6 EPA
Unittd States
Environmental Protection
Agency
Off ice of
Solid Waste end
Emergency Response
DIRECTIVE NUMBER: 9936.1
TITLE: Guidance on Compliance Orders for Failure to Submit
-, -'- -and Submittal of-Incomplete Part_B Permit Applicatioi
APPROVAL DATE:
EFFECTIVE DATE: 9/9/83
ORIGINATING OFFICE:
B FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
VE DIRECTIVE DIRECTIVE Dl
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&EPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
Interim Directive
9936.1
N^^r
Originator Information
Name of Contact Person
Virginia Steiner
Lead Office 1—1
LJ OUST
LJ OIRR [J OWPE
D OSW Q AA.OSWER
Mail Code
WH-527
Telephone Number
475~9329
Approved for Review
Signature of Office Director
Date
Title
Guidance on Developing Compliance Orders Under §3008 of the RCRA;
Failure to submit and submittal of incomplete Part B Permit Applications.
Summary of Directive
Guidance for issuance of Notice of Deficiency (40 CFR §124.3
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 2046C
SEP 9 1983
MEMORANDUM
SUBJECT: Gui'dahce on Developing Compliance Orders Under Section
3008 of the Resource Conservation and Recovery Act;
Failure to Submit and Submittal of Incomplete Part B
BCtmit^Applications .
FROM:
TO:
Lee M. Thomas
Assistant Administrator
Courtney M. Price y
Special. Counsel for
hforceme
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Air and Hazardous Materials Division
Directors, Regions I-X
BACKGROUND
Six months after the promulgation of regulations identifying
and listing a waste as hazardous (40 CFR Part 261), the treatment,
storage, or disposal of that waste by any person who has not
received a RCRA permit is prohibited (40 CFR S 270. Kb)).
However, an owner or operator of an existing facility
(a facility which was in operation or for which construction was
commenced on or before November 19, 1980 (40 CFR §270.2)) is
allowed to continue to conduct hazardous waste management (HWM)
activities without having received a permit provided that he:
1) submitted Part A of the permit application within six months of
promulgation of the regulations in Part 261, and 2) sent EPA
notification of his HWM activities within 90 days of promulgation
of the regulations in Part 261. An owner or operator who complied
with these requirements qualified for "interim status." The
owner or operator of a facility with interim status is treated
as if he has been issued a permit until EPA makes a final decision
concerning issuance of the permit
An owner or operator must submit Part B of the permit appli-
cation when required to do so by the Regional Administrator (R.A.),
The R.A. is required under 40 CFR S270.1(b) to allow an applicant
six months to submit a Part B application; he may allow additional
time for submission at his discretion. Failure to furnish a
Part B application by the date specified by the R.A. or failure to
furnish in full the information required in Part B is grounds
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for denial of a RCRA permit (40 CFR $124.3(d)) and termination
of interim status (40 CFR $270.10(e)(5)).
Las't year, the Regions began to 'call-in" (require submission
of) Part B oŁ the permit applications from existing hazardous
waste management facilities. Some of the Part B applications
have not been submitted by the deadline specified in the call-in.
Others, though submitted on time, did not contain all of the
information required under 40 CFR $$270,14-21* This memorandum
sets forth the procedures to be followed when an applicant fails
to submit a timely Part B application or submits a timely but
incomplete Part 3 application.
I. FAILURE TO SUBMIT A TIMELY OR COMPLETE PART B APPLICATION BY
THE SATE SPECIFIED WHEN THE PART B APPLICATION WAS CALLED-IN
When an owner or operator 1) has not submitted a Part B
application or a closure and post-closure plan ^/ by the date
specified when the application was called-in, or* 2) has submitted
a timely but incomplete Part B application/ the R.A. should take
the following actions:
1) Issue a Notice of Deficiency (40 CFR $124.3(O)
a) detailing the deficiencies in the Part B application,
and
b). requiring submission of a complete Part B application
by a specific date, (the date should generally be
within 30 days from the date of .issuance of the notice
of deficiency), AMD
2) Issue a Warning Letter
a) stating that failure to submit a complete Part B
application is a violation of 40 CFR $270.10(a),
V 40 CFR $265oll2(c) requires an owner or operator of any HWM
~~ facility to submit a closure plan 180 days before he expects
to begin closure but in no event later than 15 days after
1) termination of interim status or 2) issuance of a judicial
decree or RCRA $3008 compliance order to cease handling hazardous
waste. 40 CFR $265.118(c) requires owners and operators of hazardous
waste disposal facilities to submit a post-closure plan within
same timeframe. An owner or operator may also submit a closure
(and, where required, a post-closure plan) with a statement
of his intent to cease handling hazardous waste in lieu of a
Part B application. If an owner or operator submits the plan(s)
with such a statement, the Agency will not take enforcement action*
against the owner or operator for failing to submit a Part B
1,•«>*.-!-»- w,.«. »-fcu0^ w-iii n^nreed to review the closure or
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b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days after date
of issuance of the warning letter, and
c) stating that failure to submit a complete Part B
application by the date specified in the warning
Letter may-result in i) the assessment-of-a civil
penalty against the applicant pursuant to RCRA $3008
and ii) initiation of procedures to terminate the
facility's interim status, and
d) stating that a closure plan (and post-closure plan,
where required) and a statement of the owner or
operator's intent to cease handling hazardous waste
may be submitted in lieu of a complete Part B
application.
If the owner or operator submits a complete Part B applica-
tion by the date specified in the warning letter, the R.A. should
begin to process the permit application.
If the owner or operator submits, closure and post-closure
plans along with a statement of his intent to cease handling
hazardous wastes, the R.A. should review the plan(s) and require
closure in compliance with 40 CFR Part 265.
