[Federal Register Volume 73, Number 186 (Wednesday, September 24, 2008)]
[Rules and Regulations]
[Pages 54946-54947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22354]
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DEPARTMENT OF JUSTICE
28 CFR Part 0
[Docket No. ENRD 100; AG Order No. 3001-2008]
Authority To Compromise Civil Claims Under the Comprehensive
Environmental Response, Compensation and Liability Act and To Make an
Administrative Change to the Code of Federal Regulations
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule amends our regulations to reflect the name of the
Environment and Natural Resources Division, which was formerly known as
the Land and Natural Resources Division. The Department of Justice
officially changed the name of the Division in the early 1990s, but all
of the pertinent parts of part 0 were not amended accordingly.
This order further amends our regulations to authorize the
Assistant Attorney General for the Environment and Natural Resources
Division to approve certain settlements under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA).
DATES: Effective Date: September 24, 2008.
FOR FURTHER INFORMATION CONTACT: Bruce S. Gelber, Chief, Environmental
Enforcement Section, Environment and Natural Resources Division,
Department of Justice, P.O. Box 7611, Washington, DC 20044-7611 (202-
514-4624).
SUPPLEMENTARY INFORMATION: In subpart Y of 28 CFR part 0, the Attorney
General has delegated to the various Assistant Attorneys General
certain of his authority to compromise and close civil claims. Section
0.160(a)(1) authorizes the various Assistant Attorneys General to
``[a]ccept offers in compromise of claims asserted by the United States
in all cases in which the difference between the gross amount of the
original claim and the proposed settlement does not exceed $2,000,000
or 15 percent of the original claim, whichever is greater.''
Administrative Changes
In the early 1990s, the name of the Land and Natural Resources
Division was changed to the Environment and Natural Resources Division
to better reflect the broader responsibilities of the Division since
its inception in 1909. The administrative change in this rule corrects
the name of the Division throughout part 0, where the former name
remains.
Changes to Section 0.160
CERCLA was enacted in 1980 in response to the discovery of
significant human health hazards at a number of sites where hazardous
wastes had been dumped or buried. Public Law 96-510 (42 U.S.C. 9601, et
seq.). The law created a ``Superfund'' to help pay the costs of
investigating and cleaning up these sites, 26 U.S.C. 9507, and also
imposed liability for the costs of cleanup on the parties who were
responsible for creating these sites, 42 U.S.C. 9607(a). These parties
(referred to collectively as ``potentially responsible parties'')
include: The current owners and operators of a facility from which
there is a release or threatened release of a hazardous substance into
the environment; those who owned or operated the facility at the time
hazardous substances were disposed of at that facility; those who
generated the hazardous substances and arranged for their treatment or
disposal by a third party; and those who transported the hazardous
substances for treatment or disposal, if they selected the site. 42
U.S.C. 9607(a).
While the courts have agreed uniformly that liability under CERCLA
is joint and several when the harm at the site is indivisible, 42
U.S.C. 9613(f) provides for the equitable allocation of response costs
among the jointly and severally liable parties. A single case under
CERCLA can involve numerous (sometimes hundreds of) separate
responsible parties whose liability can be equitably allocated or
determined to be de minimis for purposes of reaching a settlement of
their liability. Indeed, Congress encourages the Environmental
Protection Agency to reach expedited settlements with de minimis
parties. 42 U.S.C. 9622(g). However, based on the total claim at the
site, some of these settlements will result in differences between the
original claim and the proposed settlement that are greater than $2
million (or 15 percent of the original claim). Many settlements are
made with parties who do not have the financial ability to pay the
equitable allocated amount. Some non-de minimis settlements result in
compromises of our original claim as a result of the responsible
party's ability to pay. These types of settlements with individual
parties are common in multi-party CERCLA litigation and seldom raise
issues significant enough to warrant Associate Attorney General review.
In order to increase efficiency in the approval process, this rule
amends Section 0.160 of Subpart Y to authorize the Assistant Attorney
General, Environment and Natural Resources
[[Page 54947]]
Division, to approve these kinds of partial CERCLA settlements.
Administrative Procedure Act
This rule is a rule of agency organization and procedure, and
relates to the internal management of the Department of Justice. It is
therefore exempt from the requirements of notice and comments and a
delayed effective date. 5 U.S.C. 553(b), (d).
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities because it pertains to
personnel and administrative matters affecting the Department. Further,
a Regulatory Flexibility Analysis was not required to be prepared for
this final rule since the Department was not required to publish a
general notice of proposed rulemaking for this matter.
Executive Order 12866--Regulatory Planning and Review
This action has been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review, Sec. 1(b),
Principles of Regulation. This rule is limited to agency organization,
management and personnel as described by Executive Order 12866 Sec.
3(d)(3) and, therefore, is not a ``regulation'' or ``rule'' as defined
by this Executive Order. Accordingly, this action has not been reviewed
by the Office of Management and Budget.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 28 CFR Part 0
Authority delegations (government agencies), Government employees,
Organization and functions (government agencies), Whistleblowing.
0
For the reasons set forth in the preamble, Part 0 of Title 28, Code of
Federal Regulations is amended to read as follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for Part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
0
2. In 28 CFR part 0, remove the words ``Land and Natural Resources
Division'' and add, in their place, the words ``Environment and Natural
Resources Division'' in the following places:
0
a. Section 0.45(a), (b) and (g);
0
b. Subpart L, consisting of Sec. Sec. 0.65 through 0.69c.
0
c. Section 0.175(b); and
0
d. Subpart Y, consisting of Sec. 0.160 through the Appendix to Subpart
Y of Part 0.
0
3. Section 0.160 is amended by revising paragraphs (a) introductory
text and (b), redesignating paragraph (c) as paragraph (d), and adding
new paragraph (c) to read as follows:
Sec. 0.160 Offers that may be accepted by Assistant Attorneys
General.
(a) Subject to the limitations set forth in paragraph (d) of this
section, Assistant Attorneys General are authorized, with respect to
matters assigned to their respective divisions, to:
* * * * *
(b) Subject to the limitations set forth in paragraph (d) of this
section, the Assistant Attorney General, Tax Division, is further
authorized to accept offers in compromise of, or settle
administratively, claims against the United States, regardless of the
amount of the proposed settlement, in all cases in which the Joint
Committee on Taxation has indicated that it has no adverse criticism of
the proposed settlement.
(c) Subject to the limitations set forth in paragraph (d) of this
section, the Assistant Attorney General, Environment and Natural
Resources Division, is further authorized to approve settlements under
the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601 et seq., regardless of the amount of the proposed
settlement, with:
(1) Parties whose contribution to contamination at a hazardous
waste site is de minimis within the meaning of 42 U.S.C. 9622(g); or
(2) Parties whose responsibility can be equitably allocated and
are:
(A) Paying at least the allocated amount; or
(B) Unable to pay the allocated amount as confirmed by a qualified
financial expert.
* * * * *
Dated: September 16, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-22354 Filed 9-23-08; 8:45 am]
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