United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
oEPA
DIRECTIVE NUMBER: 9939.0
TITLE: Guidance on RCRA Overfillng
APPROVAL DATE: 5/19/86
EFFECTIVE DATE: 5/19/86
ORIGINATING OFFICE: OWPE
Q FINAL
D DRAFT
LEVEL OF DRAFT
DA — Signed by AA or DAA
D B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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c/EPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
Interim Directive Number
39,
Originator Information
Name of Contact Person
Lloyd Guercl
Mail Code
WH-527
Telephone Number
382-4808
Lead Office
D OERR
G OSW
D OUST
13 OWPE
D AA-OSWER
Approved for Review
Signature of Office Director
Date
Title
: Guidance on RCRA Overfiling
Summary of Directive
Guidance on overfiling a state's authority in RCRA enforcement
actions, when a state has failed to act promptly or inappropirately.
Memorandum issued by A. James Barnes Deputy Administrator.
Jurisdiction/venue (CWA/CAA/RCRA)
Authority inadequate
Type of Directive (Manual, Policy Directive. Announcement, etc.)
Guidance
Status
D Draft
0 Final
CD New
I I Revision
Does this Directive Supersede Previous Directive(s)? | | Yes | | No
If "Yes" to Either Question. What Directive (number, title)
Does It Supplement Previous Directive(s)? [J Yes | | No
Review Plan
D AA-OSWER D OUST
D OERR D OWPE
D OSW D Regions
D OECM
D OGC
D OPPE
D
Other (Specify)
This Request Meets OSWER Directives System Format
Signature o
Office Directly
licer
Date
Signature of OSWER Directives Officer
Date
EPA Form 1315-17 (10-85)
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I" JiJ^ i UNITED STATES ENVIRONMENTAL PROTECTION AG .NCY
/ WASHINGTON. DC. 20460
MAY I 9 1986
OFFICE OF
THE ADMINISTRATOR
SUBJECT: Guidance on RCRA Overfiline
FROl-i; A. James Barnes
Deputy Administrator
TO: Regional Administrators, Regions I-X
Assistant Administrator, OSWER
Assistant Administrator, OECM
General Counsel
In several recent administrative enforcement cases, EPA
has been required to address the issue of EPA's authority to
"overfile" under RCRA--tVat is, to file an enforcement action
when a state has acted to enforce the sa^e requirements. Because
the administrative decisions did not conclusively resolve the
point. I asked the General Counsel for an opinion on the issue.
In response, the General Counsel recently issued an opinion
concluding generally that RCRA itself imposes no legal restric-
tions on overfiline, but that the Administrator may adopt
appropriate policies limiting the circumstances under which EPA
may overfile, or recommend overfiling to the Department of
Justice. A copy of that opinion is attached.
1 have also asked the Agency's staff offices concerned with
RCRA enforcement to determine, in consultation with our Regional
offices and states administering authorized RCRA programs, whether
there is a need for additional guidance on overfiling. That
effort is now underway. Unless and until additional guidance is
Issued. Regional decisions on overfiline under RCRA are to be
governed by this memorandum and existing guidance on the subject.
Regions should continue to overfile RCRA enforcement actions
when the state fails to take timely and appropriate action.
Overfiling should be employed in cases where the state's action
is clearly inadequate. In determining whether an action is
inadequate, the Regions should look to the June 26, 1984 guidance
document entitled "Implementing the State/Federal Partnership in
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Enforcement: State/Federal Enforcement Agreements" and the
"Enforcement Response Policy," issued December 21, 1984 for
further assistance.
Regions should make every effort to assure that there has
been thorough consultation with the state before overfiline.
If the Regional enforcement office has concerns about whether
the relief requested and penalties to be assessed by the state
comport with FPA's oversight policies on enforcement response
pnd penaltv amount, these concerns should be made known to the
state before the state matter proceeds to judgment or settlement
It should be emphasized that coordination and cooperation with
the states in advance of issuance of compliance orders regarding
the appropriateness of the terms of those orders will eliminate
many of the instances where overfilings are necessary.
