were considered in the assessment of a

penalty under the Act, and set forth the penalty assessed. Part 28

would be revised to limit the Regional Administrator's authority to

issue a default order by excluding those based on a default for failure

to respond or to request a hearing (which would become final, pursuant

to section 113(d)(3) of the CAA, by operation of law).

Any order issued by the Regional Administrator becomes effective

thirty days after issuance, unless either the Environmental Appeals

Board (the Board) suspends the implementation of the order pursuant to

its sua sponte review authority, or a judicial appeal is taken pursuant

to section 113(d)(4) of the Act. No person may stay the effective date

of an administrative order by attempting to appeal it administratively.

The decision of the Regional Administrator to issue a final

decision constitutes final Agency action (subject to sua sponte review

by the Board) on its effective date, for purposes of any judicial

appeal. Withdrawal of the field citation, however, would not constitute

final Agency action, unless it occurs without prejudice.

The Board, on behalf of the Administrator, is authorized to review

part 28 rulings by Regional Administrators, sua sponte, on issues of

law. The Board may not become involved in factfinding; second guess the

penalty amount issued by the Regional Administrator; or review orders

issued on consent. The Agency anticipates that this review authority

will be exercised infrequently, but believes that the authority is

necessary to ensure consistent Agency positions on the applicable law.

The Board may withdraw a Regional Administrator's order if it

determines that the Agency lacks jurisdiction to assess a penalty, or

if it determines that the Respondent is not liable under applicable

law. The Board shall remand an administrative order if it determines

that elements of the Respondent's liability are different from those

found by the Regional Administrator. Under such a remand, the remedy

should be conformed to the amended conclusions of law. The order shall

also be remanded if the Board finds that the order fails to provide

clear reasons for the decision. The Board shall allow the Regional

Administrator's order to issue unchanged if it finds that the order is

legally sufficient and it agrees with all material conclusions of law.

Parties are not permitted under part 28 to administratively appeal

adverse rulings, either to the Regional Administrator or to the

Environmental Appeals Board.

Procedural Due Process

EPA recognizes that the administrative imposition of penalties for

minor violations of the Act may affect constitutionally protected

interests of those against whom actions have been taken. Part 28

includes precautions to ensure that individuals subject to a finding of

liability for a civil penalty will have all of the protections that due

process of law requires. These precautions include an impartial

Presiding Officer; the right to a hearing on liability, with a right of

cross-examination; and a final Agency action based solely on the

administrative record and applicable law. For a detailed due process

discussion concerning part 28, see the July 1, 1991 proposal at 56 FR

29997 et seq.

The part 28 procedures provide all of the procedure necessary to

meet constitutional due process requirements under the leading Supreme

Court case, Mathews v. Eldridge, 424 U.S. 319 (1976). In that case, the

Supreme Court set out a three-part test for determining whether the

administrative procedure provided to an individual prior to the

deprivation of a property interest by the government meets the due

process requirements of the Fifth Amendment. The Mathews test involves

balancing the magnitude and nature of the individual interest at stake;

the benefit of additional procedures in reducing the risk of erroneous

deprivation of that interest; and the governmental interest in not

providing such additional procedures. Although the part 28 procedures

streamline the adjudicatory process provided for analogous

administrative hearings under the APA, those procedures do not

eliminate any of the constitutional elements of such hearings. The part

28 procedures grant the person receiving the field citation a full

opportunity to review the evidence of minor violations, as well as

address the propriety of the assessed penalty. Since these procedures

allow for complete adjudication of liability issues, there would be

little benefit to the Respondent in more extensive or attenuated

procedures, and disproportionate cost to the Agency and to the public.

The field citation program will typically address violation and

penalty issues that are simple and straightforward matters. Since these

cases should not be complex, their resolution is well-suited to the

expedited administrative penalty proceedings mandated by Congress and

included in part 28. For these reasons as well as those noted in the

July 1, 1991 proposal, EPA believes the proposed part 28 procedures

would adequately provide for due process in the assessment of penalties

under the field citation authority.

3. 40 CFR Part 59--Rules Governing Administrative Hearings on Field

Citations

The third Agency proposal involves using new procedures for

conducting administrative hearings requested by persons to whom field

citations have been issued under section 113(d) of the Act.

Background

Section 113(d) of the Act provides that any person to whom a field

citation is issued may either elect to pay the penalty assessment or to

request a hearing, in accordance with procedures specified in the

regulation which implements the field citation program. Section 113(d)

further provides that the penalty assessed in the field citation

becomes final unless the person to whom it is issued requests a hearing

within the time specified in the implementing regulation. Section

113(d)(3) explicitly provides that the hearing is not subject to the

requirements of a formal adjudicatory hearing under the Administrative

Procedure Act (APA), 5 U.S.C. 554 or 556. Instead, the hearing must

provide a reasonable opportunity to be heard and to present evidence.

Basis for Hearing Procedures

The Congressional intent to afford the Respondent a less formal,

non-APA hearing is explicit in the legislation. Although such hearing

must provide the Respondent with a reasonable opportunity to be heard

and to present evidence, such hearing shall not be subject to the

procedures under sections 554 or 556 of the APA.

On July 1, 1991, the Agency proposed non-APA consolidated rules of

practice for the administrative assessment of civil penalties at 40 CFR

part 28 (56 FR 29,996). Although the part 28 rules are intended to

consolidate all other non-APA administrative penalty programs currently

administered by the Agency under uniform rules of practice, the field

citation program was excluded from those proposed rules. Programs

covered by part 28 include Class I administrative penalties under

section 309(g) of the Clean Water Act, section 109(a) of CERCLA, and

section 325(b) of EPCRA; and administrative penalties under section

1423(c) of the Safe Drinking Water Act and sections 325(c) and (d) of

EPCRA.

There are several compelling reasons for developing hearing

procedures that are better suited to the field citation program than

those provided either by proposed part 28 or the consolidated APA rules

of practice promulgated at 40 CFR part 22, 45 FR 24363 (April 9, 1980).

The part 28 rules provide many of the same procedural rights in part 22

that are designed to comport with APA requirements. These rights

include prehearing conferences; subpoena authority; discovery rights;

and cross-examination. The major differences between the two rules are

that part 28 provides for a Presiding Officer instead of an

Administrative Law Judge; imposes page limits on written submissions;

and eliminates the right to appeal the decision of the Presiding

Officer or Regional Administrator to the Administrator.

Under the part 28 procedures, resolution of an administrative

penalty proceeding could take seven or eight months. This lengthy time

period would diminish the utility of the field citation program in

addressing minor violations quickly and efficiently.

Most of the penalty programs covered by the part 28 procedures

provide for maximum per day per violation penalties well in excess of

the $5,000 limit authorized for field citations. Using the part 28

hearing procedures could result in spending more money to adjudicate

field citation appeals than would be justified by the expected monetary

recovery.

