United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Responge
&EPA
DIRECTIVE NUMBER: 9940.0
TITLE-.MEMO - Use Of RCRA §3003(g) Independently.of §3008(a)
APPROVAL DATE:
EFFECTIVE DATE: 7/28/81
ORIGINATING OFhCE: OWPE
H FINAL
D DRAFT
STATUS:
REFERENCE (othe/docurnierits)::
-------
United States Environmental Protection Agency
.TV j— «•> . Washington, DC 20460
^EPA OSWER Directive Initiation Request
Interim Directive Number
9949.0
Originator Information
Name of Contact Person
^ircri™3 <•! t- P iner
LeadOflice r~|
LJ OUST
U OERR 0 OWPE
D OSW G AA-OSWER
Mail Code
WH-527
Telephone Number
475-9329
Approved for Review
Signature of Office Director > /
^.Q. XJ>?/
Date
r->«>-#
Title
Use of RCRA §3008(g) independently, of §3008(a)
Summary of Directive
The use of RCRA'a Civil Penalty Authority for Subtitle C Violations
where no administrative order authorized by §3008(a) has been issued.
Penalty Policy
monitary violations category
Type of Directive /Manual. Policy Directive, Announcement, etc.!
Policy
Status
LJ Draft
E3 Final
CH New
I—I Revision
Does this Directive Supersede Previous Directive(s)? | | Yes [~~j No Does It Supplement Previous Directive(s)?| | Yes (""] No
If "Yes" to Either Question, What Directive (number, title)
Review Plan
U AA-OSWER LJ OUST
D OERR D OWPE
D OSW D Regions
D OECM
D'OGC
D OPPE
a
Other (Specify!
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Signature of OSWER Directives Officer
Date
Date
EPA Form 1315-17(10-85)
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C, 23.160
W^A» ^ ^' l«tf W
MEMORANDUM
SUBJECT: Use of RCRA S30Q5(g) Independently of S3008(a)
?RCM: Douglas M.acMillan, Director
Office of Waste Programs Enf
TO: Enforcement Division Directors
Regions- I-X
In discussions with Regional enforcement personnel the question
has frequently arisen of whether the civil penalty authorized by
53008(5)' of RCRA may be sought for a violation of the requirements
of Subtitle C in cases in which no administrative order authorised
by §3008(a) has been issued. We interpret the Act as clearly
authorising the imposition of civil penalties,.regardless of whether
an administrative order has been issued or violated, when otherwise
appropriate. The Office of General Counsel concurs in this'
interpretation. This memorandum sets forth the basis for this
conclusion.
Both the language and structure of S3008 indicate that subsection
(g) was intended to operate independently of subsection (a). First,
the fact that civil penalties and administrative orders are provided
for. in separate subsections indicates that they are to be treated as
separate means of enforcing Subtitle C. (See 2A SUTHERLAND, STATUTES
AND STATUTORY INTERPRETATION S47.02 (4th ed. 1964) "...if the meaning
of any particular phrase or section standing alone is clear no
other"section or part of the act may be applied to create doubt.")
Subsection (g) makes no mention of administrative orders. In
addition, subsection (a) (3) provides for a penalty specifically
applicable to failure to comply with an administrative order,
Were issuance and non-compliance with an administrative order a
prerequisite for the imposition of a civil penalty subsection (g)
would be superfluous. In general, a statute, "...should be construed
so that effect is given to all its provisions," (Sutherland S 46.06).
Furthermore, the legislative history of S3008(g) leaves little
doubt that civil penalties may be imposed for violations of Subtitle
C regardless of whether an order has been issued requiring compliance.
Subsection (g) was added by the 1980 Amendments. The language
adooted with recard to civil penalties was contained in Senate
Bill 1156. (H. Rep. No. 96-1444, 96th Cong., 1st Sess. 36 (1980)).
-------
- 2 -
According to the Report of the Committee en Environment and Public
Works .the relevant section of S.1155:
-. ..amends the enforcement provisions of subtitle C to
'bring then into line with those in the Clean Air and Clean
Water Acts. First, it provides a civil penalty of up to
.523,000 per day for dumping of hazardous wastes regardless
of whether the dumping party has been served with an order
to stop dumping. • •
Under existing law, only persons 'actually ordered to
halt'dumping are liable for a civil penaltv. S.Rep. No.
.96-172, 96th Cong.^lst Sess. 3-4 (1979).
.•Although the Report speaks only in terms of dumping, given the
broad language of S3Q08(g), the reference clearly is intended to
'provide an illustration of how the penalty provision would operate
in the -context of a violation of a particular requirement of Subtitle
C.' The civil penalty provisions of the Clean Air and Clean Water
Acts, after which §3003(g) is explicitly modelled, both provide
for the imposition of civil penalties for the violation of regulatory
requirements promulgated pursuant to those Acts, regardless of whethe:
an administrative order has been issued. (See 5113(b) CAA and §309(d)
CWA} .
In conclusion, it is the policy of the Office of Waste Programs
•Enforcement that, S3QQ8(g) provides discretionary authority for the
imposition of civil penalties regardless of whether an administrative
order' has been issued pursuant to §3003(a) and that such penalties
should'' be sought for violations of Subtitle C of RCRA when otherwise
de-emed"-appropriate. If jyou have any questions or problems relating
to the relationship of civil penalties to administrative orders
please contact Doug Farnsworth at ?TS 332-3058.
------- |