&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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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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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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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
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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
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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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