[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32034]


[[Page Unknown]]

[Federal Register: January 3, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 305

[FRL-4818-1]
RIN 2050-AC26

 

CERCLA Administrative Hearing Procedures for Claims Asserted 
Against the Superfund

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
promulgating a final rule to implement section 112 of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(CERCLA). CERCLA section 112 outlines procedures for payments of claims 
authorized pursuant to CERCLA section 111. Furthermore, EPA uses the 
procedures authorized by CERCLA section 112 to reimburse parties for 
response costs incurred pursuant to CERCLA section 122. EPA reimburses 
the parties through payment of claims asserted against the Hazardous 
Substance Superfund (the Fund). The claims authority allows EPA to 
reimburse a person for the costs incurred for responding to an actual 
or threatened release of hazardous substances, pollutants, or 
contaminants if that person has received prior approval 
(preauthorization) from EPA to conduct a response action. If EPA denies 
all or part of a claim against the Fund for the costs incurred in 
conducting a preauthorized response action, the adversely affected 
claimant may request an administrative hearing to review that decision. 
This final rule establishes procedures to request such a hearing and 
governs the course of the proceeding following the request.

EFFECTIVE DATE: This final rule is effective February 2, 1994.

ADDRESSES: The official record for this rulemaking is in the Superfund 
Docket, located at the United States Environmental Protection Agency, 
401 M Street, SW., Room M 2615, Washington, DC 20460. The record is 
available for inspection by appointment only (Telephone--202-260-3046) 
between the hours of 9 a.m. and 4 p.m., Monday through Friday, 
excluding legal holidays. As provided in 40 CFR part 2, a reasonable 
fee may be charged for copying services.

FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, U.S. 
Environmental Protection Agency, Office of Emergency and Remedial 
Response, Hazardous Site Control Division, (Mail Code--5203G), 401 M 
Street, SW., Washington, DC 20460; Telephone--703-603-8769. An 
alternative contact is the Superfund Hotline; 1-800-424-9346 (TDD 800-
553-7672), or in the Washington, DC area, (703) 920-9810 (TDD 703-486-
3323).

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:

I. Background
II. Response to Comments
III. Summary of Supporting Analyses

I. Background

    EPA is today promulgating the final CERCLA administrative hearing 
procedures for claims asserted against the Superfund. Today's rule is 
based on an interim final rule with request for comments promulgated on 
February 8, 1993, at 58 FR 7704. The rationale for the rule and a 
discussion of its background and procedures may be found there. One 
commenter made two specific comments on the interim final rule.

II. Response to Comments

    EPA received one comment in two specific areas. The first portion 
of the comment noted that ``most procedures litigation rules, including 
the Federal Rules of Civil Procedure (FRCP), provide that Saturdays, 
Sundays, and legal holidays shall not be counted in calculating short 
time limits (e.g., ten days or less).'' The commenter went on to note 
that the rule was at odds with such procedures. EPA notes that while 
the rule is not identical to the FRCP, there is a good reason for such 
departure. The procedures in this rule are designed to allow expedited 
hearings in accord with the time frames provided in CERCLA section 112. 
Nevertheless, litigants may seek an extension of the time for the 
Presiding Officer to render a final order in the case, or may extend 
that time frame by agreement of all parties. See 40 CFR 305.4(c). 
Furthermore, litigants may seek extensions of time for the filing of 
pleadings, documents, or motions. See 40 CFR 305.6(b). Therefore, 
because of the need for expedition, and the availability of extensions 
provided elsewhere in the rule, EPA believes that no change to the rule 
is necessary.
    The second portion of the comment noted that the ``service'' rules 
``do not provide for service of documents on Federal agencies . . . 
from which we infer that the rules are not intended to apply to such.'' 
That inference is incorrect. Because the rule applied to Federal 
agencies that are potentially responsible parties, EPA has corrected 
the final rule by adding procedures to serve Federal agencies at 
Sec. 305.5(b)(1)(v). The amended rule provides that ``(S)ervice upon an 
officer or agency of the United States shall be made by delivering a 
copy of the document to the officer or agency, or in any manner 
prescribed for service by applicable regulations. If the agency is a 
corporation, the document shall be served as prescribed in paragraph 
(iii) of this section.'' Like the rest of the rule, the new service 
provision is modeled on 40 CFR part 22.
    The commenter also raised a ``related question'' regarding the 
manner and means by which Federal agencies are to be compensated for 
the costs they incur pursuant to the NCP and related plans. Such 
comment does not relate to the interim final rule and has been directed 
to the appropriate EPA official for response.

III. Summary of Supporting Analyses

    Proposed and final rules issued by Federal Agencies are subject to 
several statutes and executive orders. These include Executive Order 
12291 (superseded by Executive Order 12866 on September 1, 1993), the 
Regulatory Flexibility Act, and the Paperwork Reduction Act.

A. Executive Order Review

    This rulemaking was submitted and reviewed by the Office of 
Management and Budget under Executive Order 12291. The rulemaking was 
non-major under the requirements of that Executive Order. Therefore, no 
Regulatory Impact Analysis was prepared.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 requires that a Regulatory 
Flexibility Analysis be performed for all rules that are likely to have 
a ``significant economic impact on a substantial number of small 
entities.'' EPA certifies that this rule will not have a significant 
economic impact on a substantial number of small entities because all 
authorized costs and expenses are payable from the Fund. Further, this 
final rule imposes no capital expenditures, nor any compliance 
requirements on any business.

C. Paperwork Reduction Act

    The final rule contains no information collection requirements 
which require approval by the Office of Management and Budget pursuant 
to 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 305

    Environmental protection, Administrative practice and procedures, 
Chemicals, Hazardous materials, Reporting and recordkeeping 
requirements, Superfund, Waste treatment and disposal.

Dated: December 16, 1993.
Carol M. Browner,
Administrator.

    40 CFR part 305 is amended as follows:

PART 305--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND 
LIABILITY ACT (CERCLA) ADMINISTRATIVE HEARING PROCEDURES FOR CLAIMS 
AGAINST THE SUPERFUND

    1. The authority citation for part 305 continues to read as 
follows:

    Authority: 42 U.S.C. 9601 et seq.; E.O. 12580, 52 FR 2923, 3 
CFR, 1987 Comp. p. 193.

    2. Section 305.5 is amended by adding paragraph (b)(2)(v) to read 
as follows:


Sec. 305.5  Filing, service, and form of pleadings and documents.

* * * * *
    (b) * * *
    (2) * * *
    (v) Service upon an officer of agency of the United States shall be 
made by delivering a copy of the document to the officer or agency, or 
in any manner prescribed for service by applicable regulations. If the 
agency is a corporation, the document shall be served as prescribed in 
paragraph (b)(2)(iii) of this section.
* * * * *
[FR Doc. 93-32034 Filed 12-30-93; 8:45 am]
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