In order to assure that full consideration has been given
to these actions, and their potential effects on Federal/State
relations, the Region's senior manapers--i.e., Waste Division
Director and Regional Counsel (or higher level, if desired)--
should review and approve these cases for filing.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON. D.C. 20460
OFFICC or
GENERAL. COUNSEL
MAY -9 ^ •
MEMORANDUM
SUBJECT: Effect on EPA Enforcement of Enforcement
Action Taken By State With Approved RCRA
Program
FROM: Francis S. Blake
General Counsel (A-130)
TO: -Lee M. Thomas
Administrator
Question
If a state takes enforcement action under an approved
RCRA prograra, does RCRA bar a subsequent federal action to
remedy the same violations? Does the answer hinge on whether
the state action was tin.ely or appropriate?
Answer
RCRA allows the Administrator to exercise complete
prosecutorial discretion in deciding whether to commence
federal enforcement when a state has taken action. The
contrary reading -- that RCRA bars such actions -- is
unsupported by the statute and legislative history. Such a
reading would bar any federal action when the state had enforced
regardless of the timeliness or appropriateness of the state
action.
Introduction
On May 10, 1985, an EPA Judicial Officer entered a final
order in the matter of BKK Corporation, Docket No. IX-84-0012
(RCRA (3008) 84-5). That order dismissed an administrative
enforcement action brought by EPA Region IX against the corpora-
tion for violations of various provisions of the Resource
Conservation and Recovery Act (RCRA), on the basis that RCRA
barred a federal action If a State had taken "timely and appro-
priate" enforcement action. On petition for reconsideration
filed by several EPA staff offices, the Administrator, on
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October 28, 1985, dismissed the complaint, but ruled that the
earlier BKK decision would "have no precedential effect."
Decision on Reconsideration at A.
This opinion examines the effect of state enforcement on
EPA enforcement under RCRA. As the exchange of pleadings in the
BKK matter makes clear, EPA staff agreed with the industry
respondent that EPA should generally not take civil enforcement
action if a state has taken timely and appropriate enforcement
action, but contended that this was a policy matter, not a
requirement of statutory or case law. The dispute is not a
trivial one. As we show below, if RCRA limits federal enforcement
based on prior state enforcement, it would be difficult to
confine those limits to cases where the state action is timely
and appropriate. It is our opinion that EPA's decisions whether
to defer to prior state enforcement are a matter of enforcement
discretion and policy, not statutory requirements.
Below, we examine RCRA, other relevant statutes, the
legislative history, and judicial decisions bearing on the
effect of enforcement by approved RCRA states.
Discussion
A. Relevant Statutory Provisions
The starting point in analvzire the Administrator's
enforcement powers under RCRA is the language of the statute.
Section 3008(a)(1) authorizes the Administrator, except as
provided in Section 3008(a)(2), to take an enforcement action
whenever he determines that anyone has violated a Subtitle C
requirement. \J Section 3008(a)(2) states:
In the case of a violation of any
requirement of this subtitle where such
violation occurs in a State which is
authorized to carry out a hazardous
waste program under section 3006, the
Administrator shall give notice to the
State in which such violation has
1/ After a state program has been approved, it operates "in
~~ lieu of the Federal program . . . ." Section 3006(b).
The requirements of an authorized state program are
considered Subtitle C requirements.
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occurred prior to issuing an order or
commencing a civil action. 21
Section 3008(a)(3) provides that EPA's enforcement action may
include revocation of a state-issued RCRA permit.
On the face of the statute, the only prerequisite to an
EPA enforcement action in an authorized state is a finding
that a violation of the authorized state program has occurred
or is occurring and that notice of EPA's intent to take action
has been provided to the state. Once EPA fulfills the Section
3008(a) requirements, it may issue an administrative order
requiring compliance with applicable Subtitle C requirements,
impose administrative penalties, suspend or revoke the violator's
RCRA permit (whether issued by EPA or the state) , and seek
judicial relief in federal district court.
It has been argued, however, that Section 3006 of the Act
somehow restricts EPA's enforcement authority. Section 3006
governs "Authorized State Hazardous Waste Programs," and
Section 3006(d) provides:
(d) Effect of State Permit. -
Any action taken by a State under a
hazardous waste program authorized under
this section shall have the same force
and effect as action taken by the
Administrator under this subtitle.
This provision was the principal statutory basis for the Judicial
Officer's May 10, 1985 decision. He read it as limiting the
otherwise broad federal enforcement power under Section 3008 and
concluded that under the statute EPA can only overfile when a
state's action was untimely or inadequate. We believe that
this reading of the statute is erroneous. First, the "timely
and appropriate" qualifications that the Judicial Officer
relied on simply cannot be found in the text of Section 3006(d) .
