MlLU STATES ENVIRONMENTAL PROTECTION \GENO WASHINGTON. DC :o4«o OSWER « 9841.1 JUL I 6 1987 MEMORANDUM SUBJECT: Interim Guidance on Use of Adainiscracive Penalty Provisions of Section 109 of CERCLA and Section 325 of SARA FROM: Thomas L. Adams. Jr. ly Assistant Administrator // TO: Regional Administrators Regional Counsels Directors, Regional Waste Management Divisions This memorandum provides interim guidance on the use of the new administrative penalty provisions of the Comprehensive Environmental Response. Compensation, and Liability Act (CERCLA). <*2 U.S.C. 9601 et s eq. and the Superfund Amendments and Reauthori- zation Ace (SARA; or 1986. Pub. L. No. 99-499. Section 109 of SARA amended CERCLA by adding civil penalties for violations of certain provisions of CERCLA or agreements entered into pursuant to the Act. The penalties may be.assessed in an administrative action or in a judicial action. SARA also created the Emergency Planning and Community Right-to-Know Act of 1986. Section 325 of Title III provides for civil and criminal penalties for violations of the notification and planning requirements of that Title. » Background Section 109 and Section 325(b)'established tvo classes of administrative penalties. Those classes differ trom each other with respect to procedures for assessing and collecting penalties - and the maxiaua penalty available. EPA may assess Class I administrative penalties of not more than $25,000 per violation for violations of the provisions specified in Section TDT(a) and section 325(b). In determining the amount of the Class I penalty. EPA must consider the factors specified in Section 109(a)(3) or Section 325(b)(l)(C). EPA aay assess Class XI administrative penalties of not more than $25,000 per day for each day the violation continues for violations of provtsTons specified in Section 109(b) or Section 325(b). For subsequent Class II violations, the penalty may be not more than $75,000 for each day of violation. ------- - 2 - Seccion 109 and Section 325(b) also established different procedures for che two classes of penalties. For Class I penalties under-Seccion 109 or Seccion 325 EPA muse provide nocice and opporcunicy for a hearing buc che proceedings are noc subjecc co che Administrative Procedure Ace (APA). EPA may subpoena witnesses and documents for Class I proceedings. The person aggrieved by che penalcy accion may seek judicial review in a United Scaces Discricc Courc. In such a case, EPA nusc file in che courc a cercified copy of che record on which che penalcy was based. OECM-Wasce Division is developing Class I penalcy procedures, and expecc co issue chese procedures shortly. For Class II penalcies under Seccion 109 and Seccion 325, EPA muse provide nocice and opporcunicy for a hearing in compliance with Seccion 554 of che APA, 5 U.S.C. 554. For Seccion 109 penalties, che person aggrieved by che penalcy accion may seek judicial review tn a United Scaces Courc of Appeals. For Class II penalcies under Seccion 325, che person aggrieved by che penalcy accion may seek judicial review in a United States District Courc. Class II proceedings are similar to formal adjudicatory penalcy proceedings conducced by the Agency under other environmental statutes. The Consolidated Rules of Practice, promulgated