UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MEMORANDUM
RCRA Enforcement/Compliance Guidance Manual—
Jmendium of Oerative Policies
SUBJECT:
FROM: CoGrtney M. 'Price
Assistant Administrator for
O\ Enforcement and Compliance Monitoring.
•CT^V \^-"~
^^Lee M. Thomas
Assistant Administrator for
Solid Waste and Emergency Response
TO: Regional Counsels
Regional Waste Management Division Directors
Director, Office of Waste Programs Enforcement
Director, National Enforcement Investigation Center
Assistant Administrator for Policy, Planning
and Evaluation
General Counsel
Assistant Attorney General for Lands and Natural
Resources
As a part of our effort to produce guidance manuals for
personnel involved in case development activities for the
United States Environmental Protection Agency, .we are transmit-
ting to you the Compendium of Operative Enforcement Policies for
the Resource Conservation and Recovery Act (RCRA). The Compendium
contains currently effective enforcement policies and guidance as
well as procedures governing certain aspects of the day-to-day
operation of legal and technical compliance and enforcement
activities.
While the Compendium is up-to-date, a number of policies
listed (R-3, R-9, R-15 and R-16) are under review. As new
policies are formulated and-new guidance is issued, we will inform
you of any changes.
We intend to update the Compendium periodically and.^welcome
comments on it or on policy issues which might be addressed in
the future. Questions or comments on the contents of the Compendium
can be addressed to Glenn Unterberger, Acting Director.; of -the Office
of Legal and Enforcement Policy (FTS-382-4541, Mail. Stop. LE^-lSOA) or
Gene A. Lucero, Director of the Office of Waste Programs Enforcement
(FTS-382-4814, Mail Stop WH-527). ' ' " •
cc: Regional Administrators (w/o attachment)
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4>EPA Resource Conservation
and Recovery Act
Compliance/Enforcement
Guidance Manual
Policy Compendium
U.S. Environmental Protection Agency
Washington DC 20460
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TABLE OF
CONTENTS
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Table of Contents
This Compendium contains the following RCRA Compliance/Enforcement-related
policies and guidances currently in effect.
TAB NUMBER AND TITLE OF DOCUMENT
DATE OF DOCUMENT
R-l Consolidated Rules of Practice
Governing Administrative
Assessment of Civil Penalties
and Revocation of Permits:
Suspension of Portion of Final
Rule
R-2 Interim Status Under Section
3005(e) of RCRA
R-3 Guidance on Developing
Compliance Orders Under
§3008 of RCRA
R-4 Use of RCRA §3008(g)
Independently of §3008(a)
R-5 RCRA §3005(e); Continued
Operation of Hazardous Waste
Facilities by Owners and
Operators Who Have Failed to
Achieve Interim Status
R-6 Guidance Memorandum on the Use
and Issuance of Administrative
Orders Under §7003 and §3013 of
RCRA
R-7 Guidance on Implementing
Settlement Agreement on the
RCRA-Related Issues in NRDC v.
EPA and Consolidated Cases
December 2, 1980
March 14, 1981
July 7, 1981
July 28, 1981
July 31, 1981
September 11, 1981
November '20, 1981
RCRA Compliance Enforcement
Guidance-Manual 1984
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Policy Compendium
Table of Contents
R-8 Guidance on Che Application of
the Interim Status Standards
(40 C.F.R. Part 265) to
Facilities Which Have Failed to
Qualify for Interim Status
R-9 Guidance on Developing
Compliance Orders Under §3008
of RCRA; Enforcement of
Groundwater Monitoring
Requirements at Interim Status
Facilities
R-10 Ground-water Monitoring
Requirements During Interim
Status
R-ll EPA Enforcement of
RCRA-Authorized State Hazardous
Waste Laws and Regulations
R-12 Definition of "Major" Hazardous
Waste Generators, Transporters
and Facilities
R-13 Status of State Permits Issued
Before a State Receives RCRA
Phase II Authorization
R-14 Applicability of Interim Status
Standards, 40 C.F.R. Part 265,
to Small Quantity Generators
Who Have Notified and Filed a
Part A Permit Application
R-15 Guidance on Developing
Compliance Orders Under §3008
of RCRA; Enforcement of the
Financial Responsibility
Requirements Under Subpart H of
40 C.F.R. Parts 264 and 265
R-16 Enforcement of Ground-water
Monitoring Requirements
R-17/^Delegation/Designation of
Enforcement Related Delegation
of Authority Under RCRA and
CERCLA
R-18 RCRA Regulation of Wastes
Handled by DOE Facilities
December 21, 1981
January 22, 1982
January 27, 1982
March 15, 1982
May 14, 1982
(Revised July 11, 1983)
August 9, 1982
October 4, 1982
October 6, 1982
March 21, 1983
May 10, 1983
June 22, 1983
RCRA Compliance/Enforceaent
ii
Guidance Manual 1984
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Policy Compendium
Table of Contents
R-19 Guidance on Developing
Compliance Orders Under Section
3008 of RCRA; Failure to Submit
and Submittal of Incomplete
Part B Permit Applications
R-20 A List of Program
Implementation Guidances Issued
to Date
R-21 A List of Regulatory
Interpretation Memoranda Issued
to Date
September 9, 1983
October 31, 1983
October 31, 1983
RCRA Compliance/Enforcement
iii
Guidance Manual 1984
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R 1
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79808 Federal Ro^islur / V"l 15. No J..'. / I'.itjsil.tv. l)ri.LMiil>pr 2. !5)i«) ,' K'.lu-s
YiiKiu.il OHM ui rni/'frrd .it ihu '.i.l mlier
J*vi-l r ii"
'. il| rhu .-mire ni.iilmq melm-d .il :!"• i I.TIT
-in. ic or—iorl li-vel ru'e. wu!i .iOililinn.ii
poslj(?c '"i)r rcsiiliidi pii'trs p.nd ny ini'.ir's in"
.1 ff.o'i'r cirio ..i I'K cu lo I he IMI k i«f Knriii
jSC-l'C. Stuteveia nf \ltiilin\f— Uul~ A'J.VS
\
til Prccunceled stamps or prui'unreied
skimped eavcipoos [sec U.I).
c. Permit imprints (cash). (iue 1 15).
PART682-MAIL1NG STATEMENT FOR
BULK MAILINGS
\ *
8. Revise part 682 lo read .is follows-
S82. 1 Type of Mailing StiHutiirnt
Rcyttirntk
The mailer must cnmplrle .inrl submit
the jppropriuli! mdiling stiilumunl with
each mailing:
a.'Form 3M2. Statement of Mailing
Matter with -Permit Imprints, for m.ul
with permit imprints (sec 145): or
b. Form 3602-PC. Stntenmnt iif
Mcilinij — flu/A Rates, for mail bearing
precanceled stumps or meter stamps.
Note.— All mailing jtdlerr.rnlf iirc sub|cct
'o verification hy the Postal Survirc.
682.2 Preparation af Farm 3602 for
Carrier Haute Presort /.<:vci Hutu
Mailings \
Postage for cam or route prrsort level
rate mailing* paid for by permit imprint
is computed in the fallowing manner on
Form 3602: \
a. Enter the total n urn bur of pieties or
pounds (including rpsi'du< lliimrsiir
Mail Manual will he puimshc.'il and will
be transmitted to suoscnbersy
automatically. Notice of thnsechanges
will be published in the Federal Register
as provided in 39 CFR 111 3 (39\U S C.
401(2). 404(2)). \
W. Allen Sanders. \
Associate Cfneral Cimmrl Cunrml Arm- ami
Administration.
BJUJMO COOe 7T1B-I2-M
ENVIRONMENTAL PROTECTION
AGENCY
40 CFP Part 22
IEN-FRO 1639-SI
Consolidated Rules of Practice
Governing Administrative Assessment
of Clvti Penalties and Revocation or
Suspension of Permits
AGENC •: Knvironnicnl.il
.^nciii- (KPA|
ACTION SiLSpi'iisiui! df portion nf fin.il
ruii*
SUMMARY: This .iclnm suspends thosr
pnivi.si' ns uf Ihi' Cunsoliii.ilcd Rules of
I'r.K tin winch require 'hut unor to
is.siimL' 11 omplitinu: order :miliT Ihu
Solul U.istc Uispos.il Act. the
Ai!niin>'»lrcitor of F.l'A provide nonce to
Ihu vioi ilor and .illow d thirty d.iy
ppnod 'nr compiiiinci: I'lu-su
riM|iiirt%itionls wi«rn fomerly found in
S 3(N)0 >f thu Act l>iiI vvcru I'limm.itrd by
the Solid Waste Disposal Act
Amendments of 19BO. This suspension
permit1, compliance orders In he issued
in Ihu :i anner now set forth in the Act.
EFFECTIVE DATE: Lkcpmbcr 2.1980.
FOR FUPTHER INFORMATION CONTACT:
Philip S ivil7. Office i-vides th.it whenever the
Admini tr.ilor of ihc Environmental
Protect in Ajjpnf.y determines that dny
person -s in viol.ilion of .inv rrqnirciient
of Sul)t lisC of ihc Ai.t. ihc
Admine Ir.itnr m.i1 issue .in order
reqiiirni i compli.in( n md .ISSI-SMH" .1
prn.ilH As nnxin.iHy wirdrd. 5 .i"(i8
reqiiirr ih.il ihc Adniinistrjinr prior to
issuing • in h order prnvnlr iiiilii c lo Ihe
vnil.ilii' of !IIS/'HT I.Mlnir 'n i ni-i'lv
Ailli ill le'iuiienii'liK nl llii> \i I II Ihe
v.ul.itu i exii'iidi'fl liuMiiui l!ii 'kirnc'li
d.iv .ifter notice was yivn. jn oitler
could il'i!n be issued
On Oi tober 21. VJflU. She President
signed 'Ho law l!ie Solid W.isle
Dispos.i! Act Amendments of IS>1U)
ScUion JOUH w.is .imuniled to delete the
requirc'-ients Shiit Ihe Admimsir.itnr
pro< uli- noticr til Hit: viol.ilmn .inu .1
Ihirlv d.,v oenod for cumu'.ianrp pri ^.sincnt ij;' penalties .iiiier
n-.i'Ml .'.:= Kui.-s uov'Tir-j orsiiTs
>sued 'Mi-l! r $ TiOOH ol !*".• Soil.I '.V.'sle
DP t/.is.il Ai t -ire set :,•. ill :n 41) i!!-'K
:j jr 'lhi« jrt vision r-jfiu-ii in»-
Ii.ii'jn.iyL1 of ^ >i)(in is !nrmeri\ >«ntlen
in order ihat .1 prcrr'lure (onMStL'iit
-.vith ihj .irnpniimpnt1- 'i) } im)a MMV L-P
:rnpu.-mcntL'd :s soun .i» pnismie. !lm-.e
portion-, of 40 Crrt 22.17 TI|II: 1.1^ .1
notii o of Mol.ilmn .md i!'irt\ '.'.n punoil
lor; oir.pli.inc.L' [iriur ! • 'lie i-.ii: uu e ol
in orJcT .ire np.'f1!)'. si.i; i-nded
!•. :b .inticiD'iti'il ill.i: 'n the !••• .r fu'uie
F.l'A mil publish rf rrnooieil riilem.ik.rpj
whu.h would .mi' nd the Cor-uhJ.itod
Rules of Pr.ictiLC lo .ic'.dress in-'.sf .md
other issues.
§22.37 (Partially suspenoed!
In 40 CPR 22.37. D.«r.-,»r-ich-, (M. (r). id)
.md suhpjr.igr.ipii? (1) .no l.ij ol
p.irngraph (p) .in- si:>>pei,lei' un!i!
fiirihcr :iotii.o
This suspension is issued jmipr
juthonty of thr Solid W.istt: Dispos.il
Act. 42 U.S C. 6901. et st><\.
D.ilt-d. S'uv'jmiiiT J3 fiwi
Douxlos M. Custlc.
\iiniinistrc:ur
|f K :>.« at-KJV Kill .1 I. I -». 1 J . i.n,
cooe «<«O-JJ-M
L 1689-* I
Revision to Stale Implementation Plan
for Kansas
AG6NCY:F.numnmcr.l,ii Prole< t
A«c-nc\ (RI'A)
ACTION: Fin.il r.^
SUMMARY-
Feliru.ir> 11 ISK'l
I-K "1)12) in i|ir\ii\i- in Irt-riniiih
i N'eniiiin II:MI| |h!\ I I'"'.!' 'i.r ;l:
m
F.P\ proposed ,r, ne
Register (4."j
'or .I'liiinnwi! IT me it-
ii.irticuiJte stdnii.iriKiP Topi»k i. This
noticp iirscnt)L-i> :no KPA a .fv. il .lotion
on I lie proposed t:\lcnsion.
DATES: This extension :s appnivrii
offofttve Ut-Luml'i-r Jl I'fBO
ADDRESSES: COCH.-S of the>s:.ite
suomission. tue '-^n-.-nenls received -in
the proposed fjiemjkinu and an
pv.iiu.iiion document ai" i\.,H.!bli' ,ic
Ihe fiillowir.^ locations. \
KnvirunmrnM! Protection Aiieni.y.
Ruqion VII. J24 K.ist 1 1th Slrci-X
Kansas City. Missouri &4106 \
Public Informiition RefpTrtcc UnitA
F.nvironniL'ntal Prntcrlion A8cnr.y.'40i
\
y
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R 2
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UNI7Z2 STATES -MVJRCNMEN7AL PRCTICTiGN AGcNCY
WASHINGTON. 3.C. ZZASO
Mzy.cpjuracy.
SC2JICT: Zntaria Status under Section 3GGS(e) of RC2A
FRCM: Staffer, w. rlehn
a an . re c—
Deputv Assistant Acainalstratar
for" So lid Wasta C3"?-45o2)
' ;/
Alan W. ScJcert
Ac tine Associate "Genars- Counsel
Water « Solid Waata Division (A-lul)
S. Sarah Canaton
Deputy Assistant
for Water Enfsrsanient. and Pemits (IM-335)
Douglas M. Macf.illan
Acting Deputy Assistant Adainistrator
for Hazardous Waste Enforcement: (ZN-335}
TO: Seadquartars and Regional HC3A Enforcareent, Prograa,
QGC and ORC Personnel
e ay e aw governng PAs rae
quisition of interia status so that we do not ove
.eerai.ie that role ia our dealings with the 'public.
As background, it should be noted that we have alraacv sent
thousands of pcscoards to facilities notifv^nc thea that we have
received their Section 3010 notification foras and Part A peraic
applications and further notifying then that, on the basis of
this information, they appear to initially qualify for interia
status. In a short while, we plan to supole'ment these ccstcarcs
with a lectar seating forth the conditions for operating during
interia status, based upon a r.ore comprehensive review of the
contacts of the facilities' Part A applications. Motwithscar.dir.g
these systematic attenpcs to apprise facilities of their eligibility
for ir.-eria status, we nave goctan and will continue to get
dependent inquiries from owners and operators, citizens, ecc.
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as'<-.-.g us whether particular facilities have interim status.
Th .5 .temc primarily concerns itsalf with our response to such
independent inquiries.
A. SPA's P.ole In The Acquisition of Interim status
'.Ifcen Congress specified rn Sectian 3003 of ?.C?.A that all
hazardous waste management facilities must obtain a permit, it
recognised that S?A would not be able to issue permits to all
hazardous waste management facilities before the Subtitle C
program became effective. Accordingly, Congress provided in
Section 3005(e) that a facility meeting certain conditions would
be treated as having been issued a permit until final administra-
tive action is taken on its permit application. This statutorily
confarred temporary authorisation to operate — commonly referred
to as "interim status" — is conditioned on a facility's meeting
the following three requirements:
1. The facility aust have been in existence on
November 19, 1930.
2. The facility must have complied with the Section
3010(a) notification requirements.
3. The facility must have filed an application for
a permit.
An essential feature of "interim status" (and the source of
most of the confusion within the Agency) is that, unlike a permit,
it is not granted or conferred by SPA. Rather, it is conferred
directly by statute. Any facility meeting the above three statu-
tory requirements qualifies for intaria status. The only excep-
tion is where it can be shown that final administrative disp'osi-
tion cf an application has not been made because the applicant
has failed to provide necessary information. See Sectian 3005(s).
This is not to say that Z?A plays no cart whatsoever in the
acquisition of interim status by hazardous waste management
facilities. Our role has, however, largely been confined to.
interpreting the above statutory requirements and counseling
facilities on whether those requirements have been met. In" this
respect, we have performed tvo important functions. First, we
have published regulations which clarify the requirements of
Section 3005(e) — i.e., which define what it me'ans to be a
facility "in existence" and explain what is required to be included
in the permit application. See, 40 C??. SJ122.3*, 122.22, 122.22(a),
45 Fad. 3eg. 33421, 33433-33434 (May 19, 1930) as amended in 45
Fed. Sag. 76630-76636 (November 19, 1930) and 46 Fed. Reg. 2344-2343
(January 9, 1931). Second, as the Agency vestad with the admin-
istration of the P.dA program, we have seen called upon to apprise
hazardous wasta management facilities what the various prarecui-
sites to interim status ara, how they can be met, and (to some
extant at least) whether particular facilities have met these
prerequisites.
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The last function poses the itcst potential problems. An E?A
cro noun cement that a facility has nee the
against the facility
3. Recommendations
In accordance with the above, we reccssend that you observe
-tire foll-cwi-ng -when •giving -an "opinion on whether a facility has
intsria status: -
1. Avoid conveying the iapression that 2? A grants intaria
status. Instead, aaxe it clear that Litsria status is conferred
directly by statute upon coiaplianca with the three statutory
prerequisites (as construed by cur regulations).
2. When providing our opinion, always aaka it clear that
we are providing just that — an opinion — and not so^.e finally
binding determination of intaria status.
ff-
3. Re center that the opinion could conceivably liait our
enforcement discretion. Consequently, to the extent our opinion
is based on the facility's own character ization of the facts, aaJce
it clear that this is the case. Also/ to the extent the facility's
sta.tus is not -clear but requires sciae interpretation of our
regulations/ consult with headquarters and the Regional Counsel's
office to ensure that your interpretation is consistent with the
Agency's "official" interpretation. On til further notice/ the
headquarters contact person for all such questions of interpretation
is John Skinner, Director, State Programs and Resource Recoverv
Division, Offica of Solid Waste, (-TS) 735-3107. John will
automatically coordinate the response to all such .questions with
the Office of 2nforce.ce.it and the Office of General Counsel to
ensure that the response is in keeping with the thinking of those
two offices. To facilitate their job, the Office of Snfsrsersent
requests that copies of any written inquiries be forwarded, as a
matter of course", to the Legal Director/ Offica of Hazardous Wasta
Snfarseaent ( 13-335 ) ;2e ad quarters ) .
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4. 3e sure chat a record is ;«?t of ths dccu-ar.-s, sec.
ralisd ur.cn in rar.den.ic our opinion. Althcucn ihe Acar.cy is
t-sser.zlv cf the viaw tsas ir.zarin ssatus asi.iions are .-.oc ravisv-
a=ia, iz'is ccncsivaaia that a court nay fir.c diffarar.cly. Ccr.se-
cuar.ti-y, we should be praparad to produce a record supporting our
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c.
Nc. S3 / Mcr.dav. Mav 19.
and
V/hsr. Par :S3 was suciisMe in
.Ts5rja.-.'.:: csr.:a:r.es sef:r.::;or.s of
•-.V41V8 :arr.s ussc IB £?A'3 ?ira ^2
ar.c :S3 rsyiianens ar.s i :rsamoie
^cusstsn'si each [-is FS :CTi;L E.-SCSSI
.*=r :.-.e zefir.iuon si' "oa-site'. wnich has
lean .-evisea since reonary. these
(arms will net :e discasseo again here.
Cf -~e r.e\v csfiziuc.is wines are
bea? acced >o ?an 20 '.acay. mast an
seif-expucatory and soa-castravtrsiai*
ins Aentan naeo not be adorsssed in
this preamble. These which do raquira
ccsiinaf.cn are either dealt with :n iha
preansles acssmpanying ihe regulation
in wnich the tern is used or in the
discussion which foilow*.
1. Gefiauian at Acave Person. Tie
praoosec difirauon at* "ictive portion"
states tsar persons of faculties closed
is accordance with the faeiity closure
plan, and all appiicaale assure
requirements, wen set acave cortices.
Seven! crmzsentets wen caneerr.ed
that poruens of faeliues which were
cicsefl oe/ors the effective date of the
radiations/but r.ci u accordance with
£e Secson CC04 closure rsquinaiMts,
wouid be :ansicered ta be acave
poracas. If '.his were the case, die/
argued that it was unreasonable to
require owners and operators to re-dose
these porwns in acsardanea with the
RdA, standard*.
Tie A$ssr/ believed chat the
fcjlowtng statesen: in the .snamble to
'ie pRsased Section 3C04 re^uianons
j:ated that Ager.c/'i intent generally nor
to reyiiate ;onions of faeiia'es closed
beicre A* etfecuve date at the
regulations:
3CIA ii wr tiea in the-Traasqe IBM* and
its nfoiiior/ ter.asia 11 organized m i way
wiues 9M9s 10 eoniemuiait esvtrage only of
liaia taciitiM wn:ca eaneoa* ta openta
u'ttr !>.i eiTeeave aai« of th» rwuJatarj. Tia
Succa.t 0 itascsrci mo Suboan £
;en=it:u:; ?r=«cu«3 are not direcad at
iueava ficlitna. (*3 fR £1984)
However, ihe Agency realizes that its
arjual intent wouid have been a ore
dearly luted if '
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irs=::sr. o: :srair. ;=.T.:a.".er:is
2jf-site.
. Ths alternative rssus.-erse.-.t is ihat by
the date .a quesKsr. ;\nsir.3
agreements— -vnics cannst ae cancsied
or T.cctfiac wnr.su: juas:antiai Less—
were estactur.ec far ::nstrss::oa at :he
r'achty :a be csmzieted within a
"rasstaRtiu" asa "for carsirscaon" are
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rsc3.:i :f 4
perm:!
Th-a.:: '.ss C.rss:ar wsr.es so rasjea a
deisrsHRassn ci ;=r.f:ssrt;:ai:r/ [either
cr. '.:s CUT. or. for SPA. in rssacr.se to an
?CIA request). :=e.-e wtl =a s-.snulcant
sav.r.ss in ume. In ±.e case of permit
aspiicauans. it is esaacsily important '.a
ss'.'.'.i any ssrj";csn::aiity issues eshy
L'eeauss permit jroeadurss in Part lil
assucazie aotn ta States ane E?A
ar.::r.;ate ptibnc i.ivoivemer.L That
process can sat effectively proeasd uau3
canficenualiry issues, if any. are setiTsd.
