OSWER99380
&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9938.0
TITLE: 300/ - Inspection Authority Under RCRA
APPROVAL DATE:
EFFECTIVE DATE: 4/17/86
ORIGINATING OFFICE: OWPE •
SPINAL
D DRAFT
STATUS:
REFERENCE (other documents):
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vvEPA
Washington, DC 20460
OSWER Directive Initiation Reauest
Originator Information
Name of Contact Person
Lloyd Guerci
Lead Office
D OERR
D OSW
D OUST
C?OWPE
D AA-OSWER
Mail Code Teleohpne
WH-527 38Z-4
Approved for Review
Signature of Office Director fi
\ 9938.0
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Date
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460 * '
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
April 25, 1986
MEMORANDUM
SUBJECT: RCRA § 3007 Inspection Authority
FROM: Lloyd S. Guerci
TO: RCRA Enforcement Division Staff
Attached is an opinion of the General Counsel
on EPA's inspection authority under RCRA section 3007.
This has been sent to the Regions.
cc: Gene Lucero
Peter Cook
Jack Stanton
Frank Biros
John Cross
Mike Kilpatrick
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460 " ' -
OFFICE OF
L COUNSEL
APR 17 1986
MEMORANDUM
SUBJECT? Inspection Authority Under Section 3007 of RCRA
FROM: Francis S.
General Counsel
TO: J0 Winston Porter
Assistant Administrator for Solid Waste and
Emergency Response
A number of questions have arisen concerning the scope
of the Agency's inspection authority under Section 3007 of
RCRA. As discussed below in more detail, I believe that our
inspection authority (including the authority to sample)
extends to any establishment, place, or facility that either
presently or in the past, has handled solid wastes- that EPA
reasonably believes may meet the statutory definition of a
hazardous waste. This authority is limited by the fact that
it must be used to gather information concerning hazardous
wastes and must be exercised for the purposes of RCRA rule-
making or enforcement. Within these limits, section 3007
authorizes inspections in connection with a number of RCRA
provisions including the Agency's section 7003 imminent
hazard authority, its present Subtitle C regulations, its
corrective action authority under sections 3004(u) and 3008(h)f
and its -Subtitle D authority under sections 4005 and 4010.
Section 3007 (a) provides that w[f]or purposes of developing
or assisting in the development of any regulation or enforcing
the provisions of this title," EPA is authorized
(1) to enter at reasonable times any establishment
or other place where hazardous wastes are or
have been generated, stored, treated, disposed
of or transported from;-*- ,
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(2) to inspect and obtain samples from any person of
any such wastes and samples of any containers or
labeling for such wastes.
A plain reading of this language unambiguously suggests
a broad grant of inspection authority. As noted above, the
exercise of this authority is expressly limited by only two
conditions. First, the specific information gathered must
relate to hazardous wastes. Second, it must be used for the
purposes of RCRA rulemaking or enforcement. Each of these
conditions, while providing clear limits on the use of the
Agency's inspection authority, is nonetheless stated in
expansive terms. I/
a. Hazardous Wastes •
The first condition is stated in general unrestrictive
language. By providing authority'- to enter "any establishment
or other place where hazardous wastes are .or have been gener-
ated, stored, treated, disposed of or transported from"
(emphasis added), Congress unequivocally provided for a broad
application of the Agency's inspection authority. There is
no limiting reference in this language to Subtitle C facilities
or units. Nor is there any requirement that the hazardous
waste management activity be currently ongoing or even that
the site of the activity be a disposal area. For example,
under the language noted above, EPA's inspection authority
extends to generator sites, storage areas, treatment opera-
tions and transfer points. Thus, the emphasis is on any
geographical location where hazardous wastes presently may be
or in the past have been handled - whether or not in compliance
with Subtitle C. Quite clearly, this may include solid waste
management units otherwise subject to Subtitle D.
Use of the phrase "hazardous wastes" is itself a further
indication that the scope of section 3007(a) is not limited
to Subtitle C facilities and units. Unlike sections 3002
through 3004 and section 3010, Congress did not confine the
operation of 3007(a) to "hazardous wastes identified or listed
under this subtitle" (emphasis added). As explained in the
preamble of the May 19, 1980 hazardous waste identification
I/ The inspection provisions of section 3007(a) are similar
to those under section 104(e) of CERCLA. Although not
addressed in this discussion, it is important to note that
section 104(e) as well as other provisions of CERCLA may
provide additional and independent grounds for entry and
inspections at solid waste facilities.