by EPA at <»0 CFR Part 22, govern the administrative assessment under the APA of penalties available under other statutes. To make these rules applicable to Class II proceedings under Section 109 and Seccion 325, OECM-Wasce Division will promulgate a rule providing that che Consolidated Rules shall govern proceedings for the assessment of Class II administrative penalties under those provisions. The United States may als-o bring a civil action in a district court to collect penalties of not more than $25,000 per day for each day of violation for violations of those provisions specified in Section 109(c) and in Section 325(b). For subsequent violations,- EPA may seek penalties of up to $75,000 for each.day of violation. In addition to the Class I and Class II penalcies for violations specified in Section 325(b), Sections 325(a), (c), and (d) provide for civil and administrative penalties for violating the require- ments specified in chose provisions. The United States may also seek criminal sanctions under Section 103 of CERCLA for violations of the release notification requirement. SARA amended Section 103 of CERCLA by increasing the maximum penalties for such criminal violations. Sections 325(b) and (d) also provide for criminal penalties. Current Procedures Prior co completion of che procedures for Class I penalcies and che promulgacion of che rule amending the Consolidated Rules, ------- - 3 - EPA may seek civil penalties under Section 109 or Section 325 under one of cwo approaches. First, the Regions nay file administrative actions assessing the Class I or Class II penal- ties of Sections 109 or 325(b) or the administrative penalties in Sections 325(c) and 325(dJ. In filing such actions, the Region on an interim basis should comply with the Consolidated Rules, 40 CFR Part 22. After the Class I penalty procedures are completed. Class I administrative penalties should be assessed in compliance with those procedures. The Regions may also prepare a judicial referral for civil action or a judicial referral for criminal action. Orders under Section 325(a) may be enforced after a judicial referral. In the near tern, EPA will be using Section 109 most frequently to seek administrative penalties for violations of the notice requirements of Section 103(a) and (b). Until further guidance is available, we have attached for your use a chart showing che elements needed to prove a violation of Section 103(a) or (b), background information in the reportable quantities provi- sions, and a sample certification by a person at the National Response Center that no notice was received. More detailed guidance on the assessment of administrative penalties under Sections 109 and 325 is now being developed by OECM-Waste Division and the Office of Waste Programs Enforcement. For further infor- mation contact Frances McChesney at FTS 475-9437. Attachments cc: Lisa K. Friedman Gene A. Lucero Regional Counsel Hazardous Waste Branch Chiefs ------- PRIHA FACIE CASE SECTION 103(8) CERCLA. M? U.S.C. SECTION 9603(1) NOTIFICATION FACT TO ii PROVED STATUTORY BASIS CONNLNTS PERSON IN CHARGE or VESSEL OR FACILITY HAS KNOWLEDGE or REICASC or HAZARDOUS SUBSTANCE 103U). (B) 103U). (B) 1G3U). (B) I03U). (B) EVIDENCE SHOWING PERSON is IN CHARGE KMM«r.E OF RB.EASF. NAY BF, JNFRRRFTi ; STANDARD IN CIVIL CASKS I£SS Til AN IN CRIMINAL CASES EVIDENCE or RELEASE EVIDENCE THAT SUBSTANCE RELEASED IS HAZARDOUS ------- CASE SECTION 103(i) CERCLA. M2 U.S.C. SECTION 9603(8) NOTIFICATION (CONTINUED) . 