To read Section 3006(d) as applying to state enforcement actions
thus raises serious problems. If any enforcement action taken
by the state has the same force and effect as an EPA enforcement
action, EPA would never be able to take an enforcement action
regardless of the inadequacy of a state action. A settlement
2_/ Prior to 1980, EPA was required to provide states with 30
days' prior notice. The 30 day waiting period was deleted
in 1980, Solid Waste Disposal Act Amendments of 1980, Pub. L.
No. 96-482, « 13, 94 Stat. 2234, 94 Stat. 2339-30, and now EPA
need only provide "notice."
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or judgment binding on the state would, under this reading,
also bind EPA under principles of res judicata. Se e, e.g.,
Brown v. Felsen. 442 U.S. 127, 131 (1979) (final Judgment on
merits bars further claims by parties or their privies based on
the same cause of action); Montana v. United States, 440 U.S.
147, 153 (1979). It is unlikely that Congress would have
buried such an important limit on federal enforcement powers in
Section 3006(d), a provision concerning state permits.
On its face, Section 3006(d) does not address federal
enforcement powers. Section 3006 is entitled, "Authorized
State Hazardous Waste Programs." Section 3006(d) itself is
entitled "Effect of State Permit." Its principal purpose is
plainly to assure not only that a state will have authority to
issue permits, but also that those permits have the same effect,
and are enforceable to the same extent, as if they had been
issued by EPA.
By contrast, if Congress had meant to limit federal
enforcement power, we would expect them to do this in the
enforcement provision, Section 3008. This expecta'tion is
confirmed by the analogous provision in the Safe Drinking Water
Act. In Section 1^23, 3_/ Congress specifically required EPA to
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make a finding that a state abused its enforcement discretion
prior to commencement of federal enforcement. Congress certainly
would have provided similar language in the later enacted RCRA
had it chosen to impose a similar requirement. A/
It has also been suggested that Sections 3006(b) and (c)
implicitly limit EPA's authority under Section 3008. Section
3006(c) provides in pertinent part that "the Administrator
shall, If the evidence submitted shows the existing State
program to be substantially equivalent to the Federal program
under this subtitle, grant an interim authorization to the State
to carry out such program in lieu of the Federal program pursuant
to this subtitle . . . ." Section 3006(b) similarly provides
that on final authorization, the state "is authorized to carry
out such programs in lieu of the Federal program . . . ." Some
have contended that these provisions mean that once a state is
authorized it exercises its enforcement authority in lieu of
EPA.
The notion that the "in lieu of" language bars federal
enforcement cannot be squared with the plain language of Section
3008(a)(2), which requires the Administrator to notify an approved
state "prior to issuing an order or commencing a civil action
. . . ." This language has no meaning if the Administrator's
enforcement powers terminate upon interim or final authorization.
, 0
Footnote 3 continued
(B)(i) the State fails to submit the report
^requested by the Administrator within the time
"period prescribed by the preceding sentence, or
(ii) the State submits such report within such
period but the Administrator, after considering the
report,determines that by failing to take necessary
steps to bring such person into compliance by such
sixtieth day the State abused its discretion in
carrying out primary enforcement responsibility for
underground water sources,
the Administrator may comtoenQe a civil action under subsection
(b)(l) of this section, (emphasis added)
4/ See also Clean Water Act, Section 402(h), which bars the
Administrator from seeking a sewer hookup ban in an
enforcement action against a municipality in a state with
an approved NPDES program if the state has "commenced
appropriate enforcement action . . . ." See also n. 8 and
associated text, infra.
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In any event, in context the "in lieu of" language evidently
refers to the state's implementation of the authorized state
program in lieu of the federal hazardous waste program, not to
whether the state or EPA may enforce the state program in a
particular case. Sections 3Q06(b) and (c) allow the state to
issue RCRA permits instead of EPA and to substitute its regulatory
and permitting program for that of EPA. Without these provisions,
the regulated community would have heen subject to both state
and federal requirements -- with them, the regulated community
does not have to comply with the federal requirements in those
areas for which the state has been granted authorization. J5/
B. The Legislative History and Case Law
While the language and structure of the statute support
unfettered federal enforcement power in authorized states,
different passages in the legislative history point in different
and inconsistent directions. The House Report states that "the
Administrator is not prohibited from acting in those cases
where the states fail to act . . . ." House Committee on
Interstate and Foreign Commerce Report 94-1461 (Sept. 9, 1976)
at 31, U.S. Code Cong, and Admin. News, 94th Cong. 2d Sess.