The final scheme also has ±e
advantage af directing the submitter's
attention to the type st jubstannauon
the Director must have to grant
cssndeatulicy dauu. This should
reduce uncertainty for ±a submitter and
result is dafessibie raihar thaa
unwarranted claims. The requirement ta
submit substantiation at the ume of
filing the permit does not change the
sucstaauve catena for determining
whether information is emitted to
cssficeatiai treatment.
Subpart 3—Additional RMutremeats for
Hazardous -Waste 'Program
J ISiSi Purpose and secpe afSuapart
EPA has reorganized this section to
provide an orientation to the RCA
Subpart. similar ta orientation sections
added to the other Subparts: ta provide
a clearer picture of the reiauonsma
between the cansoiidated regulations
and the technical RC3A regulations (40
C?3 Pans 250 ;o Z2S); and :o provide a
narrative of the basic requirements of
the RdA permit program, A chart
showing ie CTR ausber. date of .
Federal Ragistar publication, and
subject matter of each major portion of
the technical KCtA regulations has also
beea included. Detajled elements of the
permit program are ireeSed in
juMequs.it secncns. Praposed \ ^^ *".
(Auihonzaban], has been mcarporatea
iota the new £ l?S,"*ta]. Section
12^1(c) provides a brief overview of
the RC3.A permit prccesa. The
application proceaures for existing and
new !aelines are explained. . .
(1] laciiaians cad uteiiaiaas.
Pangnoh L22JZl(d) (proposed
§ 127,~(cjl lists same aeinties and
facliues which are included and
excfuned from the SCSA aerzut
appucation recuirement. The inclusions
are not an exhaustive Hit. but fscas
attennoa on certain acuvir.sa which
aiay also have permits uader other EPA
programs. The exclusions list activities
exempted by the other 3OA
regulations.
ciuci.-.; -"ram :.".
requuesents '.raatTT.sr.t. ^crc;e and
si«osal faeuitwj nanslmg various
types of wastes, such as pntraieum
wastes. C=.T.SS;:C sewage siuc:e.
xcusmai sewace slucses. stner
ir.custnat siuccss. ana s-.su auantities
of wastes. They surgesies :!:at ccrtam
wastes has a low cezrec at wsars. that
o'jiers --vere r.at csversd by :ne RCL^
"ci'stlhV-ca si sslis wasie. that cartatn
wastes were suailar :o otaer sxciueed
wastes, anc that :here would be adverse
«conooi:c icpact if faculties for such
wastes had Co camoiy with ihs RCL^
rsaviresnenss. These are issues which
pertain to ise RCL^i. sectics :Q01
regulation fer the iiisnslcstian of
hazardau wast«i and rhe «ec::fln :OM
resjdalion for star.dsrss for hazarcaus
waste management faciiuea. and will
be addressed in the rulerr.aki-.g on those
seeuons. The one esceition unarm
dissolved icatertal in doaescc sewages.
whica is discussed below.
(2} OaversssGt'ypDESSuffsss
[mpoundaiMts. Prooosed i *"* '^ would
have recuired a RdA permit for any
surface smcoundstsnt associated with a
wastewater treatsse.-.t piant other than a
POT.1/ that treats or stores hazardous
waste. Virtually every aspec: at this
proposal proved controversial.
Many comments were received slating
that such ifflsoundsests at facilities
havuisj XrTJCS persuts saoulc be
excluded Ir3-= LU.B SC?^ pemit
rMuireraents. Sense ar?:ea :hst there
was ao basis fcr requu-.n? N'?C£3
industrial surface unpouaamenu but not
rorface iotpountunents at PCTV/s to
obtain a RC3A pemu Others argued
that NTO£S surface lasoundments
should be issued a peraii-by-ruie like
POT\Vs.
The ancosed exclusion of surface
impoundments at PCTWj was aas«d
upon the 3CRA dennitiaa of solid waste
which excludes solid or dissolved
aatenai in domestic sewage.
As the preamble to the secson 3001
regulations explains in detail EPA has
re-examined this question in the lig.it of
camneats received.
That re-«xanunatiea has led S? A to *'
reaffirm its anginal csndusion that
material which is (1) aixed with
domestic sewage in a sewer and then (I)
discharged from >he sewer :cto a ?QTW.
is exempted by the statute Cram
treatment as soild waste. This
conclusion is being promulgated in
interim final form. AdoitSonai comments
on it are iaviizd and wiil be cauioersd.
That conclusion leases open two
questions concerning the coverage of the
RC3A permit recuirements.
wren nasarssus .-'as:ss sr; ciscr.
into a rOT.V wn-sut ;c:;n2 r.eif
•fnA csrssc: sev/iss m a sewer.1 rcr
exsnrcie. '.ns .tazardous wastes rr^ur.'. :
cusses :r.ts :.is rOT.V :r=m 3 '.risi: cr
tank car. or '.hr.- :=ich! bs c-.icharrcs
is:c st fross a 3!5e wn:m csrnes o."jy
ircv::r.3i wastes ar.evcsd sat carry
comestic sewage.
!.-. isess cases the basic :cc:: c: '.ne
ar^:rsent for sxetnaiir.g "cissaivsa
ir.3*.=riii in demesne scwags ' s:;ll hate
The wastes wtU be pfacao. :~a uciicr
ir.ai is lubiect to a pervasive set of
Federal regulator/ and suasidy
provisions (inciuduH the pretrestms.it
pn-jns) that should se ss/T^sr.t 10
deal svtth any hazardous waste
presleas by'thstnseives. Acssrcinsiy. .
these cases the POTW reesivm? tha
waste wtU be irantsd a permit by r^ie
13 •*? •-«H). The perrr.it ay nie is
necessary to ensure that any a;?liczai(
nanifssf is rswrred and :he :'=rr.al
requirements of HC3,\ are air.ar.visa
satisfied.
The second question is whether a
'hazardous waste which has cs~s ur.ss
uhe manu'est system may ae ceccsuec
into a sewer, become s»ed with
damsstie sewasjs. anc (hereby lose t:s
ha'zardocs character.
The answer to this question is "Xo."
Manifested wastes may oniy be
delivered to an aapret'ed KU7.I fac:::t>
and sewer systems wtil not he scrrsv;
fa; that purpose. Sewer systems ars
obviously not KWM fachues :n any
normzl sense of the word, and :here is
no assuranca tnat wastes cesosuec. '.t
them would be ireatsd. stored or
disposed of in a manner csnsutcnt \vn:
the purposes of RC>A- Such dissossl
waaid be iiy.ifiearltly hareer '3 rtjvda1
under exutmg authorities than discosa
directly into the ?CT%V. Cansress wnei
it created an exemption for ousojved
nater.al in domestic sewage had in
mind avoiding cJsRistion of the sxisun-
patterns of fur.aing and operincn of
POTWs receiving waste from "IndLTec:
discharasrs." not allowing scdif.or.al
unresjulaied discharges by Lhasa not
curready staking use of ie tr-scr.er.t
system.
Comments also stated that NFCE3
surface uapounomenu shouia not be
required to abtais a RCtA permit
because they pose ao threat la tuuzss
' A faeiity »*iea n net a ?OT*.V thai ncnv*a
hianlcwj «ni:« ia »v farm. «^tr.=rcr 101 T.IM
wiia domnne itwdier m J f*w*r. n IUDICCI .u ia<
hill nun- at SOA'i rriuutor* •WNirtTtrii.
Kaw*«*r. J lues a lac.utv ctctttt* antv aumeitie
i 11 ai eavnt *^*;sat mm .ICt.^
«ua««in
-------
^jsih ir.e :S«t st sr.aerrut ?rei A perr.i! 3c;i::=us3 wiica six
-.oi .-.iva 13 o'-»t ••vaer-i oi u£ir.t
*•••••••• **•* *•»» «*J *f*9 «!• i_ '• L
asi are •" '"ai on ±s 7.f^ •or5U^ fis a RCeru" aviihonsaucn cr iisal
5K SiSSTSi S». »= the Se?.oaal *'
•slti-'- esi SGA .hiikii *au«tw WBBI cat apcrsval daw
e-a«-'b-c rotaauai aw w»#«st- -vu!.bs a=le -3 ~-~
* *- ™ ~ • «»«*«frt^ gj j ?1TI 3 a«««*ipaHrtii a^^
ssa cannot be reetareo
eantwilsd
- i. OMB Wi a» « NK ,
asd rljf J^f8-;*8 **, ...ibit casjirecusa witaout a perait.
$:atw that tet far a ^ ^-^ reasoju „, .^ laap ^ ^
aeraai WM and Aramd i fcaie. Z?A be2iev« »u a rjie is
oi the seals ass «i&e G,rion ^^ ,„ ...^^ out ^ ?uraose3 ot-
V/twr Act. &omd aJ ^, H,.V?A. r^cUy how „ o-jeratea ,n
i..e=e ars-ji=sves LJt a J=i:-Ba:c8. however, wvibe l
•
dttsate pravilu
mnace •
i 1C
result la pt.MU*tekv«be* oa*M" —-— p QCCSUSA Uic wssce '
»«r.es oi omejaaa haaish Joriy =iis ha:!aniou3
and envirsana. ruass r/pa auae?ua .fl taaa:s ,t (
""*" i already hanaling i
L -.... j i —•i 0' des:gr.aied by E?A or by
lie C.VA doe-^u^j, „ hasarcou*. 3o Ja «iaat:ona
«: ^svidejet n3Bi3ia4laBia. b revu:o, of ^ ftrt A
.c.- saas-js^uisaats to v ^ r^-non ar gij^ .u, fadity will not
pravent =3ttuuon bui , tte.» jj mj-nn, au£as ;u: -^ ^,^4 M{
'- — I4f8
'? SeC=Sn SCO IS I mittns :o c-omsiian mentum .n feme ai
IS3VJC! •—.». <"«»
-------
:;stsd (As scted above. SPA intends ;o
list 5f cesianate aczitional wastes as
Jiazsrceus -a [use of this year.)
A -ars ftexisle rule aapues for Pan 3
of :r.s aoeiicstion. £?A will aaply any
sew rgeuiraRcsu '.hat 3«cstse
arpiicaaie before a fir.al permit is
•.ssusd. :-st so set ancecures or filing
requirements are prsjcrrces to be
fciiowee m sue.-, a situation. The r.ernai
nousa and csmment sroceaures. and
whan necessary } ;;t^-i. provide
enous.-. flexibility :o case with any
parncuiar situations that aay ar.se,f«r
exa=5ie, :f a significant .-.umoer of new
wastes were listed and a facility with a
permit application under eansieeraiion
was tmr.cs. storing, or disposing of
thars. Z?A cauld recuire submission of
if. updated persit apsiicaiioa uccer
J 124.I4.
[Z] TS« Two ?srt AfslicsttGa Prxsss.
Several cacuneRtera 90|ec:ed :o the two
part application process, sane claiming
iha: :here was so authority for such a
process. Others felt that the Part A
ssaiicancn saouid obtain much son
infarmatfon'such is hycrassoiogieai.
geological and disatological data or
information to determine campliancs
wuh the'interns status standards.
Cor-jr.esteri also stated that (he
information csntained in Part A was not
sufficient to establish permitting •
priorities.
Despite these comments SA has
decided to aaintain the two pan
application process for eaasang
fae£:ies. EPA believes this apprsach is
legally justified and that the policy
arguments for it are csnciusive.
Nothing in RdA requires that ail '•he
information for a final aedsien be
submitted as pan of the "application"
seeded to trigger interim status. In many
perail proeeesings significant new
information is likely to csme IB during
the public comment :er.od or at the
public hearts well alter tiling of the
application and thereby aifec: the final
eanciticns af the perzui.
Indeed, the statute itseif recsgnues
that considerable supplementing of the
initial "appiicauon" aay be required
before a final decuicn when it provides
for revoking interim status (which, of
esurse. can aniy be granted upon the
filing of an "acplicaaoa'l for failure to
"furnish [funr.e'r| inforaauaa
reasonably reouired or requested in
order to process ihe appucadoa." ROA
secson :cUfdV
Seyond this. RCKA contassiates that
facliues will be able to qualify for
"tntenra stams' by filing within sue
months of issuance of the :CC1
regulations, even thcuch aiErnau've
EPA ac^on on ±oae permits nay not
place far an apprecaaie use
thereafter. E?A i.tsects that in the light
of the macsnaee of the regulatory
proaram now being stanea many
faciiues may not recsive tnetr final
permit for several years.
Accarsir.ciy. EPA has dcsianed the
apoiicatian requirements to fit the
ovcrcil stricture of ;hi program wnica
they serve. Ths Pan A aczucauon is
designed to e.naoie facilities to qualify
{fir inters SIKSS wtuia ths sue manths
filing deadline. 2nd :a provide EPA with
information izu wu{ be useful ta
determine in which instances ta move
on to the next sis;s by rsquiring
submission of a Pan 3. The alternative
suggested by some comsienters—
requmng both pans to be submitted as a
condition of ir.tena status—would make
it much acre duficsit and easily to
qualify for istens status. Li addition, it
wcuid recurs ail owners and operators
filing for interim status to furnish a great
deal of information that EPA would lade
the resources to review for several
yean. By the time EPA did review that
-information, much of it would probably
have became outdated,
Pan A of the permit application has
not been designed to determine
camoiiaace with the iaternn status
standards as some comments suggested.
Combining caraoiianca monitoring
information and permit application
information en one fora would result in
a complicated document that would not
serve either purpose very weiL
Monitoring of compliance with the
Jctenm status standards will be earned
out through seoarate information
collection, and faciity inspection
acaviues.
The information csntained in Part A
should allow EPA la establish initial
pnonties for permitting of facilities. The
Pan A applications will provide the type.
of data needed for setting pnonties
which is not presently available, such as
design caoacties and types and
quantities of wastes handled at
individual faclities as well as 'proximity
to drinking water wetls. The initial
priorities can be further reilned using
compliance monitoring resorts, annual
reports and iafacsauan from the Part 3
applications.
Caiameats on proposed § I2^3(a)(2)
abjectec. to waiting far a notice by the
Director before suanutung Pan 3 of the
permit application, stating that some
faciity owners or operators aay desire
ta ootain permits as soon as possible.
Nothing ta the regulation prevents the
sucmittal of Pan 3 pnor to request by
the Director. Six months notice for
submittal of Pen 3 was established to
ailow aopiicants adequate time to
gather any necessary information far
submission of an aophcsticn. Earner
suam::tais are always aossioie.
(:; Ps.Tr.it ?nor la Cs.wi-L-sir.i if
Mr.v .-zsiitses. Many csmmcr.'.ers
obicctect :o
r-cu^-e a :arr^t pncrto
a r.aw HWM facility. Many esmmssic
arruec tnat this provision :s lildsai
urcer section :c03(aj of RCL\. sts:_-.:
tr.ai ?.C3A only requires oermi:s :sr ::
uceraucn of faciibcs ana only pr==:=
the actual hanciLsa of hazardous was:
without a persut. Cairj=er.:ers aiso
stated that 'Jus prevision wiil t:e-ua
capital and aggravate existing and
' future eapaety problems. Some srrjsc
Lhat industr/ should be allowed ;o
proceed at their awn nsk dunr.g
esnstnstion and apoly for a :sra:t
dunnj or after completion of
csnstnichon.
Cnca again. Z?A believes that (he
proposed approach should be adcs:na
far ooih legal and solicy reasons.
. Secaon 2C04 of RdA requ^es ths
Agency to areculgate rsgulaucrj
•speemng. among other uun^i. the
tocsuon. design esd canszvKsa o:
H\VN( fadities. Those reguiat:ans v.-.:l
only lake full effect and have fuii
meaning for a given facility when they
are aoplied to and incoraoratec ;nta ;-•
permit for that facility. Congress wr.sn
incorporated a permit requirement in:o
UCLA must have meant the task sf
permitting to have mcependent
reg^iatory significance, and Z?A ir.tsn;
in its final Pan Z34 regulauons ;a ail-'.v
flexibility in adaonng the requirements
of u*iose re^iauaas to speeilc sites.
Given the variety cf different situausr.s
that these facilities atay present. ar.c :.i
newness of the program, the oeposits
course— applying specfic national
reqturesants automatically to any-
faoiity whatever its crcumstaness—
would not be rational. Many industr ea
(hat commented on the proposed
relations made this point.
If facilities were free to make
substantial cssisutr.ests to a given
faciity. location, design
before recsiving their RC3A permits. :.k.i
purpose at the statute cauld very :eac:i>
be undermined for no reason.
The overriding purpose of -.he secr.cn
•5004 standards ts to -protect human
health and the emnranaer.t." There :s a
significantly greater likeiihcod iat
pennit writers will be aole to set
"location, design, and canstructicn1*
permit terms uiat serve that purpose :=r
new faciitiea
-------
i»i!l :e r. rsr.fsrsuty with the best
..:=::ca::an sf j;e j:a:u:e wouii fares
•.-.? rerr::i::.-.3 agency :a ihe
jr.'ustifiabi* c-.oice cf either requiring a
lesser dasree of heait.i and
jrv.ro-.-r.jp.tai prstecr.an ihan would
a:.-.sr.vis« have a=pii*s. or faresg the
i:ar.csr..T.eni or cevaiuatioa of u-.e
The only significant argument rsada ta
fiver of allowing cssatrusncn to beca
before rsceist of a permit was that it
would avoid deiay '.3 ice canstracr.or-af
riWM faclises. However. 5FA. believes
this argument ;s flawed evwi an res e*m
!erms acd that it Iac*s persuasive force
ween compared with is arguments tor
foraidcing that csnstracaon, Nothing in
[hue regMlaticss prsvesu oxvners or
operators from apsiyiss; far a permit
tarty "is iheir plaiuusg process. U the
5aci.:y :s small. the aopiicauon can
probaoly ba processed quite euiekly. If
the faeiily :s iarjs. then ihe parent
pracesstn; aas will probably he a small
parr of the :ptai use seeded for design.
financr^. obtaining other awrovais.
acd tfle like. There u ao reason ia wiser
case for the permit itself to became d
cnUeai path nee. Z?A has aace
particular provisions in these
regulations for expediting consideration
of pirsits for new facilities.
So&e cssmenters ob|ee:ed to the
requirement far submitting a peraut
«plicanen for sew faciiaes ISO days
b*fore physical canstrscuon is eKoected
to ssx&esa. They ar?;sd ihat iis was
too '.on; a per.od and 'Jiat ownen and
operators would sot have the
infonaatian necessary to csmpie'.e the
permit aooiicsuon that far in ssvanca.
Z?A aeiiavea ihat the ISO day period ia
accessary :n order to provioe adequate
!L-=8 :o provide for public aousa and
camaenc hold a public hearing if
necessary and csmpiete an evaluation
1 of :he appiicatian ws^h ia ioae
iastancss may be quite lengthy and
careoitt If on a css«^9y\ secsoa ion
reflations. Sotne camseaten stated
ihat inrcrun itams s.tooal not aociy to
owters is.a acerators of faciitiw under
lTiiiut* to rurmiA jn ueeeansLt Pin ^ bv
ji inunm tuuu uv«r iiaca.
csnstrjc::cr. but a.niy ta fselittes in
oeeranon. Others ir.cicatea that sec::on
:CCJ(-| refers :o faciiiUcs in e.x:s:snca c
the date at *p.ac:ntent of RdA. not ;.-.a
date ot :he :ec::on ;CC1 re^ilations.
i?A r.ow agrees ir.at the lansuags ai
±o statute is ciear and that the
accroacn proposes is not defensible.'
Ac:=rc:r.giy. it has chanjea ue
sefininon of "existing faciity" to mean
a faciiiy that was ;n exister.es on the
gate of enacs=ent of RdA. or Qc:cber
"0.1978.
E?A regards it as ail but certain that
Cangress will act ta change this
definition be/ore these regulations
became effective.
Ac-.esdir.ent3 to RCLA are sow in
conference. The House bill would
change the c'ehnition or" "existing
faciity" ta mean one that is in exister.cs
on the effecave date of the iaiJial RC"%A
prsnulgaucn: :he Senate bill would
change it to caver thase in erJstencs on
the date of prc^uiaauaa. Indications an
that ±e canfzrees are ccnsicenn^
Ccteber 20. ISEO as tha date for
determining when a faciity is an
e.xisnng faclin*. 3oth bills would
therefore ?ro\ide relief ran the
consequence of ercsur.; law.
Acearc'ingJy. £?A ensaurages every
facility -Mhicn was bcilt or uaccr
physical canstruc::en as cf thi
pratnulgauon date of these re^ulanor.s
to fiU Part A of its sensit aspiica::cn 10
that ;t can be q-Jicxly prscsssed far
interim stams -.vhsn tn» csanjts in ths
law takes effect. A "Note" to this eifec:
has been inserted into the relations.
Depending on what^ final acr.on
Cjngrsss lakes, oihzr'provisions of
these re^ilaticns r.ay also require
amendment I?A will issue any
necsssary amendments and an
explanatory preamble as soon as
possible after final Congressional
action.
This final regulation also interprets an
existing HWM facliry to ceaa either "A
faciiity in speranoo. L&. recsivin;
hazardous waste for treatment. sicra;e.
or aisposai." ar "a f^ciity for which
construction has casimencsd." This
definition has been adopted because
Z?A believes that owners and oaerators
wno have catsniencsd faciiry
canacrueson in good faitn pr.or *.o the
starutury date snouiU be Cisau'ed as
This final ra^daaoa further d*:".r.cs
the term "cammescs canstrjcaon" :a
take the aeants- canned in £?A's
Pravannon of Sisusasnt Cater.sration
(rSOl re^jiauuns ijiu^a unuer '.*is
Cean Air Act. These raguiaccrj ioec.fv
that cjnsT^Ron has comr.enceU bc:cr:
tha da:s « :=
-------
:. The 3xv.;r ar.d aserator has
:=:*i=:s .id .-.essassry ?-s'e-5L Slats.
*r.a '.scat prs:ar.str.:ctiari acpravais or
:srt=::st and
Zj. A canuauaus on-site. sh
canstrticsan praaras .-.as aeyan or
~ The owner ar cseratar '.as entere
obligations i»hier.
;e cacssiiea or Tested •without
su=sta:tzai !r»s— tor construction of Lie
ficlity ia be caastewe witaiaa
rrssonaule a=e.
It is intencaa ±21 ths cansaaous on-
jtte. paysicai csnstrncscn program
!:c:u£B physical site preparation. Ceslgr1
and ether non-pnysical ud non-site
lessee preparatory activities alone
would sot csrsdrate oa-ute. physical
caasffKtoc. e urherssre :t is latesdes
that stracaires or ssusaient cssstracted
ira a permanent pan of iha /adity
that are to be used a its own ooencan.
tad represent a suostaauai casaseaent
'•3 caasnction.
