&EPA
              United States
              Environmental Protection
              Agency
           Office of
           Solid Waste and
           Emergency Response
DIRECTIVE NUMBER:

TITLE:
                            ' 9523.: 10(84) •
                   : EPA Authority Under RCRA Section 3008 to Assess
                    Penalties for Failure to Submit a Complete and'
                    Adequate Part B Application

               APPROVAL DATE:  11-29-84

               EFFECTIVE DATE:  n 29-34

               ORIGINATING OFFICE::: office bfsoiid waste

               0 FINAL

               D DRAFT

                STATUS:



               REFERENCE (other documents):
  OSWER      OSWER      OSWER
fE    DIRECTIVE    DIRECTIVE   Di

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PART 270  SUBPART B - PERMIT APPLICATION
                                                DOC:   9523.10(84)
Key Words:

Regulations

Subject:


Addressee:


Originator:

Source Doc:

Date:

Summary:
Enforcement, Incomplete Part B

40 CFR 270.10(e)

EPA Authority Under RCRA Section 3008 to Assess Penalties  for
Failure to Submit a Complete and Adequate Part B Application

Lee Thomas, Courtney Price, Lisa Friedman, Regional Counsels,
Regions I-III and V-X

James H. Sargent, Regional Counsel, Region IV

#9523.10(84)

11-29-84
     According to a recent ALJ decision, an applicant's failure to submit
a complete and adequate Part B application is not a violation of any RCRA
requirement.  The ALJ's decision was appealed and reversed.  Consequently, the
new decision issued by the Chief Judicial Officer in the case of City Industries,
Inc.,  states that EPA can assess a civil penalty against an owner or an operator
of an existing HWM facility who, despite the Agency's request to do so, fails
to submit an adequate Part B RCRA permit application.  40 CFR 270.10(e)(4)
req.uires submission of a Part B permit application after the Agency requests
it.  40 CFR 270.10(e)(4) was promulgated pursuant to the statutory authority
in RCRA §3005 which directs Che Agency to promulgate regulations requiring RCRA
permits for owners and operators of HWM facilities..  A violation of 40 CFR
270.10(e)(4) is tantamount to violating a requirement contained in RCRA itself.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGcNCY'         952^.iQ
                         WASHINGTON. O.C.  10-50
MEMORANDUM
SUBJECT:  Recent Clarifications of  RCRA  Authorities
FROM:     Peter Guerrero
          Branch Chief
          Permits Branch   (WH-563)

TO:       Section Chiefs
          Regions I-X

                                       •
     The attached documents clarifys your  authority in two important
aspects of the RCRA permit program.  First,  you  will find a decision
issued by the Chief Judicial Officer in  the  case of City Industries,
Inc .   That decision reversed the ALJ's holding  that E'PA lacks  the
authority to assess penalties under Section  3008 of RCRA .for failure
to submit a complete RCRA permit application.

     The second attachment is a technical  change,  announced in the
Federal Register, which clarifies our  authority  to apply Part  265
standards until closure and post closure respons ibli ties are ful-
filled.  Previously, the wording of §265.1 implied that once a
facility's interim status was terminated the facility would no
longer have to meet §265 interim status  standards, i.e. closure,
post closure, and financial responsibility.   However, £?A has  the
statutory authority under Sect-ioiv-3004 to  enforce —the -Part 265
standards at facilities which no longer  have interim status.  The
revisions to §265.1 makes it clear that  Part 265 requirements  apply
to RCRA facilities until either a permit is  issued or until all
applicable Part 265 closure and oost closure responsibilities  ar
fulfilled.

Attachments


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                                                   _ 6-*

  S*"\

 I S^7 3  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               REGION IV
                           ATLANTA. 5EOBGIA 30393
MEMORANDUM

    DATE:  November 29, 1984

SUBJECT:  Administrator's Decision Regarding Authority Under RCRA
          Section 3003 to Assess Penalties for Failure to Submit
          a Complete and Adequate Part B Application

    FROM:  James H. Sargent   C^J^M/^/
          Regional Counsel, Sretji'on IT
                                   u
     TD:^Lee Thomas  (WH-562A)
          Courtney Price  (LE-133)
          Lisa Friedman  (LE-132S)
          Regional Counsels
            Regions I-III and V-X


     Attached is a copy of the decrsion issued by the Chief

Judicial Officer on November 21, 1984 in the case of City

Industries, Inc., Docket No. 83-160-R-KMC.  That decision reversed

the ALJ's holding that EPA lacks the authority to assess penalties

under Section 3008 of RCRA for. failure to submit a complete and

adequate Part 3 RCRA permit application.  This affects many pending

enforcement cases in the regions and reaffirms our authority to

seek penalties for deficiencies in Part B RCRA permit applications.


