Regulations Governing Awards Under Section 113(f) of the Clean Air Act

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 65

[FRL-4877-5]

RIN 2060-AD81

Regulations Governing Awards Under Section 113(f) of the Clean

Air Act

AGENCY: U.S. Environmental Protection Agency.

ACTION: Notice of proposed rule.

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SUMMARY: This proposed rule sets forth criteria and procedures for the

granting of awards as authorized by an amendment to the Clean Air Act

(the Act). The amendments added section 113(f) to the Act, which

authorizes the Administrator of the Environmental Protection Agency

discretion to pay an award, not to exceed $10,000, to any person who

furnishes information or services which lead to a criminal conviction

or a judicial or administrative civil penalty enforced under section

113 of the Act for a violation of titles I, III, IV, V, or VI of the

Act, as amended. Section 113(f) also authorizes the Administrator to

prescribe, by regulation, additional criteria for eligibility for such

an award. This proposed rule sets forth such additional criteria for

eligibility. In addition, this proposal establishes procedures to

petition the Agency for consideration for an award, including what

information must be submitted in such petitions, and describes award

criteria. This proposed rule also provides an assurance of

confidentiality as to the identity of persons who provide information

or services on a confidential basis. Furthermore, to implement the goal

of the program, this rule provides direction for providing information

or services regarding potential violations.

DATES: Comments. Written comments on the proposed rule must be received

on or before July 5, 1994.

Public Hearing. A public hearing will be held, if requested, to

provide interested persons an opportunity for oral presentation of

data, views, or arguments concerning the proposed rule. If anyone

contacts EPA requesting to speak at a public hearing by June 6, 1994, a

public hearing will be held June 8, 1994.

ADDRESSES: Comments. Comments should be submitted (in duplicate if

possible) to: Air Docket (LE-131), Attention: Docket Number A-94-05,

U.S. Environmental Protection Agency, room M-1511, 1st Floor, Waterside

Mall, 401 M Street, SW., Washington, DC 20460.

Public Hearing. The public hearing will be held at the EPA

Auditorium, 401 M Street, SW., Washington, DC.

Docket. Materials relevant to this rulemaking are contained in

Docket Number A-94-05. The docket is available for public inspection

and copying between 8 a.m. and 3:30 p.m., Monday through Friday, at

EPA's Air Docket, room M-1500, 1st floor, Waterside Mall, 401 M Street,

SW., Washington, DC 20460. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Clara Poffenberger, Office of Air and

Radiation, Stationary Source Compliance Division (EN-341W), United

States Environmental Protection Agency, 401 M Street, SW., Washington,

DC 20460; telephone (703) 308-8709.

SUPPLEMENTARY INFORMATION:

I. Statutory Requirements

Section 113(f) of the Clean Air Act, as amended, (the Act), 42

U.S.C. 7413(f), authorizes the Administrator discretion to pay awards

to persons who provide information or services regarding potential

violations of the Act. Pursuant to section 113(f), the information or

services must result in a criminal conviction or a judicial or

administrative civil penalty for a violation of titles I, III, IV, V,

or VI of the Act, enforced under section 113 of the Act, before an

award may be issued.

The statute specifically authorizes awards only for enforcement

actions brought under section 113 of the Act. Thus, information or

services which assist actions brought under State law (e.g, enforcement

of SIPs under State law or citizen suits brought under State law),

under other sections of the Act (i.e., citizen suits under section

304), or under other statutes, do not qualify for an award under this

provision. However, in cases where the Agency intervenes, overfiles, or

otherwise takes over the enforcement action under the authority of

section 113, the awards authority may become applicable.

Under section 113(f) of the Act, any officer or employee of the

United States or any State or local government who furnishes

information or renders services to the Agency in the performance of an

official duty is ineligible for an award. Also, section 113(f)

authorizes the Administrator to prescribe, by regulation, additional

criteria for eligibility for an award. In response, the regulation

proposed today prescribes additional criteria for eligibility. The

regulation proposed today also prescribes general criteria for the

Agency to consider in determining whether and how much of an award is

appropriate and procedures to be followed by persons who want to be

considered for an award. Additional authority for these provisions is

provided by section 301(a) of the Act.