In janeraJ •«' lie anount an owner or
operator mat pay to car.rai
caastrucaon agreesesta or stop
eaastni«jca exceeds 10% of '.he tstai
' prsjec: cast. -JSB ioss would be deemed
"jussaniial". Cations to purchase or
CKttracis for feasibility. eagineem?.
and design stuoiea would aot constitute
car.:ractuai obligations.
£?A believes this provides an
equitable ard reasonable approach to
.'felines consirscted anor to the
pranzuLgation of the RdA regulations.
A substantial csmaucseat of resources
by owners a&d ooeraton ia a per.od of
usesnamty to provide tor treatment.
starags. asd diisposai of hasartou
'.vas:e wtil .101 ha penalized. All /aciily
esraUTicion earamenced after
pracui^acan of ie sew RC3A
sasarsaua waste reflations would be
iubiec: to -Jie RC3A penait procsas.
(2} C:axsss in zfte fae^ity Cuaig
laarsa Staoo. A saaber of camraeaten
raised questions as to whether a facility
ea-^id be r.cdUIed dunr.?'U!tenn status
C:s:=ests stated that facljties should
be lole ;o saJta such coclacationa
durr.; suria status as are: (1] seeded
to keep the fadity ia operauons. (Z\
necsssar/ in order to seal the aeccfea
:C04 standards or (3) needed to insure
fail benencal «e of ±e iaeiir?. Co the
other hand is the caaearn that allowing
nics chan^n darir.? ctena stanu
wouia provide a Icophole to avoid ihe
rsquresunts .'or obtaining a ?er=it (as
would aesur if '-he aaeiSeacan of aa
«3csun3 H'.'AI fadity wes tantamount
to esnstraeson of a saw faelity). or for
jubirutur.g less siaior. bet sissncaat
changes to a factity to the kind of
review and cross-csecx that a faily
effeesve persit woutd provide. !a
response to these eaazunts the- final
rcniaticn seu forth the failowrn;
aeproacn :o r^SiS? i^s.-^as tn a '
cur.s; tsa :r:c.-..T. status aer.ad.
Par. A af ihs perst a==:icsuon
bssicsiir ce:"—as 'ie pracass Tvmch '.rill
be u5*a .'— ra3-.-s=*. ssoracs a?
c;sccj«l ofhazsrsaus waste's and :ha
s wastes :o be .-^nsJcd at a
carsn? -.stara stai'js. ir. crdar to
sake :nv czac::s ?. aucr. r.s—j ;he
owner e; operator at isa :'acii:y aust
submit a revised Pert A permit
acpucanon ar.d la J5=o instances such
changes ausc be approved by the
• Oirec:ar.
New hazardous wastes (not
previously specflcd an the Part A
p«=il appiicauon) say.be handled if
the moiiczza. 'a revised pr.cr to such a
changs. Xa approval at Ae Director is
requ^-ed in this instance. Furthermore
additional cuar.:ities af hazardous
waste (already specified on ;he permit
application) may be handled at any time
witma the design capacry of the faclity
without revisin; the appliesuan.
Increases In oesign capacity or
changes in the processes used at '.he
faeliry may only be made upon
lubnuttaJ of a revised aociicaticR and'
with Director approvaL The Dirsctar
say approve additional processes if he
or she finds that they (\] are necessary
because of aa eaerzese? situation: or
(2) are necessary to comply with
Federal State or local laws. The
Director T^y approve increases ia the
design capacty of the faciity if he or
she finds Aat Lhts is neeassary because
of lade of available csnacry at other
facilities. In any of these instances the
Direetar aay issoect a faelity pnor to
or after such a change and may
duapprare a change that would result a
a violation of the laiena stanu
atandaros.
Ciangea in ownenhis and operational
cuatrol of a .'acuity nay only occur
durj!« the .interja staois period in
accordance with the rsqwrements of 40
CrR ! 35J£a A rertsed Part A permit
application 13 required 30 cays prior to
such a change 10 (hat the Director has
aa opportunity to detersane whether
such remreaieats are canoieted.
Finally, EPA will praebit any changes
to aa existing .'aciirr during aierm
status wnich are so extensive as 'a
amount ro iha eonatraction of a new
facilty. failure to do this would allow
avoidance of the rseuireses: :hat ail
sources wnich are in fact physically aew
go through the full per=:nn; process
before canstrucaon bestns. ror thu
purpose £?.*. has edoeted the prac=ce
under the Cean Air Act of designating
as a aew facuity any caangs mat when
cam&leted would amount to sore than
SfZ at 'Jse capital value of ±e fadity.
The Aasr.r.- :ei:eves 'Jiat :>.is
apsraaes :a c^sn=es :n a faeu:y car:?;
intenra status v»ul allow rsssonasie
.•ncc::~ca:;cns :.i ex^ttnz fac^ues
wiuau: ^3dc.ta: a situation in •*•-•::« :.L.e
rsscrstr.snt: :sr asuiain; a ;s.-=ut are
Rui:.:"es.
I?A beiieves that this sa^raach
rssresents a legally acaastssls
rssciut:3R to a cuesticn -.vr.ca the
starve cecs not aesreas.
N'ctiut: u: tae statute prcvices tha:
=:p::c3nts are cour.s by the1.: ?tr. A
acpiicatioa. and it has sever :e«= t.te
pracace when Cangress requires
existing fachties to came under pem:ts
to teeza their present patterns sf
operations ur.ai final agency acucn. A.-.y
sucn rale could have drastic
cansjquencss weica Can^sss
presarsabiy aid r.ot intend, panicaiariy
sir.ce> Congress explicitly reca«r.:red
that several years .Tjgn: be necessary :o
process all AC^A permit acpiications. Is,
addition, ihcse cansequenees would be
prsdorranastiy suffered by facliues
wnici. because they are sstaii cr weil
operated, are low oa the snonty list of
the pemitung author.r/. To muire
affirmative action before such faciities
cauid change thsir oeeratioas weulc not
or !y be burdensonte on them, but weuid
di\ ert the rcMurces of the perrattung
agency tc^vard such faciities and away
from more urgent tasks.
At the same time, I?A does not
believe that facilities which have not yet
acsived a SC\.A permit s.ioum be
cacsieteiy free of saecilc regrjiatory
reomrsnsents. The e^stencs of inter!::
status standards frounced in the statute
tnoicate that Congress intended suca
faciiues to be uiojeci :o>at least the
outlines of ihe general RC3.A icr.eiae. Li
acdifcon. ihe res,uiren*.est to fiie a p-rtsit
appiicanan as the pnce of intera status
can only aean that the permitting
agency can require updating of tsat
aooiication if it ceases to be accurate.
Where the uocated apphcaaon
inoicated that ihe tachty might csase 19
canforsi to (he jtneral SCSA refmatory
scaerse. £?A wouia tie free to laxe
eafarcesent ician, as these regulations
provide.
(3] Caaatessssesi ssd Ta-z-jaaaen
of iatertsi Sietss. Ths praooaai jnsxicea
that intena status began at the "r"> ihe
Director aaviM«i the applicant that au
or her Part A aoeiicaoon h^d been
receives. Cstnaenters pointed out ±at
unaer section OC03(e | of SdA :nter.m '
status is not granted ay trie Director, but
begins at the time aa aophcanoa is
susmuiea faad a:tar aatiiicsssn uacsr
sectiou :01C|. £?A agrees with thu
interpretation sad aid not tntens a
difTarer.t effect under taese recuiauoas.
The 4cknowiedgstent was not aa
-------
"ccerai \c-».s:cr /"Vol. -J5. N'o. 93 / Mor.sav. Msv '.3. :9CO / Raies and ?.«rjlaticns
arerr.tt :s riace :-jr:hcr restriction on or _
isiay .rstar.s: :ta:us. However, a mat.-.oa'
•sssary :a insure :r.at tse Director
mean: inow '.r.e rsauired
•yicn '-.a* rsen suomittce.
'as rev.sea 'J:e prcsosai at
i '.:_ .-(a) :a require an «paiic=nt to
iiiher susmit r.aiif.cztica and Part A of
'..-.: iBSiicatisn bv :cra£ed mail or to
•ar.a cauver sues izfcnr.auon :a
pravica assures: :a zsth :h« aaslicaat
anu SPA that ±a information aaa been
sen: ir.a received.
C.-.3 csmasenter sugssstid that E?A»
jsssidsr adopting a c*tL-.ita date fcr
:irT-yatian of :il Interim status. When a
perr.it application is complete EPA does
.-.at have aa authority :o tersuiate
iatsnsi status short cf the
uLTizistrauve dissesition of ie permit
apsiicacan, Tha f.ce period accessary
:d :a*e final acrcn on ail permits -.a
caatir.gent usas the svailaoility of
resources. Therefore a deficits date far
termination at* ail iatenn states cansat
be estabiuasd.
Caaeeats of Psrt A of sft*
rziie spsiicssan.
Tha cements received on this
iKr.an are ciscussed ia the srescsle to
(he csnaaiic.iisa asciicatlan fonna.
puisuasea els^waere in tacay's Federal
Kejatcr.
!:njj Cscxsa of Pert 3 of the
ROA perzitt sspticsscn. __
proposed rcTsiarion iceBtiQed ILX
ifiiomaaanai «te?ones for
i~_^.oa a Part 3 of ~e persut
aapneanon. These inciuded a suter
plan for ihe faciiry wmea sanoissd ail
of -u.e plans required by the seciioa 3C04
faulity iundards. Alao included wen
jtaioycal ana hyars^eologzcai data, a
da*e-.p«an of :he eiiaata at the itte. a
list af poaiaoaa and joa deaenpuoaa and
a listing of ie performance beads aad
other fmaacai icsonncau.
Th.s geierci apsreau crwied some
es/asioa because the reiauoasnio
iar.vesn the praoosea secroa ZBQ4
refuiaben aad 'ie persut apuiicatiaa
.•ec.uire2-.eats was oat ciear. Many
C3miR3s:en believed that they wen
.•eauirsd :a suenut all the nforsauan
aciucea in eacs eaie^Qry. They
nj^satad that ^a iru'craacsa needs be
Ufiuiea :a Jte type af 'zciiry (e.^
lane:::!, iscseratorj. £?A asmu with
ifiese cscneats aaa rutrscrurea the
?art 3 Jttsrsauaadi resuiresenu. Thai
Pan 3 aopucacsa rrqvursseca ssvc.
paraiUi :ha scacrun of the stcsaa ISO4
lundirds prs
-------
735-0 recsrai 3«ister / Vai. 45. No. Z23 / V/ed::s3day. .November :9. :S£0 / P.ulea and P-ssulaticnc
when :t rrevtced a six sosvi daiav
between :he rrc.-sui.ar-.on and she
uTssnve cats or .-svssicra :a remiancas.
Cznsecuzr.'Jy. is Agency is setRr.g an
effective cars of "No ves-.se.- :3. 1333. f=r
these ameaczisau.
VT. ?romui°aaoa la latssza risai ~=ra
Coccus M. CaiUe.
Tiese aiaeadaissa aaerata
clarification of the hazardous wasia
regulations ;ubl:sicd 13 NUy of 1SSX 43
73 33063 (May 19. 1360). Wiih arena
excsou'ons. those regulations did sat
address cantauzsesc aad rsacseat of
spills of hazardous wastes or satenals
woich. when spilled. becacs hazardous
wastes. A literal -.sjsrpr-taeoa of tie
Stay refuiaeons. however. would aeaa
lhat sues aetaas caasnraie storage acd
disposal 'ully subject to re-uJaoea.
These amendments caziaraj the
regulations a the:; cr.;inAl latest. The
Agency besievea that good cause
for pracui;a=an of !i
fcra. S«9 5 £
Delaying tin application of thes« rales
to allow opportunity for public notice
aad caanaet vouid work ssbstaasal
bardsmo en ^enosa hacdlis? hasareous
. waate. T:8 rs^uiator7 prjyas 30*3 isto
effect on Noveaber 19. 1SSQ. Spills ire
everyday occsnrzces ia — s nai word.
Without irrjseciate dan£eaaon of *J;a
njulacona. ail persons woo =ught a lie
future spill a iasarsous suunai or
hazardous waste would haw to tae
prepared to b* in ftiU caspifaacs wita
the Part 2S3 r-sdaaons so%-eraiag
Sratasnt ar.d jtorags. Without these
eianfyiag aseadseats subsiaaoai
hardship would be iaposed. withaut
appreciable b«r.e£i. oa the rty
VTL R«qu*st3 for Cooaeau
The Ageacr is soIicCag eanusczu oa
all aspects of the aaeadaeats aad oa
ail issues disciued in this areaaale. In
addition, the Agsac? say iataate sors
earaareflensive niienik:'=g a the near
future on SGLVi applicaean ta ipiil
mooRses. The asendaeats publisaed
today w«U be subiect :a reeaasidtnaoa
at that oaie. The puoiic say accaniaay
be provided acaiaoaal appomuury to
caament oa '.he Ajescv's re^jlauea of
spuis.
The effec: of these a=ead=esa is ta
-resuca the overall casu. eeaaceic
icipac: a=d rsror;^ icd rscarciesrj:?
ictsacu of ?A's hazarcass .vaste
sanassiaeit: .--yalicons. Tie Age-.r.- ts
unable to ess=a>.e these r'
'.4. :98a
~.i 4C of the cade of 7-cerai
K'K=:Jt::u2 .s s.T.e.-.cec ;s :oilows:
}»X30
1. Add the .'ollowing defiaition to
i» acc:dzr.t:l spilling.
pumam-z. pounn;. fsnit^rj. or
of aaursaua wutea or
saunais which, when spillea. became
hazardous wastes into or on any land or
waur.
2. Add ±e fallowing definition to
I ins
"Sctil" [?.dA| =eans the acsdental
sp£j:s. Isaiu-g. pumpin;. enittiag.
ezrrrc^ ?r dumpin; cf hazardous
waj:»3 or satenais woich. when sptilec.
bec=S8 hazardous wastes into or en
aarlasdorwater.
(Amended)
3. Add the foilowinj paragraph (3J(2)
la § Z&J.1;
(SJ Persons with resoec: te those
acmsea which are earned out ;a
i=ad:ately contain or treat a spill of
haauaous waste or aiater.ai which.
wcs= rallied, becaraes a hazardous
wara. except Lhat. with respect :a such
acms'es. the apcrepnate requirements
of Sjbpart C aad 0 of this Pan are
applicable ta owners and operators of
treaaseat. storage and disposal faelities
othsrwue subjectja this Part
[Cocseat This paxagraph only applies
to acfviccs taJcea ia us=ediate
respoase :o a spiiL After the untaediate
rea?oa»e acsvioes are carepicted. the
•ppiicable rejuiacons of this Chapter
apply fuily ta the aunagement of any
spiil rssicuc or debns which is a
hazardous waste uader Part ZSL.\
4. Add the following paragraph (cj(n)
(II] Persons with resDect ta these
acansea woiea are earned out ta
tea;»eiately cantata ar reat a sotll of
bazsreeua waste ar ntater.al which.
wees spilled, becaates a hazarcoua
wasre. exceat that. .with .-ssoect to such
acavizea. the aporapnate requirements
of Succart C and D of t.-.is Part are
applicable ta o\vners and oc era tors of
rt3=r:t. storage and disoosal facilities
otharvise suoiect to this ?:n.
[Cc=est: TA:S paragraoh omy applies
tn acsvicss :aken in i.Tj^sdiate
ta a sp>iL After t£e ia=sdiate
resconse activities are completed.
rerJanons 01 this Chaotsr acciv *
the manag-mcni 01' any jpiil ;es>ci
ceans whicn is * hazarcau: waste
under Pnn .'.31. |
1 12ii1 fAmer.ccd]
S. Add i he following paragraph i
lo §
WJ • • •
(3) Further exclusions. A pcr=an
required lo obtain a 3C3A pcrmii .
those activities he cames out :o
Lramcdiaiciv contain or ircat a spill
hazardous waste ar tsatenal wnic*
wncn spilled, hccames a hazaraon:
waste. [Commenis: This flxcvjsion
intended In relieve persons of the
necessity of obtaining a RC?A perr
where the treatment or storage of
hazardous waste is undertaken as •.
of an immediate response lo 3 ssiil.
treatment, storage or disposal at" .10
.•nalensl or soil residue er cebns i!
undertaken must be covered by a 3
persul. an emergency 3C3A permit
inter.ra status.)
Tliese amendments are issued us
the authority of Sections 1GCS. :CC:,'
3CO4 and :OOC of the Solid Waste
Disootal Act. as amended by the
Resource Conservation and Recov:
Act 01* 1973 (RC3A). as amer.cso. '•'
U.S.C CS05. CCl^a). £324 and ;S2£.
in OM jo>ui3 raid n-
-------
Fec'eml ."efstar / Vol. -is. No. "S / V/as.-.escav. Xov9-=e- :S. :SSO / S-j.'as arc P.es'jklions 75£:i
r.ot'.rs aiso solicits earr-sier/ an
ane.i: ana .-e^uiatory polices
^^:.i I? A .3 csnsica.-..-;? accoting to
cast win fac-.iitiea wr.ti.n rr.iss tne
ssscs and asplicaucr. ilLr.g daachces
far i. item status.
s*rss: iLra=::ve date: November 19.
1SSO. Ca.T.rr.ent Gate: Comments an the
'•£=:.tc£n:nu ar.c poL'c:es discusses in
'•Sis r.occa are due reervary 17. 1931.
POA pjflTNea MFcnvancx CONTACT:
I;hs H. Stunner. Director. Slata
rragrarns and Resource Recovery
Division (WH-5&*!. U.S. Z.r.irs.-uaar.:al
frsteKicn Age.tr/. «1 M Slrest S.W..
Waxaiaftaa. O.C. M4fiO. a2/7»-«or.
AOOAUSSS: Caraner.ts should be test
u Socket Clerk. CfHce of Solid Wasta
CWH-5fi2). «l M Strset. S.V.*,
Wisrasgion. D.C, Tie cscnents should
refer to "Cocxet MOS-intera: status".
L EESoducsioa
Subtitle C oi* tha Resource
Csaservauoa and ftaiMvery Ac: cf '.978.
u a=e.-.t*es {"RCSA'1. 12 U.S.C
if 0321-^933. .-cquuu i?A to establish
a comprehensive Federal regulatory
/ '.14.43 to usure the proper
rarugement of hazarcaus waste. One of
&• sost icBortanl features of this
is the rquiresent that facilities '
treat. it ore or disaose ot'
rdous waste obtain a permit from
ff A (or a State authorized by £?A to
esnduet a hasardoas waste projrsm)
cd that hasardcua wastes only be
&3i$r.aiea for. delivered to and treated.
sared or sisposeti of in these permuted
Cuditlu (Sections XOZ. XO3. U04 and
3X5]. Indeed, after the effective date of
E?A'j reTiJatioas identifying hazardous
wastes, it is « felony tn tnnsoort those
wastes to an unoenmttad faclity or to
&ea(. store or disease c: itm at an
e=er=uued faclity (Saetions :cce(d)(l)
aad(2)J.
Recsgruns? '.hat £?A and authorised
Slates would not be able to issue
pe=uU to all hasrdous waste
sacagesient .'aciities before tha
Suede C program became affective.
Con^rsaa pravideti in Section ^XJS(e) if
ROA that cwtain facLties would be
ssatad as uvuiq been issued a ;er=it
i^g* suca bae as tlnal lonuustntive
*eioQ was takes oa ihair permit
aBQticauen. This natuiory pera:t—
cseaoiuy reierred to is "Intenm
jama', the tiila of S«cis.
L>UI MIIAL If A «il IIM Ow cits
oRed an a fac.iirr1] seeus; -J:e
th:ss recuirer.er.is:
!. The :aelity .T.ust r.ave beer: in
e»ster.cs art Naveccer :2. iSofl.'
Z. The :'sc!i.e recuirerr.er.:s c: «*cran
:01C(a)" of 5Glr\ (r.et^icsLon 01
haar==us waste acrv.ryl.
j. The r'sciif/ sus't iav« iliac an
ae^iicanon /or a permit uscer Secucn
:cos.
C.i May 13. i960. £?A auii
rsguJatiaas defuur.g whe: a
fcr ir.ter.n status. See 43
15 IZl^a) and :m:f
33434 (May 19. 1SSQ). Thne rvouiauoss
prsvtcs that u::en= status say^niy be
ootauiea by an exists; faciir;.- [eer_-:*d
in 5 12ZJ) whiK has ~[=lp~ed ifae
Acnuustrator wtthia SO cays &as ^.e
promulgation or revision cf Par: ^1 as
reqnma by Section JC10 of SCLA."
(J U2J=(a)(l)) and lub^ned aa
applies can within "iix taosths after the
Srst promulgation of renlanoss ta 40
.CTR ?an MI lislin? and \£eixrfsz
^aardsus wastes"— i'^. Ncv«aaer
19.1980 (5 iri^a)).
EPA has received nus:ersus aweanons
about these provisions »cse 'ie-j-
publication. Most have foeued oe two
major issues: whether facifties caa
qualify for interim status after
November 19. 1980. uo waether
facilities which Kis*M luretory or
regvlaior/ fiiinj deadlines ess oualu'y
for item slams. V»'« have exanun«d
these issues carefully and have
conduuea ihai | i ••" •"'_*] and :d^3
need lo be amended to b«nar cef«se ihe
universe of baardous wute
sanajesent faclibes whic: are eh'^ble
for intern status under Scesoe 3C05(e).
We have also deeded that ±e Aiency
needs ta astablish ecforeesest aod
regulator/ polices to deal with facliuea
wnich have failed to -til arpticcsie
deadlines for Sling noc=csac=s i=d
persit aoplicznens. These arrer.erissis
act) polices are diseased, below is £«
context of ±e three staratary
prerequisites for interim stsaas.
Q. Reauireaent That Taciides "Coaply
the Raquiremeats of Secnaa
Section :sC£(ei(21 of RdA esncif ons
iaunm sctus on a fsciirr'i havA?