(1976) at 6261. This language certainly suggests some sort of
limitation on federal enforcement power when a state has acted. £/
The Senate Report, by contrast, indicates an intent to
draw "on the similar provisions of the Clean Air Act of 1970
and the Federal Water Pollution Control Act of 1972" in allocating
responsibilities between EPA and the states under Section 3008.
S. Rep. No. 988, 94th Cong, 2d Sess. 17 (1976). To understand
what the Senate Committee meant, we must examine those laws and
how the courts have interpreted then.
1 . Case Law Under the Clean Air Act
Section 113(a)(1) of the CAA authorizes the Administrator
to order compliance or bring a civil enforcement action for
57 The result is not affected by the provision of Section
3006(b) that specifically authorizes a state with final
authorization to "enforce penults . . . ." Section 3008 rules
out a reading that this was meant to deprive EPA of its
enforcement powers.
6/ When the House Report discussed EPA's power to act "where
the states fail to act," it may have been referring to
the then-applicable requirement that EPA wait 30 days after
notifying an approved state before commencing enforcement
action. That requirement, as noted above (n. 2, supra) was
deleted in 1980.
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violation of a SIP. 42 U.S.C. S 7413(a)(1). The only prerequisite
to filing suit in district court is that EPA must notify the
alleged violator and the state thirty days prior to bringing a
civil action. Prior to the 1970 CAA Amendments, federal enforce-
ment was permitted only where the violation resulted from "the
failure of a state to take reasonable action to enforce such
standards." Air Quality Act of 1967, 81 Stat. 485, 493.
However, Congress chose to delete this limitation on federal
enforcement actions during consideration of the 1970 amendments.
See generally A Legislative History of the Clean Air Act Amend-
ments of 1970, U.S. Senate Committee on Public Works. 93d Cong.
2d Sess. 113, 133, 146, 163 (1974).
Defendants accused of SIP violations have argued that
federal enforcement actions for SIP violations should be stayed
or dismissed on the grounds that such actions would relitigate
issues already decided in a prior state proceeding or would
duplicate a contemporaneous state enforcement action. The
courts which have considered such challenges have rejected
that view on the grounds that the only prerequisites to suit
are those set out in the statute: notice to the alleged violator
and a lapse of thirty days. l_l The statutory language and
legislative history do not otherwise limit EPA1s ability to
bring an enforcement action when there is or was a parallel
state proceeding. S ee, e. j:., United States v. SCM Corp.. 615
F. Supp. 411, 416 (D. Md. 1985) (existence of state administrative
consent order did not bar EPA action seeking civil penalties
and injunctive relief for SIP violations); United States v.
Lehigh Portland Cement Co., No. C 84-3030, slip op. at 6 (N.D.
Iowa Dec. 12,1984)(state consent order did not preclude
subsequent EPA action for SIP violation); United States v,
Chevron, U.S.A., Inc., No. EP-80-CA-265, slip op. at 3 (W.D.
Tex. June 10, 1981) (pending state lawsuit which had imposed
temporary injunction for SIP violation did not bar EPA suit for
permanent injunction and civil penalties). Cf. United States
v. Harford Sands. Inc., 575 F. Supp. 733, 735 (D. Md. 1983)
(state agreement on compliance schedule does not bar federal
action under CAA S 113(a)(3)).
The recent decision in United States v. SCM Corp., 615
F. Supp. 411 (D. Md. 1985), explains how state enforcement
actions are taken into account under Section 113(a)(1).
Notwithstanding the existence of a state enforcement action,
7_/ Defendants in suits brought under Section 113(a)(1) have
also urged the courts to stay or dismiss these actions under
the doctrine of Colorado'River Water Conservation District v.