Based on the foregoing reasons, the Agency is considering using a

more streamlined set of hearing procedures drafted specifically to

apply to the field citation program.

Today's proposal relies on some of the part 28 provisions which

ensure expedited proceedings. This proposed option also relies on the

rules at 33 CFR subpart 1.07, 43 FR 54186 (November 20, 1978), which

govern hearings on statutory penalties imposed by the Coast Guard.

Under section 311(b)(6) of the Clean Water Act, the Coast Guard is

authorized to assess a civil penalty of up to $5,000 against any owner,

operator or person in charge of a facility or vessel that discharges

either oil or a hazardous substance. The violator may challenge the

penalty assessment at a hearing governed by the subpart 1.07

procedures. The similarities between this program and the field

citation program make the subpart 1.07 regulations an appropriate model

for hearing procedures. These Coast Guard procedures were found to

satisfy due process under the Constitution in U.S. v. Independent Bulk

Transport, 480 F. Supp. 474 (1979).

The part 28 regulations were used as a model for the following

major provisions of the proposed part 59 hearing procedures: the

Presiding Officer's duties and responsibilities; consent orders;

prehearing conference; information exchange; post-hearing submissions;

and review of the Regional Administrator's decision by the

Environmental Appeals Board.

The subpart 1.07 regulations were used as a model for the following

provisions: certain preliminary matters; confidential business

information; hearing procedures; and the scope of the Regional

Administrator's authority for issuing a decision.

The relevant part 28 provisions were selected to ensure fundamental

fairness while streamlining the procedures available to Respondents.

The Presiding Officer under part 28 is authorized to exercise a great

deal of discretion to expedite the presentation of evidence in

administrative cases. In that regard, the most pertinent authority

adopted from the part 28 regulations allows the Presiding Officer to

limit the number of witnesses and the extent of direct examination and

cross-examination.

The provisions adopted from subpart 1.07 further streamline the

administrative process for penalty assessment, while guaranteeing

fundamental rights. The Respondent is allowed under subpart 1.07 to

submit written arguments and evidence in lieu of requesting a hearing.

Such response allows the Presiding Officer to make a determination on

the administrative record without the delays inherent in conducting the

prehearing conference, information exchange, and hearing.

Additionally, the subpart 1.07 provisions allow the Presiding

Officer to determine the appropriate form of testimony: oral; written;

or recorded. Subpart 1.07 also simplifies the hearing process by

allowing the Respondent to present facts, statements, documents and

other relevant evidence. The relatively informal nature of the

proceeding provides the opportunity for expedited penalty assessment.

Proposed Hearing Procedures

Under proposed part 59, the field citation would be issued during

or shortly after an inspection by an EPA officer or employee. The

citation is subsequently served upon the Respondent by first class mail

or equivalent. Within thirty days after service of the citation, the

Respondent must either request a hearing; provide written evidence and

arguments in lieu of a hearing; or pay the penalty.

If the Respondent fails either to request a hearing or to submit

evidence in lieu of a hearing, he would be in default under section

113(d)(3) of the Act. That section states that the penalty assessed by

the field citation becomes final where the Respondent fails to request

a hearing within the time required by the implementing regulation. In

the case of a Respondent's default by failure to request a hearing,

Agency counsel is required under this proposal to file, within ten

days, a written justification for the penalty imposed by the field

citation.

At any time prior to final Agency action, a disputed field citation

may be settled by a consent order. The consent order may conclude the

citation in whole or in part, and may contain conditions. Upon service,

the consent order constitutes a final order that is not appealable.

Additionally, the field citation may be revoked by the Agency, in whole

or in part and without prejudice, prior to payment of the penalty.

Under the proposed part 59 procedures, the prehearing conference is

optional. The purposes of the conference, which must be held no later

than thirty days after the Respondent's response, are to simplify

issues and to attempt to reach stipulations of fact. The Presiding

Officer may also set the time and place for the hearing and schedule an

information exchange during the prehearing conference. Within twenty

days following the prehearing conference, the Presiding Officer may

issue a written prehearing order to memorialize the rulings made at the

conference.

Each party has the authority to require that the other provide it

with certain information. The information that may be exchanged is

limited to: (1) Documents intended to be introduced at the hearing that

have not already been filed with the Hearing Clerk; (2) witness lists,

qualifications of expert witnesses and the subject matter of intended

witness testimony; and (3) information known to the Respondent relating

to the Respondent's inability to pay a civil penalty, economic benefit

of noncompliance; and good faith efforts to comply with the applicable

Clean Air Act requirements.

The hearings on field citations will be conducted by an impartial

Presiding Officer who, in most cases, will be the Judicial Officer or

the Regional Judicial Officer. Such Judicial Officer will be an Agency

employee who may perform other functions within the Agency, but who has

no prior connection with the case being presided over.

The Presiding Officer and other officials involved in deciding the

case are prohibited under today's rule from engaging in ex parte

contacts with interested parties both inside and outside of the Agency.

The prohibition applies to the Regional Administrator as well as to his

advisors.

The Presiding Officer is required to schedule a hearing

expeditiously. An extension of time for scheduling the hearing is only

authorized for good cause and if no prejudice results.

The hearing procedures provide that the Respondent may be

represented by counsel. The Agency representative initiates the hearing

by introducing into evidence the field citation and the relevant

material supporting its issuance. The Respondent or his counsel may

then provide facts, statements, arguments, documents, testimony and

other exculpatory evidence responding to the evidence presented.

Although the Presiding Officer may limit the number of witnesses and

determine the appropriate form of testimony, either party has the right

to cross-examine a witness who has provided direct testimony. The

opportunity for rebuttal, and response to rebuttal, falls within the

Presiding Officer's discretion.

Consistent with the informal nature of the proceedings, the

Presiding Officer is not bound by the Federal Rules of Evidence. The

Presiding Officer is, however, authorized to take administrative notice

of pertinent matters.

Section 113(e) of the Act contains criteria that must be used in

assessing whether the field citation penalty is appropriate. Under

today's proposal, the Presiding Officer is required to consider these

criteria when reviewing the assessed penalty. Those criteria include:

The size of the business; the economic impact of the penalty on the

business; the Respondent's full compliance history; the Respondent's

good faith efforts to comply; the duration of the violation as

established by any credible evidence; payment by the Respondent of

penalties previously assessed for the same violation; the economic

benefit of noncompliance; the seriousness of the violation; and such

other factors as justice may require. Some or all of these criteria may

be relevant to the issues presented in the case before the Presiding

Officer. The burden of proof with respect to these criteria is assigned

to the party with access to information concerning the particular

factor. Consequently, the Agency must provide evidence regarding the

duration and seriousness of the violation, and the Respondent must

provide evidence regarding the other criteria.