Attachment

cc:.  RCRA/CERCLA Team Leaders

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                     BEFORE THE  ADMINISTRATOR
               U.S. ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON,  D.C.
In the Mat ter o f:                  )

City Industries, Inc.,            )       RCRA  (3008)
                                  )       Appeal  No.  83-4
  Respondent              x       );
                           x.      « i

RCRA 33-160-R-KM'C                 ^
                                  \
                             ORDER
     This appeal is  from  an  order  of  an  Administrative Law

Judge (presiding officer) disaissing  an  admiaistracive complaint
                                                     y
broughc agaiasc City Industries,  Inc.  (respondent).      la

chat order che presiding.officer  held that  it  was  inappropriate

to assess a civil penalty against  respondent  for  its alleged
                                   .   .'                      2/
failure to submit "Part. 3" of  its  RCRA perait  application.

For che reasons stated  below,  the  initial  decision is reversed

and this proceeding  is  reaanded to  the presiding  officer for
                                                       •
further proceedings  cons istent with  this order.
y 40 CFR $22.20(b) provides  that  such an order constitutes an
Initial decision.  An initial  decision is appealable to the
Administrator or his delegatee pursuant to 40 C?R $22.30.

2_l The Resource Conservation  and  Recovery Act of 1976 (RCRA),
as amended,  42 O.S.C. S6923(a)(l)  et  seq., requires any person
who owns or operates a  hazardous  waste management (HWM) facility
to obtain a RCRA permit  from  the  Agency.   Pursuant Co Agency
regulations, own.ers or  operators  of  facilities in existence on
November 19, 1980, are  allowed to  continue in operation, pending
the Agency's final perait  determination,  if,  among other things,
they submitted Part A,  and  subsequently,  Part B of the RCRA perait
application.  See notes  4  and  5,  infra, for descriptions of
"Part A" and "Part B" of  the  RCRA perait  application.

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                               -2-
Background

     Respondent  owns  and  operates  a  hazardous  waste storage

facility which was doing  business  in Orlando,  Florida on November
          J3/
19, 1980.     RCRA regulations  provide  for  a bifurcated perait

application procedure  for  facilities in  existence on that date,

i.e., so called  "existing  facilities."   An  owner of an existing

facility La required  to subait  Part  A of  its perait application
       V
first.     Subsequently,  at  the Agency's  request, the owner of

such a facility  is required  to  subait Part  B of its perait
             I/'
application.

     Respondent  tlaely  submitted Part A  of  its perait application
                                              6/
and, accordingly, attained  "intaria  status."     However, when
3_/ Although  respondent  is.no  longer receiving hazardous waste at
this facility,  it  continued  to  stjre  hazardous waste for soae
period of  tiae  thereafter  and accordingly was required to have
a perait.  See  40  CFR  5270.1  (1983).   See EOF v. Lamphier, 714
r.2d 331,  335  (4ch Cir.  1933).   The record does not show whether
respondent is  currently  storing hazardous waste.

4_/ Part A  oust  contain  the inforaatioa listed in 40 C?R §270.13
(1933).  This  includes  a description  of Che hazardous waste
activities which  are  conducted  at the facility, Che naae and
location of  Che  facility,  certain iaforaation identifying the
facility's operator and  owner,  a scale drawing  of  the facility,
a description  of  what  processes will  calce place- at the facility,
e.g.,  treataent,  storage,  disposal, the design  capacity of
these  iceas,  identification  of  the hazardous waste Co be handled
at the facility,  Che  quantity of hazardous waste to be handled  at
Che facility,  and  a copographic aap.

_5/ Part B  must  sec forth information  relating Co a  facility's
operational  procedures,  such  as security arrangeaenca, closure
plan,  flood  plan,  detailed plans for  ground water  aonitoring,
ecc. 40 CFR  SS270. 14-29  (1983).  The  inforaacion required Co  be
submitted  as  Pare  B of  the permit application ia more  excensive
and decailed  Chan  Chac  required for Pare A.

_6/ When a  Pare  A  applicacion  for a facilicy  is  submitted  Co
Che Agency (cogecher  with  preliminary notification  of  hazardous
waste  activicy  required by RCRA $3010),  Che  facilicy  is  authorized
Co operate on  an  incerla status basis, i.e.,  pending  che  Agency's
final  decision  on che facilicy's peraic  applicacion.