10 ei PROVED IN REPORTADLE QUANTITY WHO FAILS TO REPORT THE RELEASE STATUTORY BASIS I03UK (B) 103(1) COMMENT? EVIDENCE THAT RELEASE WAS EQUAL TO OR EXCEEDED REPORTABLE QUANTITY CERTIFICATION BY NRC THAT IT UAS NOT NOTIFIED ------- BRIEFING ON REPORTABU QUANTITIES IMPLEMENT AT ION BY EMERGENCY RESPONSE DIVISION OFFICE or EMERGENCY AND REMEDIAL RESPONSE OrricE or SOLID WASTE AND EMERGENCY RESPONSE ------- TOPICS STATUTORY AUTHORITY PURPOSE or RE PORT me OUANTITITES RO ADJUSTMENTS . RO ADJUSTMENT NETHOOOIOOV RELATIONSHIP BETWEEN CERCLA AND CWA RCfORTINO RCOUIREHCNTS DCTCRIUNING UHCN AN RO HAS BCCN RdCASCD FCDCRAUV PCRIIITTCD AND CONTINUOUS RCUASF RCPORTIN8 EXEMPTIONS ------- STATUTORY AUTHORITY CERCIA SECTION 101 UM) DEFINES 'HAZARDOUS SUBSTANCE* BY REFERENCE TO OTHER ENVIRONMENTAL STATUTCS. INCLUDING! CLEAN WATER ACT (CWA) SECTIONS 311 AND 307 CLEAN AIR ACT (CAA) SECTION ll?i -- RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) SECTION 3001 AND Toxic SUBSTANCES CONTROL ACT (TSCA) SECTION 7. t IN ADDITION. THE ADMINISTRATOR NAS THE AUTHORITY UNDER SECTION 102 TO DESIGNATE ADDITIONAL HAZARDOUS SUBSTANCES THAT "WHEN RELEASED INTO THE ENVIRONMENT NAY PRESENT SUBSTANTIAL DANGER TO THE PUBLIC HEALTH OR WELFARE OR THE ENVIRONMENT.* I. PA IS IN 11 IK. IWICF.SS OF IWSICNATINC rXTRRMF.I,Y HAZARDOUS SUBSTANCES OF TITI,F, ill OF SARA AS IIAZAKIXNIS ttlHSTANnfiS ANI) -SfTilNC W)f.. t THERE ARE CURRENTLY 70S HAZARDOUS SUBSTANCES. INCLUDING INDIVIDUAL CHEMICALS AND UASTE STREAMS. Till- S|i|\STAM:i.S ARK UNTIL AT 40 CFK PART T02. ------- STATUTORY AUTHORITY (CONTINUED) UNDER THE REGULATIONS IMPLEMENTING SECTION 103. RELEASES or A NAIARDOUS SVDSTARCE WITHIN A 2M-HOUR PERIOD IN A QUANTITY COUAl TO OR GREATER THAN ITS 'REPORTARLC QUANTITY" MUST DE REPORTED IMMEDIATELY TO THE NATIONAL RESPONSE CENTER (NRC). CRIMINAL PENALTIES NAY RE IMPOSED TOR FAILURE TO REPORT PROPERLY. REPORTARLE OUANTITITES (RQs) ARE STATUTORILY SET AT I POUND OR AT THE RO ESTARLISHED UNDER CWA SECTION 311. THE ADMINISTRATOR NAS THE AUTHORITY UNDER SECTION 102 TO ADJUST RV REGULATION STATUTORY ROs. - 3 - ------- PURPOSE OF REPORTABLE QUANTITIES RQS SIRVC AS A TRIGGER FOR NOTIFICATION TO THE FEDERAL GOVERNMENT OF A HAZARDOUS SUBSTANCE RELEASE. t ROS 00 NOT NECESSARILY REFLECT THE OE6REE OF RISK POSED BY HAZARDOUS SUBSTANCES. t ONCE A RELEASE IS RCfORTEO. EPA DETERMINES WHETHER A FEDERAL FIELD RESPONSE IS WARRANTED. NOT ALL REPORTABLC RELEASES NECESSITATE A FIELD RESPONSE! CONVERSELY. SITUATIONS CAN OCCUR WHERE A RELEASE OF LESS THAN AN RQ CAN RESULT IN RISKS TO PUBLIC NEALTH OR UELF.ARE OR THE ENVIRONMENT. B EXCEPT FOR FEDERALLY PERMITTED RELEASES. RELEASERS ARE LIABLE FOR RESPONSE COSTS MO NATURAL RESOURCE DAMAGES RESULTING FROM A HAZARDOUS SUBSTANCE RELEASE. REGARDLESS OF THE QUANTITY RELEASED. ------- RQ ADJUSTMENTS i t RO ADJUSTMENTS ALLOW 00VERNNENT OFFICIALS TO FOCUS ATTENTION ON THOSE RELEASES TNAT NAY POSE THE GREATEST THREAT TO PUBLIC HEALTH AND WELFARE AND THE ENVIRONMENT. t RO ADJUSTMENTS FOR 387 NAIARDOOS SOBSTANCES MERE PROPOSED IN AN NPRM PUBLISHED IN THE FEDERAL RtCISTfB ON MAT 25. 