"canroliafi with the reauiresesis of
S*c3on :oic(a).~ Secsoa 5tnQ(i) ia turs
requires tzae
u •«! 14 «i
r iumw«. Jit iwuei
i al t •Uaury" b«n« ;iw«d i pnmi. a*i
toawd b« unij«niood to a«*a UM awur ua
1 W>« .tCKA <•u Ouaoui Ac
i -.9*0. ? U :
Xai liu.- ^s± .-j=«iv dayi j.'ter
;rs=— i;.:.-. :: :;iuiaiions uiccr ierf.cs
XCI .e*zrr.-i7 * ' ' or liaun; any
iu:iia^:i 11 i :mrd3ua urane . . . inv
;ene: 7T=irxu.-.^ or nr.issrr.n? sues
ius]ta;:i er Twr:r.a or ooemui; a :*jc:::.-r
far the r^i=i-t. iterate or ciaacsai c: :uii
[or wi^ SUMS r.avi.if authorsta hasarrrvj
»4iti ?«.-Si: ;r:;raeu * ' " a .latif.iit;-
naiici uj iacssan *r.a gencni dncr:=:ic: ::
-•.» itz:-.r? us uie leenuzied ar iisua
'lazarcTU »aj:ii handed by iuc3 fines.
Thre« =£[cr Questions have beer.
raised essarr^ng the inierreUtionsh:;
between S*c=oas 30a2{e)(2] sr.d ^lia:*).
A :U=MT of faclilies have pointed
out ta ?A uat they were r.ot restored
:o r.ocr.' esser Sesson 3w!C(a|. They
have tines, wseuer a facviry wfusc ;s
not rsc^rse to nour/ unesr Secssn
3C10(aj (asd iherefore did not subset a
useiy aoaf caaon) would be eiigiole for
intens runs.
These faciises are cams: is. their
observance that Se«ion 301C(a) does
not recs=? ail bazarsaus waste
canagass^ faculties to eosfv. Tia
oonficason .-vcuirements of Seeaon 3G\Q
are RtsMred only by the publication si
regulatMes uader Section ZZOl "idencf;/
by its earaeursBcs or lisusj any
fubsraoce as aasandous waste suoject :o
. . . iitaeti* (Q™ »nd apply only to
pirnanj wsa are n«ncline those
lubstances at the ;un< uie rKulatior.s
are puaiusrd. S«e ai»o 4S rs 17-;r-
;~*a (r ear-iarr S3. isaoj. Moreover.
£?A JLU. by fffvitueo. exessted
Mv«ral r'-mri of Ucliurs WRICI »ouid
atherwiM b« rvqwred to noufy under
Sedan i3TO iram hivmcja eanpiy wi^h
any natulcaciofl requiremesti [eju an.
(tie a torsos faeiiun ap«rmtca by wuiil
quannry ^senior* (•*< i 2AU) »nd
recyclis; faciiuea (t«e i 2U]].
If a faciiry -j not requtrea to tile »
SeeuoaX73 aoc/icauan. it is £?A'i
opinion ±a: it has "complied with the
re^'Si.-estsis oi Section 3ffiC(a)~ and
has set '.sal prerequisite for mtena
sums. A casssry cansmctian of
Seeaon 3O15Cei£J— wnich would have
eii^bwt? for mtersa itatus lura on
whether a faciir/ had :"iiea a
aoerlcasoe. irrespecnve of whether it
was mured :o wouid cancitioa
intsrss suss on a faeiicy s aeeung a
recuirssest wuch was net cicutea by
eiihsr sanjw or re«uiaaoa. Indeee. \s.
seme rnri -r. ^nere a faciicy ca
not beam aancJisg hazarcous waste
uaol afur lie ^.sty-day nouf.cation
deaciia*— t ^auid csndition interja
starts on 2 ,£cU:y's ce:o=^ a
re
-------
rSS22 Federal 3e«!s:*r f VcJ. 45. Mo. 222 ! Wscnesdav. NovgTber '.9. iSSQ / Rulss and Regulations
in: mm status did not reflect :he
=is::.iT::;cn between ITli.-.? a .".osificattcn
ir.c being required to .lie a nocilcation
ur.eer 5«c=3n :3l2. Tls wrtic!:
ire mv be:n« developed by Z?A wiil
have Ote e/.'ae: of carrowing lie
universe of persons who w'ers required
to noafy on Auguj: "3. tSSO [bajeo on a
'.ilerai reading 11 the regulations). In a
fe%v cases, hovre-r-r. they may bring
withri Submid C cantral owners and
operators of faellrics who could
reasonably have conduced, based on a
careful reacting of the May 13. I960.
reguJau'otiJ. (hat they were not required
to scary on August 13, 1S50.
We da Kal ihink it ia fair to penaii:e
facisea for failing .'o notify under
Seesan 3010 where that failure is
attr.batabie la major aaaiguities in
EPA's hazardeus waste regulations.
Althssgh we do not believe we have the
authority to waive ihe runery-day
statuary ulin? deadline far fac:i:i«
which were required ?o noary on August
13. :=sa we do thutk we have :he
authomy under SdiA ia issue i pas/
Ace adzinistralive rLidirg that a
narrrrlar class of f^ciiues was col
req<^red to notify at ail because of =ajor
nacsiiainnes in s?A's ttQulations. It is
our '.steal, therefore, at the time EPA
publishes future Federal Rc^ssier notices
announcnj intendzents to or
interpretations af our hanrdous waste
reguuaofts. (1] to decide whether sae.e
ciaii af radices say >ave failed to
aotir? because «f aoc.i^ume.s in those
regulations and if so, [2| ;o issue a
datersnanoR isat that class of facilities
wu sot .-squired to notify under Section
3010 on August 13. '.930. and to establish
new deadlines For 5ut rail ting pemit
apptisai:o(is jnd essipiying with intenm
statu itandards under 40 CTS Part ^5. '
Tie -ifee: sf this daterRication wiil be
lo cufce (he desis-'u.'ed .'asii.Uej ei:
for-i:er-J3 itatiis even thousa they
railed to ncaty en Aua»t 38. :3BH
b. Liforssment sxcfruott.
In aaation to faciities writes failed to
CUe a ttaeiy nouficsnon because of
Raiar ansoiguities in £?A's resuidtiaas.
iJiers are ,-.0 doubt i nunaer cf facilities
WUCA faiied to noofy as a result 41*
cisrcsi ».T9rs. oversight or other fscior
Some may be weil-ntana-td .'aciiiiiM
wr.ese cantinuea opera nan is :n ihc
Aiiscuan £?A cannot frant i.ttenm
statvis to iaciihes wmcn failed to Me 3
u.r.eiy Si-stisn 2010 .-lauficaiion. we arc
prepared to exerass cur ;ntorcerncni
cucrstion to allow sue*. Mamies to
csntinua operating aj'te; Navernoer ';".
whcrs ihe-jrcrntxnuea cpcraiion wouid
be :n ihe puoiic inlercsi. To fircwae
fcrmal assurances to lh«se facliiic: t!^
they will not be presented for oncrahr
without a persiu ZPA is consider n?
tssuin; Intern Status Csmaiiance
Utters ("iSCLi"} to qualifying uctlilies
stating that 'Jic Covenusent wiil not
prosecute ihem for aoeratin; without a
permit if they tile a permit appifeauon
and cats ply with ail sppiicasiie Part ^j
jtandarcs. The ISC. ;vpu/d
jiniJar provisions shieic'
and transporters using '.here
&oci Fsaerai ?ra;scaticn fo
wane: lo an unpcmittcd fadily.
Csmsiianca orders issued uncer Scsuo
30011 oiRGIA (with orwuhout a civil
penally assessment) cauid also be USK
to aciieve essentially the same rcstiiu
AiJiouga a facility aperatfn-g unc'cr »
ISC. or cocananea oreer and caoplyi;
with E?A'» ?an "£& rtjuiations wocid
not be larnun* from e.uzen lujlr. vndcr
Sec'jon 7002 cf HC^A because iC was
•ecr^ucally operating without a permit.
.ve doubt thai sucn suits would ever a«
sucssufuL Jedejal courts « Mmg in
equity srs sol l&ejy to dose down
fasIiUes wruch have failed to submit ;
brneiy aouCcauan under Section 3010
{/ley are otherwratf fatly eornpiyuig -.fit
all applicable substanuve
environmental juoaarci.
An iSCl ar compiianci order wnuid
also assist facilities wtr.ch must file
uzdec ;«c=an 13 af As aec^tiea ar.d
Exchange .Ac: of 193-(. as anencied. LI
making i full disclosure of ihe extent ;
•ieir potential liaoiitty Mder SCRA. A
ooted aaove. for a faciity which is
complying with iij ISC1 3tamallar.es
qrcer. potential liability under Sec-.:on
;CC3 or 7002 saauiu ae negiigiuie.
£?A expressly loiicts comment en
tbeH IB proa cr.es. A suail:r
eafoTcaroent policy was auccssatully
as*d by £?A u::«Br '.!tc Clear Water ."•
TC.VA") la deal with an .alewbie
statutory deadline much like '.he ,iiner
day ceadline 4jv IS.
SHOI.
s jatftsnmt d^jj wtn •*• I»M -.ht uirr i
11 j naursmu »tit». £P4 sa« 11 '--.t
1 1^3:151. .-nvim jit joint mire* g»cr.arr:r> ••
Aim tiiluni unuananj ea«a an m SMI
foestealit* tsntni 'rtmionff ar Ivir 1. 3977 '.*.
K tructi Jaaanm inn us* uncvuren ".o*.
. .
ii»wnt Ixrtn me »n«n ia ir.ru uemiin HJ:L.
sn nei: r
-------
"sc'eral 3e«ister / Vol. 45. No. CCS / Weer.esday. Movgrrber 19. 1580 / Suias arid Regulations 76535
siffersr.cs between the C.VA policy and
- -".a ooiicy annaur.ced above :s :!iat
under —a latter EPA would generally
not «.""rj| to allow these facilities to
qualify for inters: status if tney file a
permit application within ZQ days after
Aey lose their refulatory exemption or
bern hanclsg hazardous waste.
Reacen mould note uat these
faculties wid lecuticailr be ocerating
without a p«r=u until they suomit their
pennit aopiicaooa. EPA *n\[ not initiate
any en/orsesest acuon against then.
however, if tsey contact meir EPA
Regional OSce uunediateiy and file an
applicauea within -u.e thirry-day period.
EPA beiieves tr.ese acendcer.ts will
cover most situations waere facilities
which are eiisbie for intenni status
oncer Saeuaas 3CC3(e) (1) and (C) r.ust
file a per=:t applicaaon. la the event
they do not. ua a ihe event SORB
faciities isadvenently =iss the filing
deadlines «t ions, in 512^2(a). EPA is
adding another aew provision to that
section wruci aiiows a fadif}* to obtain
ictertn status u it Cles a perrat
application br the ceaolise set fcrth in a
cocsliancs orser issuea by EPA under
Seeaan MC3.
IV. Raquirssent lha( a Faclity 3e "In
Exutence oa .Vaveabcr 19.1380"
t''
The fisil juratory prerequisite for
obtaining miens: status is that a faaiity
have been "In existence on November
19. I960". E?A regulations define
"existing faciiiy' as a ~'aclity :n
ooeration."* (i^_ a facility "receiving
hazaraaus **iis far treatment, storage
or disposal"! or 'Jaclity for wnich
constncuon has commenced.* 40 C7S
5 1212 (cecnitions of "existing HNVM
faciity" aoc.'ia oovration']. EPA has
been askn'f a faciity wnich was
handling a »lid waste on November IS,
1980. that was act iaenii/ied or listed as
a hazardous waste ui EPA's Pan ai
regulations pner to November 19.1980.
but was laeanfied or listed in a
subsequest asenes:eni to those
regulations could qualify as an existing
hazardous waste rMnagsraest faciity
for purposes of obtaining ir.tertz: status.
Is EPA's op'^ios. if a faclity was
receiving for eea=:er.t. storcas or
disaosal on or ae/ore Novemoer 19.
1980. a soiic wtste whicn is
subseoues'Jy listed or identified as a
hazardous *«:« by EPA. :he faclily
was "in exisuzcs on N'ox ember 19.
1S80" ar.a is e::zbie for interim status if
it files a U.Te!y :en=:t as;:icaucn and
Section ZOin r.osticsitcn (if requireo).
Usuur.g siicbu;-.- far inter..? status
oniv to tzosd faciities which were
-------
r-suus.3i.av. .iwveiMuer is. IsM I 'UtSS
handing a saiid waste an November 19.
1SSO. :hat hao ;::n listed ancennned
ij a nazarscus waste :ncrto mat sale.
weutd attach too .T.UC.'. regulator/
sijr.incsncs to the crssr in wn:ca a? A
prcmslgates its hazardous waste
lisr.r.ga. it would also prevent any
'facility whtcs was 'i an din"; a scud
waste now tjrrpsrany e.teirstea from
SuotitleCcsstrois as a "saecal waste"
tram ever ootaimr.g mierra status.*
Readers should note, however, that
for a facility to qualify as an "exunr.g
facility" in this situation. :.ie «ouc vaste
wmea the faclity was handing an 5r
before Novemoer 19.1930. .-nust be the
same waste which is later identified or
listed in t?A's hazardous waste
regulations. A faclity wmch is iandliag
trasn on November 19. 1930. for
ejcamole. would not suaiify as an
existing faculty simply because after
November 19.1SSO, it began handing a
solid was:a wr.teh was, suosaquentiy
listed as a hazardous waste in £?A's
Part 231 regulations.
?A recognizes that it say be cifnca!:
Tor tome faciities to establish a preose
esrreiauoc between iciid wastes
handed prior to and after Noveeber 19.
1930. because of changes in
manufacturing processes, wassewater
treatment processes, air emission
controls, raw materials or other similar
components of the .•saflufacniring and
waste treaur.ent process. 7>.e Ajeacy
saiicts conaaat on what types of
guidelines it should foilow in these
situations !o deterssiae if the wastes
being handled jrtor to and after
November 19.1330. an the "jams
waste."
V. Praeical application
To assist readers ia understanding lha
amendments and polices whiea have
benn outlined above. £7 A believes it
would be useful la discuss how they
would aoply ia concrete facraal
ununons.
1. The ASC Company completed
canstrscrion of a hazardous waste
incnerator on October 1.1S80. Cn
October 2.1S30, the .'aeliry begins
iocseraiing a number of hazardous
wastes listed in £?.Ys Stay 19.1930
regulations. The faclity submitted a
pensit application on Novesoer 1. :saa
but iid no< notiiy on August IB. ^80.
Does ±e factirr have intena status?
Yes. The facUity was net .-squires, to
{He a Scenes :oiO Rocneation because
it was net hane'.ifig hasarsous waste at
the time of prsntuigar.oR of £?A's May
19. :saa regulations. Thus, althouu it
has .tot noufied. :t has nevertheless
•7>i« n»» rtiiomn* mix* W faalinn •inch
Mr 19.13SO.
"cocriied with section ZOlO(a]" within
ihe r.samns of Secr.an :CQ3(e).
Tie facii'ty also rr.ee'.s the other two
prerequisites :or ir.ie.-trn status,
Z. The A3C Comoany ov.-ns a lancfiil
whicz. since :ST3. has aeen used
csnusuously ana exclusively for the
ijrosai of s»uc=:s from the treatment of
\va jtswater seta wtcgit procuc:ion. Cn
January v. I93i SPA adds waste water _
searzast sluege from (he production oi
wice'-S to ILS harareous waste list. The
pressble to (is Federal Register
pucikacon aasour.eng the new listing
does .-.01 expressly require facilities
•haaiir.g wasiewatcr treatment sludges
from wiijgit produc-on :o notify. It does
stats, however, that such facilities must
file a persit aoplicanoc and begm
casslytng wita all aopiicable itenm
staros siaadirds by July 1.1382. The
ASC Company files a contciete permit
application by July 1.13S2. Does it have
ictsr= stana?
Yes. S«ct:on ^na(a) of SCSA was
aaesdad by the Solid Waste Cissosal
Ac: A3e.*:d-=e=ts of 1580 on October 22.
1SSO. :a cake Secuon JQlO(a)
aocfiaiioBS based on revisions to
EPA'j haardcss waste list and
caarac:BTisccs discretionary with the
Agency. Thus, in the absence of an
expl:ct H?A cirecave 10 notify, a
cancaay banding a hazardous wssie
tist-i -a a revision to EPA's Part 2S1
regulations wbch was published after
Octoc-r H. ISoO. would not be required
to subsit a r.ew Secson :010
notification.
The ASC Csapany landfill .lisa meets
the two rcasiaing prerequisites for
inters sUlus. Because it was handling
a solid waste on November IS. 1960.
which was subsequently listed as a
hazardous waste by £?A. it was a
hazardous waste management faclity
which was "Ia existence on November
19. ISoO." It also tllea a uaeiy permit
application.
3. The ASC Camoany owns an on-site
LincfJI which was handing garbage on
•November 19. I960. On January 1.1981.
the csspany goes into the widgit
praducsan business and begins using
the !a=dfill !o dispose of sludges front
the caacaeat of wastewater generated
by the widgit prsducuoa process. On
Jasuarr 1.13S2. Z?A lists wast*water
tresccsst siucses from the prcdunon of
wid^u as a hazardous waste. The
preamble to the Federal Register
publicaaoa arjuuncng the new listing
requi.-!4 faclises nancling widjjt
was:e*.vater trearsent sludges to notify
by Mini :0.1S32. and submit a permit
applies aca by Juiy 1.1982. The ASC
Csssany files a timeiy'notificaiian and
persit application. Does its landfill have
•jstena status?
,S'o. On Nover-ber :9. !Saa the 'jr.:
was r.ot hancli.rg a haurdcus wasi:
deilr.s-i -y E?A .-n lis Way 19. or July
ISeO. reflations) or a send waste *n
was susseeuertiy identified or hsfss
a .ia:arseus waste oy £?A. II was
Lu.crs:'o.-s r.oi "in existence" as a
!:s=2rssus waste management fscii:;.
:n .N'oveir.aer 19.1.380. anc cannot
quciify for interim status.
4. The ASC Company ssnerst:: 503
per sonih of a wasie listed in EPA's
May !9.1S30. re^jianons. Sines 1S7S.
ilic cstr.sany has ciipoud of 'hi: was
in an u=licsr.sed on-siie lancCIL Stan:
on Novenoer 19.1980. the catnpany
starts sending its waste io a state
approved ijiouiinal landfill in order::
Uxe advantage of i.-A'i iniail quantii
jenersior regulations. Later. £?A low«
(he ssail quantity generator exe.T.c:;c.
io ICO k; per month. The ASC Ccrr.par
canest find a r.ssrsy hazardous waste
nanagsR5e.it faculty to take its tvaste
and wou:d lixc :o reacavate :'ts on-site
landHU. Is ihe landfill eligible far inter:
status?
Yes. The landfill can seet all three
preresuisites for ir.ianm status if ii
submiu complete permit application.
within $w months after £PA amencs
?.an SSI to lower the snail qosctity
generator exesaoon.
0. The A2C Ccmcary feats a wast:
which it believes is exemoted as
hazardous wasia 'iflCir f 131.4 of Z?.Y.
May 19. ISSO. regulations. It does not
notify on August :a. *.9sa or suoir.it a
pernit aDolicanon by November 19.
1SCO. Cn March 1.19«. EPA iiruci zr.
interpretation of i CSl'.i which makes il
dear that the waste treated by the
camoany 14 not exempt. The cszipany
lests ihc waste against the
charac:ersiia of hazardous waste
idea.ifed in Suboart C of Part 131 and
the waste sxhibits several of the
characteristics. Can the company's
Seaisent faciiir/ qualify for interim
status?
This mil deaend on the content of the
federal Seguter notice announeag
E7A'i regulator/ '-iterpretauon. if Ae
Agency decdes (hat the exemption in
LCS1.4 was to vague or amoiguous that
faaiiiiej in the position of the ASC
Camsany cauld sot reasonably ,iave
besn ex=ec:id to uiow vhat they were
requcsc la naufy and submit a penr.it
application, it will (!) include as part af
its iRterprstacon a fsrr.ai Agency
determination 0)at Lhcse faciities were
not res/jireai :o notify and (*' set a new
deastine by which those facilities —vis;
sucait a cnpiete rsrru: asslicauon if
they wfjh to cuaiify far mtenm status.
Tcus. :f (he .i-EC Cjr^sany submits a
cccpiete aspiication ay the r.ew
-------
. .-.overr.oer i*. is.-so / Miies zr.z
'~"v? Intsrim jtama.
(*.) Cs.rrlied with the rscuirsrr.er.ts of
ies::cn :3:Cfal af 3C3A ?9rau-.ir.? :a
.*.3t::la(:cn ot'hsrarssua w«ate acavity.
[Ci.r.s-.t.-.c Sas;e i.Mi::n? rselir.es .-say
r.s: :e r:qu:rsd to file a r.otif"ea:ion
i-.sar Sesf.cn :r.C(a) 31 SC?_^. "Hjas*
fiK.itiss .r.ay ;uau:y :'cr ir.tsnr: stanu
by -sstin? paragraca (aj(C) of 'Jus
Secaon.j
• • • • •
Thess afr.aacr-.ersts are issued under
(he au'Jtonr/ of 5*crcna :C06. SC2(ai..
acd :C05 of U-.s Soim V/asta Disposal
ACL as araeaesa by ie Sesoursa
Conservation and Sessvery Act of 1978
). as a=endea. 42 U.S.C £905.
cu «•(
BU_M> esef «iia so a
-------
S.NVIHCHME.VTAL PROTECTION
AGENCY
40 CFH Parts 122 and 2SO
[SWH-fflU 1721-41
Hazardous Waste Management
System; General and EPA
'Admlnatefed'PqrmtfPreq,rania; the
rUsareoua Waata Permit Program
ACfMcr: Environmental Protection
Agency.
Adiutc fntffnin fir*^ amendment to rale
and request for comments.
suuuAim The Environmental Protection
Agency (EPA) is today making a number
of changes to its May 19.1980,
hazardous waste regulations. Tint it i»
amending the definition of "existing
hazardous waste management facility"
ji ! j 122J and 280.10(20) to make it
conform to the recently enacted Solid
Waste Disposal Act Amendments of
1980 and to clanfy the tarn
"construction". Second. EPA is adding a
defizinon of masters "Federal State or
local. . . aoprovala or permits" to
5 ] 122J aad 230.10(20). The absence of
juca a definition has apparently caused
considerable confusion. Finally, it is
amending the requirement for a permit
prior to construction found in § 1222(b)
to allow new hazardous waste
management facilities (other than Uad
disposal faelltiea and surface
isponndments) to catmneacs
caastrucaoa before receiving a permit
DATES: ZSecave Date January 9.1981.
C.amtt>*nt OatK This *"'•"«'"•"* IS
promulgated as as iatenm anal rule. The
Agency will accept camments on it unal
March UX1961.
AOOflF^^ Comments on the amendment
should be leat to Docket Cerk [Docket
No. 300S], OSes of Solid Waste fWH-
565], U.S. Enwonmeatal Protecaon
Agency, 401M Street, SW* Washington.