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                               -3-
 EPA  Region  IV  subsequently requested Part 3 of  Che application,

 Che  materials  which respondent submitted were  unacceptable  to
             v         •
 Che  Region.      Consequently, Che Region filed  an  adminis:ratlv;

 cocaplainc against  respondent charging chat it  violated 40  C~R

 $270.lO(e)  which requires an existing facility  to  submit  Part  3

 of ics  permit  application when ao requested by  the Agency.   A

 civil- penalty  of $5,000 was sought in the complaint  for  chis

 alleged violation.

      In its  answer  co the complaint, respondenc  contended'that

 Ics  Part 3  application was adequate and Che Region should  have

 accepted it.   Alternatively, respondenc contended  chat  "failure

 to aubmic [an  adequate]  Part 3 application ia  not  an  action

 cognizable  under the Resource Conservation a.nd  Recovery  Act  for

 purposes of  assessment of ci.vil penalties." (Emphasis  added.)

 The  presiding  officer agreed with chis laCter  contention  and

 dismissed the  administrative coaplainc with prejudice.   This

 appeal  followed.

 Discussion                     ______    •-._-.--.-

     The sole  issue on appeal Is whether a civil  penalty  can

 be assessed  against an owner of an existing HWM  facility  who,

 despite Che  Agency's request to do so, fails  Co  submit  an
TJ The Region  gave  respondent a number of opportunities to
correcc deficiencies  which  tc had idencifted  in  respondenc's
Pare B application.   Alchough respondenc made  accenpcs aC
correcting them,  ic  failed  Co submit a Pare  B  application which
was accepcable  Co  Che Region.  Whecher respondenc's  Pare 3
appllcacion was  in  face  adequace (and cherefore  was  erroneously
found unacceptable  by 'Che Region) is an issue  Co be  determined
on remand.

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adequate Part B RCRA  paraic  application.   General  Co  the  reso-

lution of  this  Issue  is  RCRA §3008(g)  which  states  that the

Agency is  authorized  to  assess  civil  penalties  only  for viola-

tions of RCRA r equi reaent s:

           Civil Penalties  -  Any person who violates  any
           requi reaen t  of  this  aubchapter  (Subchapter  III  -
           Hazardous Waste  Management]  shall  be  liable td
           the United  States  for a  civil  penalty in  an
           amount  not  to  exceed  $25,000 for each such
           violation.   Each day  of  such violation shall,
           for purposes of  this  subsection, constitute
           a  separate  violation.  8_/   (Emphasis  added.)

     The presiding  officer held that  RCRA contains  no requlreaent

that an 'owner or  operator  of an HWM  facility apply -for a RCRA

perait or  aubait  an adequate perait  application.  Accordingly,

the presiding officer held that respondent's failure to subait

an adequate  Part  3  application  is  not a violation of  aay require-

ae n t contained  in RCRA.   I disagree.

     40 CFR  §270 . L0(e)(4) ( 1983) clearly requires subaission of
                                                           I/
a Part B perait application  after  the Agency requests  it:
£/ See  also  RCRA J$3008(a)(l)  & (a)(3).

j>y laplicit  in  5270 . 10( e) ( 4 ) ' 3 requireaent to subait  a  Part  3
perait  application  is  the  requirement to subait an adequate  (or
complete)  Part  B application.   Of course, no regulatory  require-
ment is  violated where an  owner or operator initially subaits  an
inadequate or  incomplete Part  3 -application but subsequently
corrects  ic  before  expiration  of the six month deadline  referenced
in 5270. 1 0(e)(4).   However, if the owner or operator  fails  or
refuses  to correct  such  deficiencies within the six month
period,  $124.3(d)  allows the  Agency  to deny the perait  and
assess  an  appropriate  civil penalty:

     (d)   If an applicant   fails or refuses to correct defi-
           ciencies  in  the  application, the perait  aay be
           denied and  appropriate enforcement actions  may be

(next page)

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                               -5-


           At  any  tiae  after  promulgation of  ?ha-se II [opera-
     ting  standards] the  owner  and  operator  of  an existing  HVM
     facility may be required  to  submit  Part 3  of their perait
     application.  The  State Director  aay require subaission  of
     Part  3  . .  . if the  State  .  .  .  has received interia
     authorization for  Phase II or  final authorization;  if  not,
     the Regional Adainistrator aay require  submission of_ Part B.
     Any owner or operator shall  be allowed  at  least six months
     from  the date of  request  to  submit  part 3  of the application
     (Eaphasis added.)