EPA is considering adopting a similar approach where the penalty

assessment becomes final under section 113(d)(3) of the Act because a

respondent fails either to request a hearing or submit evidence in lieu

of a hearing within the time required by the regulations. When such a

default occurs, the penalty assessed by the field citation becomes

final by operation of section 113(d)(3). As previously discussed, under

the proposed procedures, Agency counsel would then submit a written

justification for the record concerning the amount of the assessed

penalty. EPA is considering adopting a regulatory presumption that in

cases of such default the penalty assessed in the field citation would

be presumed to be appropriate with respect to those penalty assessment

criteria where the regulations would place the burden of going forward

on the respondent if a hearing had been requested. The purpose of this

presumption would be to clarify the requirements of section 113(e) in

such a default situation, and at the same time, reflect the authority

of the agency to establish reasonable presumptions based on the

circumstances of a case.

The hearing will normally be tape recorded, unless the parties

decide otherwise in the interests of preventing a serious delay in the

proceedings. Tape recording the proceedings is desirable to develop a

clear administrative record for later review. Transcription of the

proceedings is not required, but may be made by a party, at its own

expense, or may be ordered by the Presiding Officer. Any party causing

a transcript to be made must provide copies to the other party and to

the Presiding Officer. The transcript then becomes a part of the

administrative record.

The parties are permitted to submit a written statement for the

Presiding Officer's consideration within a reasonable time after the

hearing. The written statements, which may only address matters raised

at the hearing, may be in the form of proposed findings of fact and

conclusions of law.

As soon as practicable after the hearing, the Presiding Officer is

required to prepare a recommended decision in the case based on

substantial evidence in the administrative record as a whole. The

recommended decision will recommend either that the field citation be

affirmed, modified or withdrawn. The recommended decision must be filed

with the Regional Administrator. Within a reasonable time after receipt

of the recommended decision, the Regional Administrator may either

affirm, reverse, modify or remand the case to the Presiding Officer for

further proceedings. The Regional Administrator may compromise, modify,

or remit the penalty assessed by the field citation, with or without

conditions.

The Regional Administrator must provide the legal and factual basis

for any modification of the recommended decision. Withdrawal of the

penalty assessment, which does not constitute final Agency action,

occurs without prejudice to the Agency.

Any order issued by the Regional Administrator becomes effective

thirty days after issuance, unless either the Environmental Appeals

Board (the Board) suspends the implementation of the order pursuant to

its sua sponte review authority, or a judicial appeal is taken pursuant

to section 113(d)(4) of the Act.

The Board, on behalf of the Administrator, is authorized to review

the decisions of Regional Administrators, sua sponte, on issues of law.

The Board may not review fact-finding; second guess the penalty amount

issued by the Regional Administrator; or overturn orders issued on

consent.

The Board may withdraw a Regional Administrator's order if it

determines that the Agency lacks jurisdiction to assess a penalty, or

if it determines that the Respondent is not liable under applicable

law. The Board shall remand an administrative order if it determines

that elements of the Respondent's liability are different from those

found by the Regional Administrator. Under such a remand, the remedy

should be conformed to the amended conclusions of law. The order shall

also be remanded if the Board finds that the order fails to provide

clear reasons for the decision. The Board shall allow the Regional

Administrator's order to issue unchanged if it finds that the order is

legally sufficient and it agrees with all material conclusions of law.

Within thirty days after the penalty assessment becomes final, the

Respondent may appeal to the appropriate United States District Court.

Procedural Due Process

As noted previously, Mathews v. Eldridge requires consideration of

three factors in evaluating whether the proposed administrative

procedures satisfy the Fifth Amendment's due process requirements. The

relevant factors are: (1) The private interest that will be affected;

(2) the risk of an erroneous deprivation of this interest and the

probable value, if any, of additional or substitute procedural

safeguards; and (3) the Government's interest including the function

involved and the fiscal or administrative burdens that the additional

procedural requirements would entail.

The private interest at stake is payment of a civil penalty. The

maximum amount that may be assessed, $5,000 per day of violation, is

significantly less than the penalty that may be assessed under the

other civil penalty authorities in the Act. In addition, EPA's proposed

rules would establish a maximum amount that might be assessed in any

one citation. It is also expected that the actual penalties assessed

per violation will generally be less than the statutory maximum. The

circumstances expected in the great majority of cases is a proper focus

for assessing due process concerns. Chemical Waste Management, Inc. v.

U.S.E.P.A., 873 F.2d 1477, 1484 (D.C. Cir. 1989). In addition, the

straightforward and simple hearing procedures proposed would minimize

the cost for private parties to contest assessment of a field citation.

The procedures proposed in this third option should minimize the

risk of an erroneous deprivation of property. Under the proposed rules,

a respondent would be served with a citation that clearly identified

the alleged violation and provided a reasonable opportunity to request

a hearing. If a hearing was requested, it would be presided over by a

neutral agency official that had no prior connection with the action,

including investigative or prosecutorial functions. The Presiding

Officer also would have no interest in the outcome of the action. This

offers the respondent a hearing before a neutral and unbiased tribunal,

and clearly minimizes any risk of error from institutional or other

bias.

The parties have the right to discover, before the hearing, all the

information necessary to provide for a fair and adequate hearing.

Parties may obtain the names of all witnesses that will be presented,

along with a brief description of the witnesses qualifications and the

subject matter of the testimony, and they may obtain each document that

will be introduced by the other party. Since the violations involved

will be minor in nature and are expected to typically involve simple

and straightforward factual and legal circumstances, this should

provide a respondent with all the information needed to adequately

contest a citation. In addition, the citation would typically have been

issued immediately upon or shortly after the violation is detected,

providing respondents with ample opportunity to investigate the

circumstances of an alleged violation. In these circumstances,

additional discovery would not be expected to significantly advance the

accuracy of the final decision.

The hearing allowed under the proposed rules would provide

respondents with several options in presenting relevant evidence,

limited by the authority of the Presiding Officer to determine the

manner of testimony that is most efficient in resolving an issue.

Written and oral testimony are both acceptable, as well as testimony

provided by other means. Respondents may offer any facts, statements,

explanations, documents, testimony or other exculpatory evidence that

is relevant to issues at the hearing. A right of cross-examination is

provided, although EPA is considering limiting cross-examination to

situations determined appropriate by the Presiding Officer. This form

of hearing clearly meets the requirements of section 113(d)(3), and

provides respondents with a fair opportunity to present evidence and

argument on relevant issues. Given the simple and straightforward

nature of the minor violations expected in the program, additional

procedures would not significantly reduce the risk of an erroneous

imposition of a civil penalty. A right to cross-examine witnesses, as

compared to limiting cross examination to situations where deemed

appropriate by the Presiding Officer, would allow for additional cross-

examination only where the Presiding Officer, a neutral official, had

already determined it was inappropriate. A right to cross-examination

would increase the accuracy of the hearing only in those limited cases

where a Presiding Officer had mistakenly denied crossexamination. EPA

expects this kind of mistake would occur infrequently, and a right to

cross-examine, therefore, would not significantly increase the accuracy

of the proceedings in the great bulk of cases.