D.C2046a
POM FVIHTUCT INFORMATION CONTACT
For general information contact John H.
r,r~!w Director. State Programs and
Resource- Recovery Division. OEca of
Solid Waste (WH-M3). US.
Environmental Protection Agency. 401M
Street SW. Washington D.C. 20460.
(292] 735-9107. For further information
on impiamentation contacs
Region L Dennis Hueber. Chief.
Radiation. Waste Management
Branch. Joan F. Kaanedy Building,
Boston. Massachusetts Q2SC3, (617)
Z3-3S77
Region IL Dr. Ernest Regna. Chief, Solid
Waste Branch. 23 Federal Plaza, New
York. N.T. 10007 (X21 234-J504/5
Region OL Robert L. Allen. Cne£
Hazardous Matenalx Branch. 6th and
Walnut Streets. Philadelphia.
Pennsyh-wris'lSlOa (25) 297-0980
Region IV. fames Scarbrcugh, Chief.
Residuals Management Branch. 345
Cuurtland Street NE. Atlanta.
Georgia 30385 (404) S81-3DIS
Region V. Karl J. Klepitsch, Jr.. Chief.
Waste Management Branch. 233 South
Zearaorn Street Chicago, flllaou
60604(3121868-8143
Reouv VL H. SUa Jorgessea. Acting1
Oust Solid Waata Erases. 1291 Elm
Street First International Building,
Dalka Taxas 75270 (214) 797-2945
Region VH. Robert L Moray. Chief.
Hazardous Materials Branch. 324 E.
llth Street Kansas Oy. Missouri
64108 (818) 347-3307
Region VHL Lawrence P. Gazda, Chief.
Waste Management Branch. 1880
Lincoln Street Denver. Colorado
dUtffl (SOS) 037-223
Region DC Arnold R, Den. Qief.
Harardoas Materials Branch, 25
Fremont Street San Francisco.
Caufonua 94108 (423) 556-4608
Region X Kenneth DL ^signer. Chie£
Waste Management Branch. 12DO
Sixth Avenue. Seattle..Washington
98101 (398) 442-1200.
TAUT IWOnMTTOfC
L Authority
Tbeaa amandssesa axe iaaned under
the authority of Secsou 1008, 2002(a)
and 3005 o£ the Resource Caaaeivation,
and Recovery Act of 1978 (SC3A], aa
amended. 42 O3.C Si 6808. esasi»\ aad
6923.
Q. Amendments to and Clarification1 of
Defuutioa of •Exiting Hazardou* Waste
Maaagemaat Faculty"
A. Data by Which a Facility Mat Have
Bean a Operation or Caaaaeaesd
Secaaa 300S(e) of SCSA provides that
a hTT8"^"' wast* sianagement facdity
will be treated as having b«e& iseuad i
permit (commonly referred to aa
"Interim status"] mini f™i ica'on is
taken oa ita permit application if. onong
other things, it waa "In axatanca" on a
date set forth in the statute. In its May
19. 1980. hazardous waste regulations.
EPA used the term "existing hazardous
waste management faclity" to identify
those facilities which sal thia-
requirement aad denned the tarm to
indude a faclity which wee in
operation, or for which construction had
comaecced. "oa or before October 23.
1378". the, thaa.-eaazciling statutory
date. 5ee &§ H2J acd2SO.U. 45 FR
33074 and. 3342.
Cn October 21.1330. SOA waa
amended to extend interim status to
faclities in exute&ce "on Novemher IS.
1S50." See £n±:cn 10 of the Soiid Waste
Disposal Ac: Amendments of 1380 (Pub.
L. S6-U2). See also 49 FR 97738
(Octobec 14.1S80I. EPA is today
amending, its reguiatory definition of
"existing hasarnous waste management
facility" to<*""fi" j to 'hfa amendment
3. Canfieao'o* of tha Definition of
"Cjaiounced Guzscrocfion"
Aa noted abore. EPA's May 13. ISSft
dafimtion of "existing hazardous waste
management facility" included facilities
for watch "construction had
commencea" by October 23.1978 (now
Novemher 19.1980). The denmn'on
further provided that SPA would
consider conatrucaon of a facility to
have commenced i£
(at The owner or operator had
obtained all necaseary Federal. State
and local preceaatxncaaa approvals or
permits: and
(b)(l) A csaasuoiu physical on*sit*
(2) The owner or operator had entered
into contractual obligations which
cannot be cancelled or modified without
substantial loss—for eons (ruction of the
facility to be completed within a
reasonable ante.
Tiff tenet "physical cans traction" was
in tuui defined* as "excavation.
movement of earth, ereeson of forms or
structures or similar activity to prepare
a [hazardous waste management!
facility to accept haxardoa*waste". See
J'liZl
Since their promulgation. EPA has
been asked three major quesnons about
these two requirements:
(1) Does the term "contractual
obligations ... for constiucaon" in
paragraph (b](2) refer to cannractuai
obligations for physical construction or
something less than physical
construction («.g, design and
engmeecng sruoies]?
(2) In determining whether he will
incur a " substantial los»" within the
meaning of paragraph (b)(2). does the
owner or operator ox a faciLry measure
his potential losa against the total cast
of physical constrncnon of the faclity or
against all costa assocsued with
building the facility (e.g.. physical
construction eaets. eagineenng and
design studies, permit application and
processing feeaj?
(3) Does the tens "zacessary Federal.
State aad local precasattucaon
approvals or parmita" a paragraph (a)
-------
Federal Register / Vol. 46. No. 6 / Friday. Janaary 9. 1981 / Rules and Regulations
buJxiio
g, lonug ind similar
;araita> aaa apcro*ai» reo.tured under
!awe acd crdisaaces outer taan
ha-gg*"'-"- waste lavss or itatatea? Tie
"acs/Mui ts ±«ie'i=s Mvo related.
quescona arc pnsenied beiow.
1. "Canesesss/ Gbtiaaz'om ...far
CoBtnGica". Tie word "eocstracaon"
la iha rJiraie "contractual ooiisirions
. • . ior canstructxn." IB
has apparently con/used soma readers
because of tba absence as the qualifying
adpcave "paysieai" [as in jarasrapn
leg?}). We •-*»* ila clear 3on» taa
preamble to EPA's May 19 regulations
mat in Cora wot intended to caver
only physical eaaacructton. Tine the
preamble noted that the definition of
erf enostncsea'* was dem«d
largely from ZPA'J Prevention of
Significant Batenoratton (PSD1
regulations issued under tha Gean Air
Act. Tioaa regulations define tha tara
"eonttrwsoa" in i* counterpart to
paragrapb, (b) aa "fabrication. erection.
installation or modification of a sotaca".
40 (23, 512(bK7]. Second, tha May 19
Tsaaable expressly staled that opoau
to pmhasa or contracts for JaaaiJbuity.
engineering 01 'f^ig** itudiea would cot
cocMtuta contzacaaiooixgatifiDa withia
•ha -M«mnfl Q/- paragraph (bK^J. 45 HI
23324,
To avoid any future connuios en thii
point and to danfy in iha re^iiatory
the mfanx explained ui ths*
waste aanagesMOt faaliry"
•"oseadid so tiat aa
matracdoa" j e*ed
"Saatoatid /on". la ma
d its May 19 regulation, IP A tateti
that, in general, if "ia asount an, owner,
or operator aoit pay to canal
cansmcdcaasreemeau exaeded 10?
of !ha "tetai protect eaaT, tba ka>
would b« deccaed "subataatiai'* mdun
the aeaauq of paragrapfa (bX2J. 45 fa
33324. By "total project coatT. E?A
aeant io total coat lacuired fat
phyitcal suamcaoo 9t tha pn|e& aot
ail eoau that ai^iit b* aasoealed with
the project. Tie consistent as* ot the
tera '^aysical consmcdon1* ia iha
rfpffoitfon of "mnmenMa canatracdon'
saoald saite ihia deer.
3. "A// Xoceaaarf FsdttoL Stats and
Loertl Precaassvdcn Appreraa or
pynruta". la its May 13. 1SBO.
rfrgnJanona, Z?A oJd aot decae tha term
"all necessary Federal Slata cr bcaJ
prgcana trues on approvaJa or ^enuta" in
paragraph [a] of the «£™Hm of
"cansaientad cansoudon." Tie
absence of such a dacnition haa
appaready caused cmaudtrafaia
coefosion. Some readers of the May 19
rsgniarions. /ocaaing on
"ail", have caostraed the *
encompassing all "eceraL btats or local
permits necessary to break jroucd at a
haurdous waste management facility.
. hic'.udin; buudir.g and isning permits.
Other readers, reiy.r.g an :he jtatetnent
in the May 19 preanfaie that the
definition of "commenced construction"
was derived from EPA'j PSD
regulations, have construed the term as
applying onirfo ?er=uts and approvals
required uscer FedsraL State or local
hazardous waste statutes aod
regulations (just as the PSD regulatiua
apply only to Federal or State air quality
control laws and regulations). This
confusion haa been further compounded
by the fact that EPA has given
conflicting advice on exactly what
perscta and approvals are required.
E?A is today adding a definition of
"Federal, Slate ar local... approvals or
permits" to make it clear that, similar to
E?A's FSD regulations, the permits and
approvals reqiured under paragraph (a)
of the definition of "commenced
construction" are those required under
Federal State or local "luzardous waste
control laws or regulations." This latter
phrase is intended to cover permits
required under any Federal State, or
local law which is intended to control
tha management of hazardous waste as
denned under RC3A. including not only
State and local hazardous waste
legislation and ordinances but also other
environmental statutes, if thosa laws are
designed to regulate the treatment.
storage or disposal of hazardous
wastes.' or the siting of hazardous
waste management faclitlea.
Even though a faclity may aot be
required to obtain Slate or local building
or soning permits ;nor to November 19.
I960, in order to be deemed to have
"commenced construction" under EPA's
regulations, this in no way relieves the
facility from having to obtain woatever
approvals or permits are necessary
under Federal State or local laws to
actually commence construction. In
some situations. '="""? to obtain these
permits may prevent a faclity from
meeting the requirements of paragraph
(b| of the definition- of "commencso.
construction"—*.a, the faclity say be
unable to begin a continuous on-«ite
physical construcaon program prior to
November 13.1980. If this is tha cue.
the faclity cannot qualify for mtenm
status.
Sana facilities-which obtained
nscsasary State or local hazardous
waste or solid waste preconstruRon
permits but not local zoning or building
1 t'er ncfflfil*. ton* SUM rtfulal* wut«
pniteda uadv afnoaturai iun>ie& wwuwiiir
tmiiMM 4uOf n -BOM- wtur patluoan envoi
ftatuin *»»!» mat any
reasonable reading of tha definition of
"commenced conscucdcn" would
compel this result In order to have
completed caostruen'oa by November 19.
1980. a facility dearly must have "begun
a continuous program of physical cm-site
construction" before that date.
This interpretation of tha definition of
"existing hazardous waste management
Jaelily" will no doubt allow a number of
product storage asd noa-oazardoua
waste management faelities which.
pnorto November is. issa^were being
converted into hazardous waste
management fa«"Ht»»«_ to qualify for
intend status. W« see no reason not *.o
permit these converted facilities to
continue to operate if they have
obtained any necessary preeanatrucson
permits required for modification of the
facility and have otherwise
demonstrated an intent to fr"vr"te
hazardous waste prior to November 19.
I960. See 45 FR 76633-76334 (November
19.1980).
b. Malny manufacturing and
production plants aav« iaciitin for
treating, storing or disposing of
hazardous waste on the plant's
premises. Because the deomnon of
hazardous waste management faclity
includes not only treatment storage and
disposal operational units, but also "ail
contiguous land structures, other
appurtenances and improvements on the
land used for Oeadng. jtanng ar
disposing of waste" (se 112J), a
number of persons have queaconed
whether the requirements of paragraohs
(a) and (b) in the definition qf "existing
hazardous waste management" facility"
apply to the manufacturing or
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Federal Reyate? /• Vol. 46. No. 3 / "ncay. fanuarv 9, 1981 / Salsa and Regulations
2247
prrcucTica plant 33 well as the
ia:3rdaus wane operational uaiL
The atuwer is r.o. PsragraDhs (a| and
JbJ apply only to those para of a
manufacture plant directly used for
"-••eaiica. sioncg or disposing of
hazaraous waste.' They da act apply to
production faciiues. product storage
areas, non-nazarocus waste treatment
storage ar disposal units or other pans
of ±a plant act used for managing
hazardous wasta.'
m. Amendment to Requirement for x
Permit Prior to Construcsan
Section Mirftl of tie May 19. 1980.
regulations prohibited any person from
beginning physical construction of a
r.ew hazardous waste management
facility without having received a final
RCtA permit. The rationale for this
prohibition was that a permit writer
would be in a better position to
incorporate location, design and
construction requirements (sea Section
3204(4)] is a new faclity permit if permit
decisions were cade before the owner
or operator'Bade .1 substantial and
irrevocable commitment to the location,
design and caoatructiaa of a facility. See
« FR 33122 (May IS, 1380). As Congress
has recently noted, there may be •
"practical and technical limitations ia
modifying or retrofitting" a faclity onca
construction bjn commenced. See tUL
Rep. No. 36-1444.96th Cjng, 2d Sess.
39-04(1360).
At the time EPA published i 15t22{bJ,
tee Agency intended to promulgate its
Part 284 faellryipecn'c technical
peraalting reguLaaons ("Phase H
standards") on or before November 19.
I960, the effective date of its May ia
I960, regulations. Thus, lie § I2£c(b}
ban on the construction-for saw
Eadities would last for at most Jix
months.
It is now dear, however, that some of
the Phase Q standards will not be
promulgated even by the end of 1980.
fegulacons For hazardous waste
inenerators an ROC scheduled to b«
issued until mid-fanuary 1381: me
standards for land disposal laelittea are
not scaeduied ia be published until
January, and they also may be
reprcpoyed in whole or m part Tie
effect of these delays is to prevent any
new hazardous waste management
facliiy from csmmencng construction
until raid-July :S31 at the earliest1
Depenamg on tae s«ed with which EPA
and the States can jsane permits, some
faclites say ut ba able to begia
eenstrncsan until such latet
This situation may have advene
environmental consequences! .Vew
Hazardous waste management faculties
that are caostrucied in anticipation of
SQA requiremasis, will probably
provide better safeguards for human
health and the envtroaseat '-*"»* many
seating facJitiea la fatiLEPA expects
•Jatz?c=c«raf exauag 'an'iliM will
not ha able to seel £a eba» a
jtandards and eventually unll be> denied
a permit and farad ta teaunata
operation. Mew iaoiitiea will ha aaedsd
to raplac! taa capacity shortfall caused
by the ctasm of such eaostug far-Jit*fw
In the absence of replacement eapaet/,
generators wifl iave difficdty Snding a
placs to treat, store or dispose of
hazardous wastes.
For these msons* tvnii? c?A beuevej
that the pconibitton OB cansttsction is
! 122^(b) serves an important
environmental objective. ii reccgaaea
bat this requirecBent needs to b«
adjusted during ±a penod thai EPA
cannot Issue permits because its ?aase
Q regclaticiB save net became effecave.
Therefore, EPA is today amecding
| i22J£(b) so that after Moveab«f 19,
198a and until the effective date of th*
Phase n standards applicable ta his
operations, a P&SQB cuy be^ii pJiysical
constrocaoo at a hazardous wuie
management faciily (otbor tbaA a l»"^
liiipiyiLql fadiry or niiace
impoundmeai) at hj» 0m xa* befen
being issued aa SdA peraU. provided
ihat he obtains aay other Federal. State
or local permits or approvals accessary
to begm physical eanstroedon and
submits Part A of hu permit appncatun
pnor to beginning pnysrcal cuiBCTJb^lBu.
S«ctiaa l^Z(b) w being furtho
modified to ai!ow consmiction to
contane after *^w effective date of the
Phase Q regulations if the faclity has
submitted Part 3 of the permit
application on or be'ore jaca erTective
data [or an a Eater date specScd by the
Adauniatrarorl-
These amenomeata to 1 TT*r?fb)
apply only to persona who maka a
commitnect to camplenou of physical
constnicaon of a faclity within a
reasonable time; The purpose here is to
limit this provision to those persons who
b«fin "lefTtunate" physical caosxruction
in ae pencd from Novcaber 19,1SBA
unoi the effective, date- of Phase H S«ch
a comsutaeni ssuid be deaenstrated
througa a ccnucucus an-jita. poywcal
eonsmicnon rrrsram or thrpogit ±e
establishment ^rcantracruai oongaD'oos
for comoietion of physical construction.
Thus persons who simply maka a
"token" erfcn towards pnyncal
canstructun (wci as pound breaking
with r.o lira comcanent to complexion
within a reasonable time period] would
aot be exempted ^omtlie reqvzresent
to obtain an 3GIA permit prior ;o
cainalecng ^nysicai C3nsirnc2on of the
faclity. By imposing these rwtricaans.
EPA intends to avoid delaying legitimate
constracaon activttues without providing
a xaior ioopbole to me iapartaot
reqummeRt of obtaining a permit before
[moating physical cocjtrninon.
Readers should ade thai me nrms
and words used is tins amendment are
identical to the (eras and words used in
*j»i» amended definition of "ociscng
hazardous waste management factory"
and should be interpreted in a similar
manner.
The new provisions appiy ta afl new
hazardous wasta managesenr faciities
except i*wff^TiTT surface < !iimuii*iMp \it^
iajecion wells, or land treatment
faclitiex. Tone £u=Utie3 T«fl «11 be
reciured to obtain, a RCRA permit before
beginning physical ccnsffnctron. The
advene health and enwonmeatzi
impacts of facdifiei that treat store or
dispose of hazardous waste is or on the
land are lUuugly depesd&nt on the
hydng«aiagy at ae »re and tse
prosonury 10 lui'scv weters aoc ^njimg
waters: Cutaia lecaeons may be totally
aaacsepiarie for suca feeiitiea BO
matter hew w«i] designed, caestncted
or operated. Therefore SPA' believes
that commitmesl :o pvscsiar locations;
or to parocalar deaigss ta pardcalar
locaDona amst not be made cad there is
i thoraigh evehsaticn 9T ice design and
location mrougn me persrttizrg process.
At some hazardous wasre
management dispeael facilities', wastes
are stored or treated [Ihrtrsis chemical
or phyncal Exanon or stabiuzatiOB or
through otter processes'} pnor 'o
dispaaai Under this amendment
physical coaseucaea Q£ scch ssrage w
nacaent process cauid ^y* iiet'mg
Luuaaca of a permit. Caly sMe puts of
the facHty that direstty mvorre dse
planmeat of haardons w«s• pripuvri ta t»^nt p
ilaoen »• «oon •* ia ?•»•• 0
bean* nTccov* until UM R(ui«nau « woisa I**T
n bu«d bKaoM tthcrtm
It should be coted mat for these
fadibes for waici jcrsteaj ennst-icion
may begin pnor to the efecuve date of
Phase EL actual opera&on must aoi begia
unni a permit is issued and becomes
elective. Furthermore, owners and
operators of mch faculties are stanng
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Federal Register / Vol. 46. No. S / Friday. January 9. 1531 /
wnstrueson at uieir am nsA.
f-\ (or the State] may ultuaately
c'etensine ±ai a paruidy caascucud
fdcUity (even one caastrjctad using ihe.
Phase II standards aa guidance) :nuai ca
T.ocu!ed or niouied 10 meet -Jswe
standards. IT the faclity ;s jcable or
unwilling to aake these changes, the
Agency (or SUta) will deny its peauL
EPA does act intend to allow 5nancal
ccmsuncents made duang this period to
deter RdA'i ob]active of assuring
protection of human haalta and the
envuofflBeaL
(V. ZQoofva Data
Section 3HC(b| of HCSA fwcndzs that
EPA'i hazardous waits reguianona and
revisions thereto take effect sue aemtn*
after the promulgation date. Its purpose:
of Seeion 3J13(b] is (a allow persona
handling hazardous wastes luiSaent
lead tune to prepare to comply with
maior new regulatory requirements.
Tie amendments to the definition of
"««sttng hazardous wast* management
facility" in H 2SO.iO(2)J and U2J an
designed to bring SPA'a regulations into
coaforaancs with new (egwlanoa or
with the intent expresses in the
preaeole to the Agency's May 13.1960.
regulations. Tiey impose BO new
reirsiatary reqaaesents. For these
reasons. SPA chinks a delayed «ifeeav«
date for the» relations a unnecessary
ma a aajcntj ihea effecave
iauaedjateiy.
?« ie aaeodaeou :o } Ui^b). tie
Agency believes coat aa exfecsre date
nx nwmha ai'ter promulgation would
frasrme ±e ooiective of ±e
amenosesL wuca la to allow csraia
types ai aasardaua wasta oaaaqeaent
faciiUes ;o commence canatrucnon
ranediateiy and thereby reduce the
potsnual for a capacity shortfall caused
by the dasure of axuting facJjijes ana i
constfuczoo aaratonum on new ones.
[3 adubon. ^tes* amesdiae&ta impose
aa arw regulatory requirements oa aew
far-iiHea: laoecd. 'Jsey relax ensanj
V. bsicBm final FmnoJzatioa
Although £PA would prefer to go
thraagh tenaJ raJamaJaog b«nre
^uaiisain? As ameadaents to
11?? r^b). the Agency beiiaves then is
good cause for sot proneing acocs and
opportunity for cora&eat OR then pnor
o praiBul^anon. (See Section 553 of the
Administrate Precadure Act 5 U.S.C
S33(ti](Bl]. As noted above, a significant
delay in promulgating these
amendments o likely to have advene
cansecuancas for taiaaa haaith and the
environment.
VL Ke^uiatorjr tmpaca
E?A believes that tie eiTeci of the
amendments to } 12223. b) will be to
reduce the overall cast and economic
impact ct"E?A'i bazareoiu waste
maitagement regulations. This sj
achieved by allowing aany faclities to
proceed with construction now and thus
avoid potentially higher constrce&on
cos;] m the future. The Agency is unable
to estimate the cost and impact
reduction because it does not have an
ssumaie of the number of faculties that
will be affected by these amendments:
nor does it know if any of these savings
wilt be offset by the higher casts of
retrontCHg these faelices in the event
thai lite? ire set properly designed or
constmcted*
Dated; December n. 1380.
centre i itatuiss, .•sgulauona or
ordinances.