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and listing rules 2/ and more recently articulated in the
Agency's amendments to the definition of solid waste 3/f EPA
believes Congress1 unrestricted use of this phrase confirms
that the scope of section 3007(a) extends to any solid waste
that the Agency reasonably believes may meet the statutory
definition of a hazardous waste under section 1004(5). £/
As defined by Congress, the term hazardous waste means
any solid waste that EPA reasonably believes
because of its quantity, concentration, or
physical, chemical, or infectious charac-- •'
teristics may
(A) cause or significantly contribute to an
increase in mortality or any increase in
serious irreversible, or incapacitating
reversible, illness; or
(B) pose a substantial present or potential
hazard to human health or the environ-
ment when improperly treated, stored,
transported, or disposed of, or otherwise
managed. (emphasis added)
Clearly a waste which is "classified" as hazardous pursuant
to regulations under section 3001 (i.e., is listed or meets
one of the characteristics) would automatically Tall within
the scope of the section 1004(5) definition. But just as
clearly, any other solid waste that "may pose -a0..hazard...
when improperly...managed" (emphasis added) also meets the
statutory definition even though no formal action identifying
it as a hazardous waste has been taken. This second group
includes, for example, solid wastes containing any of the
hazardous constituents listed in Appendix VIII to Part 261
y 45 Fed. Reg. 33084, 33090 (May 19, 1980).
3/ 50 Fed. Reg. 614, 627 (January 4, 1985); 40 CFR §
+\ t* ^ 1 / l_ \ / *"\ \
4/ This view was expressly affirmed by Congress in its
consideration of the 1984 Hazardous and Solid Waste
Amendments: "EPA's authority under these provisions [sections
3007 and 7003] is not limited to wastes that are 'identified
or listed1 as hazardous, but rather includes all wastes that
meet the statutory definition of hazardous waste." H.R. Rep.
No. 198, 98th Cong., 1st Sess. 47 (1983).
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which may form the basis for listing actions under 40 CFR
S 261.11. As explained at length in the Agency's May 19,
1980 rule/ "the presence of any of these constituents in the
waste is presumed to be sufficient to list the waste unless
after consideration of the designated multiple factors
[specified at 40 CFR § 261.11] EPA concludes the waste is not
hazardous'." 5/
There is little question that materials meeting the
definition of hazardous waste may be improperly disposed of
at Subtitle D solid waste management sites. We, therefore,
believe the scope of section 3007(a) may extend to such
locations. As Congress recognized in enacting amendments to
Subtitle D as part of the 1984 Hazardous and Solid Waste
Amendments, • .
Subtitle D facilities are the recipients of
unknown quantities of hazardous waste and other
dangerous materials resulting from the disposal
of household waste, small quantity generator
wastes and illegal dumping, 6/ (emphasis added)
To interpret EPA's inspection authority as applying only
to wastes managed at Subtitle C facilities or units leads to
the incongruous result of EPA's inspecting a self-defined
class of facilities that have already acknowledged their
hazardous waste management responsibilities. This narrow
interpretation essentially precludes the Agency from identi-
fying other situations where the improper and unacknowledged
storage or disposal of hazardous wastes may pose a threat to
the environment. We do not believe that this is either what
Congress intended or what the plain language of section
3007(a) suggests.
b. Rulemaking and Enforcement
The second condition of section 3007(a) explicitly provides
hazardous waste inspection authority n[f]or the purposes of
developing or assisting in the development of any regulation or
enforcing the provisions of this title" (emphasis added). In
passing the 1980 amendments to the Solid Waste Disposal Act,
Congress substituted the term "title" in place of "subtitle"
specifically to extend the scope of section 3007(a) beyond
Subtitle C. As explained in the accompanying Senate report,
this change ^
5/ 45 Fed. Reg. 33084, 33107.
6/ H.R. Rep. No. 1133, 98th Cong., 2d Sess. 117 (1984).
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. . . expands the Administrator's authority
to request information or examine the records
of a person handling solid wast@e At present,
this authority applies only to actions under
Subtitle C dealing with hazardous wastes.