United States, 424 U.S. 800 (1976). The Colorado River doctrine.
as clarified in Moses H. Cone Memorial Hospital v. Mercury
Construction Corp., 103 S. Ct. 927 (1983), gives the federal
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EPA -has the right to press in federal court its claims regarding
'the issue of defendant's liability and what penalties are
appropriate for the violations. Id. at 418. The court
reasoned that if a state enforcement action were to preclude
federal action to enjoin or punish the same violation, a
state could nullify the federal enforcement scheme by adopting
and using a state enforcement scheme providing for minimal
penalties. Allegations of the sufficiency of state action may
be taken into account when the court considers the appropriateness
of relief but do not affect liability under federal law or
preclude the court from hearing a case on its merits. Id. at
419. The court's reasoning in SCM, supra , applies equaTTy to
RCRA enforcement.
2. Case Law Under the Clean Water Act
The Clean Water Act, in contrast to RCRA, gives the
Administrator two options: under Section 309(a)(1), 33 U.S.C.
§1319(a)(1), he, may notify the alleged violator and the state
of an alleged violation and issue a compliance order or bring a
civil action under Section 309(b) if the state has not "commenced
appropriate enforcement action" after the thirtieth day; or,
pursuant to Section 309(a)(3), 33 U.S.C. § 1 31 9 (a) (3) , ' he may
Footnote 7 continued froT previous page
courts discretion to stay or dismiss an action involving the
contemporaneous exercise of concurrent state and federal juris-
diction. Colorado River identified a number of prudential
factors to be considered, including the timing of the actions,
the convenience of the forums, and the need to avoid piecemeal
litigation. 424 U.S. at 818-819. Cone Memorial Hospital
required two additional factors to be""talc"en into consideration:
whether federal law provides the rule of decision on the merits,
and whether the state court proceeding will adequately protect
the parties' interests. Id. at 941, 942. The Court emphasized
that only exceptional circumstances could justify a refusal to
exercise federal jurisdiction. Hence, the party invoking the
doctrine must demonstrate, beyond "any substantial doubt," the
existence of parallel state-court litigation that will adequately
achieve the complete and prompt resolution of the issues pending
in federal court. See id. at 943. The court In United States
v. _SCM Corp. . 615 F. Supp. 411 (D. Md. 1985), noted that in a
case brought under Section 113(a)(1), it would be improper to
apply the Colorado River doctrine where the state action had
already been concluded or where EPA seeks relief not sought or
obtained in the state action. 615 F. Supp. at 417, 418. See
also United States v. Lehigh Portland Cement, No. C 84-3030,
slip op. at 8 (N.D. Iowa Dec. 12, 1984) (rejecting argument for
stay) .
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proceed directly against the alleged violator under Section
309(-b) without giving notice. £/
In United States v. ITT Rayonier. Inc., 627 F.2d 996, 1001
(9th Cir. 1980), the court recognized EPA's ability to bring
an action under Section 309(a)(1) notwithstanding the existence
of a state enforcement proceeding. Noting the references in
the legislative history to "dual" or "concurrent" enforcement
authority, the court determined that enforcement actions for
effluent limitations violations could have been filed in both
state and federal courts. See also Aminoil, U.S.A., Inc. v.
California State Water Resources Control Board, 674 F.2d 1227,
1230 (9th Cir. 1982); United States v. Cargill, 508 F. Supp.
734, 740 (D. Del. 1981). £/
Aminoil, which held that EPA could not be joined as a
party to a suit filed in state court for review of a state
order defining a certain area as a "wetlands," acknowledged
that the statutory provision for concurrent state and federal
jurisdiction could force a defendant to relitigate the wetlands
issue at the federal level after the state administrative
8/ The Clean Water Act thus differs from RCRA in that notice
under Section 309(a)(1) is not a condition precedent to
federal enforcement. See United States v. City of Colorado
Springs, 455 F. Supp. 1364, 1366-67 (D. Colo. 1978) (decision
to proceed unilaterally under Section 309(a)(3) is within sound
discretion of Administrator). In addition, EPA enforcement action
under Section 309(a)(1) is expressly limited to cases in which
the state has not "commenced appropriate enforcement action."
Hence, if EPA chooses to notify under 309(a)(1), that provision,
unlike Section 3008(b) of RCRA, contemplates that EPA will
wait for the state to initiate appropriate enforcement action
in the first instance. See Colorado Springs, 455 F. Supp. at 1366
(comparing Section 309(a7TT) with 309(a)(3)).
£/ In United States v. Cargill, 508 F. Supp. 734, 740 (D. Del.