The Presiding Officer is afforded substantial discretion to tailor

the hearing procedures to the individual facts and circumstances of

each case. The Presiding Officer, may, for example, hold prehearing

conferences, regulate the course of the hearing, including the form and

extent of testimony and crossexamination, take official notice of

matters, and request a written statement from the parties post-hearing.

This flexibility should increase the accuracy of the proceedings, and

reduce the value of mandating additional procedures. See Chemical Waste

Management, 873 F.2d at 1483.

After the hearing, parties may submit written statements to the

Presiding Officer, such as recommended findings of fact and conclusions

of law, at the discretion of the Presiding Officer. The Presiding

Officer then prepares and transmits a recommended decision that is

forwarded to the Regional Administrator for issuance of a final

decision. There is no administrative appeal to the Administrator,

except the Board may review a decision sua sponte. This provides for at

least one level of review above the Presiding Officer, and in some

cases a second level of review by the Board, establishing a clear

mechanism to correct potential errors in the recommended decision. It

should also promote consistency within a region, as well as national

consistency if and when issues of national importance arise.\12\

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\12\Given the minor nature of the violations at issue, EPA

rarely expects review by the Board.

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Additional procedures, such as a right to comment on the

recommended decision, would not significantly add to the accuracy of

these procedures. Respondents would already have had a full opportunity

to present their position on the issues at the hearing, and could

submit proposed findings and conclusions at the request of the

Presiding Officer. All of this would be in the administrative record,

and available to the Regional Administrator. Additional right to

comment would not be expected to be of significant benefit, given the

minor nature of the factual and legal issues involved.

The government's primary interest, as previously described, is to

implement an effective citation program without an unnecessary drain on

limited enforcement resources. An effective program calls for issuance

of a citation immediately or shortly after detection of a violation,

with a final resolution accomplished shortly after issuance of the

citation. This will maximize the deterrent effect of the field citation

program, and minimize the amount of resources necessary to achieve this

goal. The proposed hearing procedures meet these objectives by using

simplified and streamlined procedures, with a relatively limited time

needed to complete all procedures necessary to a final decision on

assessment of a penalty.

Since the field citation program fills a gap in EPA's enforcement

program, it is reasonable to expect that a large number of citations

will be issued in each region, addressing simple, easy to prove

violations and assessing small monetary penalties. While the nature of

the violations and the penalty should act to limit the number of

hearings requested by respondents, it is reasonable to expect that a

significant number of hearings may be requested if EPA issues a large

number of citations. In that context, any additional procedures run the

risk of significantly increasing the administrative burden and length

of field citation proceedings. This could quickly make the program

inefficient and a drain on government resources, given the small

potential penalties and the limited environmental concerns involved for

most minor violations.

EPA believes the proposed part 59 procedures faithfully implement

Congressional intent for the field citation program, and satisfy

procedural due process concerns. This belief is bolstered by judicial

acceptance of similar procedures in a variety of related situations.

See Chemical Waste Management, Inc. (court upheld EPA's non-APA hearing

procedures for issuance of administrative orders concerning corrective

action orders under section 3008(h) of RCRA); United States v.

Independent Bulk Transport, Inc., 480 F. Supp. 474 (S.D. NY 1979)

(court upheld non-APA hearing held by Coast Guard in assessing less

than the maximum $5,000 civil penalty per unlawful discharge under the

Federal Water Pollution Control Act).

H. Design of Field Citations

Field citations will be of a standardized format nationwide, and

will be issued in triplicate. The following information shall be

included on the field citation:

(1) Date and time of violation(s);

(2) Inspector's name, title, and office;

(3) Name and address of source;

(4) Name and telephone number of owner/operator or his/her

representative;

(5) Specific violation(s);

(6) Location/source/description of violation(s);

(7) Proposed penalty;

(8) Notification of the 30-day deadline to either pay the penalty

or request a hearing;

(9) Address to which payment must be sent;

(10) Address to which a request for a hearing must be sent;

(11) Inspector's signature;

(12) Space for signature indicating receipt; and

(13) Citation number.

The actual format of the citation will be published in the Agency's

guidance document.

V. Section-by-Section Analysis

A. Section 59.1 Purpose and Scope

This section of the proposed rule states EPA's authority to develop

a field citation program and explains that procedures developed in this

part will be used in administering the field citation program. The

section acknowledges the twin goals of the field citation program:

ensuring compliance with the Act and providing for expedited

enforcement.

B. Section 59.2 Use of Number and Gender

This section clarifies that words in the singular also include the

plural, and those in the masculine gender also include the feminine,

and vice versa.

C. Section 59.3 Computation of Time

This section provides that any time period specified in these rules

shall begin the day following the event from which the period begins,

and shall include Saturdays, Sundays, and Federal legal holidays.

D. Section 59.4 Definitions

This section provides definitions of terms used in part 59.

E. Section 59.5 Determination of Minor Violation and Maximum Proposed

Penalty

This section describes the process that will be used to determine

whether a violation is minor. Each violation will be evaluated

according to the proposed list of factors provided. A violation will be

determined as minor through evaluation of the factors, considered as a

whole.

Criminal violations will not be addressed under the field citations

program. Criminal enforcement action may be pursued for the violations

described in section 113(c). These violations include ``knowing''

violations such as knowing endangerment, in which a person knowingly

releases a hazardous air pollutant, with the knowledge that the release

is placing another person in imminent danger of death or serious bodily

injury.

This section also provides the proposed maximum civil penalty for a

minor violation as $5,000 per day of violation, and defines a field

citation's total proposed penalty as the sum of each individual minor

violation's proposed penalty.

Subpart B--Rules Governing Hearings on Field Citations

F. Section 59.6 Scope of These Rules

This section outlines the purpose of Subpart B, which is to

establish streamlined administrative procedures for conducting hearings

under section Sec. 113(d)(3) of the Act.

G. Section 59.7 Issuance and Service of Field Citations

This section describes who may issue field citations and what

should be contained therein. The section also details requirements for

service of a field citation. The statute limits the authority to issue

field citations to EPA officers or employees.

H. Section 59.8 Presiding Officer

This section describes the role and responsibilities of the

Presiding Officer. There are no specific qualification requirements

except that the Presiding Officer be neutral to the controversy. In

most cases the Presiding Officer will be the Regional Judicial Officer.

The Presiding Officer is authorized to take certain actions, but also

must abide by the limitations imposed under subsection (c).

I. Section 59.9 Hearing Clerk

This section describes the role and responsibilities of the Hearing

Clerk, who shall be designated by the Regional Administrator.

J. Section 59.10 Representation by Counsel

This section outlines a respondent's right to be represented by

counsel. Following notification of such representation, all further

notification shall be directed to that counsel.

K. Section 59.11 Preliminary Matters

This section describes the process by which a hearing is requested

and scheduled. It also details the Presiding Officer's discretion in

granting delays, continuances, and permission to amend a response or

raise new issues prior to a scheduled hearing.