3, section irL^b) is revised to read
as foiiows:
Title 40 of the Coda of Federal
Regulations is amended to read as
follows;
PART 122— SPA ACMINISTHaeC
PESMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM; THE
HAZARDOUS WASTE PERMIT
PROGRAM; AND THE UNOE3GRCUNO
CONTTOL PflOGftAM
PART 580— HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
L Tie defmtfoas of "Easrfng
hazardous waste management faoiity"
in J 23ajO and "Sxuua? H%VM facUty"
ia } 12U are rrnsod Co read aa follows:
"Existing hazardous waste
management fHWM] Caolity" or
"tasting faolity" taeans a Caolity which
was in operation ar for which
catutracnon commenced on or before
November 19. 1330. A facllty has
commenced construction t£
(a) The owner or operator has
obtained the Federal. State and local
approvals or permits necessary to begin
physical ennstrscdoa: and either
lb)(l) A continuous on-sile. physical
construction program has begun: or
(2) Tie owner or operator has entered
into contractual obligations— which
cannot be cancelled or modified without
substantial loaa— for physical
constriction of th* facility to be
completed within a reasonable tune.
2. Tie following dencibon is added to
! i K0.10 and 12Z£ "Federal Slate and
local approvals or permits necessary to
begin physical construction' means
permjta and approvals required under
Federal State or local hazardous wa.ite
5
[Amended!
[b| A'*»f H\YM fatsJiUes Cl Except as
provided ui paragraph (b)(3) of this
section, so person, shall begin physical
csnstrjcuon of a new rfVVM facility
without having submitted Part A and
Part B of the permit application and
received a Snally effective RCRA
permit
(2| As application for a persut for a
new HWM facility (inritiding both Par:
A and Part B) may be tiled any time
after promulgation of those standards in
Part :«. Subpart I et jeq. applicable to
wica facility. Toe application shall be
Sled with tfee Regional Aoaiau trace: if
it tha time of application the State in
which the new KWM faciity is
proposed to be located has not receved
Phase Q interim au±ansanon for
permitting jucb, facility or Snal
authonzadon: otherwise it jaail b« filed
with the State Director, Except aa
provided in paragrapn (b)(3) of this
secaon. all applicanons oust be
lufaoutied at least 1BO days b«fcre
physical canstrucaoo is expected to
(3| After November 19. 1930. but prior
lo the effeoave date chose of those
standards in Part 234. Subpart I at sea.-
which are applicable to his faclity, a
person may begin physical csnstncaon
of a new HWM Jaolity, except for
landfills, injection wails, land treatment
faclities or surface impoundments (as
denned ia 40 CF3. 280.10]. without
having received a finally e£ecave RCW.
permit, if prior to beginning physical
construction, auch person has;
(il Obtained the Federal. State and
local approvals or permits necessary to
begin physical csnstncoan.
[ii) Submitted Part A of the permit
applicaflOD. and
(iii) Made a commitnient :o complete
physical canstrjcaoo of the faclity
within a reasonable
Such perscn may cononue physical
canstrccaon of tie aew KWM faciity
ai'ter the e^ecave date ai th* persutting
standards in Part :&4. Subpan I et seq.
applicable to his facUity if be submits
Part 3 of vhe pemit appucanon on or
before the effecsve dace of such
standards (or an some later date
specified by the Administrator). Such
person must net operate the aew KWM
faaiity without having received i finally
effective RCSA permit.
iva Coq. «1-€St r,l»d l-*-«l Ml .ml
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R 3
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1te *"•»
" UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. Z0460
JUL 7 1331
JUL 7
Of
SOUO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Guidance on Developing Compliance Orders Under Section
3008 of the Resource Conservation and Recovery Act
FROM: Douglas MacMillan "
Director
Office of Waste Programs Enforcement
TO: Regional Administrators
Enforcement Division Directors
Regions 1-X
INTRODUCTION AND PURPOSE
As you know, we have established the interim requirement
that Regions submit Section 3008 compliance orders for expedited
Headquarters review. This concurrence process, discussed with
some of you in Dick Wilson's telephone conversations of May 21
and 22, 1981, was set forth in my memo of May 28, 1981, .entitled,
•Headquarters Concurrence of §3008 Orders and §3007 Requests."
After reviewing the orders received to date and talking to some ..
of the Regions, it is apparent that more detailed guidance should
be provided on the use .of 3008 orders. This memo, developed in
consultation with the Office of Solid Waste and the Office of
General Counsel, provides more specific instructions.
SECTION 3008 ORDERS
This guidance will only address the interim status RCRA
requirements which are now in effect, i.e., the Phase I
requirements. Guidance on enforcing Phase II will be provided
at a later date. Additionally, this guidance focuses only on
the use of administrative orders, not Section 3008 civil enforcement
actions. Regions should, where appropriate, proceed with civil
enforcement actions using the normal case development process.
For Subtitle C, violations can be classified as: Class I,
Class II, or Class III violations. Class I violations are those
that pose direct and immediate harm or threats of harm to public
health or the environment. Class II violations involve noncom-
pliance with specific requirements mandated by the statues itself
and for which implementing regulations are not required as
opposed to requirements in regulations implementing the statute.
Examples of such Class II violations include the notification
requirement in Section 3010, and the permit requirement in Section
-------
-2-
3005(a). Class III violations are those procedural or reporting
violations which, in themselves, do not pose direct short-terra
threats to the public health or environment. Onder this guidance
Section 3003 Compliance Orders will initially be issued to address
only Class I violations and Class II violations. Class III vio-
lations should initially be addressed outside the formal admini-
strative order process.
Hare detailed definitions and instructions are given below.
Class I Violations
When Class I violations occur, a direct and continuing
threat to health and the environment is posed. Some of these
violations include:
• Violations of any interim status requirement
that results in a discharge, or an imminent threat of discharge,
to the environment;
• Failure (on the part of either the generator or the
transporter) to use the manifest system required by 40 CFR 262
and 263;
« Shipment by the generator to a facility with neither
interim status nor a permit as required by 40 CFR 262, or delivery
by the transporter to a facility that is not designated by the
generator as required by 40 CFR 263;
• Requirements concerning the condition of containers
in 40 CFR 265.171;
• Failure to. comply with container requirements for
waste kept on site by generators for less than 90 days under 40
CFR 262.34;
• Failure to comply with immediate action requirements
under 40 CFR 263.30 and discharge clean-up requirements under 40
CFR 263.31 when hazardous waste is discharged during transportation;
• Failure to comply with closure requirements under
40 CFR 265, Subpart G, and applicable analogous provisions for
each type of facility where closure occurs during the interim
status period;
• Failure to comply with special requirements for
ignitable, reactive, or incompatible waste under 40 CFR 265.17;
the applicable analogous provisions for each type of facility
under other parts of 40 CFR Part 265; and the waste analysi's
provisions of 40 CFR 265.13 which are necessary to support the
requirements noted above;
0 Failure to comply with restrictions on open burning
of hazardous waste in 40 CFR 265.382;
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-3-
• Substantial non-compliance with the security
requirements of 40 CFR 265.14, such as a failure to maintain a
natural or artificial barrier around the active portion of the
facility;
Class II Violations
In addition to Class I violations of the RCRA regulations,
basic "statutory" or Class II violations may also occur. Since
persons who do not qualify for interim status and persons who
operate without a permit are not subject to the 40 CFR 265 Interim
Status Standards, enforcement against these persons for basic
statutory violations provides an important option under Section
3008. (Of course, a.Section 7003 "imminent hazard* action could
be pursued if warranted, as could a 3008 action to enforce appli-
cable 40 CFR 264 Standards.) In addition to the equity problems
raised (e.g., the competitive advantage provided to facilities
illegally operating outside statutory requirements), the potential
risk of endangerment to health and the environment by operation
outside the regulatory framework requires that these violations
be promptly addressed. Clearly, some of the most egregious
damage cases involve the unauthorized handling of hazardous
waste.
Examples of these basic Class II requirements include:
• The notification requirement in Section 3010;
0 The criteria for obtaining interim status in
Section 3005(e) which allow operation until administrative
action is taken on a permit;
• The permit*requirement in Section 3005(a).
Class III Violations
The following list provides examples of the types of
procedural or planning requirements, which when not met, can
initially result in "Class III" violations:
• Reporting requirements under 40 CFR 262, 263, and
265, e.g., annual reports;
• Personnel training requirements in 40 CFR 265.16;
• Inspection schedule requirements in 40 CFR 265.15;
0 Labeling, marking, and placarding requirements in
40 CFR 262.30-33;
• Failure to consult with local authorities as required
by 40 CFR 265.37;
0 Identification number requirements in 40 CFR 262.12,
263.11, and 265.11;
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• The requirement in 40 CFR 262.22 that the generator
furnish a sufficient number of copies of the manifest;
• The designated emergency coordinator, requirement in
40 CfS 2S5.5S.
There may be situations in which questions exist as to
whether — in a particular set of circumstances — a violation
should be considered a Class I or Class ZII violation. For
example, a generator's one-time inadvertent failure to fully
comply with the manifest requirements of 40 CFR 262 could con-
stitute a Class ZII violation under this system. On the other
hand, general disregard of these requirements should be considered
a Class I violation.
Whether a particular Class I violation is £e minimis should
also be considered. For example, an open (but not leading) drum
technically constitutes a violation of the container requirements
found in 40 CFR 265.173(a). Nonetheless, the "warning letter"
approach for Class III violations (discussed below) may be equally
appropriate in these circumstances. Moreover, as discussed below,
continued and/or flagrant violations of the Class III requirements
should be treated differently from initial or inadvertent viola-
tions. There will - no doubt - be instances where Regional assess-
ments as to the proper Agency response must be guided by informed
judgment. If questions should arise concerning categorization of
violations vithin a particular factual context, the issue should
be discussed with appropriate Headquarters liaison staff prior to
preparation of the proposed order.
Enforcement Responses to Differing
Categories of Subtitle C violations
*
Class I violations will be addressed by Section 7003 imminent
hazard authorities or through Section 3003 judicial actions or
Compliance Orders. Class II violations will be addressed through
section 3008 judicial actions or Compliance Orders or through
•Interim Status Compliance Letters". (Guidance concerning activi-
ties of owners/operators who have failed to meet all the require-
ments of Interim Status including guidance on "Compliance
Letters" — will be made available to the Regions in the next
several days.) Class III violations will be normally addressed
through a "warning letter" that indicates the areas of noncom-
pliance, outlines an overall schedule for achieving full compliance
with the appropriate regulatory requirements, and indicates
that failure to comply would generally result in the issuance of
a Section 3003 Compliance Order or other enforcement action.
In situations where investigation reveals a combination of
violations, the Class I and Class II violations should oe dealt
with through a Section 7003 " imminent hazard" action or a Section
3008 response. The Class III violations revealed by this investi-
gation should be addressed through a contemporaneous "warning
letter" indicating that further enforcement action (e.g., an
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-5-
ex'pansion of the Section 3003 order) will - in all likelihood -
occur if these violations are not remedied within a specific
time period.
This differentiation between types of violations is based
on the immediacy of the harm or threat posed by Class I violations
and by failure to comply with Class II statutory requirements
that subject a hazardous waste activity to basic regulatory
safeguards ~ as opposed to the less immediate threat posed by
violation of planning and reporting requirements.
Initial emphasis in our Compliance Orders on substantive
problems with direct, short-term environmental impacts, or failure
to comply with the basic statutory requirements, focuses the
limited resources of both Government and the respondent on identi-
fying, assessing, and addressing the most pressing problems first.
By focusing Orders on the Class I and Class II violations,
we expect to expedite the Headquarters review and concurrence
process and be able to maintain quick turnaround. You should,
when possible, avoid sending in several proposed orders simul-
taneously, since the reviewing individuals will often not be
able to complete their review within the normal turnaround time.
After the proposed order is approved, please forward a copy of
the signed order as issued to the respondent, to the Office of
Waste Programs Enforcement.
cc: Christopher Capper
William Sullivan
Gary Dietrich
Lisa Friedman
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
01 23 IS8!
MEMORANDUM
SUBJECT: Use of RCRA $300.8(g) Independently of S3008(a)
FROM: Douglas MacMillan, Director
Office of Waste Programs Enforcement
TO: Enforcement Division Directors
Regions I-X
In discussions with Regional enforcement personnel the question
has frequently arisen of whether the civil penalty authorized by
•§3008(g) of 'RCRA-may be sought for a violation of the requirements
of Subtitle C in cases in which no administrative order authorized
by §3008(a) has been issued. We interpret the Act as clearly
authorizing the imposition of civil penalties,.regardless of whether
an administrative order has been issued or violated, when otherwise
appropriate. The Office of General Counsel concurs in this
interpretation. This memorandum sets forth the basis for this-
conclusion. • • ...
.Both the language and structure of $3008 indicate that subsection
(g) was intended to operate independently of subsection (a). First,
the fact that civil penalties and administrative orders are provided
for in separate subsections indicates that they are to be treated as
separate means of enforcing Subtitle C. (See 2A SUTHERLAND, STATUTES
AND STATUTORY INTERPRETATION $47.02 (4th ed. 1964) '...if the meaning
of any particular phrase or section standing alone is clear no
other section or part of the act may be applied to create doubt.")
Subsection (g) makes no mention of administrative orders. In
addition, subsection (a)(3) provides for a penalty specifically
applicable to failure to comply with an administrative order.
Were issuance and non-compliance with an administrative order a
prerequisite for the imposition of a civil penalty subsection (g)
would be superfluous.- In general, a statute, "...should be.construed
so that effect is given to all its provisions." (Sutherland $ 46.06).
Furthermore, the legislative history of $3008(g) leaves little
doubt that civil penalties may be imposed for violations of Subtitle
C regardless of whether an order has been issued requiring compliance.
Subsection (g) was added by the 1580 Amendments. The language
adooted with regard to civil penalties was contained in Senate
Bill 1156. (H. Rep. No. 96-1444, 96th Cong., 1st Sess. 36 (1980)).
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According to the Report of the Committee on Environment and Public
Works the relevant section of S.1156:
...amends the enforcement provisions of subtitle C to
bring them into line with those in the Clean Air and Clean
Water Acts. First, it provides a civil penalty of up to
$25,000 per day for dumping of hazardous wastes regardless
of whether the dumping party has been served with an order
to stop dumping.
Under existing law, only persons actually ordered to
halt dumping are liable for a civil penalty. S.Rep. No.
96-172, 96th Cong., 1st Sess. 3-4 (1979).
Although the Report speaks only in terms of dumping, given the
broad language of 53008(g), the reference clearly is intended to
provide an illustration of how the penalty provision would operate
in the context of a violation of a'•particular requirement of Subtitle
C. The civil penalty provisions of the Clean Air and Clean Water
Acts, after which §3008(g) is explicitly modelled, both provide
for the imposition of civil penalties for the violation of regulatory
requirements promulgated pursuant to those Acts, regardless of whether
an administrative order has been issued. (See Sll3(b) CAA and §309(d)
CWA).
In conclusion, it is the policy of the Office of Waste Programs
Enforcement that, S300S(g) provides discretionary authority for the
imposition of civil penalties regardless of whether an administrative
order has been issued pursuant to §3008(a) and that such penalties
should be sought for violations of Subtitle C of RC3A when otherwise
deemed appropriate. If jfou have any questions or problems relating
to the relationship of civil penalties to administrative orders
please contact Doug Farnsworth at FTS 382-3058.
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WASHINGTON. D.C: 2'0460
-i -co'1"
•"•3IJ8BI
OFFICE OF
SOLIO WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA, Section 3005(e); Continued Operation of Hazardous
Waste Facilities by Owners or Operators Who Have Failed
to Achieve Interim Status
TO: Enforcement Division Directors
Regions I to X
FROM: Douglas MacMillan, Director., _ _
Office of Waste Programs Enforcement (WH-527M)
A November 19, 1980, Federal Register notice (45 FR 76630)
solicited comment on enforcement and regulatory policies which
the Agency was considering to deal with facilities which miss
the notice and application filing deadlines for interim status
pursuant to RCRA, Section 3005(e). Several comments were received
from the public and from Regional personnel regarding these
policies. The comments revealed some confusion regarding the---
requirements for achieving interim status under the Act.
Accordingly, this memorandum provides a discussion of the
statutory and regulatory prerequisites for achieving interim
status, a discussion of the authority of the Agency to allow the
continued operation of hazardous waste facilities by owners or
operators who have failed to achieve interim status, and guidance
regarding the exercise of that authority.
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A. Conditions for Achieving Interim Status
When Congress specified in Section 3005 of RCRA that all
treaters, storers, and disposers of hazardous waste must obtain
a permit, it recognized that EPA would not be able to issue
permits to all such persons before the Subtitle C program became
effective. Consequently, Congress provided in Section 3005(e)
that a facility owner or operator meeting certain conditions would
be treated as having been issued a permit until final administra-
tive action is taken on the facility's permit application. This
statutorily conferred temporary authorization to operate is
commonly referred to as "interim status" - the title of the
subsection by which it was created. Section 3005(e) sets forth
requirements.for qualifying for interim status. EPA elaborated on
those requirements in the Consolidated Permit Regulations, 40 CFR
122.22 and 122.23, as amended on November 19, 1980. Read
together, these provisions provide that a person who:
(1) owns or operates a facility which is required to
have a permit under Section 3005 and which was in existence on
November 19, 1980;
(2) has complied with the requirements of Section
3010(a) of RCRA, regarding notification of hazardous waste
activity; and
(3) has complied with the requirements of 40 CFR
122.22(a) and (c), governing submission of Part A applications
shall be treated as having been issued a hazardous waste facility
permit until such time as final administrative disposition of,, .the
facility's permit application is made.
An essential feature of "interim status" (and the source of
confusion within both the regulated community and the Agency) is
that, unliJce a permit, it is not granted or conferred by EPA.*
Rather, it is conferred directly by statute. Any person meeting
the above three statutory requirements automatically qualifies for
interim status. The only exception is where it can be shown that
final disposition of an application has not been made because
* EPA representatives, however, have upon request
apprised hazardous waste management facilities what the various
prerequisites to interim status are and how they can be met,
and in certain situations, have ventured opinions as to whether
particular facilities appear to have met those prerequisites. An
EPA opinion that a facility appears to have met the statutory pre-
requisites for interim status (which should in no way be confused
with a "grant" of interim status) does not ultimately dispose of
the issue of whether a facility has interim status. Nor does an
EPA opinion preclude a private citizen from forcing a judicial
(footnote continued on next page)
- 2 -
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the applicant has failed to provide necessary information.
(See, Section 3005(e).) In addition, the failure of an owner
or operator to furnish a requested Part B application on time/
or to furnish in full the information required by the Part B
application/ is grounds for termination of interim status.
(40 CFR 122.22(a)(3).}
The Agency has provided guidance regarding each of these
three prerequisites for achieving interim status, as follows.
1. Requirement that the Facility Be in Existence
on November 19, 1980
The first statutory prerequisite for obtaining interim status
is that the owner's* or operator's facility be "in existence on
November 19, 1980.' (Section 3005{e).) Interpretation of this
requirement can be found at 45 PR 33068-69 and 33323-24 (May 19,
1980), 45 FR 76633-34 (November 19, 1980), and 46 FR 2344-48
(January 9, 1981), attached hereto.
2. Requirement that the Owner or Operator
Comply with Section 3010(a)
Section 3010(a) of RCRA requires an owner or operator of a
facility for the treatment, storage or disposal of a hazardous
waste identified or listed in regulations promulgated under
Section 3001 not only to file a notification, but to file the
notification within ninety days. For example, a person who was
required to notify as a result of the publication of EPA's May 19,
1980, regulations and did not file a notification by August 18,
1930, has not "complied with the requirements of Section 3010(a)"
and has not achieved interim status. (Section 3005(e); 40 CFR
122.23(a)(1).) Further discussion is provided at 45 FR 76631-33
(November 19, 1980), attached.
3. Requirement that the Owner or Operator
File an Application Under Section 3005
The final statutory condition for achieving interim status
is that the owner or operator of a facility have "filed an
application under . . . section [3005]". EPA's regulations
implementing Section 3005 condition eligibility for interim
status on a facility's having "complied with the requirements of
§122.22(a) . . . governing submissions of Part A applications."
(See, 40 CFR 122.23(a)(2).)
resolution of the issue under the RCRA citizen suit provision,
Section 7002(a)(l). If not carefully drafted, such an opinion
might, however, complicate future enforcement actions, based on
subsequently obtained information, brought against the facility
for operating without a permit or interim status. Recommendations
regarding such opinions have consequently been set forth in a
memorandum (attached) to Headquarters and Regional RCRA
personnel.
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Section 40 CFR 122.22(a) formerly required that all owners
and operators of existing hazardous waste treatment, storage, or
disposal facilities submit Part A of their permit application by
November 19, 1980. The section was amended on November 19, 1980,
to redefine the deadline for filing Part A applications. 40 CFR
122.22(a)(l) now provides:
•Owners and operators of existing hazardous waste
management facilities must submit Part A of their permit
application to the Regional Administrator no later than
(i) six months after the date of publication of
regulations which first require them to comply with the
standards set forth in 40 CFR Parts 264 or 265, or
(ii) thirty days after the date they first become
subject to the standards set forth in 40 CFR Parts 264
or 265, whichever first occurs."
Accordingly, a facility at which a solid waste was handled prior
to November 19, 1980, is eligible for interim status if its owner
or operator files a Sect-ion 3010 notification within ninety days
(if so required) and a Part A permit application within six months
after EPA promulgates regulations designating such solid waste
as a hazardous waste.
Further, a facility which handled hazardous waste prior to
November 19, 1980, but was not required to apply for a permit
because of a regulatory exemption, may qualify for interim status
if its owner or operator files a Part A permit application within
30 days after losing its exemption, (e.g., a generator who
produced hazardous waste prior to November 19, 1980, who after
November 19, 1980, accumulates for the first time hazardous waste
on-site for longer than 90 days.) As noted in the Federal Regis-
ter notice pertaining to the amendment, some of the facilities
which will qualify for interim status by virtue of 40 CFR 12"2.22
(a)(1)(ii) technically may be operating without a permit until
they submit their permit application. (45 FR 76633, November 19,
1980, attached.) Consequently, these handlers have been given
notice that "EPA will not initiate any enforcement action against
them ... if they notify their EPA Regional Office immediately
and file an application within the thirty-day period." Id.
In addition, the Agency may by compliance order issued under
Section 3008 of RCRA extend the date by which the owner or
operator of an existing hazardous waste management facility may
submit Part A of its permit application. (40 CFR 122.22(a)(3) .)
Guidance regarding interim status and the owner's or
operator's obligation to file a Section 3010 notification and a
timely Part A application is found at 45 FR 76633 (November 19,
1980), and 45 FR 33321-24 and 33543 (May 19, 1980), attached.
Further guidance regarding the exercise of a Region's
discretionary authority to extend the date for submitting a Part A
permit application is provided in Section D of this memorandum.
