&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9900.0
TITLE: Enforcement Response Policy
APPROVAL DATE:
EFFECTIVE DATE: 12/21/84
ORIGINATING OFFICE: OWPE
H FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
'E DIRECTIVE DIRECTIVE Dl
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wEPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Reauest
Interim Directive Number
9900.0
Originator Information
Name of Contact Person
Ginny Steiner
Lead Office I — I
LJ OUST
D OERR Q3 owpe
D OSW D AA-OSWER
Mail Code ^^
Telephone Number
475-9229
Approved for Review
Signature of Office Director
Date
j-_ 70 - K
Title
Enforcement Response Policy
Summary of Directive
Provides guidance on classifying violations, selecting the appropriate
enforcement action in response to various categories of RCRA violators
and federal enforcement in authorized states.
timely and appropriate enforcement actions
Definitions for violation categories (
priority class I or II)
Type of Directive (Manual. Policy Directive. Announcement, etc.)
Guidance
Status
D Draft
0 Final
O New
1 — 1 Revision
Does this Directive Supersede Previous Directive(s)? | ] Yes [ | No Does It Supplement Previous Directive(s)? | | Yes | | No
If "Yes" to Either Question, What Directive (number, title)
Review Plan
O AA-OSWER D OUST
D OERR D OWPE
LJ OSW O Regions
LJ OECM
D OGC
D OPPE
D
Other (Specify)
This Request Meets OSWER Directives System Format
Signature of Lead Office pirectivesADfficer
-w r //i ^
/"'' d- iVs^^^
Signature of OSWER Directives Officer
Date
Date
EPA Form 1315-17 (10-85)
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UN|TED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC2Ur:;4
'.VAST£ AND £vERC-:-.C"
MEMORANDUM
SUBJECT: (Enforcement Response Policy
w -*r«*' <
. Tnomas,
•
FROM: £e& n. Tnomas, Assistant Administrator
TO: ''Regional Administrators - Regions I-X
I am enclosing the final Enforcement Response Policy for your
implementation. The policy provides guidance on classifying
violations, selecting the appropriate enforcement action in response
to various categories of RCRA violators, and taking federal
enforcement action in States with authorized programs.
The Enforcement Response Policy sets out an approach for
strengthening the RCRA enforcement program by concentrating its
efforts on the most serious violators and by ensuring that these
violators receive timely and appropriate responses. Many of the
concepts in this guidance were developed and agreed to in principle
by the Regional Offices and many States in March 1984_as a result
of a series of meetings prompted by high level concern with
significant noncompliance under the RCRA program. Much of this
guidance has been operational since that time and this document
merely formalizes the principles that were established then.
I urge you to implement this guidance to the extent possible
in FY 1985 within the constraints of your Enforcement Agreements
and Grants. However, there is no need for you to reopen FY 1985
negotiations with the States. The Enforcement Response Policy
should be implemented fully in FY 1986. Its principles, therefore,
should be embodied in the FY 1986 Enforcement Agreements and Grants.
It is my hope that this guidance, along with the recently
issued RCRA Implementation Plan, Interim National Criteria for a
Quality Hazardous Waste Management Program under RCRA, and RCRA
Civil Penalty Policy will lead to significant improvements in the
rate of compliance with the RCRA program.
I appreciate the assistance that your staffs have provided us
in the development of this guidance.
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ENFORCEMENT RESPONSE POLICY
DECEMBER, 1984
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TABLE OF CONTEXTS
SECTION PAGE
I. INTRODUCTION
II. RELATIONSHIP TO OTHER AGENCY
POLICY AND GUDIANCE
III. ENFORCEMENT RESPONSES AND DEFINITIONS 6
IV. ESTABLISHING PRIORITIES 14
V. EPA ACTION IN AUTHORIZED STATES 15
VI. APPENDIX - EXAMPLES OF CLASSIFICATIONS 17
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SECTION I
INTRODUCTION
The goal of the RCRA Compliance Monitoring and Enforcement
Program is to attain and maintain a high rate of compliance
within the regulated community. In order to accomplish this,
the Agency and the States must take frequent, visible, and
effective enforcement actions against serious violators. This
means that the Agency and the States must exercise penalty
authorities against serious violators and act against them in
an expeditious manner.