L. Section 59.12 Revocation of Field Citation

This section sets forth the Agency's authority to revoke a field

citation, in whole or in part, at any time before the penalty amount

becomes final.

M. Section 59.13 Request for Confidential Treatment

This section describes the basis for, and procedure by which a

respondent may request confidential treatment of a document or portion

thereof.

N. Section 59.14 Consent Agreements and Consent Orders

This section outlines the basis for a consent agreement, through

which the Agency and the respondent formally agree to a civil penalty,

with or without conditions. Thereafter, the Presiding Officer shall

enter a consent order in accordance with the terms of the consent

agreement. The consent order may be filed at any time prior to final

Agency action, and constitutes a final order that may not be appealed.

O. Section 59.15 Prehearing Conference

This section provides the Presiding Officer with the discretion to

conduct a prehearing conference, and sets forth matters appropriate for

discussion during such conference.

P. Section 59.16 Information Exchange

This section outlines the responsibilities of each party, both in

serving information requests and in providing information requested by

the other party. The exchange of information shall proceed according to

the schedule established by the Presiding Officer.

Q. Section 59.17 Subpoenas

This section establishes the Presiding Officer's right to subpoena

the testimony of witnesses or the production of documents, or both, and

establishes the manner by which subpoenas shall be served.

R. Section 59.18 Hearing Procedures

This section outlines the basic requirements for the conduct of the

proceeding. It also establishes the rights and responsibilities of the

Presiding Officer and of each party in presenting or receiving

evidence, testimony, responses and rebuttals. Either party has the

right to cross-examine any witness who has provided direct testimony,

however, such crossexamination is limited to the issues presented in

direct testimony. The overall format for the proceeding is informal,

and the Presiding Officer has the discretion to offer opportunities for

rebuttal and response to rebuttal.

S. Section 59.19 Penalty Assessment Criteria

This section establishes the criteria which shall be considered by

the Presiding Officer in reviewing the penalty amount requested by the

field citation, and assigns the burden of proof for each criterion

either to the Respondent or to the Agency.

T. Section 59.20 Transcript or Recording of Hearing

This section provides that all hearings will be tape recorded

unless both parties agree and the Presiding Officer directs otherwise.

A verbatim transcript will not normally be prepared, however, this

section outlines the requirements and procedure to be followed if

either party or the Presiding Officer should specially request that

such a transcript be prepared.

U. Section 59.21 Post-Hearing Submissions

The Presiding Officer may request a written statement from each

party following the conclusion of the hearing. Such statements are

limited to those matters raised at the hearing.

V. Section 59.22 Recommended Decision

This section describes the procedural requirements for preparing,

transmitting, and filing a recommended decision.

W. Section 59.23 Decision of the Regional Administrator

The Regional Administrator must issue a final decision that either

affirms, reverses, or modifies the recommended decision, or remands the

case to the Presiding Officer for further proceedings. This section

describes the procedures the Regional Administrator shall follow in

concluding actions taken under this part. The Regional Administrator's

decision must be based on applicable law and the administrative record,

which includes the recommended decision of the Presiding Officer. The

final decision becomes effective thirty days following the date of

issuance.

X. Section 59.24 Sua Sponte Review

This section describes the role of the Environmental Appeals Board

in reviewing the Regional Administrator's decision. The thirty-day

period for this review coincides with the thirty-day period before a

final decision becomes effective.

Y. Section 59.25 Payment of Assessed Penalty

This section outlines the deadline and method of payment for civil

penalties assessed pursuant to this part.

VI. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been

determined that this rule is a ``significant regulatory action.'' As

such, this action was submitted to OMB for review. Changes made in

response to OMB suggestions or recommendations will be documented in

the public record.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,

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 that

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 impact on a substantial number of small entities. In such

circumstances, a regulatory flexibility analysis is not required. The

expected impact of this proposed rule is negligible. The rule creates

no new requirements, small or large, and is procedural in nature.

Accordingly, I hereby certify that these proposed regulations will not

have a significant impact on a substantial number of small entities.

These regulations, therefore, do not require a regulatory flexibility

analysis.

C. Paperwork Reduction Act

These proposed 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 59

Environmental protection, Administrative practice and procedure,

Air pollution control, Labeling, Penalties, Reporting and recordkeeping

requirements.

Dated: April 15, 1994.

Carol M. Browner,

Administrator.

Part 59 is proposed to be added to 40 CFR chapter I to read as

follows:

PART 59--FIELD CITATION PROGRAM

Subpart A--Scope of Program

Sec.

59.1 Purpose and scope.

59.2 Use of number and gender.

59.3 Computation of time.

59.4 Definitions.

59.5 Determination of minor violation and maximum proposed penalty.

Subpart B--Rules Governing Hearings on Field Citations

59.6 Scope of these rules.

59.7 Issuance and service of field citations.

59.8 Presiding officer.

59.9 Hearing clerk.

59.10 Representation by counsel.

59.11 Preliminary matters.

59.12 Revocation of field citation.

59.13 Request for confidential treatment.

59.14 Consent agreements and consent orders.

59.15 Prehearing conference.

59.16 Information exchange.

59.17 Subpoenas.

59.18 Hearing procedures.

59.19 Penalty assessment criteria.

59.20 Transcript or recording of hearing.

59.21 Post-hearing submissions.

59.22 Recommended decision.

59.23 Decision of the regional administrator.

59.24 Sua Sponte review.

59.25 Payment of assessed penalty.

Authority: 42 U.S.C. 7413(d).

Subpart A--Scope of Program

Sec. 59.1 Purpose and scope.

Section 113(d)(3) of the Clean Air Act (42 U.S.C. 7413(d))

authorizes EPA to implement a field citation program. The regulations

in this part establish the standards and procedures which will apply to

all field citations issued by EPA under this authority. The field

citation program is designed both to deter minor violations of the Act

and to expedite enforcement against such violations.

Sec. 59.2 Use of number and gender.

As used in this part, words in the singular also include the plural

and words in the masculine gender also include the feminine and vice

versa, as the case may require.

Sec. 59.3 Computation of time.

In computing any period of time prescribed or allowed in this part,

except as otherwise provided, the day of the event from which the

designated period begins to run shall not be included. Saturdays,

Sundays, and Federal legal holidays shall be included. When a stated

time expires on a Saturday, Sunday or legal holiday, the stated time

period shall be extended to include the next business day.

Sec. 59.4 Definitions.

In this part:

(a) Act means the Clean Air Act, as amended (42 U.S.C. 7401 et

seq.).

(b) Agency or ``EPA'' means the United States Environmental

Protection Agency.

(c) Administrator means the Administrator of the United States

Environmental Protection Agency, or the Administrator's delegate.

(d) Complainant means the Agency, acting through any Agency

employee authorized by the Administrator to initiate an action under

this Part, or authorized to conclude such an action, in whole or in

part, upon consent.

