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.
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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,
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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
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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
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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
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BRIEFING ON
REPORTABU QUANTITIES IMPLEMENT AT ION
BY
EMERGENCY RESPONSE DIVISION
OFFICE or EMERGENCY AND REMEDIAL RESPONSE
OrricE or SOLID WASTE AND EMERGENCY RESPONSE
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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
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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.
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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.
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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.
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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.
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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
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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