[Federal Register Volume 83, Number 22 (Thursday, February 1, 2018)]
[Rules and Regulations]
[Pages 4598-4600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02055]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 124

[FRL-9971-52-OARM]


Consolidated Rules of Practice Governing the Administrative 
Assessment of Civil Penalties, Issuance of Compliance or Corrective 
Action Orders, and the Revocation/Termination or Suspension of Permits; 
Procedures for Decisionmaking; Correction

AGENCY: Environmental Protection Agency.

ACTION: Correcting amendments.

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SUMMARY: The Environmental Protection Agency (EPA) published a document 
in the Federal Register on January 9, 2017. That document revised 
filing and service requirements in permit appeal proceedings before the 
Environmental Appeals Board, but in doing so two subsections of the 
procedural rule were

[[Page 4599]]

inadvertently and unintentionally removed. This rule corrects that 
inadvertent removal as well as two other non-substantive typographical 
errors in the rule.

DATES: This final rule correction is effective on February 1, 2018.

FOR FURTHER INFORMATION CONTACT: Ammie Roseman-Orr, Environmental 
Appeals Board, U.S. Environmental Protection Agency, William Jefferson 
Clinton Building East, 1200 Pennsylvania Ave NW, Mail Code 1103M, 
Washington DC 20460-0001, phone number (202) 233-0122 or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Why is the EPA issuing this rule in final form without first issuing 
a proposal?

    Today's final rule is limited to correcting a mistake to procedural 
requirements for administrative adjudicatory hearings and appeals from 
such hearings and from permit decisions. As an amendment to a 
procedural rule, this final rule itself is a procedural rule. Under the 
Administrative Procedure Act, an agency may issue ``rules of agency 
organization, procedure, or practice'' without first proposing such 
rules for public comment. 5 U.S.C. 553(b). Accordingly, public comment 
is not required.
    In addition, EPA has determined that this rule is effective 
immediately upon publication in the Federal Register. In general, 
Section 5 U.S.C. 553(d) requires that substantive rules not become 
effective less than 30 days after publication. However, this action 
involves not a substantive rule but a procedural rule. Moreover, the 
purpose of the 30-day waiting period prescribed in section 553(d) is to 
give affected parties a reasonable time to adjust their behavior and 
prepare before the final rule takes effect. This action does not create 
any new regulatory requirements such that affected parties would need 
time to prepare before the actions take effect. To the contrary, this 
action merely corrects typographical errors and restores regulatory 
text that was inadvertently deleted thereby restoring the prior status 
quo. Furthermore, the absence of these provisions may result in 
confusion to parties as well as inefficiencies in the appeals process 
and thus it is in the public interest have the restoration of those 
provisions effective immediately. See 5 U.S.C. 553(d)(3).

II. Does this action apply to me?

    This action affects parties involved in EPA administrative 
adjudicatory proceedings for the assessment of civil penalties, 
issuance of various compliance orders, and termination or suspension of 
certain permits, under part 22 of title 40 of the CFR. See 40 CFR 22.1. 
This action also affects parties involved in appeal of EPA permits 
under part 124 of title 40 of the CFR.

III. Background

    The rule document published on January 9, 2017 (82 FR 2230), 
revised the filing and service procedures used in permit appeals to the 
Environmental Appeals Board. The EPA also revised 40 CFR 124.19(b)(1) 
and (2) so that the deadlines for filing a response to a petition for 
review are based on the date the petition for review is served, rather 
than the date it is filed. Subsections (3) and (4) were intended to 
remain unchanged but were inadvertently removed from the rule.
    Additionally, in Sec.  124.19(i)(2)(iii), the address for delivery 
by hand or courier to the Environmental Appeals Board incorrectly 
identifies the room number as 3334 when the actual room number is 3332 
and language regarding methods of delivery by hand or courier was 
inadvertently omitted.
    Finally, the language in Sec.  124.19(i)(3)(ii) revising the 
service requirements to allow for service by email inadvertently 
contains an extra ``or'' that does not belong so that this provision of 
the rule now reads: ``Service must be by first class U.S. mail, by any 
reliable commercial delivery service, or, if agreed to by the parties, 
by facsimile or other electronic means, including but not necessarily 
limited to or email.'' Removal of the last ``or'' will make the 
sentence clearer.