(e) Consent agreement means a written agreement executed by

Complainant and Respondent, consisting of:

(1) Stipulations by the parties establishing subject matter

jurisdiction;

(2) An admission by Respondent that it had violated the Act as

alleged in the field citation or a statement by Respondent that it

neither admits nor denies such violation; and

(3) Agreement as to the assessment of a stated civil penalty, with

or without conditions.

(f) Consent order means an order entered by the Presiding Officer

in accordance with the consent agreement of the parties.

(g) Field citation means an administrative complaint which is

issued by the complainant as a document that:

(1) Names one or more respondents;

(2) Alleges one or more minor violations of applicable law, stating

with reasonable specificity the nature of the alleged violations; and

(3) Proposes that a penalty be assessed upon the respondent as

authorized by applicable law.

(h) Hearing clerk means the person authorized by the Administrator

or Regional Administrator to serve as hearing clerk.

(i) Minor violation means a violation which is:

(1) Minor in nature as determined by one or more relevant factors

listed in Sec. 59.5(a) and

(2) Addressed by the Agency as a minor violation.

(j) Penalty means the civil penalty assessed against a respondent

under this part for one or more minor violations of the Act.

(k) Presiding officer means the person designated by the

Administrator or Regional Administrator to preside at hearings

conducted under this part.

(l) Regional Administrator means the Administrator of the Regional

Office of the EPA Region in which the alleged violation occurred, or

any officer or employee thereof to whom his authority has been duly

delegated.

(m) Respondent means any person named in the field citation.

Sec. 59.5 Determination of minor violation and maximum proposed

penalty.

(a) The following factors shall be considered in determining

whether a violation is minor under the Act:

(1) Whether the violation is readily recognizable;

(2) Risk of environmental harm;

(3) Time required to correct the violation;

(4) Effort required to correct the violation;

(5) Expense required to correct the violation;

(6) Frequency of the violation;

(7) Duration of the violation;

(8) Importance of the violated requirement to the specific program;

and

(9) Other factors as appropriate.

Criminal violations shall not be addressed through issuance of

field citations.

(b) The maximum civil penalty which may be proposed for each minor

violation shall not exceed $5,000 per day for each violation. The total

cumulative penalty proposed in a field citation is the sum of the

proposed penalties corresponding to each minor violation alleged in the

field citation. The maximum cumulative penalty which may be proposed in

any single field citation is (insert dollar amount from $15,000 to

$25,000).

Subpart B--Rules Governing Hearings on Field Citations

Sec. 59.6 Scope of these rules.

This subpart sets forth procedures for the issuance of field

citations and for the administration of administrative hearings on

field citations under section 113(d)(3) of the Act.

Sec. 59.7 Issuance and service of field citations.

(a) A field citation may be issued by the complainant to any person

for any minor violation of the Act or for any minor violation of any

regulations promulgated under the Act.

(b) A field citation shall list:

(1) Each alleged minor violation;

(2) The penalty amount proposed for each violation;

(3) The total proposed penalty amount; and

(4) The address of the Regional office issuing the field citation;

the address of the Federal repository to which payment of the proposed

penalty may be sent; and the address of the Hearing Clerk to whom a

request for a hearing shall be submitted.

(c) A field citation shall be served on the respondent personally

or by certified mail, return receipt requested (or any other manner of

service that is no less speedy and reliable), with an attached

certificate of service. Service upon a corporation, partnership or

other unincorporated association shall be made personally, or by

certified mail, return receipt requested (or by any other manner of

service that is no less speedy and reliable), directed to an officer,

partner, managing or general agent, or to any person authorized by

appointment or by federal or State law to receive service of process.

Service upon a federal agency, State or municipal government, State or

municipal agency or other instrumentality thereof shall be made in the

manner prescribed by the applicable law for service of process.

(d) Proof of service of the field citation shall be made by

affidavit of the person making personal service, or by properly

executed return receipt, and shall be filed with the Hearing Clerk.

Sec. 59.8 Presiding officer.

(a) The Presiding Officer shall have the authority to:

(1) Issue subpoenas pursuant to Sec. 59.17 for the attendance and

testimony of witnesses and for the production of relevant information

and documents.

(2) Issue or modify a prehearing order pursuant to Sec. 59.15(c);

(3) Schedule and further limit the information exchange pursuant to

Sec. 59.16;

(4) Impose sanctions pursuant to Sec. 59.16 or to aid in the

maintenance of order and the efficient and impartial administration of

justice; and

(5) Certify the administrative record and set forth and transmit a

recommended decision pursuant to Sec. 59.22.

(b) The Presiding Officer shall, in a timely fashion:

(1) Carry out his duties as required by this part;

(2) Oversee and direct the activities of the Hearing Clerk in an

action under this part;

(3) Schedule activities of the parties pursuant to the requirements

of this part; and

(4) Take any other action necessary for the maintenance of order

and for the efficient and impartial adjudication of allegations arising

in an action under this part.

(c) The Presiding Officer shall not:

(1) Have any prior connection with the action before him, including

the performance or supervision of investigative or prosecutorial

functions;

(2) Have any interest in the outcome of the action;

(3) Grant an extension, delay or continuance to a party based on a

party's request for information pursuant to law outside the scope of

this part;

(4) Allow the introduction of any document or testimony into the

administrative record relating to settlement of the instant action; or

(5) Dismiss the field citation.

Sec. 59.9 Hearing clerk.

The Regional Administrator shall designate a Hearing Clerk. After

the filing of a field citation by the Complainant with the Regional

Hearing Clerk, the Hearing Clerk shall:

(a) Timely notify each party in writing of the name of the

Presiding Officer designated to preside over the case;

(b) Record the date of receipt of each document received regarding

the action;

(c) Timely notify the Presiding Officer of the receipt of any

document filed with the Clerk by either party;

(d) Perform such other functions as required by the Presiding

Officer to assist him in carrying out his responsibilities under this

part; and

(e) Perform such ministerial and clerical functions as required by

the Regional Administrator or by the Environmental Appeals Board to

assist each in carrying out its responsibilities under this part.

Sec. 59.10 Representation by counsel.

The respondent has the right to be represented at all stages of the

proceedings by counsel. Following notification that a respondent is

represented by counsel, all further communications regarding the

proceedings shall be directed to that counsel.

Sec. 59.11 Preliminary matters.

(a) Within 30 days after receipt of the field citation, the

respondent, or counsel for the respondent, may:

(1) Request a hearing;

(2) Provide any written evidence and arguments in lieu of a

hearing; or

(3) Pay the penalty proposed in the citation. A hearing must be

requested in writing and must specify the issues which are in dispute.

Any request for hearing shall be filed with the Hearing Clerk.

(b) The right to a hearing is waived if the respondent fails to

submit the request to the Hearing Clerk within thirty (30) days after

service of the field citation.