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B. Section 3005(e) and Enforcement Discretion
Subtitle C provides that, upon the effective date of the
regulations identifying and listing hazardous wastes, "the
treatment, storage/ or disposal of any such hazardous waste is
prohibited except in accordance with such a permit." (Section
3005(a) (emphasis added).} Consequently, any person treating/
storing or disposing of hazardous waste without a permit or
without having achieved interim status may be ordered by the
Agency to cease that operation (Section 3008(a))/ may be subject
to civil penalties (Section 3008(c,g))/ and may be subject to
fine and imprisonment (Section 3008(d)).
Congress' intent in enacting the sanctions in Subtitle C was
to "permit a broad variety of mechanisms so as to stop the illegal
disposal of hazardous wastes" (H.R. Rep. No. 1491, 94th Cong., 2d
Sess./ at 31). In most cases in which a Region determines that a
person has treated/ stored or disposed of hazardous waste in
violation.of Section 3005(a), prompt administrative or judicial
action should be brought seeking cessation of the violation and,
if determined to be appropriate/ assessment of a penalty.
The Agency recognizes that the literal construction of
Section 3005(e) will have the effect of preventing owners or
operators of certain well-managed facilities from qualifying for
interim status. In order to provide relief where appropriate,
Congress has provided that enforcement under Subtitle C is
discretionary. (Section 3008(a)(l).) Cf./ Commonwealth of
Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172 (6th Cir.
1974), aff'd, 426 U.S. 167 (1976); Corn Refiners Association,. .Inc.
v. Costle, 594 F.2d 1223, 1225, 1226 (8th Cir. 1979); Weyerhauser
Co. v. Costle, 590 F.2d 1011, 1056-58 (D.C. Cir. 1978); United
States v. Olin Corp., 465 F. Supp. 1120, 1136 (W.D.N.Y. 1979);
Committee for Consideration of Jones Falls Sewage System v. Train,
387 F. Supp. 526, 529-30 (D. Md. 1975).
Although EPA cannot consider facility owners or operators
who have failed to satisfy the statutory requirements of Section
3005(e) as having achieved interim status, the Agency may exercise
its enforcement discretion to allow such facilities to continue
operating where the continued operation would be in the public
interest. Cf., State Water Control Board v. Train-/ 559 F.2d 921,
927 (4th Cir. 1977); Sierra Club v. Train, 557 F.2d-485 (5th Cir.
1977); New Mexico Citizens for Clean Air and Water v. Train, 6 ERC
2061, 2065 (D.N.M. 1974). Policies referenced in the November 19,
1980, Federal Register notice (45 FR 76630-36) have been developed
to provide relief in these situations.
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C. Allowing the Continued Operation of a Facility by an Owner
or Operator Who Has Failed to Achieve Interim Status
Although the enforcement authority of Section 3008 vests
discretion in the Agency, courts have held that "the exercise
of prosecutorial discretion, like the exercise of executive
discretion generally, is subject to statutory and constitutional
limits enforceable through judicial review." Nader v. Saxbe, 497
F.2d 676, 679-90 (D.C. Cir. 1974).** See, in particular, "Review-
abil-ity of Prosecutorial Discretion: Failure to Prosecute,"
75 Colura. L. Rev. 130 (1975). If the Region determines, in the
exercise of its enforcement discretion, to allow the continued
operation of a facility by an owner or operator who has failed
to achieve interim status, it must do so rationally and in good
faith. In addition, the Agency may be required to state the
factors upon which it relied in deciding not to bring a particular
enforcement action. See discussions in Bachowski v. Brennan, 502
F.2d 79 (3rd Cir. 1974), rev'd in part, Dunlop v. Bachowski, 421
U.S. 560 (1975); Environmental Defense Fund v. Hardin, 428 F.2d
1093, 1099-1100 (D.C. Cir. 1970). Consequently, each Region's
exercise of enforcement discretion must be based upon evidence
that will permit the reasonableness of its decision to be later
demonstrated.
In the context of an owner's or operator's failure to
achieve interim status, the exercise of enforcement discretion
should require consideration of such factors as:
o the harm (or benefit) to the environment that will
result from the facility's continued operation;
o the circumstances surrounding the failure of the
owner or operator to meet the requirements of
Section 3005(e);
o the compliance history, if any, of the owner or
operator including his recalcitrance or good faith
efforts to comply (both with regard to the subject
facility and any other facility for which the
owner or operator is responsible);
** There is, however, authority supporting the position
that a court may not review EPA's decision not to commence an
action under §3008, either because such a decision is committed to
agency discretion by law (cf_., Commonwealth of Kentucky, supra) or
because there exists an adequate remedy at law under the Act's
citizen suit provision, Section 7002 (cf_., Hall v. Equal
Employment Opportunity Comm., 456 F. Supp. 693(N.D. Calif.
1978)). EPA will likely rely upon such authority in the event
that a decision by the Agency to decline to bring an enforcment
action is challenged.
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o the availability of enforcement resources;
o the importance of the violation in comparison
with other violations; and,
o the extent to which the owner or operator should
have known of RCRA's regulatory requirements
(presumably, a commercial off-site hazardous waste
management facility should be held to a somewhat
higher standard of knowledge of the regulations
than should a generator with a relatively small
on-site facility that is operated in support of
and incident to the generator's primary line of
business); and,
o fairness and equity.
If there is insufficient information in the Region's files
to make a decision based upon the above criteria, the Region may
instruct the owner or operator to submit relevant information
within a reasonably prompt period of time. In many instances,
an EPA inspection will be'necessary to verify the information
submitted or to gather new information.
The Regional Office should keep a careful record of all
actions allowing/ or disallowing, the continued operation of a
facility by an owner or operator who has failed to achieve interim
status. Decisions to allow such continued operation should be
accompanied by a statement, as detailed as practicable, of the
reasons supporting the action.
D. Providing Notice to the Owner or Operator, and the Public, of
the Exercise of Enforcement Discretion
If the Region determines to allow the continued operation of
a facility whose owner, or operator has failed to achieve interim
status, the Region may have no legal obligation to formally advise
the owner or operator of that decision. In virtually all
instances, of course, it will be appropriate to provide notice
in order, for example, to apprise the public of the Region's
determination, inform transporters or generators using the
facility of the exercise of enforcement discretion, and most
importantly, to aid the owner/operator by advising him/her that
the operation of the facility will be allowed to continue despite
the failure to meet the requirements for achieving' interim status.
1. Facilities Failing to Provide Timely Notification under
Section 3010.
Compliance orders issued under Section 3008 of RCRA (with
or without a civil penalty assessment) may be used to provide
notice of the Region's decision to allow the continued operation
of a facility provided that that notice is part of a broader set
of compliance requirements. (Neither a compliance order nor an
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interim status compliance letter (see below) serve to "grant"
interim status to a facility which failed to timely notify. Such
a facility can never actually have interim status. (See pages
2-3).} A compliance order obviously must be used if an
administrative penalty is being assessed. (Section 3008(c).)
Penalties of at least $100 for each month the notification was
overdue would ordinarily be appropriate. In most instances where
a notification was more than six months late/ penalties should be
assessed. If the violator is an off-site commercial hazardous
waste management facility/ higher penalties and a shorter grace
period should be considered. A compliance order also has the
advantage of clearly requiring an owner or operator to comply with
interim status standards (40 CFR Part 265), thereby making it
difficult for the owner or operator to argue that such standards
do not apply to him and also preventing him from attaining any
unfair advantage over competitors who did comply with the
requirements for achieving interim status. (See/ 40 CFR
265.l(b).) A compliance order also provides the alleged violator
with a clear remedy if the person believes that he is not in
violation of the Act. (See 40 CFR 22.15.)
In addition/ a compliance order may provide for more certain
imposition of penalties in the event that there is a subsequent
violation of RCRA. (See/ Section 3008(a)(3).) An administrative
consent order may also provide an admission by the owner or
operator regarding the applicability of/ for example/ the interim
status standards/ and the reasonableness of other obligations
imposed by the. order.
A .form complaint prepared pursuant to the Consolidated
Rules of Practice/ 40 CFR Part 22, is appended as Attachment 2.
The Regions may also issue Interim Status Compliance Letters
(ISCL's) to provide notice to owners and operators of qualifying
facilities that they will not be prosecuted for operating without
having achieved interim status/ providing they comply with the
conditions set forth in the ISCL. An ISCL should be issued only
upon request of the facility. Ordinarily/ firms such as off-site
treatment/ storage or disposal facilities whose business is
solely or primarily hazardous waste management should receive
compliance orders rather than ISCL's. In no event should an ISCL
be issued to a facility which notifies later than one year after
the required date, or, after September 18/ 1981/ which ever occurs
later.
An ISCL should contain the following specific elements:
a. Reference to the particular facility (by name and
location) and the owner or operator with regard to which the
action is being taken.
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b. A statement that the ISCL is an exercise of
enforcement discretion.
c. A statement that the enforcement authority will
exercise its discretion and not seek to cease the treatment,
storage, or disposal of hazardous waste by the owner or operator
at the referenced facility, on the condition that:
(1) the owner and operator comply fully with the
terms of the ISCL,
(2) the owner and operator comply fully with the
Interim Status Standards, 40 CPU Part 265, and applicable
Consolidated Permit Regulations, 40 CFR Parts 122 and 124,
within time periods set forth in the ISCL,
(3) circumstances do not occur which would warrant
modification of the Agency's exercise of enforcement discretion,
and
(4) circumstances do not occur which would warrant
an action under Section 7003 of RCRA.
d. A statement that the ISCL does not preclude the
possibility of citizen suits under Section 7002 of RCRA. Since
an ISCL should only be issued after a careful determination that
such an exercise of enforcement discretion is in the public
interest, few such actions by third parties are anticipated.
It is nevertheless important to everyone concerned to be aware
that the possibility of such an action exists.
e. A statement that the exercise of enforcement
discretion expressed in.the ISCL shall terminate at the time that
final administrative disposition of the permit application fpr
the subject facility is made.
f. The ISCL should be signed by the appropriate
Regional supervisor of hazardous waste enforcement activities to
underscore the fact that it is an exercise of enforcement
discretion.
g. Where appropriate, an ISCL may contain provisions
shielding generators and transporters using the facility from
Federal prosecution for sending wastes to an unpermitted
facility.
A model ISCL is appended as Attachment 1. It is emphasized
that it is only a sample and each ISCL must be carefully drafted,
within the guidelines set forth above, to cover the particular
situation at issue.
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Written agreement of the owner or operator that the terms of
the ISCL (including the schedule for filing, and compliance with
the interim status standards and consolidated permit regulations)
are reasonable and achievable, and that the owner or operator
will comply with them should be obtained. (See Attachment 1)
2. Facilities Failing to File Part A of their Permit
Application on Time.
A new provision of the Consolidated Permit Regulations was
promulgated on November 19, 1980, and -provides:
"The Administrator may by compliance order issued
under Section 3008 of RCRA extend the date by which
the owner and operator of an existing hazardous waste
management facility must submit Part A of their
permit application." (40 CFR 122.22(a)(3) .)
A purpose of the amendment is to allow a facility_Jth.at
inadvertently missed the filing deadlines set forth in 40 CFR
122.23(a) to nevertheless obtain interim status. (45 FR 76633,
November 19, 1980.)
The November 19 amendment recognizes the differences in
effect in failing to comply with 3010(a) and failing to file
a timely Part A. Section 3010(a) sets a requirement to notify
within a set period for a specified class of facilities, and
this is a condition for achieving interim status. Failure to
meet that deadline, if required to do so, results in failure
to achieve interim status. However, Section 3005(e)(3) only
requires submission of a permit application without specifying
a deadline. EPA, through its regulations, originally set a
deadline of November 19 for submission of Part A's. The
regulatory amendment reflects the Agency's recognition that/
unlike the deadline for notification, the deadline for Part A's
is not statutorily required and that EPA may/ therefore,
administratively adjust that deadline to allow facilities
submitting late Part A's to achieve interim status.
Issuance of an order extending the Part A permit application
deadline requires consideration of the same factors set forth in
Section C of this memorandum. As previously noted, the Region
should consider the harm or benefit to the environment that will
result from the facility's continued operation, the circumstances
surrounding the failure of the owner or operator to meet the
Part A filing deadline, the owner's or operator's compliance
history, the availability of enforcement resources/ the im-
portance of the violation in comparison with other violations,
the knowledge of the statutory and regulatory requirements which
that type of facility had or should have had, and other equitable
considerations.
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As §122.22(a)(3) deals specifically with this situation,
compliance orders rather than ISCL's should be used to allow
such a facility to continue in operation. If a late (after
November 19, 1930, or other applicable date) Part A application
has already been submitted, the order should include a statement
that the application has been accepted as if timely filed,
conditioned upon compliance with the terms of the order. If no
Part A has been received, a deadline for its submission should be
specified. (Ordinarily, this should not be more than thirty days
from the date of issuance of the order.) (See Attachment 2,
Page 2.3.) A decision as to whether to assess a penalty should
be based on the same criteria as set forth for late notifiers
on pages 6 and 7.
3. Failure to Meet the Definition of "In Existence."
The effect of the "in existence" requirement, which was
previously discussed, is to assure that "new" facilities are
constructed only after they have obtained a permit. As this
provision is of central importance to the Act/ it is anticipated
that few if any facilities not "in existence" on November 19,
1980 will be allowed to begin or continue operations without
having been issued the appropriate EPA or State permit. If a
Region feels that such a facility should be allowed to operate,
all appropriate headquarters offices should be contacted in
advance to discuss the appropriate mechanism to allow such
operation.
If you have any questions regarding this guidance, you
should contact Jim Bunting, Acting Director, Legal Division,
Office of Waste Programs Enforcement (WH-527M) FTS-382-3050.
cc: Directors, Air and Hazardous Materials Divisions,
Regions I and III - X
Director, Water Division, Region II
-11-
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Model Interim Status Compliance Letter
[Name of Owner or Operator]
[Address]
Re: [Name of owner or operator];
[Name and location of facility];
Section 3005, Resource Conservation and Recovery
Act
Cear [Name]:
Section 3005 of the Resource Conservation and Recovery Act
provides that no hazardous waste identified by the Environmental
Protection Agency pursuant to Section 3001 of the Act may be
treated, stored/ or disposed of except in accordance with the
terms of a permit. Regulations identifying certain hazardous
wastes were promulgated by the Environmental Protection Agency
on May 19, 1980, and became effective on November 19, 1980.
Section 3005(e) of the Act provides that a person meeting
certain conditions shall be treated as having been issued a permit
until final administrative action is taJcen on its permit appli-
cation. A person meeting the requirements of Section 300-5"(e)
is commonly referred to as having "interim status".
The Environmental Protection Agency has determined that, from
[date] to [date] , [name of owner or.-operator] [owned or operated]
a facility for the [treatment, storage, or disposal] of hazardous
waste at [location]. The Environmental.Protection Agency has
further determined that, from [date] to-..[date], [name of owner or
operator] [treated, stored, or disposed of] substances, including
and , which have been identified--or listed as
hazardous waste under Section 3001, without a permit or without
having interim status, in .violation of Section 3005(a) of the
Act.
ATTACHMENT 1
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[Name of owner or operator] has not achieved interim status
pursuant to Section 3005(e) during this period because [name of
owner or operator] failed to comply with the requirements of
Section 3010(a) of the Act, regarding notification of hazardous
waste activity.
Notwithstanding the violation of Section 3005(a) by [name of
owner or operator], the Environmental Protection Agency, Region 0,
in the exercise of" its enforcement discretion, will not take
action against [name of owner of operator] under Section 3003 of
the. Act with respect to [name of owner or operator] 's failure to
obtain a permit or otherwise to have interim status for this
facility , on the condition that;
1. [Name of owner or operator] ceases, within
days of the receipt of this letter, all treatment, storage, or
disposal of any hazardous waste, except such [treatment, storage,
or disposal] at the facility as shall be in complete compliance
with the Standards Applicable to Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal Facilities, 40 CFR Part
265; and
2. [Name of owner or operator] complies with all
applicable requirements of the Consolidated Permit Regulations,
40 CFR Part 122, Subparts A and B, and 40 CFR Part 124; and
.3. [Other conditions with which continued operation
must comply]; and
provided further that conditions do not arise which warrant an
emergency action under Section 7003 of the Act or which would
otherwise warrant modification of the Agency's exercise of
enforcement discretion.
This Interim Status Compliance Letter does not constitute
a waiver with respect to or imply that-the Agency will not take
appropriate action against [name of owner or operator] for its
failure to fully comply with any relevant statutory, regulatory,
permit and other legal requirements applicable to [name of owner
or operator], except as specifically set forth above.
- 1.2 -
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[Name of owner or operator] should note that this Interim
Status Compliance Letter does not preclude the commencement of an
action pursuant to Section 7002 of the Act by a third person to
enforce the requirements of Section 3005(a) or any other provision
of the Act or its implementing regulations.
This exercise of enforcement discretion shall terminate no
later than the time that final administrative disposition of the
facility's permit application is made.
Copies of this document may be furnished to generators,
transporters or other persons to indicate that hazardous wastes
may be lawfully delivered to and accepted at this facility if
done pursuant to the terms and conditions set forth in this
document and other applicable laws and regulations.
Very truly yours/
[Name]
Director, Enforcement Division
[Name of owner or operator] hereby agrees that the terms of.
the above Interim Status Compliance Letter (including the
schedule for complying with the Standards Applicable to Owners and
Operators of Hazardous Waste Treatment, Storage, and Disposal,
Facilities, 40 CFR Part 265, and the Consolidated Permit Regula-
tions, 40 CFR Parts 122 and 124) are reasonable and achievable,
and that [name of owner or operator] wiil comply with them.
[Name ,.of Owner or Operator]
By:
- 1.3 -
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IN THE MATTER OF
[NAME OF VIOLATOR]
[EPA ID No. ]
Resource Conservation and
Recovery Act Proceedings
Section 3008(a)(1)
42 O.S.C. § 6928(a)(l)
Docket No. I-81-l(r)RMR
COMPLAINT
TO: REGIONAL HEARING CLERK
[Address]
[NAME OF VIOLATOR]
[Address of Violator]
COMPLAINT
. This Complaint is filed pursuant to Section 3008(a)(1) of
the Solid Waste Disposal Act/ as amended by the Resource Conser-
vation and Recovery Act/ 42 U.S.C. § 6928(a)(1), and the
Environmental Protection Agency's Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties and
the Revocation or Suspension of Permits/ 40 CFR Part 22. The
Complainant is the United States Environmental Protection Agency
(hereinafter EPA). The Respondent is [name of violator].
ATTACHMENT 2
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DETERMINATION OF VIOLATION
1. Section 3005(a) of Subtitle C of the Act provides, in
part, that
"the Administrator [of the Environmental Protection
Agency] shall promulgate regulations requiring each
person owning or operating a facility for the treatment,
storage, or disposal of hazardous waste identified or
listed under this subtitle to have a permit issued
pursuant to this section. [After the effective dafie
of the regulations], the treatment, storage, or dis-
posal of any such hazardous waste is prohibited except
in accordance with such a permit."
2. Regulations requiring each person owning or operating
a facility for the treatment, storage, or disposal of hazardous
waste to have a permit issued pursuant to Section 3005 were
Promulgated by the Administrator on May 19, 1980, and are codified
at 40 CFR Parts 122 and 124. The effective date of these regula-
tions is November 19, 1980.
3. Section 3005(e) of the Act provides that an owner or
operator of a facility shall be treated as having been- issued a
permit pending final administrative disposition of his/her permit
application provided that: (1) the facility was in existence on
November 19, 1981; (2) the requirements of Section 3010(a) of the
Act concerning notification of hazardous waste activity have been.
complied with, and (3) application for a permit has been made.
This statutory authority to operate is known as interim status.
EPA regulations implementing these provisions are found at 40 CFR
Part 122.
4. From [date] to [date], [name of violator] [owned or
operated] a facility (hereinafter, "the facility") for the
[treatment, storage, or disposal] of hazardous waste at •
[location].
5. From [date] to [date], [name of violator] [treated,
stored, or disposed of] substances, including
and , which have been identified or listed as
hazardous waste under Section 3001 of the Act, without a permit
and without having achieved interim status*,' in violation of
Section 3005(a) of the Act. Interim status was not achieved
because [name of violator] failed to submit [notification by
(date) as required by Section 3010(a) of the Act] - or - [Part A
of the aoplication for a permit by (date) as required by 40 CFR
122.22]."
6. Notwithstanding the violation of the requirements of
Section 3005(a) of the Act by [name of violator] the continued
operation of the facility
(a) for a limited period of time, and
- 2.2 -
-------
(b) if in complete compliance with the Standards
Applicable to Owners and Operators of Hazardous Waste Treatment,
Storage, and Disposal Facilities/ 40 CFR Part 265, and
(c) if in complete compliance with the conditions set
forth in this Complaint,
is determined to be in the public interest because [a concise
statement pursuant to 40 CFR 22.14r of the factual basis for
and the reasoning behind the decision to allow the continued
operation of the facility].
(For Part A's submitted late) If these conditions
are'complied with, the Part A permit application submitted by
[name of violator] on [date] shall, pursuant to 40 CFR
122.22(a)(3), be accepted as if timely filed.
TERMS FOR COMPLIANCE
FIRST, A. (For only Part A's not yet submitted)[Name
of violator! shall/ within days of receipt of this
Complaint, submit Part A of a permit application with [name],
Regional Administrator, Region I, United States. Environmental
Protection Agency as required by 40 CFR Part 122,
(For all violations)
B. [Name of violator] shall, within days
of receipt of this Complaint, cease all treatment, storage, or
disposal of any hazardous waste except such [treatment, storage,.
or disposal] at the facility as shall be in complete compliance
with the Standards Applicable to Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal Facilities, 40 CFR Part
265; and
C. [Name of violator] shall fully comply with the
Consolidated Permit Regulations, 40 CFR Parts 122 and 124, as if
[name of violator] had filed timely "Notification of Hazardous
Waste Activity" pursuant to Section 3010(a) and submitted Part A
of a permit application as required by those regulations; and
D. [Other conditions with which continued operation
must comply] ;
OR, at the option of [name of violator],
SECOND, On or before [date], [name of violator] shall cease
treating, storing or disposing of any hazardous waste subject to
Subtitle C of the Act.
- 2.3 -
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ASSESSMENT OF PENALTY
In view of the above, pursuant to Section 3008(c) of the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6928(c),
the United States Environmental Protection Agency assesses a
penalty of [amount] dollars against respondent. [State basis
for amount assessed.] Payment may be made by check payable to
the United States of America and remitted to [name], [address].
