United States
Environmental Protection
Agency
OH.ce of
Soi
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United States environmental Protection Agency
Washington. DC 20460
OSWER Directive initiation Request
1. Directive Number
9936.3
2. Originator Information
Name of Contact Person
Nancy Parkinson
Mail Code
OS-520
Office
OWPE
Telephone Code
475-9325
3. Title
Enforcement of Authorized State Laws Pursuant to 40 CFR Section 271.1
Formal Comments on State Requirements Applicable to Facility Permits
4. Summary o( Directive (include bnef statement of purpose) . ,
To encourage the Regions to submit comment letters on State issued
permits under 40 CFR 271.19 if a State permit condition is inconsistent
with the approved State RCRA program, and to provide guidance on
drafting the comment letters.
5. Keywords
271.19 comment letters, permit by ambush
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes What directive (number, title)
rjDratt Level
A - Signed by AATOAA
B - Signed by Office Director
C - For Review & Comment
> - th D«vetepment
8. Document to be distributed to States by Headquarters?
Yes
X
No
This Request Meets OSWER- Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
10. Name and
Title of Approving Official
Date
Date
EPA Form 1315-17 (Rev. 5-47) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
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SOL'D ,VA3" A
MEMORANDUM
SUBJECT: Enforcement of Authorized State Laws Pursuant to
40 CFR Section 271.19 - Formal Comments on State
Requirements Applicable to Facility Permits
FROM: Bruce M. Diamond, Directors;
Office of Waste Programs Enforcement
TO: Hazardous Waste Division Directors
Regions I-X
We have recently had several inquiries into EPA's enforcement
capabilities pursuant to 40 CFR Section 271.19(e)(2). That section
states "the Regional Administrator may take action under Section
3008(a)(3) of RCRA against a holder of a State-issued permit at any
time on the ground that the permittee is not complying with a
condition that the Regional Administrator in commenting on the
permit application or draft permit stated was necessary to
implement approved State program requirements." This section
applies whether or not the condition colnmented on by the Region was
included in the final permit. Because Section 271.19 is a very
important and little understood provision, we would like to provide
some initial guidance on how that section should be interpreted and
implemented.
We want to encourage the Regions to provide comment letters as
required under Section 271.19 if a State permit condition is
inconsistent with the approved State RCRA program (i.e., the
conditions imposed by the State in the permit do not address, or
fail to address adequately, specific Authorized State
requirements). We expect that in most cases, the Region will be
able to work with the State to resolve the inconsistency. If,
however, the State issues the final*'permit without including the
requirement commented on by EPA, the Agency has the right to
enforce the State law requiring that condition pursuant to 40 CFR
Section 271.19(e)(2).
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The comment letters must be written and submitted to the State
during the comment period of the draft permit in order for EPA to
preserve its right in the future to take action to enforce the
State requirements that the draft permit fails to adequately
address. The letter also serves to advise the State as to how EPA
believes the permit could be modified so that a facility complying
with the permit also would comply with the identified State
requirements. If a State drafts a permit and EPA does not submit a
comment letter pursuant to Section 271.19, then, after the final
permit is issued, EPA is estopped from taking an enforcement action
against that facility for a violation of a requirement that is not
a condition of the permit (even if the facility is in violation of
State law). This is commonly referred to as "permit-as-shield,"
pursuant to 40 CFR Section 270.4(a).
The comment letters must be carefully worded because EPA's
position is that the letters are not final agency actions, but
merely preliminary interpretations of State law. The letters do
not by themselves impose anv requirements on the facility. The
sole effect of the letter, with one possible exception noted below,
is to preserve EPA's ability to enforce underlying State
requirements against State-issued permit holders. Thus, the
letters are merely preliminary enforcement interpretations, not
rising to the level of even a notice of violation.
It is, therefore, important to remember several things in
drafting the comment letters. First, EPA is not enforcing the
comments (on the permit) contained in the comment letter. EPA, in
issuing a Section 3008(a) action subsequent to permit issuance,
will be enforcing the State laws that are identified in the letter
which are equivalent to the Federal laws.1
Second, because EPA will be enforcing State laws, the comment
letters should cite the equivalent authorized State laws. The
letters should indicate why EPA believes that the facility would
not comply with the State requirements even if the facility complies
with the terms of the draft permit.