The Enforcement Response Policy thus sets forth an approach for
strengthening the RCRA Enforcement Program. First, recognizing
the fact that there are not sufficient resources to address all
instances of noncompliance with the same level of effort, the
policy calls for concentration of effort on the most serious
violators, those called high priority violators. These violators
represent the vast majority of violators with Class I violations.
High priority violators are to receive penalties, either by issuing
an order with a penalty, referring the case to a judicial authority,
or utilizing the Agency's penalty authority.
Second, the policy espouses the concept of expeditiously
escalating an action when compliance is not achieved. All too
often in the past, the RCRA enforcement program has relTed heavily
on "low level" anforcement actions (e.g. warning letters and
notices of violation (NOV), often issuing more than one such action
over a long period of time with no success. In order to achieve
compliance, stronger actions must be used in conjunction with the
warning letters and NOVs. The Enforcement Response Policy thus
sets forth a timeline that indicates at what point a stronaer
action must be taken.
Third, the policy lays out instances when the Agency will take
direct action in authorized States. Finally, the policy revises
the violation classification system, essentially eliminating the
middle classification (previously Class II) and renumbering Class
III as Class II.
The RCRA Enforcement Response Policy supersedes the guidance
set out previously in the following throe memoranda:
1) July 7, 1981 from Douglas MacMillan to Regional
Administrators and Enforcement Division Directors,
the subject of which was "Guidance on Developing Compliance
Orders Under Section 3008 of the Resource Conservation and
Recovery Act,"
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2) January 22, 1982 from Douglas MacMillan, through Christopher
Capper and William A. Sullivan, to Regional Administrators,
Regional Counsels, and Air and Waste Division Directors,
the subject of which was "Guidance on Developing Compliance
Orders Under Section 3003 of the RCRA; Enforcement of
Ground-Water Monitoring Requirements at Interim Status
Facilities," and
3) October 6, 1982 from Robert M. Perry and Rita M. Lavelle
to Regional Administrators, Regional Counsels, and Air and
Hazardous Materials Division Directors, the subject of
which was "Guidance on Developing Compliance Orders Under
Section 3008 of the Resource Conservation and Recovery
Act; Enforcement of the Financial Responsibility Require-
ments Under Subpart H of 40 CFR Parts 264 and 265."
All three memoranda provide guidance on the classification of
violations and on the enforcement response appropriate for the
various classes of violations.
The Enforcement Response Policy provides guidance only on
civil actions - both administrative and judicial. Further, it
addresses only responses to violations, those responses authorized
under §3008 of RCRA. Use of the authorities set out in §3013
and §7003 for addressing situations that may present imminent
hazards to human health or the environment is set out in the
.policies on "Issuance of Administrative Orders under Section 3013
of the Resource Conservation and Recovery Act" and "Issuance of " ^
Administrative Orders Under Section 7003 of the Resource 4
Conservation and Recovery Act". --- -"' ^' '
The policy and procedures set forth in this document and *••
internal office procedures adopted pursuant to this document are
intended solely for the guidance of employees of the Environmental
Protection Agency and State Enforcement Agencies. They are not
intended to nor do they constitute rulemaking by the Agency, and
may not be relied upon to create a right or a benefit, substantive
or procedural, enforceable at law or in equity, by any person.
Agency officials may take any action that is at variance with
the policy or procedures contained in this document or with
internal office procedures that may be adopted pursuant to this
document if determined to be appropriate in a specific case.
The Enforcement Response Policy is organized along the following
lines:
0 Relationship of the Policy to ether Agency Documents
0 Enforcement Responses and Definitions
0 Establishment of Priorities
0 FPA Action in Authorized States
0 Examples of Class I and II violations.
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It
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SECTION II
RELATIONSHIP TO OTHER AGENCY POLICY AND GUIDANCE
The RCRA Enforcement Response Policy does not stand alone.
should be used in conjunction with the following:
0 Agency Operating Plan - Sets the policy and planning
directions of the Agency. (Issued annually)
0 Implementing the State/Federal Partnership in Enforcement:
State/Federal Enforcement Agreements (Issued June 26, 1984,
referred to as Policy Framework!. Calls for enforcement
agreements with the States and provides general guidance
in the following areas:
— oversight criteria and measures for assessing good
compliance and enforcement program performance
— criteria for direct federal enforcement
— notification and consultation protocols
— State reporting requirements.
