[Federal Register Volume 64, Number 46 (Wednesday, March 10, 1999)] [Notices] [Pages 11881-11884] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-5958] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [FRL-6308-8] Notice of Availability: Y2K Enforcement Policy AGENCY: Environmental Protection Agency. ACTION: Notice of Availability: Y2K Enforcement Policy. ----------------------------------------------------------------------- SUMMARY: On November 30, 1998, EPA issued an enforcement policy designed to encourage prompt testing of computer-related equipment to ensure that environmental compliance is not impaired by the Y2K computer bug. Under the policy (published on the Internet at www.epa.gov/year2000), EPA stated its intent to waive 100% of the civil penalties that might otherwise apply, and to recommend against criminal prosecution, for environmental violations caused during specific tests that are designed to identify and eliminate Y2K-related malfunctions. The policy also stated that the civil penalty waiver and recommendation against criminal prosecution are limited to testing-related violations disclosed to EPA by February 1, 2000, and are subject to certain conditions, such as the need to design and conduct the tests well in advance of the dates in question, the need to conduct the tests for the shortest possible period of time necessary, the need to correct any testing-related violations immediately, and other conditions to ensure that protection of human health and the environment is not compromised. Today's notice publishes the entire policy for the first time in the Federal Register, to increase public awareness of this incentive to test computer-related systems and to incorporate several minor revisions aimed at clarifying the policy in response to public comment. The policy published today contains no major changes to the eligibility criteria announced on November 30, 1998. ADDRESSES: Additional copies of the policy can be obtained on the Internet at www.epa.gov/year2000, and through EPA's Enforcement and Compliance Docket Information Center (ECDIC), 1200 Pennsylvania Ave., N.W., Room [[Page 11882]] 4033, Washington, D.C. 20004. Copies of any case settlements resolved pursuant to the policy and a summary of responses to public comments may be obtained from the ECDIC, by calling 202-564-2614 or 202-564- 2119, or by sending a request via FAX to 202-501-1011 or an e-mail message to docket.oeca@epamail.epa.gov. FOR FURTHER INFORMATION CONTACT: Any general comments on this policy may be directed to Gary A. Jonesi, Office of Regulatory Enforcement, at 202-564-4002 (202-564-0011 FAX) (jonesi.gary@epa.gov). Individual facility-specific concerns also may be directed to the EPA regional offices listed at the end of this notice. SUPPLEMENTARY INFORMATION: Background The Y2K issue arises because a number of computerized functions require recognition of a specific year, day, and time, but many computers and computerized equipment recognize only the last two digits of a year's date (i.e., 1998 is 98; 2000 is 00). Therefore, when the calendar changes to the year 2000, computers and equipment with embedded computer chips may have difficulty interpreting the correct date. They may interpret the year to be 1900 or some other year. As a result, some computers and equipment containing embedded computer chips could become permanently unable to function properly. Others may continue to operate, but erroneously, while others simply may stop and need to be restarted. Some may create data that look correct, but in reality contain errors, and some may continue to operate correctly. In addition, some technical experts warn that certain computer-related systems may have trouble functioning properly on more than a dozen other dates arising over the next two years (see www.epa.gov/year2000/ append1.htm for a listing of such dates). For example, as to September 9, 1999, the digital representation of that date, 9/9/99 (``four 9s''), may be interpreted as the end of a file or infinity, and, thus, may have unintended consequences. This policy encompasses concerns over computer-related testing problems that may arise as a result of any of the dozen or more dates. Together, these dates are referred to as Y2K for purposes of this enforcement policy. Emphasis on Testing The public expects compliance with the nation's environmental laws, and the regulated community must take all steps necessary to anticipate and resolve potential environmental compliance problems that may result from Y2K-related equipment problems by the dates in question (e.g., 9/9/99 and 1/1/00). In an effort to ensure timely compliance, EPA has adopted this enforcement policy to encourage any necessary testing of computer systems and their related environmental components (e.g, monitoring and pollution control devices) well in advance of these dates. Under this policy, EPA reiterates its commitment to firm yet fair enforcement of environmental requirements regardless of any potential Y2K-related problems. At the same time, this policy recognizes that regulated facilities can benefit from having an additional measure of predictability concerning how EPA intends to react if such testing results in environmental violations under any of the regulatory enforcement statutes that EPA implements. Relationship to Y2K Dates Although the focus of this policy is on testing-related violations that may occur prior to January 1, 2000, EPA notes that with respect to violations occurring after January 1, 2000, the Agency's longstanding enforcement response and penalty