(c) If the respondent fails to respond to the field citation in

accordance with the provisions of this section, the penalty proposed in

the field citation shall be final and immediately payable. The Agency

shall file with the Hearing Clerk, no later than ten (10) days

following the respondent's failure to respond, a written explanation

supporting the penalty amount requested by the field citation.

(d) The Presiding Officer shall promptly schedule all hearings. The

Presiding Officer shall grant such delays or continuances as may be

necessary or desirable in the interest of fairly resolving the case.

(e) The respondent may amend the response no later than ten (10)

days prior to the scheduled hearing date. Issues raised later than ten

(10) days before the scheduled hearing may be presented only at the

discretion of the Presiding Officer.

Sec. 59.12 Revocation of field citation.

At any time before the penalty proposed by the field citation

becomes final, the Complainant may revoke the field citation, in whole

or in part, without prejudice.

Sec. 59.13 Request for confidential treatment.

(a) A request for confidential treatment of a document or portion

thereof may be made by the respondent on the basis that the information

is:

(1) Confidential financial information, trade secrets, or other

material exempt from disclosure by the Freedom of Information Act (5

U.S.C. 552);

(2) Required to be held in confidence by 18 U.S.C. 1905; or

(3) Otherwise exempt by law from disclosure.

(b) The respondent must submit the request for confidential

treatment to the Presiding Officer in writing and must state the

reasons justifying nondisclosure. Failure to make a timely request may

result in a document being considered as nonconfidential and subject to

release.

Sec. 59.14 Consent agreements and consent orders.

(a) At any time before final Agency action, the complainant and the

respondent may settle an action, in whole or in part, by agreeing upon

a civil penalty, with or without conditions. The parties shall

memorialize such an agreement in the form of a consent agreement. The

Presiding Officer shall thereafter enter a consent order in accordance

with the terms of the consent agreement. Such consent order may not be

appealed to federal court by either party.

(b) If the filing of the consent order with the Hearing Clerk

pursuant to paragraph (a) of this section does not wholly conclude the

action, the Presiding Officer shall promptly inform the parties of the

schedule of the remaining proceedings.

Sec. 59.15 Prehearing conference.

(a) Within thirty (30) days following receipt of the respondent's

response to the field citation, the Presiding Officer may, in his

discretion, hold a prehearing conference. The Presiding Officer may

conduct the conference in person or by telephone.

(b) At the prehearing conference, the Presiding Officer:

(1) May attempt to simplify issues and assist the parties in

reaching a stipulation as to facts that are not in dispute;

(2) May, upon request of either party, schedule an exchange of

information in accordance with Sec. 59.16;

(3) Shall establish a time and place for the hearing; and

(4) May discuss other appropriate matters.

(c) The Presiding Officer may issue a prehearing order to the

parties, no later than twenty (20) days following the conference, which

memorializes the rulings of the Presiding Officer made at the

prehearing conference.

Sec. 59.16 Information exchange.

(a) Subject to any limitation imposed by the Presiding Officer in a

prehearing order issued pursuant to Sec. 59.15(c) each party shall

provide, in writing, the following information:

(1) The name of each witness it intends to present at the hearing

and the subject matter of the intended testimony; and

(2) Each document it intends to introduce at the hearing.

(b) The respondent shall provide the following information in

writing, to the Agency:

(1) If the respondent contends that it is unable to pay the

proposed penalty, the respondent shall submit financial information in

support of such claim, including, but not limited to, complete copies

of its federal income tax returns for the previous three years;

(2) The respondent's net profits, delayed or avoided costs, or any

other form of economic benefit resulting from any activity or failure

to act by the respondent which is alleged in the field citation; and

(3) The respondent's good faith efforts to comply with the

applicable Clean Air Act requirements.

(c) The parties shall conduct the exchange of information according

to the schedule established by the Presiding Officer pursuant to

Sec. 59.15(c).

(d) Each party shall file its information exchange with the Hearing

Clerk and shall simultaneously serve copies thereof personally or by

certified mail (or any other manner of service that is no less speedy

and reliable), with an attached certificate of service, upon the other

party and the Presiding Officer.

(e) The Presiding Officer has the discretion to impose on any party

that fails to comply with the requirements of this section any sanction

that is just and proper.

Sec. 59.17 Subpoenas.

(a) The Presiding Officer may, on his own initiative or at the

request of either party, subpoena the testimony of witnesses or the

production of documents, or both, for a hearing conducted pursuant to

Sec. 59.16.

(b) The Presiding Officer shall serve the subpoena upon its

recipient in the manner prescribed for the service of a field citation

pursuant to Sec. 59.7(d).

(c) The Presiding Officer shall file a copy of the subpoena with

the Hearing Clerk.

Sec. 59.18 Hearing procedures.

(a) The Presiding Officer shall conduct a fair and impartial

proceeding in which each party has a reasonable opportunity to be heard

and to present evidence. Each witness shall testify in the form

determined by the Presiding Officer to be most efficient in resolving

an issue. Forms of testimony include oral testimony provided in person

or by other means, and written or otherwise recorded testimony. The

Presiding Officer may limit the number of witnesses and the scope and

extent of any direct examination or cross-examination as necessary to

protect the interests of justice and conduct a reasonably expeditious

hearing.

(b) The Agency representative shall present the field citation and

the evidence supporting its issuance, and any other material that is

pertinent to the issues to be determined by the Presiding Officer. The

respondent has the right to examine, and to respond to or rebut, the

field citation and any proffered evidence and material. The respondent

may offer any facts, documents, testimony or other exculpatory evidence

which bears on appropriate issues, or which may be relevant to the size

of an appropriate penalty. Any opposing party has a right of

crossexamination after the introduction of a witness' direct testimony.

A party shall not cross-examine regarding a matter that is outside of

the scope of the direct examination. The Presiding Officer may require

the authentication of any written exhibit or statement.

(c) At the close of the respondent's presentation of evidence, the

Presiding Officer may allow the introduction of rebuttal evidence by

the Agency representative. The Presiding Officer may allow the

respondent to respond to any such evidence submitted by the Agency.

(d) In receiving evidence, the Presiding Officer is not bound by

the Federal Rules of Evidence. In evaluating the evidence presented,

the Presiding Officer shall give due consideration to the reliability

and relevance of each item of evidence.

(e) The Presiding Officer may take notice of matters which are not

subject to reasonable dispute and are commonly known in the community,

or are capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned. Prior to taking notice

of a matter, the Presiding Officer shall give each party an opportunity

to show why notice should not be taken. In any case in which notice is

taken, the Presiding Officer shall place in the record a written

statement of the matter as to which notice was taken with the basis for

such notice, including either a statement that the parties consented to

notice being taken or a summary of any party's objections.

Sec. 59.19 Penalty assessment criteria.