0 RCRA Implementation Plan (RIP) - Supplements the Agency
Operating Plan by outlining RCRA directions. Sets
reporting and tracking requirements for Class I violations
and significant noriccmpliers . (Issued annually)
0 Interim National Criteria for a Quality Hazardous Waste
Management Program Under RCRA (Issued May 15, 1984) -
Defines "timely enforcement action:i by setting out
t ine.f-r5-aas for taking enforcement action against two
types of violators — ni.Qh priority and Class I. (These
timefrarnes are minimally acceptable times for action. The
Regions and States are urged to agree upon mere stringent
timeframes in their grants or enforcement agreements.)
Describes, in general, appropriate responses.
The latter two RCRA-specif ic documents, as well as this
Enforcement Response Policy, provide direction for -implementing
the Agency Operating Plan and Policy Framework. The diagram on
the following page illustrates the interaction between the various
RCRA-specif ic guidance documents and .the cross-media Policy Framework.
The diagram shows, across the ton of the page, each of the five
areas covered oy the Policy Framework. It then lists the RCRA
documents that address each of the five areas.
The relationship between the Enforcement Response Policy and
the RCRA Implementation Plan and Interim National Criteria for a
Quality Hazardous Waste Management Program Under RCRA (Program Quality
Document) is as follows. First, the Enforcement Response Policy
establishes a classification system that is fundamental to both
the reporting procedures and the enforcement response procedures
set out in the other documents. The RIP requires that the Regional
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RELATIONSHIPS AMONG RCRA ENFORCEMENT POLICY AND GUIDANCE DOCUMENTS
J
Policy Framework for State/EFA- Enforcement "Agreements"
Oversight Oversight ' Criteria for Advance State
Criteria and Procedures Direct Federal Notification Reporting
Measures: and Protocols Enforcement in and Consultation
Defining Good Delegated States
Performance
Program Quality I
Enf. Reap. Policy f
RIP Enf. Resp
•rograra Quality KII>
Inf. Resp. Policy
Policy
Knf. Resp.
Policy
RIP
Enf. Reap. Policy
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Offices and the States report "Class I" violations ir. the Hazardous
Waste Data Management System (HWDMS) and the Strategic Planning
and Management System (SPMS). Also, for Agency tracking purposes,
the RIP defines a category of violators called "significant
noncompliers." "Significant noncornpliers" are facilities with
Class I violations of the ground-water monitoring, closure,
post-closure or financial responsibility requirements. The
compliance status of these violations will be tracked throughout
the year in the SPMS. The Enforcement Response Policy defines
"Class I violation", but does not focus on response to "significant
noncompliers."
The Program Quality Document sets out timeframes in which two
categories of violators, high priority violators and Class I
violators, should be addressed. It also describes the types of
enforcement actions appropriate in response to such violators.
However, it does not provide the Regiona1 Offices and States with
guidance on how to determine which of the se.veral....appropriALe
actions to choose in~5r"sj5ecj._fic situa_t_ijon.... The Enforcement Response
FoTicy a~ddr~ess~es"that issue. Tu'rtKer, while the Program Quality
Document describes generally what type of enforcement response
would be considered timely and appropriate for various situations,
it does not describe how EPA would respond if an authorized State.
failed to take_ action in <:• timely and appropriate manner. This
docure"nT~s"ets o'u^T a presumption that EPA will immediately begin
case development worx wnen it fines _tha_t State' act ion is not
proceeding expeditiously or that tre State nas made a response
that is not aooronriate to the situation. • —-
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III. ENFORCEMENT RESPONSES AND DEFINITIONS
The range of enforcement responses that could be considered
timely and appropriate action are described in the Program Quality
Document and diagrammed on the following two pages. Each Regional
Office will negotiate with each State an "Agreement" chat will
specify, among other things, what consititutes timely and
appropriate enforcement action in response to two categories of
violators, high-priority violators and Class I violators (See
page 11 for definitions of "high-priority violators" and "Class I
violators".) Although the Regions and States are encouraged to
negotiate more stringent timeframes in their Agreements, the
timeframes set out in the Program Quality Document will be used
for purposes of example in the remainder of this document. To
emphasize that they are only examples, time limits are set in
parentheses.