policies will continue to recognize a facility's good faith efforts and other potentially mitigating factors in determining an appropriate enforcement response. In that regard, facilities that test in accordance with the terms of this policy are likely to be in a more favorable position than facilities that do not, in the event that, despite a facility's best efforts at testing, the facility cannot correct all Y2K-related deficiencies in a timely manner. Use of Existing Testing Procedures Under EPA's Y2K enforcement policy, regulated facilities who wish to test in advance of the Y2K dates are encouraged first to utilize any existing regulatory or permit procedures that are applicable and that can provide a timely and effective process for testing. For example, the Resource Conservation and Recovery Act (RCRA) regulations provide for trial burn testing of hazardous waste (40 CFR 266.102), research, development, and demonstration permits (Sec. 270.65), and land treatment demonstrations (Sec. 270.63). To the extent that existing procedures under any statutory program are appropriate, their use will help to ensure that the federal, state, and/or local agencies and programs that already are best situated to oversee facility testing can remain involved in that process. This enforcement policy does not modify, revoke, or otherwise affect any existing federal, state, or local permit, regulatory, or other (e.g., consent agreement) obligations, including but not limited to any public notice and comment requirements. Criteria Justifying Application of This Policy If no existing procedures are applicable, or if none are appropriate given the need to expedite testing, this Y2K enforcement policy states that EPA expects to exercise its discretion to waive 100% of the civil penalties that might otherwise apply and to recommend against criminal prosecution for violations resulting from specific tests, where the facility can meet its burden of demonstrating to EPA that it has satisfied all of the nine criteria below. (Because this policy anticipates immediate correction of violations (see # 5 below), any test-period noncompliance that qualifies for a 100% civil penalty waiver or recommendation against criminal prosecution will not create a significant economic benefit, since compliance costs will not have been avoided or delayed.) (1) Systematic Design of Testing Protocols. Written testing protocols were designed in advance of the testing period, approved by the facility's responsible official, reflect a conscientious effort to evaluate the facility's Y2K-related environmental compliance status and not to circumvent environmental compliance, and were designed to prevent or limit violations that may result from such testing (e.g., through adoption or revision of appropriate contingency plans.) (2) Violations Caused By Testing. The specific Y2K-related testing was the direct and proximate cause of the potential violations. (3) Testing Need, Timing and Length. The specific testing that caused the potential violations was: (a) Necessary to determine the effectiveness of specific Y2K- related modifications in ensuring environmental compliance; (b) Part of a comprehensive testing program designed to correct all Y2K deficiencies at the facility; (c) Conducted well in advance of the Y2K dates in question (i.e., normally at least 30 days in advance of the dates in question); and (d) Conducted for the shortest possible period of time in order to determine the effectiveness of such modifications, ordinarily not to exceed a testing period of 24 hours in duration. Where a facility, without making any modifications, tests existing equipment [[Page 11883]] in order to determine whether Y2K-related problems may affect its environmental compliance status, the specific testing was: (e) Necessary to determine the effectiveness of its existing operations in ensuring environmental compliance; (f) Part of a comprehensive testing program designed to correct all Y2K-related deficiencies at the facility; (g) Conducted well in advance of the Y2K dates in question (i.e., normally at least 30 days in advance of the dates in question); and (h) Conducted for the shortest possible period of time in order to ascertain the effectiveness of its existing operations in ensuring environmental compliance, ordinarily not to exceed a testing period of 24 hours in duration. (4) Absence of Harm. The violations that may have occurred during testing did not result in creation of a potentially imminent and substantial endangerment (as EPA defines such threats under its RCRA section 7003 policies), or serious actual harm. Notwithstanding any civil penalty waivers or recommendations against criminal prosecution that may be appropriate under this policy, EPA retains its authority to seek any injunctive relief that it deems necessary, regardless of the level of harm, potential harm, or lack thereof. (5) Immediate Correction. All violations ceased as soon as possible, not later than at the end of the test or immediately thereafter (within 24 hours). (6) Expeditious Remediation. The facility expeditiously remediated any releases or other adverse health or environmental consequences as soon as possible, in accordance with any timing or other considerations that EPA may have specified (in the event that the Agency is involved in the remedial process). (7) Reporting. The facility has met in a timely fashion all legal requirements for reporting the violations (e.g., CERCLA section 103). Where the violations are not legally required to be reported, the facility nevertheless