XX. FAILURE TO SUBMIT A COMPLETE PART B APPLICATION BY THE DATE
SPECIFIED IN THE WARNING LETTER
A. FAILURE TO SUBMIT THE PART B APPLICATION BY THE DATE
SPECIFIED IN THE WARNING LETTER
If the owner or operator does not submit a Part B application
(or closure and ^post-closure plans with a statement of his intent
to cease handling1 hazardous waste by the date specified in the
warning letter), the R.A. should:
1) Issue a Compliance Order under RCRA S3008(a)(l):
a) assessing a $15,000 penalty for failure to submit
information required by 40 CFR §270.10(a),
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from the
date of issuance of the compliance order, and
c) stating that failure to submit a complete Part B applica-
tion by the date specified in the compliance order may
result in the initiation of procedures to terminate
interim status.
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If the owner or operator submits a complete Part B application
by the date specified in the compliance order/ the R.A. should
begin to process the permit application.
If the owner or operator does not submit a complete Part 3
application by the date specified in the compliance order/ the
R.A. should s
Initiate procedures to terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR S124.6(b).
Issuance of a Notice of Intent to Grant or Deny Permit is the
appropriate mechanism for initiating procedures to terminate
interim status under the RCRA regulations. Under 40 CFR $124. 3(d),
a permit may be denied for failure to correct deficiencies in
the permit application.
B. SUBMISSION OF A PART B APPLICATION WHICH IS MISSING
MAJOR ITEMS OF REQUIRED INFORMATION
If, by the date specified in the warning letter/ a facility's
Part B application is still missing major items- of information
required under 40 CFR Part 270.14-21 **/ or the information provided
to meet these requirements is insufficient/ the R.A. should:
1) Issue a Compliance Order under RCRA $3008(a)(l):
a) assessing a penalty in an amount equal to—
i) $1000 for «ach major item of information which is
missing or clearly insufficient/ plus
ii) $500 for each non-major item of information which
is missing or insufficient; and
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from the
date of issuance of the compliance order/ and
c) stating that failure to submit a complete Part B
application by the date specified in the compliance
order nay result in the initiation of procedures to
terminate interim status.
If the owner or operator submits a complete Part B application
by the date specified in the compliance order/ the *R.A. should
begin to process the permit application.
If the owner or operator does not submit a complete
Part B application by the date specified in the compliance
order/ the R.A. should:
«*/ A list of "major items" is contained in the appendix to this
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Initiate procedures to terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR §124.6(b).
C. INCOMPLETE PART B APPLICATIONS WHICH CONTAIN ALL MAJOR ITEMS
OF REQUIRED INFORMATION
When an owner or operator submits an incomplete Part B
application by the~date specified in -the—warning letter which
contains all major items of information required under
40 CFR Part 270.14-21, the RA should:
Issue a Compliance Order under §3008 of RCRA:
a) assessing a penalty in an amount equal to $500 per
missing item of information for failure to submit
information required under 40 CFR §270.10(a)/ and
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from date
of .issuance of the compliance order, and •
c) stating that failure to submit a complete Part B
application by the date specified in compliance order
may result in the initiation of procedures to terminate
interim status.
If the owner or operator submits a complete Part B application
by the date specified in the compliance .order, the R.A. should
begin to process the application.
If the owner or operator does not submit a complete Part B
application by the date specified in the compliance order, the
RA should: -o
»\
Initiate procedures to terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR $124.6(b).
XIX. INITIAL PENALTY ASSESSMENT AND PENALTY REDUCTION DURING
NEGOTIATIONS
The penalties set forth in this policy are based on the
1) the type of information which is missing or insufficient (a
higher penalty is proposed for information designated as "major"
than for other missing or insufficient information}, and 2) the
number of items of information which are missing or insufficient.
During initial penalty assessment under this policy, the type
and amount of missing or insufficient information in the Part B
application are the only factors which should be considered in
determining the amount of the penalty.
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The following factors should be considered during settlement
negotiations in deciding whether to lower the penalty which was
initially assessed: 1) good faith efforts by the owner or operator
to develop the information/ and 2) history ef non-compliance
(when this information is available). No penalty assessed under
this policy should be reduced by more than 40% during settlement
negotiations.
PURPOSES AND USE OF THIS MEMORANDUM
The policy and procedures set forth in this memorandum and
internal office procedures adopted pursuant to this memorandum are
intended solely for the guidance of attorneys and other employees
of the United States Environmental Protection Agency. They
are not intended to nor do they constitute rule-raiking by the
Agency, and may not be relied upon to create a right or a benefit,
substantive or procedural, enforceable at law or in equity, by
any person. The Agency may take any action which is at variance
with the policy or procedures contained in this memorandum or
with internal office procedures that may be adopted pursuant to
this memorandum.
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APPENDIX
Major items of information include the following (where required
for the type of facility being permitted)%
1) waste analysis plan,
2) inspection -plan,
3) contingency plan,
4) location information,
5) closure plan,
6) post-closure plan,
7) documentation of financial responsibility mechanisms,
8) cost estimates for closure and post-closure,
QX principal design plans for the facility (40 CFR $270.15(a),
$270.16(a-e), §270.17(5), S270.18(c)/ and §270.2Kb)),
results of trial burn, plan for trial burn, or information
indicating that the facility will meet the 40 CFR $264.343
performance standards,
11) land treatment demonstration,
12) description of land treatment program,
13) summary of any groundwater monitoring data collected during
the interim status period,
14) description of the groundwater monitoring system to be
installed at the facility (40 CFR S27Q.14(c)(5)), and
15) hydrogeologic information (40 CFR $270.14(c)(2)-(3)).
9)
10)
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