High-Priority Violators - The Regions or States should respond to
"high-priority" violators by issuing Adminis_t_ratiye__0rde_rs_
(CQmp.la_i_n.t_sj. or referring judicial actions "within (90) days of..
the discovery _V of the violations. (See page 11 for the definition
of "high-prio~rity"violator". ) In addition to requiring compliance
on an expeditious schedule, the Regions or States should assess
penalties against high-priority violators. States that do not
trave administrative penalty authority .will need to address high-
priority violators by taking judicial action or by asking EPA to
isaue ddminiscrative Complaints.
,»-^
Class I Violators - The appropriate response to a "Class I
violator" is the issuance of a Notice of Violation (NOV), warning
letter, or 'Other similar notification within (30) days of violation
discovery, or the issuance of an Administrative Order or referral
of a judicial complaint within (90) days. (See page 11 for
definition of "Class I violator".) If the initial action
is an NOV, warning letter, or other similar notification and it
does not result in either final compliance or in an enforceable
compliance schedule within (90) days, a decision should be made
to issue an Order or refer a judicial complaint. The Region or
State would have an additional (60) days to issue the Order or
(90) days to refer the judicial complaint. Th-ese procedures and
the procedures described for addressing high-priority violators
are diagrammed on timelines on the following two pages.
\/ A violation is discovered as..Qf the date when the case
development staff determines through review of the inspection
report and/or data (e.g., laboratory reports), that a violation has
occurred. For purposes of tracking national progress against the
timeline, the violation discovery date mentioned in the Program
Quality Criteria was 45 days after the inspection. However., the
Program Quality Criteria did not officially designate a time from
date of inspection to discovery of violation. The Agency will
designate a violation discovery date in the next revision of the
Criteria scheduled for late FY 1985. It is expected to be much
less than 45 days. Forty-five days between an inspection and
violation discovery date should only be used in extreme circumstances,
usually when sampling and analysis is involved.
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2 I
..MELItsJE FOR EWFORUtMENT ACTIONS
HIGH PRIORITY VIOLATORS
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II.E II
TIMELINE FOR ENFORCEMENT ACTIONS
CLASS I VIOLATORS
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Class II Violator3 - '.vhile EPA and most authorized States have
the autnority to respond to any Subtitle C violation with an
order or referral, a violator with only Class II violations will
normally receive a warning letter as the initial response. If
the warning letter does "hot result in expeditious compliance,
normally within 30-60 days of issuance, the Regional Office
or authorized State should consider whether the violation warrants
issuing an order. In cases involving large numbers of Class II
violations, repeated Class II violations, or any other case the
enforcement authority considers serious, it may be preferable to
issue an orde_r_ d_irectly, without a r^rec^ding warning letter.
Flexibility - Within the- rrainework set out above, the Region or
State: 1) must determine what type of action is appropriate as
the initial response to a Class I violator, and 2) muse decide
between administrative and judicial action in response to a
high-priority violator or to a Class I violator if an NOV or
warning letter is either not issued or is not successful. In
deciding which enforcement tools to use, a number of factors must
be considered.
With regard to initial response to Class I violators,
as indicated by the timeline in Table II (page ?), it is acceptable
for a State to initially address a Class I violator with an NOV
or similar response or to attempt to negotiate an enforceable
agreement with the violator. In fact, it is expected that such
action will frequently result in ccmpliance or in the negotiation
of an enforceable agreement that incorporates a compi-vance schedule.
If, however, such an action does not result in .ccmpl iance or in
the negotiation of an enforceable compliance schedule within
(90) days following its issuance, an administrative order or
judicial referral must be initiated. The timeline allows an
additional (60) days for the development and issuance of an
Administrative Order. It unintentionally fails to allow additional
time for the development and referral of a judicial complaint,
however it is recognized that additional time must be allowed
for such activities. It is expected that Administrative Orders, .
rather than judicial referrals, will be the usual response .to
non high-priority Class I violators.
Many States have the authority to issue NOV's and warning
letters but are not required to do so before issuing an order.
Those States must decide in each case of a Class I violator whether
to begin with an Order or with an NOV or similar notice. In general,
the use of NOV's and warning letters by such States is recommended
only in cases where the State believes that the NOV or warning
letter will itself lead to compliance within the required timeframe.