1983. ON APRIL M. 1985. EPA PUBlISNCOt -- A FINAL RVLE ADJUSTING ROS FOR 310 OF THE HAIARDOUS SUBSTANCES FOR UHICH RO ADJUSTMENTS MERE PROPOSED IN MAT I983| AND AN NPRM PROPOSING RO ADJUSTMENTS FOR 105 ADDITIONAL CERCLA NAIARDOUS SUBSTANCES. t ROS OF THE REMAINING 260 SUBSTANCES (PRIMARILY POTENTIAL CARCINOCENS) ARE 1C INO ADJUSTED AND HILL FORM THE BASIS OF A THIRD NPRM. IHJS FUR lirrfOTIAL CARC INnGHIS AM) RAIMnMM.IIttS WIIJ, UK IWm/An-J) IN IW7. FUTURE RO RNLENAKINBS WILL PROVIDE CLARIFICATION OF THE REPORTING ENENPTIONS FOR CONTINUOUS RELEASES AND FEDERALLY PERMITTED RELEASES. TllffiF RinAMKINHS WIN, ItF. IKnHRf-ATU) IN IOH7. - S - ------- RQ AS TRIGGER FOR RELEASE NOTIFICATION REPORT REQUIRED FROM PERSON IN CHARGE NRC ALERT APPROPRIATE V AGENCIES: ' EPA/OSC6 REGIONS. STATE. AND LOCAL RELEASE OF HAZARDOUS SURSTANCES (Air. Graaad Watar. Sailaet Watar. Aa4 Laa4) 4 DETERMINE IF NEED EXISTS FOR FIELD RESPONSE ACTION NO REPORT REQUIRED * NATIONAL RESPONSE CENTER (IN) 424 - 1112 WASHINGTON. D.C. METRO AREA (212) 421 - 2175 » MMiis MAY if aisrsasiBtf raa atsraatf cam aa EVER If TNI AMVtjf ailEASEa IS IISS THAN THE APPUCABll aisavaci ------- RQ ADJUSTMENT METHODOLOGY t TNC RQ AtJNSTNCNT ffCTHOOOLOCY IS DASCD ON SCICNTiriC AND TCCHHICAL ANALYSIS OF TNC CHARACTttlSTICS OF THE HAZARDOUS SUBSTANCES. THf PROPOSED RO ADWTHENTf NSC CRITERIA THAT FOCUS ON A SUBSTANCE'S TOXICITV AND ITS CHCNICAL CHARACTERISTICSt AONATIC TOIICITYl MANUALIAN TOKICITV (ORAL. DCRNAL. INHALATION)i ICNITAOILITVi RCACTIVITTi - CHRONIC TOXICITTI AND -- CARCINOCCNICITV. t ROS CAN DC AOJBSTCO UPWARD ONC LCVCL DASCD ON DIOOCCRADADILITV. HYDROLYSIS. OR PHOTOLYSIS. 0 EACH HA1ARDODS SNDSTANCC IS ASSUMED ONC RO APPLICABLE TO RCLCASCS TO ALL NCDIA (LAND. AIR. MATER). - 6 - ------- RflATlOMSHIP KTHtTM CERCLA AND CWA THE rououiw ASPECTS or TMI CWA's APPROACH TO DEALING WI,TH RELEASES Or HAZARDOUS SUBSTANCES HAVE BEEN ADOPTED UNOEi CCRCLAs THE FIVE RQ IEVEIS or t. 10. 100. 1000. AW 5000 POUNDS THE niiiunt MULE ron ocTCRHmiNo IF NOTIFICATION is REQUIRED FOR HI I WES OR SOLUTIONS CONTAINING HAZARDOUS SUBSTANCES I THE PI-NOUR PERIOD FOR HEASURING WHETHER A REPORTABLE QUANTITY OF A HAZARDOUS SUBSTANCE HAS BEEN RElEASEOi AMD THE REQUIREMENT THAT RELEASES BE REPORTED IRHEDIATEIT TO THE NRC. - 7 - ------- RELATIONSHIP BE MEN CERCLA AMD CUA (CONTINUED) 0 THE CUA IS UNITED IN SCOPE AND DIFFERS FROM CERCIA IN THE FOLLOWING RESPECTS! CERCLA COVERS RELEASES INTO All ENVIRONMENTAL MEDIA. UNLIKE THE CUA WHICH COVERS ONLY NAVIGABLE WATERSi -- CERCLA DOES NOT COVER Oil SPILLS. NNLIKE THE CUA WHICH REQUIRES Oil SHEENS TO DE REPORTED TO THE NRCi CUA SECTION 311 RQS ARE DASED ON AOUATIC TOIICITYi BECAUSE CERCLA APPLIES TO All ENVIRONMENTAL MEDIA. ROS BASED SOLELY ON AOUATIC TOUCHY ARE NOT SUFFICIENT FOR THE CERCU NOTIFICATION AND RESPONSE PROGRAMi AND CUA SECTIONS 311 AND 307 TOGETHER COVER ONLY A PORTION OF THE SUBSTANCES DEFINED AS HAZARDOUS UNDER CERCLA. 