reported the violations to EPA as expeditiously as practicable under the circumstances (ordinarily no more than 30 days after when the violations occurred absent unusual circumstances justifying a longer period), but in all cases no later than February 1, 2000. (8) Retesting. Any retesting conducted prior to the Y2K dates in question met all the criteria outlined in this policy and included modifications to earlier testing and/or operating conditions that are reasonably designed to achieve full compliance. (9) Cooperation. The facility provides any information requested by EPA as necessary to determine whether a 100% penalty waiver or recommendation against criminal prosecution is appropriate, consistent with the facility's legitimate legal rights and privileges. Other Potentially Relevant Enforcement Policies Other existing EPA self-policing and compliance assistance policies may continue to be utilized where they are not inconsistent with this policy. For example, EPA's Audit Policy (formally entitled, ``Incentives for Self-Policing: Discovery, Correction and Prevention of Violations,'' 60 FR 66706 (Dec. 22, 1995)) and Small Business Policy (formally entitled, ``Policy on Compliance Incentives for Small Business,'' 61 FR 27984 (June 3, 1996)) potentially could be applied to any violations that result from Y2K-related equipment problems that occur during and/or after the testing period described in this policy. In addition, EPA's criminal enforcement policies guiding both the exercise of investigative discretion (formally entitled, ``The Exercise of Investigative Discretion,'' Jan. 12, 1994) and implementation of EPA's Audit Policy (formally entitled, ``Implementation of the Environmental Protection Agency's Self-Policing Policy for Disclosures Involving Potential Criminal Violations,'' Oct. 1, 1997) may be relevant in certain cases during and/or after the testing period described in this policy. Public Disclosure of Y2K-Related Testing Violations Similar to EPA's January 1997 memorandum concerning Confidentiality of Information Received Under Agency's Self-Disclosure Policy, EPA will make publicly available any disclosures under this Y2K enforcement policy, consistent with EPA's confidential business information (CBI) provisions found at 40 CFR part 2, but only after these matters are formally resolved. Cooperation With States, Territories, and Tribal Governments EPA encourages States, territories, and tribal governments to adopt this or a similar approach for addressing violations of environmental programs that they implement and enforce. EPA will coordinate closely with such governments concerning Y2K-related testing violations. Disclaimer This enforcement policy does not constitute final Agency action. It does not create any rights, duties, obligations, or defenses, implied or otherwise, in any persons or entities. It sets forth factors that EPA intends to use in the exercise of its enforcement discretion, and it is not intended for use in pleading, at hearing, at trial, or in any adjudicatory context. Specific Compliance Concerns Individual facility-specific concerns may be directed to the EPA regional offices listed below: ---------------------------------------------------------------------------------------------------------------- Region States Contact & phone No. FAX No. ---------------------------------------------------------------------------------------------------------------- Region I........................ CT, ME, MA, NH, RI, VT.. Director, Office of Environmental 617-565-1141 Stewardship 617-565-3800. Region II....................... NJ, NY, PR, VI.......... Director, Division of Enforcement 212-637-4035 and Compliance Assistance 212- 637-4000. Region III...................... DE, DC, MD, PA, VA, WV.. Director, Office of Enforcement, 215-814-2905 Compliance & Environmental Justice 215-814-2627. Region IV....................... AL, FL, GA, KY, NC, MS, Regional Counsel, 404-562-9655... 404-562-9663 SC, TN. Region V........................ IL, IN, MI, MN, OH, WI.. Regional Counsel, 312-886-2944... 312-886-0747 Region VI....................... AR, LA, NM, OK, TX...... Regional Counsel, 214-665-2125... 214-665-2182 Region VII...................... IA, KS, MO, NE.......... Regional Counsel, 913-551-7010... 913-551-7925 Region VIII..................... CO, MT, ND, SD, UT, WY.. Director, Legal Enforcement 303-312-6953 Program, Office of Enforcement, Compliance, and Environmental Justice, 303-312-6890. Region IX....................... AZ, CA, HI, NV, AS, GU.. Regional Counsel, 415-744-1365... 415-744-1041 Region X........................ AK, ID, OR, WA.......... Regional Counsel, 206-553-1073... 206-553-0163 ---------------------------------------------------------------------------------------------------------------- [[Page 11884]] Dated: February 27, 1999. Sylvia Lowrance, Acting Assistant Administrator for Enforcement and Compliance Assurance. [FR Doc. 99-5958 Filed 3-9-99; 8:45 am] BILLING CODE 6560-50-P
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Notice of Availability: Y2K Enforcement Policy
On November 30, 1998, EPA issued an enforcement policy designed to encourage prompt testing of computer-related equipment to ensure that environmental compliance is not impaired...
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64 FR 11881
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“Notice of Availability: Y2K Enforcement Policy,” thefederalregister.org (March 10, 1999), https://thefederalregister.org/documents/99-5958/notice-of-availability-y2k-enforcement-policy.