II. The Proposal

Today's proposed rule prescribes regulations for EPA's awards

authority under section 113(f) of the Clean Air Act, as amended, 42

U.S.C. 7413(f). The proposed rule sets forth general eligibility

criteria, criteria to be used in considering petitions for awards, the

procedures for petitioning consideration for an award, and other

matters designed to assist the Administrator in exercising her

discretion in this area. The goal of this proposal is to assist in the

implementation of an awards program that would encourage citizens to

cooperate with and voluntarily assist the EPA's Clean Air Act

enforcement efforts and thereby deter violations. Inherent in a program

for awards are concerns regarding the confidentiality of the identity

of those who provide information or services and the need to evaluate

the quality of such information or services. This proposal is intended

to address those concerns.

A. Application of Proposal

The EPA intends that this proposed regulation will apply only after

promulgation. Petitions for an award based on information or services

provided to the EPA after the passage of the Clean Air Act Amendments

of 1990 (the Amendments) but before the regulation is promulgated may

be processed using the proposed criteria as nonbinding guidance. The

EPA will not consider a petition for an award based on information or

services provided entirely prior to enactment of the Amendments.

B. Eligibility Criteria

As discussed above, section 113(f) renders certain persons

ineligible for an award, and also authorizes the Administrator to

prescribe additional eligibility criteria. In response, this proposed

rule categorically excludes EPA employees from eligibility to receive

an award. The proposed regulation further delineates eligibility limits

for employees of, and others who have a contractual relationship with,

federal, State, or local governments. Thus under the proposal,

officers, employees, contractors, and grantees will be ineligible to

receive an award if at the time they come into possession of the

information or render services which constitute, in whole or in part,

the basis of the award, they were performing an official duty.

Furthermore, any members of the immediate family of those ``performing

their official duty'' are likewise ineligible.

The EPA believes these provisions will help ensure that employees

and others contractually obligated to the EPA or other governmental

entities will fulfill their obligation and will not withhold

information that they would otherwise provide to the government. The

proposed provisions also address the concern that such persons could

indirectly benefit by passing information obtained while performing

their official duty to family members, who could then use that

information to petition for an award. The concern addressed here is

protection of the integrity of compliance and enforcement activities.

By declaring such persons ineligible for an award, the proposed

regulation seeks to ensure that the awards program will not create an

incentive for employees to abuse access to information and authority

otherwise unavailable to the public. The term ``immediate family

member'' is purposely not defined in the proposed regulation, as the

EPA prefers to maintain its discretion in referencing other sources of

law and otherwise evaluating the circumstances of the particular case

in making its award determination.

So that persons who may receive awards are aware that certain

persons are ineligible to be paid an award, the proposal requires that

a certificate of eligibility be signed by the person before the

Administrator may pay the award. This requirement assists the EPA in

assuring that an award is not paid to ineligible persons.

C. Addresses for Tips

Tips from citizens to the US EPA and State and local air pollution

control agencies provide useful information on the possible existence

or extent of a violation. Since the goal of the awards program is to

encourage citizens to cooperate with and voluntarily assist EPA

enforcement efforts, the proposal provides the addresses to which

information may be sent. The information or services provided may or

may not lead to eligibility for an award. Providing such information

does not create an obligation on the Agency to issue an award, or vest

in any person a right to such award. Nevertheless, the Administrator

encourages all persons to provide any information they have regarding

violations of the Act to the appropriate persons listed in Appendix A.