IV. Need for Correction

    As published on January 9, 2017 (82 FR 2230), the final regulation 
contains an error that resulted in the inadvertent removal of two 
procedural provisions that govern the participation of permit 
applicants, State, and Tribal Authorities in permit proceedings before 
the Environmental Appeals Board. The absence of these provisions may 
result in confusion to parties and inefficiencies in the appeals 
process and thus these provisions need to be reinstated. Additionally, 
revising the Environmental Appeals Board's address for delivery by hand 
or courier in Sec.  124.19(i)(2)(iii) to reflect the correct room 
number and to include methods of delivery by hand or courier will avoid 
potential confusion. Finally, the superfluous ``or'' in the third 
sentence of Sec.  124.19(i)(3)(ii) is confusing. Removal of that word 
will not change the meaning of the sentence and will make the provision 
clearer.

List of Subjects in 40 CFR Part 124

    Environmental protection, Administrative practice and procedures.

    Dated: January 22, 2018.
Donna J. Vizian,
Principal Deputy Assistant Administrator, Office of Administration and 
Resources Management.

    Accordingly, 40 CFR part 124 is corrected as follows:

PART 124--PROCEDURES FOR DECISIONMAKING

0
1. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et. seq.; Safe Drinking Water Act, 42 U.S.C. 300f et. seq.; 
Clean Water Act, 33 U.S.C. 1251 et. seq.; Clean Air Act, 42 U.S.C. 
7401 et. seq.


0
2. In Sec.  124.19:
0
a. Add paragraphs (b)(3) and (4).
0
b. Revise paragraph (i)(2) introductory text and paragraph (i)(2)(iii).
0
c. Revise the third sentence of paragraph (i)(3)(ii).
    The addition and revisions read as follows:


Sec.  124.19   Appeal of RCRA, UIC, NPDES and PSD Permits.

* * * * *
    (b) * * *
    (3) A permit applicant who did not file a petition but who wishes 
to participate in the appeal process must file a notice of appearance 
and a response to the petition. Such documents must be filed by the 
deadlines provided in paragraph (b)(1) or (2) of this section, as 
appropriate.
    (4) The State or Tribal authority where the permitted facility or 
site is or is proposed to be located (if that authority is not the 
permit issuer) must also file a notice of appearance and a response if 
it wishes to participate in the appeal. Such response must be filed by 
the deadlines provided in paragraph (b)(1) or (2) of this section, as 
appropriate.
* * * * *
    (i) * * *
    (2) Method of filing. Unless otherwise permitted under these rules, 
documents must be filed either by using the Environmental Appeals 
Board's electronic filing system, by U.S. mail, or by hand delivery or 
courier (including delivery by U.S. Express Mail or by a commercial 
delivery service). In addition, a motion or a response to a motion may 
be submitted by facsimile if the submission contains no attachments.

[[Page 4600]]

Upon filing a motion or response to a motion by facsimile, the sender 
must, within one business day, submit the original copy to the Clerk of 
the Environmental Appeals Board either electronically, by mail, or by 
hand delivery or courier. The Environmental Appeals Board may by order 
require filing by facsimile or the Board's electronic filing system, 
subject to any appropriate conditions and limitations.
* * * * *
    (iii) Filing by hand delivery or courier. Documents delivered by 
hand or courier (including deliveries by U.S. Express Mail or by a 
commercial delivery service) must be delivered to the Clerk of the 
Environmental Appeals Board at: U.S. Environmental Protection Agency, 
Environmental Appeals Board, WJC East Building, 1201 Constitution 
Avenue NW, Room 3332, Washington, DC 20004.
    (3) * * *
    (ii) Service requirements for parties. * * * Service must be by 
first class U.S. mail, by any reliable commercial delivery service, or, 
if agreed to by the parties, by facsimile or other electronic means, 
including but not necessarily limited to email. * * *
* * * * *
[FR Doc. 2018-02055 Filed 1-31-18; 8:45 am]
 BILLING CODE 6560-50-P