(a) The Presiding Officer shall consider the following criteria in

reviewing the penalty proposed in the field citation:

(1) The size of the business;

(2) The economic impact of the penalty on the business;

(3) The respondent's full compliance history, and good faith

efforts by the respondent to comply;

(4) The duration of the violation as established by any credible

evidence (including evidence other than the applicable test method);

(5) Payment by the respondent of penalties previously assessed for

the same violation;

(6) The economic benefit of noncompliance;

(7) The seriousness of the violation; and

(8) Such other factors as justice may require.

(b) The burden of going forward with respect to criteria in

paragraphs (a)(1), (2), (3), (5), and (6) of this section, is on the

respondent. The burden of going forward with respect to criteria in

paragraphs (a)(4) and (7) of this section is on the Agency. The burden

of going forward with respect to criterion in paragraph (a)(8) of this

section is on the party proffering such factors. Failure of the

respondent to meet its burden with respect to any applicable criterion

shall mean that a penalty amount that is appropriate in light of other

criteria shall also be appropriate in light of such criterion for which

the respondent failed to meet its burden.

Sec. 59.20 Transcript or recording of hearing.

(a) The hearing shall be tape recorded unless the parties agree and

the Presiding Officer directs otherwise. A verbatim transcript will not

normally be prepared, but may be ordered by the Presiding Officer if

deemed necessary to permit a full and fair review and resolution of the

case. If not so ordered by the Presiding Officer, a party may, at its

own expense, cause a verbatim transcript to be made. The party causing

the verbatim transcript to be made shall submit one (1) copy to the

Presiding Officer and one (1) copy to the other party.

(b) The transcript or recording of the hearing, together with all

written submissions made by the parties, shall become part of the

administrative record for the proceeding.

Sec. 59.21 Post-hearing submissions.

The Presiding Officer may request, within a reasonable time

following the conclusion of the hearing, that the parties submit a

written statement for his consideration including, but not limited to,

proposed recommended findings of fact and conclusions of law. Such

written statement shall be limited to the matters raised at the

hearing.

Sec. 59.22 Recommended decision.

(a) Within a reasonable time after the conclusion of the hearing,

the Presiding Officer shall:

(1) Certify the administrative record as complete;

(2) Make the administrative record available to the Regional

Administrator; and

(3) Prepare and transmit a recommended decision to the Regional

Administrator. The recommended decision shall address all material

issues of fact or law properly raised by the respondent, and shall

recommend that the field citation be affirmed, modified or withdrawn.

The recommended decision shall be based on substantial evidence in the

administrative record, taken as a whole, and shall provide citations to

relevant material contained in that record.

(b) The Presiding Officer shall file a copy of the recommended

decision with the Hearing Clerk at the time of its transmittal to the

Regional Administrator. The Hearing Clerk shall immediately serve each

party with a copy of the recommended decision.

Sec. 59.23 Decision of the regional administrator.

(a) Following receipt of the recommended decision, the Regional

Administrator shall issue a final decision that either affirms,

reverses, or modifies the recommended decision or remands the case to

the Presiding Officer for further proceedings. The Regional

Administrator's decision may compromise, modify, or remit the penalty

requested by the recommended decision, with or without conditions.

(b) If the Regional Administrator rejects the recommendation of the

Presiding Officer, in whole or in part, the decision shall include a

written explanation for that rejection that states each point of

disagreement with the recommendation of the Presiding Officer. If the

Regional Administrator determines that the proposed penalty assessment

must be withdrawn, such action may be done without prejudice.

(c) The Regional Administrator's decision shall be supported by

clear reasons and by the administrative record and shall include a

statement of the right to judicial review and of the procedures and

deadlines for obtaining judicial review. The decision shall be

comprised of the Regional Administrator's findings of fact, conclusions

of law, and assessment of an appropriate penalty after taking into

account all applicable statutory and penalty factors.

(d) For purposes of appeal, the final decision of the Regional

Administrator pursuant to this part shall be deemed issued five (5)

days following the date of mailing of the decision to the respondent.

The final decision becomes effective thirty (30) days following its

date of issuance unless an appeal is taken pursuant to section

113(d)(4) of the Clean Air Act, 42 U.S.C. 7413(d)(4) before that date.

The issuance of the final decision by the Regional Administrator

pursuant to this section constitutes final Agency action on its

effective date.

Sec. 59.24 Sua Sponte review.

The Environmental Appeals Board may, on its own initiative, within

thirty (30) days of the date of issuance by the Regional Administrator

of a final decision pursuant to Sec. 59.23, suspend implementation of

such decision for the purpose of reviewing its conclusions of law or

its sufficiency under Sec. 59.23(c). The Environmental Appeals Board,

after such review, may amend its conclusions of law, withdraw the field

citation, remand the case for appropriate action to the Regional

Administrator, or may allow the decision to issue unchanged. In any

action in which the Environmental Appeals Board acts pursuant to this

section, the provisions of Sec. 59.23 shall apply, except that:

(a) The Regional Administrator who issued the final decision shall

be deemed the recommending Presiding Officer for purposes of

Sec. 59.22;

(b) Upon suspension of the final decision, the Environmental

Appeals Board shall be deemed the Regional Administrator for purposes

of Sec. 59.23;

(c) The Regional Administrator's decision, except for its findings

of fact, shall be deemed a recommended decision; the Regional

Administrator's findings of fact are findings for purposes of this part

and are not subject to review by the Environmental Appeals Board;

(d) If the Environmental Appeals Board does not amend the Regional

Administrator's conclusions of law nor determine that the order is

insufficient under Sec. 59.23(c), the Regional Administrator's penalty

determination is not subject to review. If the Environmental Appeals

Board amends the Regional Administrator's conclusions of law or

determines insufficiency, the Regional Administrator's penalty

determination shall be remanded by the Environmental Appeals Board to

the Regional Administrator for appropriate action, except that if the

Environmental Appeals Board determines that the respondent is not

liable for the violations alleged under applicable law, then the

Environmental Appeals Board shall withdraw the field citation and the

final decision of the Regional Administrator without remand;

(e) If the Environmental Appeals Board allows the final decision to

issue unchanged, the requirements of Sec. 59.23(c) shall not apply;

(f) If the Environmental Appeals Board amends or remands the

decision, the requirements of Sec. 59.23(c) to make findings of fact

and to assess the appropriate penalty shall not apply; and

(g) The Environmental Appeals Board's decision to suspend

implementation of a final decision shall not be deemed final Agency

action for the purposes of Sec. 59.23(d).

Sec. 59.25 Payment of assessed penalty.

Except as may otherwise be provided by applicable law and the

provisions of any applicable consent order, the respondent shall pay,

within thirty (30) days of the effective date of the final decision,

any civil penalty assessed pursuant to this part by forwarding to the

address provided by the field citation a cashier's or certified check,

payable to ``Treasurer, The United States of America.''

[FR Doc. 94-10197 Filed 5-2-94; 8:45 am]

BILLING CODE 6560-50-P