Such information improves the Agency's ability to enforce the Act. The

EPA encourages persons to provide the information or services to State

and local agencies as well. Although completion of an enforcement

action by a State or local agency under authority other than section

113 of the Clean Air Act cannot lead to an award paid by the U.S. EPA

under section 113(f), it is important that information be provided to

State and local agencies. In most situations, the U.S. EPA will defer

to State enforcement authorities to address violations in a timely and

appropriate manner. However, persons who provide information or

services to a State or local agency may become eligible for an award if

the EPA overfiles or otherwise takes over the enforcement action.

D. Confidentiality

Because today's proposal contemplates the EPA receiving and using

information and services from private sources for enforcement

activities, the EPA is also proposing to maintain as confidential, upon

request, the identity of persons providing information or services. The

EPA believes this assurance of confidentiality will encourage persons

to assist the EPA in its efforts to enforce compliance with the Act. In

this regard, the proposed rule provides, upon request, confidential

treatment by the EPA consistent with this proposal, existing law and

other EPA regulations. Pursuant to the Freedom of Information Act

(FOIA), 5 U.S.C. 552 (b)(6) & (7), the confidentiality of the identity

of those providing information and services will be protected from FOIA

requests consistent with existing law. The assurance of confidentiality

extends to petitions for awards submitted to the EPA. To ensure

confidential treatment of such petitions, it is important that persons

submitting petitions to the EPA specifically request confidentiality at

or prior to the time of providing information or services, and to renew

such request at the time of submitting a petition.

E. Petitions for Awards

Because the information or services provided would be instrumental

to the successful prosecution of the EPA's enforcement action, in many

cases EPA personnel will be aware of persons potentially eligible for

an award, even without a petition being submitted. The EPA expects that

in many such situations, award determinations may be made without

submission of a petition.

Today's proposal recognizes, however, that a person may wish to

petition the Agency for consideration for an award and authorizes such

petitions. To ensure that such petitions contain sufficient information

for the purpose of evaluation, and to ensure that petitions are

directed to the appropriate EPA office, the proposal sets forth award

petition procedures and requirements.

Timing of Petitions

The proposed rule requires petitions for consideration to be

submitted in writing no later than one year after the judgment of

conviction or assessment of a civil penalty. Petitions may be submitted

at any time prior to the judgment or assessment, but no award

determination will be made before the judgment of conviction is entered

or a judicial or administrative civil penalty is finally assessed,

agreed, or ordered. Again, payment and the amount of any award granted

is within the Administrator's unfettered discretion. The granting of an

award is a gratuity, and not an entitlement.

Certification of Eligibility

The proposed regulation also requires that the petition contain a

certification of compliance with the eligibility criteria set forth in

the regulation. A statement signed by the person to be considered for

an award attesting to having read the eligibility requirements and

attesting that the person to be considered for an award is not

ineligible to receive an award would meet this requirement. This

certification is important to the award determination process because

the EPA recognizes that it may be difficult for the Administrator to

determine with certainty whether a person meets all eligibility

criteria. However, the Act prohibits payment of an award to certain

persons. Therefore, the proposal requires a certification of

eligibility be signed before the Administrator may pay an award.

F. Criteria for Awards

Under the Act, the Administrator has discretionary authority

whether to pay an award and to determine the amount of an award. The

proposed regulation does not constrain this discretion. Although the

proposed rule permits petitions for consideration for an award, whether

an award is ultimately granted will turn on the exercise of the

Administrators unfettered discretion, including the application of

factors described in this proposed regulation. These factors include

whether the information or services constituted the initial,

unsolicited notice of the violation to the government, whether the

government would have obtained knowledge of the violation in a timely

manner absent the information or services, the importance of the case,

the severity of the violation, the potential for or existence of actual

or threatened harm to persons or the environment, the willingness to

assist in the governments enforcement action(s) regarding the

violation(s), the value of the assistance in comparison to that given

by any other persons or sources of information or services and, in

part, the amount of money available to the EPA through appropriations.

Furthermore, the rule is not intended to discourage self-auditing

within facilities nor is it intended to encourage concealment of

information about violations or problems within a facility by an

employee from an employer. Thus, the regulation sets forth the

additional criterion of whether payment of the award would improperly

create incentives against the timely and appropriate identification of

such a violation to either the employer or the government.