40 C?R  $270. 10(e)(4) was  promulgated  pursuant to the statutory

authority  found  in RCRA  53005  which directs  the Agency to

promulgate  regulations  requiring  RCRA peraits for owners and
                             !£/
operators  of  HVM  facilities.      Accordingly,  violating any

requireaent  contained  in  40  CFR  S270.10(e)(4) is tantaaount to
                                                   JJ_/
violating  a  requireaent  contained ia  RCRA itself.      Therefore,
(Footnote No. 9 cont'd)

          taken under  the  applicable  statutory provision
          including RCRA section  3003,  SDWA sections 1423
          and 1424, CAA section  167,  and C'-A sections 303,
          309, 402(h), and  402('.c).   (40 C?R Jl24.3(d).)

(The presiding officer interprets  $124.3(d) as allowing  assess-
aent of a civil penalty if,  and  only  if, a facility continues
to operate after notification  by  the  Agency that its interia
status has been terainated  for failure  (or refusal) to correct
deficiencies  in its Part B  perait  application.  However, there
is no support for  the  view  that  Sl24.3(d)  was aeant to envision
such a sequential  approach,  and  it  ia hereby rejected.).

107 The text  of SCRA  53005  reads  in relevant part as follows:

     (a)  Perait requirements. --  Hot later than eighteen
          nonths after October 21,  1976, the Administrator
          shall promulgate  regulations  requiring each person
          owning or operating  a  facility for the treatment,
          storage, or  disposal of  hazardous waste identified
          or  listed under  this subchapter  to have a perait
          issued pursuant  to this  section.

1 I/ Agency regulations promulgated  pursuant to statutory  authority
have the force and effect  of law.   Service v. Dulles, 354 U.S.
363 (1959); Rodrtguea  v. Dunn,  123  F. Supp. 604 (1955),  af f 'd

(next page)

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                              -6-
ic is clear cha-c falling Co submit an adequace Pare  3 application

is a violation- of a RCRA requirement, and  the  presiding  officer's
                                  •   j_2/
holding to the contrary is reversed.

     This case is remanded to  the presiding  officer  for  further
proceedings consistent with this order.

     So ordered.
                                         137
                                     Ronal^  L.  McCallum
                                  Chief  Judicial  Officer
Dated:
            2  I  193 4
(Footaoce No.  IL coat'd)

249 F.2d 958 (1957).   See  also  Farmer v.   Philadelphia Elec.
Co., 329 F.2d  3 (1964);  Atwood's  Transport Liaer, Inc. v. U.S.,
211 F. Supp. 163 (1962),  aff 'd  373  U.S.  377 (1963); 3 Mezines,
Steia & Gruff, Adaini3trative 'Lav.  $13.03 (1977).

     It should be  noted  that  Interpretive rules, i.e., rules
promulgated by an  Agency  which  Interpret  a statutory provision
may not, In certain  circumstances,  have  the force and effect  of
law.  40 CFR $270.10 'is  not  an  interpretive rule; rather It  falls
Into the category  of a legislative  rule,  I.e.,  a rule which  Con-
gress has specifically authorized the Agency to promulgate and  as
such has the force and effect  of  law.

12/ It is not  necessary  for pur-poses of  this decision to consider
whether the failure  of  an  existing  facility to submit a  Part  A
application is also  a  violation of  a RCXA requirement.   Therefore,
that issue is  neither  addressed nor resolved here.
13/ See note  7,  supra.

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                      CERTIFICATE OF SERVICE
      I  certify  that copies of che foregoing Order  In  the  Ma czar
of  City Industries, Inc., RCRA (3003) Appeal  Ho.  33-4  were
delivered  Co  each  of che fallowing persona, in  che  Banner
indicated:
 3y  Isc  Class  Mail,
 postage  prepaid:
87 Hand Delivery:
                         Archur Greer
                         Pres idenc,
                         Cicy Industries,  Inc.
                         3920 Forsythe Road
                         Orlando, FL  32307

                         Keith M. Cas co
                         Assistant Regional  Counsel
                         U.S. EPA, Region  IV
                         345 Courtland Street,  N.E.
                         Atlanta, GA  30365.

                         Sandra A. Beck
                         Regional Hearing  Cleric,
                         U.S. EPA, Region  IV
                         345 Courtland Street,  tf.E.
                         Atlanta,- 'GA  30365

                         Thoma s 3. Yost
                         Adainistracive  Law  Judge
                         U.S. EPA, Region  IV
                         345 Courcland Screet,  N.E.
                         Atlanta, GA  30365

                         Bes s i e Haaaia1
                         Hearing  Clerk.-  • - -  •
                         U.S. SPA Headquarters
                         401 M Street, S.W.
                         Washington, DC  20460
Dated
NOV 2
                                  M. Gail Wingo
                                  Secretary  to  che Chief
                                   Judicial  Officer

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