1981) , the court approved the filing of a federal enforcement
action under Section 309(a) of the Clean Water Act after a parallel
state filing, but suggested in dicta that such an action could be
brought only if after "notification the state has not commenced
appropriate enforcement action . . . ." Clean Water Act, Section
309(a)(1). quoted in United States v. Cargill. supra. (Emphasis
in original)^RCRA contains no language similar to Section
309(a)(1) of the Clean Water Act requiring EPA to defer to
"appropriate" state enforcement. Moreover, the Cargill court
•did not discuss Section 309(a)(3), which separately authorizes
federal enforcement but contains no limitinE language. Finally,
in its discussion on the merits, the court relied on abstention
doctrines, not the limitations in Section 309(a)(1).
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agencies and courts had reached a decision. 674 F.2d at 1233.
'The court observed, however, that EPA involvement in the state
enforcement action could interfere with the Agency's obligation
to independently exercise its supervisory authority under
Section 309(a)(1). Id. at 1236.
Although Rayonier and Cargill either dismissed or stayed
EPA's enforcement actions, the restrictions those cases place
on EPA enforcement action do not arise out of any statutory
restriction on federal enforcement power. Rayonier dismissed
the EPA action on res judicata grounds, reasoning that the
central issue in the case, which involved the construction of a
state-issued permit, had previously been litigated in a state
enforcement action and a final determination on the merits had
been reached in state court. 627 F.2d at 1002. As the Ninth
Circuit noted in Aminoil, the issues presented in Pavonier "may
be sui. eeneris ," in particular because the decision depended
upon a fi nd ing that, in the peculiar circumstances of that case.
EPA and the state agency were in privity. 674 F.2d at 1236. And
Care ill held that a limited stay was warranted under the Colorado
Rive'r TO/ doctrine, giving great weight to the consideration
that tTTe federal action had caused the defendant to halt its
pollution control efforts. 508 F. Supp. at 749-50.
D. Conclusion
As we have shown, if either Section 3C06(d) or the "in lieu
of" language in Sections 3006(b) and (c) were read to apply to
state enforcement actions, any action taken by the state must
preclude EPA enforcement action for the same violation,
regardless of the adequacy of the state action. In contrast to
provisions of other statutes, such as Section 1423 of the Safe
1Q/ Colorado River Water Conservation District v. United States,
424 U.S. 800 (1976).See supra n. 7.The Supreme
Court's subsequent decision in Moses H. Cone Memorial Hospital
v. Mercury Construction Corp., 103 S.Ct. 924 (1983), calls
Cargill into question.Cone stressed that because a stay is as
much a refusal to exercise federal jurisdiction as a dismissal,
it would be an abuse of discretion for a federal court to grant
either a stay or a. dismissal.unless there is no substantial
doubt that the state court will adequately address the merits
of the dispute. 103 S. Ct. at 943. Relying on Cone, the
court in United States v. SCM refused to follow Cargill,
•reasoning that EPA should not be deprived of its right to seek
a determination of liability and additional penalties under
federal law. 615 F. Supp. at 418. See also United States v.
Lehigh Portland Cement, slip op. at 8 (Cargill does not apply
in CAA case where EPA was seeking to augment defendant's pollution
control measures).
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Drinking Water Act (Administrator may act if he determines that
state abused its discretion) or Section 309(a)(1) of the Clean
Water Act (EPA must act if state has not taken "appropriate"
action) , Section 3008(a)(2) of RCRA does not provide for any
limitations on EPA's enforcement power. On the other hand, if
such limitations are read into Sections 3006(b), (c) , and (d) , there
would be no statutory basis for lifting the prohibition on EPA
enforcement when the State's action is untimely or inappropriate,
a result that would be so inconsistent with Congress's approach
to similar issues in other environmental statutes that it should
not be inferred without conclusive evidence of legislative intent.
Thus, we conclude that the only prerequisites to EPA
enforcement action in an authorized state are those set out in
Section 3008(a)(2): a finding of violation and notice. This
reading is supported by the language of section 3008(a)(2)
itself, by the structure of RCRA, and by the case lav construing
comparable provisions of the Clean Air Act and Clean Water Act.
,lt should be emphasized that the issue addressed in this
opinion concerns the statutory constraints on federal enforcement.
We believe that it is entirely appropriate and consistent with
RCRA for EPA, as a matter of discretion, to avoid taking civil
enforcement action if a state has taken timelv and appropriate
enforcement action.
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