G. Timing of Award Consideration

As mandated by section 113(f), persons may not be considered for an

award unless and until such time as the information or services

provided leads to a judicial or administrative civil penalty or a

criminal conviction under section 113 of the Act.

H. Prepayment Offers

The proposed regulation makes clear the distinction between the

Awards program and paid informant programs or contractual relationships

that may be created by the Agency. The EPA's employees do not have the

authority under this proposal or this statutory provision to promise

that an award will be paid nor to promise consideration or

recommendation for an award.

I. Request for Public Comment

The EPA is interested in public comment on all aspects of this

proposed rule. The EPA is particularly interested in comments on: (1)

The provision for confidentiality of identity for persons who provide

information or services; (2) the eligibility exclusions and eligibility

criteria for an award; (3) petitions for consideration; and (4) the

criteria for awards determinations.

III. 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

public record.

B. Regulatory Flexibility Act Compliance

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify

that this attached rule, if promulgated, will not have an economic

impact on small entities because no additional costs will be incurred.

C. Paperwork Reduction Act

Since this proposed rule does not create any new information

requirements or contain any new information collection activities, no

clearance is necessary from OMB under the Paperwork Reduction Act of

1980, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 65

Environmental protection, Air pollution control, Awards,

Confidentiality, Enforcement, Natural resources.

Dated: April 15, 1994.

Carol M. Browner,

Administrator.

40 CFR part 65 is proposed to be amended as follows:

PART 65--[AMENDED]

1. The authority citation for part 65 is revised to read as

follows:

Authority: 42 U.S.C. 7413, 7601(a).

2. Part 65 is proposed to be amended by adding subpart BBB to read

as follows:

Subpart BBB--Awards

Sec.

65.571 Purpose and scope.

65.572 Definitions.

65.573 Eligibility.

65.574 Information or tips regarding possible violations.

65.575 Confidentiality.

65.576 Petitions for consideration.

65.577 Criteria for awards.

65.578 Prepayment offers.

Appendix A to Subpart BBB--Addresses for Petitions for Consideration

and for Tips or Information

Subpart BBB--Awards

Sec. 65.571 Purpose and scope.

(a) This regulation implements section 113(f), 42 U.S.C. 7413(f),

the ``citizen award'' provision of the Clean Air Act, as amended (the

Act). As authorized in section 113(f), of the Act the Administrator of

the U.S. Environmental Protection Agency (the Agency) is authorized to

pay up to $10,000, as may be available from appropriations, to any

person who provides information or services leading to a criminal

conviction or a judicial or administrative civil penalty, enforced

under section 113, for any violation of Titles I, III, IV, V, or VI of

the Act. The goal of the program is to encourage citizens to cooperate

with and voluntarily assist the Agency's enforcement efforts and

thereby deter noncompliance.

(b) Providing information or services to the Agency by any person

does not create any obligation on the Administrator to issue an award

or to pay compensation for such assistance. Neither the Act nor these

regulations create an entitlement to the payment of an award. The

determinations whether to pay an award, and in what amount, are matters

which remain by statute in the exclusive and unfettered discretion of

the Administrator.

Sec. 65.572 Definitions.

The terms used in this part are defined in the Act or in this

section as follows:

(a) Administrative penalty. Any amount finally assessed, agreed or

ordered to be paid into the U.S. Treasury pursuant to an administrative

enforcement action under section 113 of the Act.

(b) Certification of Eligibility. A statement signed by the person

to be considered for an award attesting to having read the eligibility

requirements and attesting that the person is not ineligible to receive

an award.

(c) Criminal conviction. A judgment of conviction entered in U.S.

District Court on a verdict or finding of guilty, or by a plea of

guilty, including a plea of nolo contendere, in an action brought under

section 113 of the Act (as defined at 28 U.S.C. 2901(f)).