8 ------- REPORTING REQUIREMENTS MECHANICS or NOTIFICATION. As SOON AS A RELCASCR MAS KNOWLCDCC THAT A REPORTAILC RCICASC MAS OCCURRCD. THC NRC MUST BE CALLS') IMMEDIATELY. SUBPARTS C AW f OF THC PROPOSCO NCP ALLOW THC RCLCASCR TO NOTIFY THC OCSIQNATCD OSC IN THC APPROPRIATC EPA RCGION AND U.S. COAST GUARD DISTRICT IF NOTIFICATION TO THC NRC is IMPRACTICAL. PCRSONi COVERED. PCRSONS IN CHARGE OF A FACILITY OR VESSEL ARC RCONIRCD TO NOTIFY TNC NRC OF RCPORTABU RCICASCS. "FtRSONS IN CHARGE" CAN BC INTCRPRCTCD TO INCLUDE INDIVIDUALS AS WELL AS PUBLIC. PRIVATE. AND 60VCRNNCNT ENTITIES. FACILITY" is BROADLY DEFINED FOR LAND-BASED STATIONARY SOURCES ANB VEHICLES. - "VCSSCL* IS ALSO IRvADLY DCFINCD TO INCLUDC PRACTICALLY ANYTHIN6 THAT FLOATS. THC HA10R CXCCPTIONS TO THCSC DEFINITIONS ARC CONSUMER PRODUCTS IN CONSUMER USC. - 9 - ------- REPORTING REQUIREMENTS < CONTINUED) ! COVERED. 'All 705 HAZARDOUS SUBSTANCES LISTED IN THE APRIL 1. I98S FINAL MIC ARC COVCRCDi ADDITIONAL SUB STANCES NAY 1C ADOCD. (OSW INTENDS TO ADO ABOUT 120 MORE HAZARDOUS WASTES TO THE RCRA SECTION 3001 LIST IN TNC NEAR FUTURE.) SUBSTANCES THAT ARE NOT LISTED IN THE FINAL RULE ALSO MAY IE HAZARDOUS i SUDSTANCES ARE NOT LISTED NNDER ALL POSSIBLE NAMES i AND WASTES WITH ICRE CHARACTERISTICS ARE HAZARDOUS dr NOT SPECIFICALLY LISTED THESE WASTES HAVE AN RO OF 100 POUNDS). RELEASES COVERED. THE DEFINITION OF RELEASE COVERS VIRTUALLY ALL WAYS THAT S VI STANCES HAY ENTER THE ENVIRONNENT. HOWEVER. FOUR EXEMPTIONS ARC PROVIDED UNDEN SECTION 101(22) i RELEASES WHOLLY CONTAINED WITHIN A BUILDING OR STRUCTURE -- MOBILE SOURCES OF AIR EMISSIONS* -- SOURCE. DV-PRODUCT. AND SPECIAL NUCLEAR MATERIAL i AND NORMAL APPLICATION OF FERTILIZERS. - 10 - ------- DETERMINING WHEN AM RQ HAS BEEN RELEASED REPORTIM« PERIOD* CERCLA ADOPTS ZM-HOURS AS THE PERIOD TO DETERMINE. FOR NOTIFICATION PURPOSES. WHITHER AN RO HAS BEEN RELEASED. Mi IT iint RULE. RELEASES or MIXTURES OR SOLUTIONS RUST BE REPORTED ir A COMPONENT HAZARDOUS SUBSTANCE OF THE MIXTURE IS SPILLED IN AN AMOUNT EOUAL TO OR CHEATER THAN ITS RO. ROS OF DIFFERENT SUBSTANCES IN A MIXTURE ARE NOT ADDITIVE. SO THAT SPILLING A MIXTURE CONTAINING HALF AN RO OF ONE SUBSTANCE AND HALF AN RO OF ANOTHER SUBSTANCE DOES NOT REQUIRE A REPORT. - WHEN THE IDENTITIES AND CONCENTRATIONS OF ALL SUBSTANCES IN A MIXTURE ARE NOT KNOWN. THE RQ THAT APPLIES TO THE MIXTURE IS THE LOUEST RQ OF THE COMPONENT SUBSTANCES. MULTIPLE RELEASES. WHEN REPORTABLE RELEASES OF THE SANE HAZARDOVS SUBSTANCE ARE OCCURRING AT SEVERAL LOCATIONS IN A FACILITY AT THE SAME TINE. ONLT ONE REPORT IS .REQUIRED RATHER THAN MULTIPLE REPORTS. - II - ------- FEDERALLY REMITTED AND CONTINUOUS RELEASE REPORTING t SECTION 103 PROVIDES A COMPLETE REPORTING EXEMPTION FOR FEDERALLY PERMITTED RELEASES AND A UNITED REPORTINC EXE RELEASES. HIE RtlUMAKINn WIN, RF. niN.lftlEI) IN IW7. PERMITTED RELEASES AND A UNITED REPORTINC EXENPTION TOR CONTINVOVS THE UNITED CIENPTION FOR CONTINUOUS RELEASES APPLIES TO RELEASES THAT ARE 'CONTINUOUS* AND "STARLE IN OHANTITV AND RATE.* AND FOR WHICH THE APPROPRIATE INITIAL REPORTS NAVE IEEN SHRHITTEO. RELEASES THAT NEET THESE CONTINVOVS RELEASE CRITERIA NEED ONLY IE REPORTED ANNIALLT. OR WHEN A 'STATISTICALLY SIGNIFICANT* INCREASE IN THE ANOUNT RELEASED OCCURS. SECTION 101 f10) or CERCU DEFINES RELEASES THAT ARE 'FEDERALLY PERMITTED.* THESE RELEASES ARE COVERED DY SPECIFIED PERMITS OR RECVIATIONS NNDER CUA. RCRA, CAA. THE MARINE PROTECTION. RESEARCH. AND SANCTVARIES ACT. THE SAFE DRINKIMG WATER ACT. AND THE ATONIC CNEROV ACT. - 12 - ------- |