•''if a warning letter or NOV is not expected to result in compliance
and is not required, the State should go directly to an administra-
tive _order. Other States are required to precede orders and
'"referrals with NOVs, warning letters, or some other type of
notification.
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It should be noted that the Regions and States should seek
compliance on as expeditious a schedule as possible. If the
full time period allowed by the timelines is not necessary in a
particular case, a more timely action should be taken.
In deciding whether to respond with an Administrative Order
or with a judicial referral, the first consideration is whether
the State has administrat_iye_4xajialty au.t-ho.rit\u. States that do
not have administrative penalty authority will need to refer high-
priority violators to their Attorneys General for action or request
that EPA issue an Administrative Order with penalties. In making
making this decision, the Region or State should consider the handler's
compliance history and culpability. Wh_ile administrative actions
_g_ej3.er-aJr-1-y— pj:.oceed-_mQ_re_.g.u_i_ck_ly than._j.ud.fci.al ~act:;ro'rrsr^ FKeTIIlJFe
many instances in which 1udicial-a.c.tian_i.s.-m.ore_ appropriate. If
the handler is a chronic violator and administrative action has
not been successful in deterging repeated violations or if there
are other reasons to believe that compliance with an administrative
order is unlikely, the Region or State may choose to seek relief
in the courts. Similarly, court action nay be appropriate in the
case of a handler that is in violation of a compliance schedule in
an order, agreement or decree. Judicial referrals may also be
. appropriate when a handler is believed to have intentionally
'committed violations and a,_civi 1 / rather than crimTn~a3i, action
is planned. Judicial action in such cases is likely to serve as
a more effective deterrent to other would-be violators than an
administratively issued Order.
For a Class I violator that is not in the high-priority
category, an Administrative Order is generally the most effective
response. Where EPA is the primary enforcement agency, the initial
enforcement response to a Class I violator should generally be an
order with penalties. At their discretion, this response is
also recommended for authorized States that have the statutory
authority to assess administrative penalties and to issue Adminis-
trative Orders directly, without any.prior NOV or warning letter.
However, many authorized States are without authority to assess
administrative penalties and many are required to precede Orders
and referrals with NOV's, warning letters, or some other type of
notification.
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Priority Classification Scheme; Key Definitions
The RCRA program employs several terms for defining priori-
ties for enforcement response/ used within this document 2-3 weUi as
the Program Quality Document and the RCRA Implementation Plan.
First, the program classifies individual violations ini-o-
one of two Classes:
Class I Violation - a violation that results in a
release or serious threat of release of hazardous wa-^te to
t*he elTvironment, or involves the failure to assure: tftat
groundwater will be protected, that proper clc
post-closure activities will he undertaken, or l
hazardous wastes will be destined for and deliver erf do
permitted or interim status facilities.
Class II Violation - any violation of RCRA recaf.remifi.nts
that does not meet the criteria listed above for Clasps 1
violations.
The distinction between Class I and Class II violations
clearly understood; examples of Class I and II violations
provided in the Appendix. Mote that the two-Class systecr r
the previous • three-Class system.
Further, a RCRA handler is classified based upon trie n^ii'ira of
its collection of violations and , various additional factCTo su..^ as
compliance history. The designations of handlers are as fa- 1 lews:
High-Priority Violator - a handler who
- has one or more Class I violations at the-
groundwater, closure/post closure, arwS
financial responsibility requirementsr «M
- poses a substantial likelihood of -eiposu.r*.
to hazardous waste or has caused act^-alL
exposure, or
- has realized a substantial economic &erw£it
as a result of noncompliance, or
- is a recalcitrant or chronic violatar G ii.nc. lard Ing
a handler who is violating schedules irv an
Order or decree) .
Class I Violator - a handler with one or more CLas-s, I
violations who is not a "high-priority violate"..
Class II Violator - a handler who has only Class- ET
violations.
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Hich Priority
The identification of high-priority violators is somewhat sub-
jective and will require judgment on the part of the Regions or
States. The high-priority criteria do not place any burden of
proof on the Regions or States. The criteria are set out only to
assist the Agencies in setting priorities for enforcement response
and determining when penalty assessments are essential.
The likelihood of exposure in a situation created by a violator
should be evaluated on the basis of the case-specific information
and might consider the following, among other, questions^/:
- What is the quantity of waste?
- Is human life or health potentially threatened by the
situation?
