&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 ------- 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. ------- 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 ------- _ 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 ------- 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. ------- -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. ------- -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. ------- 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) ------- -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) ------- -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. ------- 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 ------- |