(d) Judicial penalty. Any amount finally assessed, agreed or

ordered to be paid into the U.S. Treasury by a court of the United

States pursuant to a judicial enforcement action under section 113 of

the Act.

Sec. 65.573 Eligibility.

(a) Any person who provides information or services which leads to

a criminal conviction or a judicial or administrative civil penalty,

enforced under section 113, for any violation of titles I, III, IV, V,

or VI of the Act, except those persons identified in paragraph (b) of

this section, shall be eligible to receive an award under this part.

(b) The following persons are not eligible to receive an award:

(1) Persons convicted of or found liable for the violation(s) that

are the subject of the award,

(2) Officers or employees of the United States Environmental

Protection Agency,

(3) Any of the following persons who, at the time he or she came

into possession of the information or rendered the service which

constitutes in whole or in part the basis for an award, was performing

his or her official duty:

(i) Officers or employees of the United States Government;

(ii) Contractors or grantees of the United States Government;

(iii) Officers or employees of a State or local government;

(iv) Contractors or grantees of a State or local government;

(4) Any members of the immediate family of persons who would be

ineligible under paragraph (b)(3) of this section; and

(5) Such other persons as the Administrator may determine to be

ineligible who are not otherwise ineligible under the law.

(c) Before the Administrator may pay an award, a certification of

eligibility must be signed by the person receiving the award.

Sec. 65.574 Information or tips regarding possible violations.

(a) Persons having knowledge of violations of the Act may provide

such information to the Regional Administrators listed in appendix A of

this subpart.

(b) Information regarding violations of the Act should also be

provided to State and local agencies, although not required by this

regulation. The USEPA, in many cases, defers to State enforcement

authorities to address violations in a timely and appropriate manner.

Sec. 65.575 Confidentiality.

(a) Any person providing information or services under this subpart

may request confidentiality as to his or her identity.

(b) To the extent permitted by law, the EPA will not disclose the

identity of, or information which could reasonably be expected to

disclose the identity of, a person who has requested confidentiality

prior to or at the time of providing information or services under this

66 subpart, except in exceptional circumstances under appropriate

restrictions with the approval of the Office of General Counsel or a

Regional Counsel.

Sec. 65.576 Petitions for consideration.

(a) Any person may petition the Agency to consider paying an award.

(b) Addresses. (1) Petitions for consideration must be submitted in

writing to the Regional Administrator in the Region(s) bearing a

substantial relationship to the violation(s) that are the subject of

the petition.

(2) The appropriate addresses for the Regional Administrators are

provided in appendix A of this subpart.

(c) Timing. (1) Petitions may be submitted at any time prior to the

judgment of conviction or assessment of a civil penalty but must be

submitted no later than one year after the judgment of conviction or

assessment of a civil penalty.

(2) No award determination will be made before a judgment of

conviction is entered or judicial or administrative civil penalty is

assessed, agreed, or ordered to be paid.

(d) Content. A petition for consideration shall contain the

following information:

(1) Whether a request for confidentiality was made prior to or at

the time of providing the information or services, and whether such

request is still in effect; the petition envelope should also specify

whether the information or services were provided under a request for

confidentiality;

(2) Name, address, and telephone number of the petitioner;

(3) A brief description of the federal enforcement action (whether

the action was a criminal conviction or judicial or administrative

civil penalty) which resulted (if known) from the information or

services;

(4) Name, title, agency and office affiliation, city, and telephone

number of person(s) to whom the information and services was provided

(to the extent known);

(5) Name(s) and address(es) of the violator(s) and (to the extent

relevant) the names and/or locations of any sites or facilities

involved;

(6) Description of the information or services that led to the

federal enforcement action;

(7) Date(s) the information or services were provided;

(8) Description of any other involvement by the petitioner in the

enforcement action;

(9) Certification of eligibility stating that the petitioner meets

the requirements for eligibility for an award set forth in Sec. 65.575

(if the petitioner is the person who provided the information or

services); and

(10) Any other relevant information in support of the petition.