- Are animals potentially threatened by the situation?
- Are any environmental media potentially threatened by
the situation?
In examining whether there is a substantial likelihood of exposure
posed by a violator, the focus should be on the potential for harn,
rather than whether harm actually occurred.
One example of a violator that could be considered as posing
a substantial likelihood of exposure is an owner/operator who
installed an inadequate ground-wat'oc monitor.tr.g cyctcm at a faciiily
that overlies a. nearby town's drinking water supply. Another
example is an owner/operator who failed to prevent the entry of
people onto the active portion of a surface impoundment fardlity.
While there is no firm threshold for determining whether a
violator has triggered the second high-priority criterion, the
substantial economic benefit of noncompliance, it is suggested that
55,000 be used as a guideline.£/ While it is difficult to identify
£/ The Penalty Policy requires that the likelihood of exposure for
each individual regulatory violation be evaluated separately. How-
ever, for the purposes of identifying high-priority violators, this
policy recommends that in evaluating the likelihood for exposure,
the Region cr State look at the handler's collection of violations
as a whole.
_£/ The Penalty Policy defines a substantial economic benefit as a
benefit _> 52,500. It is appropriate to set a higher dollar value
as the threshold in this policy because the purpose is to set out a
category of violators that demand response on an expedited schedule
and a penalty assessment regardless of whether the enforcement authority
has administrative penalty authority. The Penalty Policy, on the
other hand, establishes a threshold to ensure that if a penalty
is assessed it at least offsets any economic benefit that may have
accrued, but not to determine whether action should be taken or
which violators should be addressed first. Again, the Penalty
Policy considers eacn regulatory violation separately whereas
this policy looks collectively at all of a handler's violations.
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specific sections of the regulations whose violation wcu.ld reap
substantial economic benefit, the following general areas are
likely candidates for consideration:
0 failure to properly install ground-water monitoring
wells
0 failure to initiate assessment monitoring
0 failure of a land treatment facility owner/operator
to monitor the unsaturated zone
0 failure of an owner/operator to close a facility
properly or to develop closure or post-closure plans
0 failure of an owner/operator to establish and maintain
a financial assurance instrument
0 failure of an owner/operator to submit a timely and
com-plete Part B permit application
0 failure of a storage facility to install a secondary
containment system
0 failure of a facility to begin ground-water corrective
action
0 disposal at an unpernittied facility
0 ship-ent of hazardous waste, by a generator, to an
UP.permitted facility
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SECTION IV
ESTABLISHING PRIORITIES
The Regions' and States' priority targets should be, first,
high-priority violators, then Class I violators, and then Class II
violators. Enforcement actions need not be taken for all high-
priority violators before any action is initiated against Class
I violators. Because the different categories of violators
merit different levels of response with varying resource require-
ments, most Regions and States will want to respond to a nix of
the various categories of violators. This is an acceptable
approach although the Regions and Sta-tes should keep in mind that
oversight activities will focus first on high-priority violators.
Therefore, the emphasis must be on those handlers.
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SECTION V
EPA ACTION IN AUTHORIZED STATES
States with authorized programs have the primary responsibility
for ensuring compliance with the RCRA program requirements.
Nevertheless, Section 3008 of RCRA specifically provides SPA with
the authority to take enforcement action in authorized States.
As discussed in a November 23, 1983 nemo from Lee Thomas and
Courtney Price to the Regional Administrators, it is EPA's policy
to take enforcement actions in authorized States when:
0 the State asks EPA to do so, or
8 the State fails to take timely and appropriate
act ionV
The previous section described what is considered timely and
appropriate action in response to various categories of violators.
The timelines set out in that chapter establish trigger points at
which EPA should initiate action if an authorized State has failed
to do so or has initiated an action that is not considered appro-
priate for the situation involved. If the State has failed to
issue an order or complete a referral within (90) days after
discov-ry-of a high-priority violator (or (60) days after deciding
to issue an Order to a Class I violator), the Regional Office
should notify the State that EPA will take action. The Regional
Office may also choose to assess a penalty against a high-priority
violator if the State's action failed to include one. 3/ The
Memorandum of Agreement (MOA) or Grant Agreement between EPA and
each State should set out the mechanism by which notice will be
provided. Either written or telephone notice could be considered
acceptable. The Regional Office may need to conduct its own case
development inspection, and prepare additional documentation
before proceeding to initiate an action. Only if the State has
made reasonable progress in returning the facility to compliance
or in processing an enforcement action should the Region hold
off federal response when the timeline is not met by an authorized
State.