The amendments would allow such access for
purposes of the entire Act. T/
Thus it is clear that the Agency's inspection authority
extends not only simply to Subtitle C actions but also to
activities under other RCRA Subtitles, as well. Within the
general constraint that it be related to hazardous-'waste, the
scope of section 3007(a) authority is determined primarily by
the specific rulemaking or enforcement purposes for which it
is used. In this context, we believe there are a. number of
legal bases under which the authority to enter and inspect is
broadly available to the Agency.
1. Rulemaking
With regard to rulemaking, section 3007(a) by its terms
is available to assist "in the development of any regulation"
under RCRA. Under this provision, we believe that the Agency
has the authority to gather preliminary data both to determine
the need for regulation and, where the need is established,
to develop an appropriate regulatory strategy adequate to
carry out the requirements of RCRA,, Depending on the criteria
and relevant requirements of the provisions or section under
which a particular rulemaking is developed, this may include
detailed scientific, technical, or financial questionnaires
and surveys, as well as on-site inspections and sampling.
This authority extends not only to rulemakings under
Subtitle C but, as noted above, to rulemakings under other
provisions of RCRA. With respect to Subtitle C, this authority
would extend, for example, to gathering information to assist
in developing corrective action standards under section
3004(u). Because the provisions of section 3004(u) apply to
both solid waste and hazardous waste units at any facility
seeking a section 3005(c) permit, the inspection and sampling
authority of section 3007 would also extend to such units to
assist in gathering data relevant to the rulemaking process.
With respect to non Subtitle' C provisions,! section 4010
provides an example of section 3007's applicability under
Subtitle D. Enacted as part of the 1984 HSWA amendments,
section 4010 requires the Administrator to conduct a study on
7/ S. Rep. No. 172, 96th Cong., 2d Sess, 3 (1979); see also
~ -- - - .- •, , . , rxruu o,,,,_ -5^ e-ee "*«; M Q ft 01 .
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the adequacy of existing Subtitle D guidelines and criteria
and to promulgate revised criteria for Subtitle D facilities
that "may receive hazardous household wastes or hazardous
wastes from small quantity generators under section 3001(d)".
Because one of the purposes of the study and the central
purpose of the revisions is to address hazardous wastes at
Subtitle D facilities, we believe the Agency's entry and
inspection authority under section 3007(a) extends to gather-
ing information at Subtitle D facilities both for the purpose
of conducting the study as it relates to hazardous wastes and
to assist in developing revisions to existing Subtitle D
criteria.
2. Enforcement
With regard to enforcement, the scope of section 3007(a)
is equally broad and, again, extends not simply to Subtitle C
actions but also, for example, to enforcing the broad imminent
hazard provisions of section 7003(a). By its terms, this
section applies to any situation under RCRA (whether or not
it is regulated under Subtitle C) in which "the past or pre-
sent handling, storage, treatment, transportation or disposal
of any solid waste or hazardous waste may present an imminent
and substantial endangerment to health or the environment".
In addition to enforcing section 7003, the Agency's
inspection authority is available to gather information in
support of actions under the general Subtitle C enforcement
authority of section 3008, as well as under the Subtitle D
enforcement authority of section 4005(c). With respect to
both sections, EPA interprets its "enforcement" inspection
authority to extend not only to information gathering in
connection with a particular judicial or administrative
proceeding but also to assist in the preliminary day-to-day
information gathering and data analysis associated with
permitting and compliance assessments that ultimately may
lead to specific enforcement actions. Section 3008 applies to
a "violation of any requirement" of Subtitle C and thus, for
purposes of enforcement, the inspection and sampling authority
of section 3007 is available for determining and assuring
compliance with any Subtitle C requirement. Under section
4005(c), EPA's inspection authority is also available but in
a somewhat more limited context for purposes of enforcing
Subtitle D open dumping criteria that have been revised under
section 4010. This open dumping enforcement authority and,
by extension, EPA's inspection authority is available only in
those circumstances where a state has failed to adopt an
adequate program assuring compliance with the revised criteria.
In the case of inspections at a Subtitle C facility to
determine compliance with applicable hazardous waste regulations,
the scope of section 3007(a) authority is determined, again,
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by the two constraints that the information gathered relate
to hazardous wastes and be used to enforce a RCRA provision.