Recent judicial and administrative decisions support the
position that EPA can enforce State law. See Conservation Chemical
Co. of Illinois v. EPA. 660 F. SUPP. 1236 fN.D. Ind. 19871. and In
the Matter of CID-Chemical Waste Management of Illinois. Inc.
(Appeal No. 87-11) (indicating that authorized State programs,
including the regulations issued to implement such programs, are
requirements of Subtitle C of RCRA within the meaning of Section
3008(a)(1), and that EPA retains authority to enforce such
requirements pursuant to Section 3008(a)(2)).
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Third, in the comment letter, EPA should not cite to 40 CFR
Part 265 and authorized equivalent requirements. Interim status
requirements do not apply to permit holders and the potential
violations identified in the comment letter can be only violations
of applicable permit-holder requirements.
Fourth, EPA's action in preserving its enforcement authority
may be subjected to legal challenge. We are currently awaiting the
outcome of such a case in Region V, which may affect many of our
positions on the scope and applicability of the Section 271.19
regulations.2 Thus, EPA should compile at the time the letter is
drafted sufficient .information to.form. an_administrative _record_on_
which to defend EPA's preliminary interpretation of State
requirements.
Although the letter itself is preliminary, related actions may
have definite impacts on the facility and be ripe for review.
Examples of such actions would be the issuance of a compliance
order premised upon retained enforcement authority pursuant to the
Section 271.19 letter, and off-site policy determinations under
Superfund for violations of State regulations identified in the
Section 271.19 letter. The Section 271.19 letter would become part
of the record for these related actions. Furthermore, once EPA has
taken one of these actions, the owner or operator of the affected
facility may succeed in arguing that the Section 271.19 letter
itself is ripe for review. Again, EPA will be in a better position
to defend against these types of challenges if it has prepared a
record to support its finding that the permit is inconsistent with
underlying State law.
In that case, Waste Management of Illinois, Inc. (WMI) has
filed a motion in U.S. District Court*seeking a declaratory
judgment that EPA cannot impose conditions on the facility pursuant
to a Section 271.19 comment letter ^and could not take an
enforcement action based upon comments in such a letter. The suit
also claims that the Section 271.19 procedure violates WMI's rights
to due process under State and Federal law. EPA has not yet taken
an enforcement action, although Region V has written a letter
commenting on the draft permit, pursuant to Section 271.19. The
State responded by providing a contrary interpretation of State
requirements and by issuing the permit containing the terms of the
draft. EPA has claimed that WMI's challenge of EPA's potential
exercise of enforcement authority to enforce State law after
comment pursuant to Section 271.19 is not ripe for judicial review,
and may not be ripe until EPA has initiated an enforcement action
against WMI.
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In the off-site policy example, a Section 271.19 letter may be
needed to establish that a facility is ineligible to receive wastes
under the off-site policy. If a facility is in compliance with'its
permit and no longer subject to interim status requirements,
technically no violations can be enforced by EPA at the facility
even though the facility may have been in violation of interim
status requirements and may currently be in violation of state
permitting requirements. Thus, if a 271.19 letter is not
submitted, the facility may be eligible to .receive off-site waste
even though it is in violation of State permitting requirements
(because it is in compliance with its permit) .
Because of impacts on future enforcement cases and off-site
determinations, the Region should, when reviewing draft permits,
determine whether the permit conditions are consistent with the
underlying State permit regulations, and file a timely comment
letter where inconsistencies occur. After filing the comment, the
Region should review both the final permit and any actions taken by
the facility to comply with the identified underlying permit
requirements, and should keep these reviews in mind when
considering enforcement and off-site policy decisions and the
facility's transition from interim to permitted status.
The above are preliminary considerations on comment letters
and enforcement actions pursuant to 40 CFR Section 271.19. We will
keep the Regions advised of any upcoming changes or new insights
resulting from a decision in the WMI case. In the meantime, if you
have any questions, please call me or contact Nancy Parkinson
(OWPE, 475-9325) or Josh Sarnoff (OGC, 382-7706).
cc: Regional Counsels
/ Regions I-X
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