;V The Policy Framework identifies an additional circumstance under
which EPA will take action in an authorized State - a case that
would establish a legal precedent - although such cases are expected
to arise infrequently.
_V EPA may also consider assessing a penalty if it feels that the
penalty assessed by the State was egregiously small, as judged
according to the State's penalty policy or procedures established
by the State for determining penalty amounts. Before initiating
any penalty-only action, EPA must weigh the benefit of that action
with the need to take action against handlers that are out
of compliance with applicable requirements.
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To track State progress against the. "timely" and "appropriate"
criteria, the Regional Offices should .depend on the Compliance and
Enforcement Logs that are submitted monthly and on conversations
with appropriate State personnel. The Regional Offices should review
the Logs each month and determine not only which cases have failed
to meet the (30), (60), and (90) day triggers but also which cases
that are in earlier stages are not proceeding expeditiously.
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EXAMPLES 0? VIOLATION CLASSIFICATION
Violation Classification
Failure of a handler to meet a compliance I
schedule In an Order, decree, agreement
or cermit
Construction of a new facility without a
permit
Failure of the generator to comply with
requirements relating to the manifest
system.
Failure of a generator to meet the packaging,
labeling^narking or placarding requirements
Failure to conply with the "small quantity
generator reauirements"
I
I
I
I
Failure of a transporter to comply with
the requirements for immediate action and
c 1 ean up of discharges ;
Failure of the transporter to comply with
requirements relating to the manifest
svstea
Failure of a facility owner/operator to
co.T.clv with manifest rsauirements
Failure of an owner/operator to conduct required
waste analyses
Failure of an owner/operator to properly handle
l^nitaole, reactive or Incompatible wastes
Failure to Install operate and maintain an
adequate ground-water monitoring system,
Inducing failure to begin assessment
'monitoring when required under the Interim
status regulations
Self-granting, by an owner or operator,
"f an unjustifiable waiver, from
^round-water monitoring requirements.
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-18-
Violation Classification
Failure to iceet the closure performance I
standard
Failure to develop a complete and adequate I
closure plan.
Failure to-meet specified'standards Tor post- I
closure care :
Failure to develop a complete and adequate I
post-closure clan
Failure to develop an adequate estimate of I
closure and post-closure costs
Failure to establish and maintain a financial I
assurance mechanism for closure and post-closure
COSTS. . ;
Discrepancies In wording such that the financial I
instrument is ineffective _
Improper cancellation of a bond by the surety. T~"
Cancellation or reduction of value, without I
R.A.'s consent, of surety bond or insurance
policy ________________________________________
Failure to-include information regarding all I
facilities that are covered by the sane
instrument
Failure to obtain or maintain coverage for I
sudden accidental occurrences
Failure to obtain or maintain coverage for I
nonsudden accidental occurrences.
Failure of owner/operator to submit I
a. timely and complete Part B appli-
cation •
Storage of wastes in containers that I
are not in good condition or have
begun to leak
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-19-
Violation Classification
Failure of an owner/operator to meet the I
requirements regarding storage of
ignitable, reactive or incc-spatiale
wastes.
Failure to provide for proper contain- I
ment of leachate or runoff from a waste
pile
Failure of an owner/operator to meet I
applicable general operating requirements.
Failure of a land treataent owner/ I
operator to meet the requirements
regarding food chain crops.
Failure of a land treataent owner/ I
operator to prepare and plan for
monitoring of the unsaturated zone
or to monitor the unsaturated zone.
Failure of landfill owner/ operator
to properly dispose of containers.
Failure of a thermal treatment
facility to aeet the requirements
regarding open burning and waste
explosives .
Failure to submit the biennial reccrt
Failure of an owner/operator to
provide notice regarding interna-
tional shipments of hazardous wastes
Failure to provide required notices
regarding transfers of ownership or
foreign shioraents of waste
Failure 'to make emergency arrangements
with local 'authorities
•
Failure to maintain copy of
closure olan at the facilitv
Failure to meet the timeframes
set out for facility closure
, I
I "
TT
II
II
II
II
II
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