The clearest example of an authorized inspection at such a
facility under section 3007(a) is, of course, sampling at
solid waste units that are expressly managed as Subtitle C
hazardous waste units. The information obtained unquestion-
ably will relate to hazardous wastes and can be used to
enforce applicable regulatory requirements. However, it
should be emphasized, as noted above, that section 3007(a)
inspection authority just as clearly extends to other non-
Subtitle C units at a Subtitle C facility where there is some
basis for concluding that they may also provide information
relating to hazardous wastes. Samples from the non-Subtitle
C unit may provide information concerning hazardous wastes
that have been disposed of in the unit itself, and, in certain
circumstances, the samples may provide information regarding
the management of hazardous wastes that have been placed in
nearby Subtitle C units. An example of the second case would
be a situation in which both the solid waste and hazardous
waste units were located near one another over the same
aquifer. Depending on the hydrogeology at the site and the
placement of wells at each unit, samples from the solid waste
unit may well provide information regarding leachate from the
hazardous waste unit.
The corrective action requirements in sections 3004(u)
and 3008(h) provide additional grounds for the broad applica-
tion of section 3007's enforcement inspection authority.
Section 3004(u) requires corrective action "for all releases
of hazardous waste or constituents from any solid waste
management unit at a...facility seeking a permit under this
Subtitle [C]" (emphasis added). JJ/ Congress made clear that
the phrase "solid waste management unit" was specifically
8/ Congress specifically provided that the corrective action
requirement is to be implemented through standards promul-
gated under section 3004 and permits issued after November 8,
1984. EPA's inspection authority for rulemaking purposes is
discussed above. The Agency has 4ncorP°rate<^ the general
requirement for corrective action in its regulations at 40
CFR § 264.101. See 50 Fed. Reg. 28747 (1985). Thus, the
requirement is presently in effect and applies to any "facility
seeking a permit for the treatment, storage or disposal of
hazardous waste...", 40 CFR § 264.101(a). EPA intends to
issue more detailed national standards addressing appropriate
corrective action for releases of hazardous waste or consti-
tuents from solid waste management units at such facilities,
i <=h ~H th~ A^en^V will
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added to the language of section 3004(u) "to reaffirm the
Administrator's responsibility to examine all units at the
facility from which hazardous constituents might migrate,
irrespective of whether the units were intended for the
management of solid or hazardous wastes." 9/
By explicitly requiring that the provisions of section
3004(u) apply to any solid waste management unit at a hazardous
waste facility, Congress has made the cleanup of such units
an element of hazardous waste management under section 3004.
Congress' specific reference to releases of hazardous consti-
tuents from solid waste management units confirms the broad
scope of section 3004(u) and is consistent with the Agency's
interpretation of hazardous waste discussed above,-which
includes not only "identified" hazardous wastes but also
those wastes that may contain hazardous constituents listed
in Appendix VIII of 40 CFR Part 261. These factors when
considered in conjunction with the explicit legislative
history noted above reaffirming "the Administrator's respon-
sibility to examine all units" at a Subtitle C facility
confirm that Congress considered the regulation of these
units to be an integral part of the hazardous waste program
under Subtitle C and thus clearly within the scope of section
3007(a) inspection authority.
With respect to interim status corrective action authority,
section 3008(h) provides .that "whenever on the basis of any
information the Administrator determines there is or has been
a release of hazardous waste into the environment from a facil-
ity authorized to operate under section 3005(e) of this
subtitle, the Administrator may issue an order requiring
corrective action." Congress viewed this provision as "a
supplement to EPA's power to impose corrective action through
permits" 10/, that EPA would use "to achieve the environmental
standards promulgated under section 3004." ll/ Because section
3004 has been amended to extend corrective action requirements
to a11 solid waste management units at facilities seeking a
RCRA permit, the Agency has interpreted this mandate to
authorize the issuance of corrective action orders to any
interim status facility containing solid waste management
units (regardless of whether they are Subtitle C or Subtitle
D units) from which there has been a release of hazardous
waste to the environment. 12/
9/ H.R. Rep. No. 198, 98th Cong., 1st Sess. 60 (1983).
10/ H.R. Rep. No. 1133, 98th Cong., 2d Sess. Ill (1984).
ii/ !!•
127 See 50 Fed. Reg. 28716 (1985).
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Because section 3008{h) extends corrective action
authority to releases from any solid waste management unit at
an interim status facility, we believe that section 3007(a)
inspection authority also extends to such units for the
purpose of determining whether there has been a hazardous
Constituent release and what corrective action would be
appropriateo
ccs Richard H. Mays (LE-133)
Regional Counsels
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