

[Federal Register: August 29, 2006 (Volume 71, Number 167)]
[Notices]               
[Page 51193]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29au06-38]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2006-0748; FRL-8213-1]

 
Notice of Intent To Provide Internet Publication of Proposed 
Penalties under the Clean Water Act and Safe Drinking Water Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Notice is hereby given that the Environmental Protection 
Agency (EPA) intends to issue notices of proposed penalty orders issued 
under the Clean Water Act and the Safe Drinking Water Act via the 
Internet. EPA is encouraging the Regions to use the Internet as a more 
effective and efficient means to provide such notice.

FOR FURTHER INFORMATION CONTACT: Kelly Kaczka Brantner, Office of 
Enforcement and Compliance Assurance, Office of Civil Enforcement, 
Water Enforcement Division, Mail Code 2243A, Environmental Protection 
Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone 
number: 202-564-9933; fax number: 202-564-0018; e-mail address: 
Brantner.Kelly@epa.gov.


SUPPLEMENTARY INFORMATION: Both the Clean Water Act and the Safe 
Drinking Water Act authorize the U.S. Environmental Protection Agency 
(EPA) to assess administrative penalties for specified violations of 
the Act. See sections 309(g) and 311(b)(6) of the Clean Water Act 
(CWA), 33 U.S.C. 1319(g) and 33 U.S.C. 1321(b)(6) and section 1423(c) 
of the Safe Drinking Water Act (SDWA), 42 U.S.C. 300h-2(c). These 
provisions require EPA to provide public notice of any civil penalty 
order before issuing any such order.
    For such administrative actions, EPA's Consolidated Rules of 
Practice Governing the Administrative Assessment of Civil Penalties, 40 
CFR Part 22, require notice to the public ``by a method reasonably 
calculated to provide notice.'' 40 CFR 22.45(b)(2). Typically, notice 
is provided through publication in newspapers of general circulation.
    The Part 22 rules and the Clean Water Act do not define what 
methods of notice are reasonable. Courts have recognized that the 
Internet may be one method reasonably calculated to provide public 
notice. Thus, for example in discussing service of process by e-mail, 
the United States Court of Appeals for the Ninth Circuit has recently 
described in broad language a court's authority to adapt its procedures 
to meet technological advances as follows:

    ``In proper circumstances, this broad constitutional principle 
[i.e., that the selected method of service must be reasonably 
calculated to provide notice and an opportunity to respond] 
unshackles the federal courts from anachronistic methods of service 
and permits them entry into the technological renaissance.'' Rio 
Properties, Inc. v. Rio International Interlink. 284 F.3d 1007, 1017 
(9th Cir. 2002)

    Given the wide accessibility of the Internet among the population, 
the Office of Enforcement and Compliance Assurance has concluded, in 
consultation with the Office of General Counsel, that publication 
through such means is reasonably calculated to apprise the public of 
such proposed orders. Thus, Internet notice would meet the requirements 
of the CWA, SDWA, and EPA regulations.
    Using the Agency's Internet site to provide notice of proposed 
actions makes the notice available to the public during the entirety of 
the comment period rather than on the one day that the notice is 
published in the local newspaper. The Internet provides a cost 
effective means of providing access to a larger number of notices, in 
one place, for a longer period of time.
    Additionally, while the Agency tries to provide notice to those 
most likely to be affected by an action by publishing notice in local 
newspapers, in using the Internet, the Agency can reach a broader 
audience. This will enable those interested persons beyond the finite 
distribution areas of local newspapers to be made aware of pending 
agency actions.
    EPA Headquarters is encouraging the Regions to use the Agency's 
Internet site to provide notice of proposed CWA and SDWA actions. To 
ensure wide public acceptance of public notice provided through the 
Internet, the Office of Enforcement and Compliance Assurance is 
recommending procedures designed with two objectives in mind: Making 
the public aware that notices will be available on the website for the 
Region issuing the order, and providing easy access to the notices. We 
suggest consideration of the following practices for Web based notices:

--The Region's homepage should include a link entitled ``Public Notices 
Under Sections 309(g)and 311(b)(6) of the Clean Water Act and Section 
1423(c) of the Safe Drinking Water Act.'' (Public Notice).
--The Public Notice Web page should provide a link to the actual 
notices as well as the docket number, the date the notice is posted, 
the Respondent's name, the state where they are located, and the 
proposed penalty.
--The notice should be accessible from the Public Notice Web page in 
html format or as a PDF file which includes all the information 
required under 40 CFR 22.45(b)(2).
--The Public Notice Web page should list the actions that are being 
noticed in chronological order.
--The Public Notice Web page may list notices for which the agency is 
currently accepting comment more prominently than those which have 
expired. However, public notices should remain on the Web site for a 
reasonable time once the comment period has expired.
--The Web page should also include a link to download Adobe Acrobat 
with easily understood instructions for doing so.

    We recognize that not all members of the public may have ready 
access to the Internet, however due to the general availability of the 
Internet through schools, offices and libraries, we believe that 
Internet notice will likely reach a larger audience than has the past 
practice of publishing a notice in a newspaper provided that the above 
practices are followed. Because there may be circumstances in which the 
lack of access to computers in low-income communities may raise 
environmental justice issues, Regions may consider providing 
supplemental notice.
    In particular instances where the Regions find that additional 
notice may be helpful, newspaper notice, press release or other forms 
of communication may supplement the Internet notice.

Mark Pollins,
Director, Water Enforcement Division, Office of Civil Enforcement, 
Office of Enforcement & Compliance Assurance.
 [FR Doc. E6-14315 Filed 8-28-06; 8:45 am]

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