Sec. 65.577 Criteria for awards.

In deciding whether to make an award, and in what amount, the

Administrator shall consider relevant criteria, giving such weight and

importance to each separate criterion as appears warranted in his or

her judgment alone. Relevant criteria shall include, but not be limited

to, one or more of the following:

(a) Whether the information or services constituted the initial,

unsolicited and full disclosure to a governmental entity with

jurisdiction over the violation;

(b) Whether the governmental entity would readily have obtained

knowledge of the violation in a timely manner absent the information or

services;

(c) The importance of the case, severity of the violation, and

potential for or existence of actual or threatened harm to persons or

the environment;

(d) The willingness to assist as necessary in the Government's

resulting or related enforcement action(s) regarding the violation(s),

including providing further information or services, participating in

hearing or trial preparation and appearing as a witness at or in

connection with any hearings or trial(s) of the matter, to the extent

consistent with a reasonable claim of need for confidentiality, if any;

(e) Value of the assistance in comparison to that given to the

government in the resulting enforcement action by any other persons or

sources of information or services;

(f) Value of the assistance in comparison to that given by other

petitioners or others in similar circumstances in other enforcement

actions brought by the government; and

(g) Whether such payment would result in a conflict of interest,

present an appearance of impropriety, or improperly create incentives

against the timely and appropriate identification of such a violation

to either the employer or the government.

Sec. 65.578 Prepayment offers.

Prior to the actual payment of an award under section 113(f) of the

Act, no employee of the United States Government, including any person

purporting to act on behalf of the United States Government, is

authorized by these regulation to make any promise, offer, or

representation with respect to the Agency's grant of such an award.

Appendix A to Subpart BBB--Addresses for Petitions for Consideration

and for Tips or Information

For Connecticut, Maine, Massachusetts, New Hampshire, Rhode

Island, and Vermont: Regional Administrator, Region I, U.S.

Environmental Protection Agency, John F. Kennedy Building, Room

2203, Boston, MA 02203.

For New Jersey, New York, Puerto Rico, and Virgin Islands:

Regional Administrator, Region II, U.S. Environmental Protection

Agency, 26 Federal Plaza, Room 930, New York, NY 10278.

For Delaware, District of Columbia, Maryland, Pennsylvania,

Virginia, and West Virginia: Regional Administrator, Region III,

U.S. Environmental Protection Agency, 841 Chestnut Street,

Philadelphia, PA 19107.

For Alabama, Florida, Georgia, Kentucky, Mississippi, North

Carolina, South Carolina, and Tennessee: Regional Administrator,

Region IV, U.S. Environmental Protection Agency, 345 Courtland

Street, NE., Atlanta, GA 30365.

For Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin:

Regional Administrator, Region V, U.S. Environmental Protection

Agency, 230 South Dearborn Street, Chicago, IL 60604.

For Arkansas, Louisiana, New Mexico, Oklahoma, and Texas:

Regional Administrator, Region VI, U.S. Environmental Protection

Agency, 1445 Ross Avenue, 12th Floor, Suite 1200, Dallas, TX 75202-

2733.

For Iowa, Kansas, Missouri, and Nebraska: Regional

Administrator, Region VII, U.S. Environmental Protection Agency, 726

Minnesota Avenue, Kansas City, KS 66101.

For Colorado, Montana, North Dakota, South Dakota, Utah, and

Wyoming: Regional Administrator, Region VIII, U.S. Environmental

Protection Agency, 999 18th Street, Suite 500, Denver, CO 80202-

2405.

For Arizona, California, Hawaii, Nevada, American Samoa, and

Guam: Regional Administrator, Region IX, U.S. Environmental

Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105.

For Alaska, Idaho, Oregon, and Washington: Regional

Administrator, Region X, U.S. Environmental Protection Agency, 1200

Sixth Avenue, Seattle, WA 98101.

[FR Doc. 94-10435 Filed 5-2-94; 8:45 am]

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