PILING AN ANSWER
If [name of violator] (1) contests the factual claims made in
this Complaint, (2) contends that the amount of the penalty or the
terms for compliance proposed in the Complaint is inappropriate,
or (3) contends that it is entitled to judgment as a matter of
law, [name of violator] must file a written answer within thirty
days as set forth in Section 22.15. [Name of violator] may also
request in its answer that a public hearing be held. In the event
that [name of violator] does not file an answer, a default
judgment may be entered pursuant to 40 CFR 22.17.
INFORMAL CONFERENCE
The Environmental Protection Agency encourages all parties
against whom a complaint has been issued to explore the possi-
bility of resolving the problem at an informal conference.
[Name of violator] may confer with [name], Attorney, Enforcement
Division, at [telephone], concerning settlement. Settlement
conferences shall not affect the obligation of [name of violator!
to file a timely answer under 40 CFR 22.15
[name]
Director, Enforcement Division
- 2.4 -
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R 6
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'V UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
; WASHINGTON, B.C. 20460
-'•'•' • • '-! SEP 1 1 1981
QfftCZ Of
SOLID WASTS AN& EMERGENCY RESPONSE
MEMORANDUM
Subject: Guidance Memorandum on Use and Issuance of Administrative
Orders Under Section 7003 and 3(J12of. RCRA
Tffl-^—
Prom: Douglas MacMillan, Acting Direcr&r
Office of Waste Programs Enforcement
To: Enforcement Division Directors
Regions I- X
Please find enclosed the final memoranda relating to the use
and issuance of Administrative Orders under Sections 3013 and 7003
of RCRA. As you'know, these guidance memoranda were forwarded to
you in draft form with a request for comments on May 14.
Since then, we have incorporated many of the Regional comments
received. In addition, we have worked extensively with representa-
tives of the Office of Solid Waste, Office of General Counsel and
the Department of Justice to insure that their concerns were
addressed to the greatest extent possible in the final guidance.
Finally, as noted in the memoranda, we intend to complete the
degation of authority for issuance of Section 3013 and 7003 orders
in the near future.
Attachments
cc: Regional Counsels
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
35 I ! IS31
OPTICS OP
sauo WASTS AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Issuance of Administrative Orders Under Section 7003
of the Resource Conservation and Recovery Act
FROM: Douglas MacMillan.
Acting Director .
Office of Waste Programs Enforcement (WH-527)
TO: Enforcement Division Directors
Regions I - X,
On October 21, 1980, the President signed-the Solid Waste
Disposal Act Amendments of 1930 (Pub. L. No. 96-482). Section
25 of the Amendments adds the following provisions to Section
7003 of the Resource Conservation and Recovery Act (RCRA):
(a) ....
The Administrator may also, after notice to the
affected State, take other action under .this
section including, but not limited to, issuing
such Orders as may be necessary to protect public
health and the environment.
(b) VIOLATIONS - Any person who willfully
violates or fails or refuses to comply with any
Order of the Administrator under subsection
(a) may, in an action brought in the appropriate
United States district court to enforce such Order,
be fined not more than $5,000 for each day in which
such violation occurs or such failure to comply
continues.
The purpose of this memorandum is to provide guidance on how
and when Administrative Orders should be issued under Section
7003.
DELEGATION
Until the Administrator delegates her authority, she is the
only person authorized to issue Section 7003 orders. We are
currently completing a delegation of authority that will grant the
power to issue Administrative Orders to the Associate Administrator
for Legal Counsel and Enforcement and the Regional Administrators,
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concurrently. Under the terns of the delegation this authority can
be redelegated to Regional Division Directors and the Office Director
of the Office of Waste Programs Enforcement. Based on the factors
discussed below, Section 7003 administrative orders will be subject
to a "fast track" Headquarters review and concurrence process by the
Associate Administrator for Legal Counsel and Enforcement or his
designee. (See Discussion on Page 5).
APPROPRIATE OSES OF 7003 ORDERS
The new Order provision augments pre-existing 7003 authority
that empowers EPA to seek injunctive relief in Federal District
Court to abate imminent hazards. In determining the appropriate
course of action in an imminent hazard case, we must carefully
consider the specific factual situation and the relative advantages
of both enforcement options. In addition to assessing whether
to proceed administratively or to pursue judicial action, we
should also consider whether it may be more appropriate to seek
abatement of the hazard under Section 7003/ under the imminent
hazard provision of Superfund, (Section 106 of The Comprehensive
Environmental Response, Compensation and Liability Act), or under
some combination of both authorities.
Section 7003, as amended, provides EPA with the authority to
issue administrative orders in any situation where the presence of
solid waste or hazardous waste may present an imminent and substan-
tial endangennent to health or the environment. While the statutory
provision provides a broad grant of authority for use of these
orders, their issuance should be consistent with the policy discussed
below.
Given the fact that noncompliahce with a 7003 order requires
EPA and the Department of Justice to initiate a Federal Court
action —- and that the process of issuing an order, establishing
non-compliance, and filing a subsequent action to enforce the order
could, in some circumstances, delay the final resolution of the
issue and the cleanup of the problem — it is important to assess
the likelihood of compliance prior to issuance of a 7003 order.
A 7003 order should generally be issued in situations where
there are reasons to anticipate a high likelihood of compliance by
the potential respondent. Factors to be considered in evaluating
the likelihood of compliance include indications of respondent's
good faith and readiness to address the problems, apparent ability
and disposition to commit the resources to accomplish the necessary
remedial action, and the complexity of the clean-up measures required.
If there are reasons to anticipate likely non-compliance with
a 7003 administrative order, an order should not be issued. Instead,
compliance should be sought through preparation of a Case Development
Plan and the filing of an appropriate judicial action in Federal
District Court.
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- 3 -
A 7003 Administrative Order may also be appropriate where it
is necessary to order immediate ^sampling or testing programs as
part of a broader set of proposed response activities. For example,
where it is important to respond immediately to an imminent hazard,
a 7003 order may be used to determine the full extent of site con-
tamination, to develop clean-up strategies at a hazardous waste
site, and to require immediate security, and clean-up action in
response to hazards that have already been established. Monitoring,
sampling, analysis and reporting can — of course ~ also be required
through use of RCHA Section 3013 orders. However, a 3013 order may
be issued in circumstances which do not present an imminent endanger-
ment (where a known or potential release may present a substantial
hazard) and requires issuance of both an initial and final order.
Thus a 7003 order may be more appropriate than a 3013 order in an
imminent hazard situation where it is imperative to act as expedi-
tiously as possible.
In certain circumstances, it may be appropriate to consider
using a combination of administrative orders and judicial actions.
As an exa'mple, an order can be used to eliminate immediate dangers
(i.e., secure a site), to study the full a'real extent of pollution,
and to determine an appropriate clean-up. A second order may then
be issued requiring clean-up in accordance with a specific remedy.
However, if it is apparent the responsible party is unwilling to
undertake the necessary response action, it may be appropriate to
file a civil action to assure necessary clean-up is undertaken.
A 7003 Order should be issued, either on consent, or, if
necessary, unilaterally, regardless of whether the person respons-
ible for the release or threat thereof has already begun preventive
or containment action, since — in imminent hazard situations —
it is essential to assure that the responsible party initiate and
continue all requisite clean-up measures.
REQUIREMENTS FOR ISSOING 7003 ORDERS
A 7003 Order may only be issued upon "receipt of evidence
that the handling, storage, treatment, transportation or disposal
of any solid waste or hazardous waste may present an imminent ana
substantial endangeraent to health or the environment". (Section
7003(a)).. Therefore, the following criteria must be met before
such an Order may be issued:
(1) "Evidence" must be presented. This means that some
reliable information upon which a reasonable person would base a
decision or take action must be gathered or presented before issuance
of the Order. Normally, an unsubstantiated citizen complaint would
not be considered sufficient to support the issuance of an Order.
However, if that complaint were supported by corroborating evidence
(e.g., laboratory analysis of samples) provided by an appropriate
governmental agency or provided by the respondent himself, the
complaint and corroboration could normally be considered evidence
upon which the issuance of an Order might be based. (One source of
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corroborative evidence might be information gathered as z result
of a Section 3013 order). In many circumstances, of course, it
will be necessary to utilize EPA resources to conduct the investi-
gations and sampling and analysis needed to develop or corroborate
the required evidence.
(2) The problem must be caused by the 'handling, storage,
treatment, transportation or disposal of any solid waste or hazard-
ous waste". This would seem to cover any conceivable fora of activ-
ity involving waste, so it would seem safe to assume that if the
problem involves solid or hazardous waste, it is covered by 7003.
It is important to note here that discharges or threats thereof
caused by solid vaste as well as hazardous waste are covered,
because-non-hazardous solid wastes can and do present a threat to
human health and the environment.
(3) The evidence must show that an "imminent and
substantial endangeraent to health or the environment' may exist.
The terms "imminent and substantial endangerment' as used in this
Section have been judicially defined several times to mean that
evidence of actual harm is not required, but only the risk of
harm. (See the January 25, 1980 memorandum entitled "Standard of
Proof for Hazardous Waste Enforcement Task Force Cases Which May
Present an Imminent and Substantial Endangerment to Health or the
Environment" and U.S. v. Vertac Chemical Co., 489 P.Supp. 870
(E.D. Ark. 1980);""U.S. v. Solvents Recovery Service of New England,
496 F.Supp. 1127 (D. Conn. 1980 ); U.S. v. Midwest Solvent Recovery,
Inc., 484 F.Supp. 138 (N.D. Ind. 1980).)
EPA1s statutory authority to compel response action is based
upon adherence to these requirements. Thus it is important that
the requisite standard is met even in cases where an order is
issued on consent. If BPA must later seek judicial enforcement
of a consent order, the agency "must be able to demonstrate it acted
within its statutory authority in the issuance of the order.
PROCEDURES FOR ISSUANCE OF ADMINISTRATIVE ORDERS
The determination to go forward with a 7003 Administrative
Order in a particular case should be part of the "team approach'
to case development. This approach includes consultation among
SPA regional, EPA headquarters and DOJ personnel. This consulta-
tion should occur during the regularly scheduled Regional Case
Development Meetings. Although DOJ concurrence will not be required
for cases not already in litigation, DOJ should be apprised of pend-
ing and prospective action on 7003 orders since they will necessarily
handle any civil action brought to enforce an Order. Consultation
with DOJ on issuance of orders not discussed at the Regional meeting
should occur in appropriate cases. Office of Waste Programs Enforce-
ment (OWPE) personnel will coordinate the necessary consultation
between DOJ and the Region.
Section 7003 requires notice to the affected State prior to
issuance of an Administrative Order. If the Region determines
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that the State has initiated/ or plans to initiate, timely and
appropriate enforcement action, EPA should avoid duplicative
actions which would unnecessarily consume the resources of both
SPA and the State.
The documentation gathered to support a 7003 Order should be
as comprehensive as that required to be gathered prior to filing
a civil action. Careful compilation of the evidence is necessary
because judicial review of a 7003 Order may occur. If judicial
review becomes necessary, the documentation gathered to support
issuance of a 7003 Order will comprise the major part of the admin-
istrative record presented to the court for review. Judicial
review of a 7003 Order may, of course, occur if EPA must seek
judicial enforcement of the Order. It could also occur if the
responsible party attempts to seek pre-enforcement judicial review.
A brief cover memo should accompany all 7003 Administrative
Orders submitted to EPA headquarters for concurrence. This memo
should explain the background of the case and the Region's reasons
for preparing an Administrative Order and should summarize the
documentation gathered to support the Order. Both the cover memo
and the proposed Order should be sent to the OWPE Regional Liaison
who will serve as the contact person during the concurrence process.
Once the Region has sent a copy of the proposed Order and cover
meao to Headquarters for review, Headquarters will have ten working
days from its receipt, to review the Order and to concur, suggest
changes or non concur in the proposed Order. EPA headquarters
personnel will inform the region of its basic position by phone
within the ten-day turn-around period. Where immediate enforcement
action is required (i.e., emergency situations), Headquarters review
can be completed in less than the ten-day turn-around period. (In
emergency cases, the Region has, of course, the option of requesting
expedited Headquarters/DOJ concurrence to seek a temporary restrain-
ing order to abate the immediate danger.}
This headquarters review is essential for several reasons:
(1) Administrative orders under 7003 have no precedential
history and a central clearing-house is needed to assure
the development of positive administrative precedents;
(2) Inconsistent and improperly documented administrative
orders could undermine the judicial enforceability of
all administrative orders; and
(3) 7003 orders will frequently be used to supplement or in
lieu of 7003 judicial actions. Coordination of adminis-
trative and civil options is needed to protect both
filed and pending judicial actions and the integrity of
the order processes.
We do not anticipate that this procedure will adversely affact
the Region's ability to issue timely Orders because of the early
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- 6 -
involvement of Headquarters and DOJ personnel in the case review
process and the fast-track concurrence procedure outlined
above. We intend to review the headquarters concurrence require-
ment within six months, and to eliminate this requirement if the
record demonstrates that the review and concurrence process is
no longer necessary.
NEGOTIATION OF ADMINISTRATIVE ORDERS'
In general, it is not EPA's policy to enter into extensive
negotiation of imminent hazard Administrative Orders. Protracted
negotiation of AO's will unnecessarily consume scarce EPA resources
which should more appropriately be focused on timely effective
action to redress endangerments to human health and the environment.
For this reason/ Regional Offices should not enter into extended
discussions of the specific terms of §7003 Orders with parties
who have caused or contributed to an imminent hazard.
This policy does not preclude some discussion with contributors
to an endangerraent to provide the Agency with a more comprehensive
factual basis for issuance of an Administrative Order. It also
does not preclude discussions to provide EPA with a sense of
whether a contributor is likely to comply with an Administrative
Order/ as well as some limited give-and-take concerning the
details of the remedial steps needed to minimize and abate the
imminent and substantial endangerment. Moreover/ since it may
not be apparent at this early stage whether it will be more
appropriate to issue an order under Section 7003 or under CERCLA,,
Section 106/ tnese discussions also serve to provide the respondent
with an opportunity to confer prior to issuance of. an order.
(This opportunity to confer is discussed in the CERCLA Section 106
legislative history.) Where feasible/ these discussions should
be taped and preserved as part of the administrative record. If
this limited discussion-stage leads to an administrative order
issued on consent, the consent order should include, in appropriate
cases, stipulated penalties and a requirement for a surety to ensure
that the work will be completed. (The surety may be waived if the
respondent's assets are obviously able to assure that the remedial
program will be completed.) The consent order should also contain
a clause indicating that compliance with the order may not neces-
sarily satisfy all of the respondent's obligations to abate the
endangerment. (See page 3 of the attached sample order.)
Moreover, absent highly unusual circumstances, the Agency
should not include"weakening" provisions.(such as force majeure or
•best efforts" clauses) in 7003 Orders in orders to obtain a
respondent's consent to such an order.
Where it becomes apparent, however, that a contributor to an
endangerment is unwilling to consent to the issuance of an AO
under S7003 of RCRA without extensive and time-consuming discus-
sion of the provisions of that Order, the Regional Office, in
consultation with those Headquarters and DOJ personnel who are on
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the Region's hazardous-waste-teara, should recommend the issuance
of unilateral Administrative Order, or the filing of a civil
action.
Of course, an opportunity to confer may be afforded-to a
requesting respondent after the issuance of a 7003 order. If such
a conference yields new and significant information, the order may
be appropriately modified after headquarters concurrence has been
obtained.
Attached to this memorandum is a sample Order to a violator,
a sample cover letter to accompany the Order and a sample letter
to the State. The Order must contain Findings of Fact that will
support the issuance of the Order. Such Findings should include
details of the problem that led to the issuance of the Order. The
Findings must provide enough support to enable the Agency to defend
any appeal of the Order, or successfully initiate an enforcement
action to compel compliance with the Order.
'Attachments
cc: Regional Counsel
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
ATTACHMENT A
Mr. K. 6. Smith CERTIFIED MAIL
Plant Manager Return Receipt Requested
XY2 Company
State Re: Location of Site
Dear Mr. Smith:
Pursuant to Section 7003(a) of the Solid Waste Disposal Act
(42 O.S.C. S 6973)/ enclosed is an order issued this date requiring
clean-up of the site by the XY2 Company beginning no later than
(date), and requiring completion of increments of progress towards
compliance by certain specified dates. Any violation of the terms
of this order would subject the XY2 Company to a civil action for
appropriate relief under Section 7003(b) of the Solid Waste Disposal
Act which authorizes penalties of up to 55,000 per day of violation.
Notwithstanding compliance with the terms of this order,
the XY2 Company may be required to take any further action
necessary to abate the hazards posed by this site.
If you have any questions concerning this matter/ please
contact , Attorney, Enforcement Division, Region I,
(address), phone.
Sincerely yours,
Regional Administrator
or
Enforcement Division Director
Enclosure
cc: J. Smith, X72 Company President
Director, State Agency
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
ATTACHMENT B
Mr. R. Jones CERTIFIED MAIL
State Agency Return Receipt Requested
Division of Environmental Control
Dear Mr. Jones:
Enclosed for your information is a copy of an order sent
this day to the XYZ Company requiring clean-up of the site
located at __ ,
beginning no later than (date), and requiring completion of
increments of progress towards compliance by certain specified
dates.
Sincerely yours.
Regional Administrator
or
Enforcement Division Director
Enclosure
cc: Honorable J. Smith, Governor
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
ATTACHMENT C
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In the matter of )
XYZ COMPANY )
Proceeding under Sec. 7003(a) ) Docket No:
Solid Waste Disposal Act, )
as Amended )
ORDER
The following ORDER is issued this date pursuant to Section
7003(a) of the Solid Waste Disposal Act, as amended, 42 U.S.C.
S 6973(a) (hereinafter referred to as the "Act").
After a careful investigation of the relevant facts, it has been
determined that an imminent and substanLial endangerment to health
or the environment may exist at the (site) owned (or operated) by
(company) .
(1) Oral report on March 23, 1981, by. telephone from John
Q. Public, 400 Noplace Street; Nowhere, (state) to John Doe,
Attorney; Office of Enforcement, U.S. Environmental Protection
Agency, Region , (City) , (State) , reporting visual
observation of fires on the site and children playing on the site;
(2) Visual observation and samples taJcen by Richard Row,
Environmental Engineer and I. Lot, Biologist, Office of Surveillance
and Analysis; U.S. Environmental Protection Agency, Region _ ,
(city) , (state) , on March 24, 1981, of liquid substances leaching
from an area on the site into a drainage ditch which empties off-
site into a stream fcnown as. Little Muddy, a tributary of Big Muddy
River;
(3) Written report dated March 26, 1981, from M.A. Scientist,
Chemist; Office of Sampling and Analysis, U.S. Environmental
protection Agency, .Region _ , (city) , (state) , stating that the
analysis of a sample of the leachate described in (2) above,
collected by Richard Row (see address above), on March 24, 1981,
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contained the following constituents which are designated by EPA
as hazardous wastes:
CHEMICAL CONCENTRATION (in parts per million)
(a) DDT 750
(b) Trichloroethelyene 1025
(c) Formaldehyde 550
(d) Toluene 4550
(e) Benzene 810
(4) Written memorandum dated March 27, 1981 from John E.
Smart, Toxicologist, U.S. Environmental Protection Agency,
stating that, based upon the information recited above, it is
his opinion that the discharge of the hazardous wastes in the
quantities set forth above into the environment may present
an imminent and substantial endangerment to human health or
the environment;
(5) Records of the (state) Department of Environmental
Protection, indicating that Respondent did, between 1971 and
1979, operate a landfill for the disposal of industrial waste on
the site;
(6) Records of the County Recorder's Office of Lost County,
(state), showing record ownership of the site in XYZ Company from
1971 to (the present).
(7) The handling, storage, treatment, transportation, or
disposal of hazardous wastes described in paragraph (3) may
present an imminent and substantial endangerment to health or
the environment.
ORDER
(a) That the (company) complete the following acts on or
before the dates specified:
(1) (date) - erect a 61 high chain-linJc fence with
barbed wire at the top around the perimeter of the
property.
(2) (date) - post no-trespassing signs around the
fence at 20 foot intervals.
(3) (date) - establish six monitoring wells at
locations to be specified by EPA to determine contamination
of the ground water.
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(4) (date) - separate incompatible wastes to eliminate
fire and explosion hazard.
(b) That the (company) report such information and tests as
hereinafter specified:
(1) no later than 5 days after the deadline for completing
each milestone required by paragraph (a) certify to the
Director, Enforcement Division, Region ( ) whether the
milestone has been met.
(2) conduct groundwater monitoring tests at each of the
six monitoring wells as specified by EPA every three months
and submit the results to the Director, Enforcement
Division, Region ( ) within 5 days of receipt of the
analysis.
Notwithstanding compliance with the terms of this order, the
(company) may be required to take any further action necessary
to abate the endangerment posed by this site.
Dated:
Regional Administrator
or
Enforcement Division Director
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
St? I ! IS31
OP PIC; OF
SOUO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Issuance of Administrative Orders Under Section 3013
of the Resource Conservation and Recovery Act
FROM: Douglas MacMillan pfjfV( ,
Acting Director C/
Office of Waste Programs Enforcement (WH-527)
TO: Enforcement Division Directors
Regions I-X
Section 17 of the Solid-Waste Disposal Act Amendments of
1980 (P.L. 96-482} provides for a new Section 3013 of the
Resource Conservation and Recovery Act (RCRA). This memorandum
will provide initial guidance on the use of that section.
Delegation
Until the Administrator delegates her authority, she is the
only person authorized to issue Section 3013 Orders. We are cur-
rently completing a delegation of authority that will grant the,---
power to issue 3013 Orders to the Associate Administrator for Legal
Counsel and Enforcement'and the Regional Administrators, concur-
rently. Under the terms of the delegation, this authority may be
redelegated to Regional Division Directors and the Office Director
of the Office of Waste Programs Enforcement. As more fully explained
below, these Orders will be subject to a "fast-track" Headquarters
review and concurrence process by the Associate Administrator for
Legal Counsel and Enforcement or his designee.
Given the potential scope of these orders, the fact that
they go beyond collection and reporting of available information
and can impose significant affirmative duties (and attendant costs)
on Respondents, and the fact that they can only be enforced through
judicial actions, we intend to establish an interim Headquarters
clearance process for "Initial" Section 3013 Orders.
In order to insure consistency in the use of these orders,
the delegation of authority will require that initial Orders
receive advance concurrence from the Associate Administrator for
Legal Counsel and Enforcement or his designee. (Please note the dis-
tinction between Initial and Final Orders outlined on pages" 7 and 11.)
Once Headquarters has received a draft of the proposed Initial Order,
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it will have a maximum of ten working days to review the order and
concur/ nonconcur/ or suggest modifications. Headquarters personnel
will inform the Region of the Headquarters position within seven
working days from the date of receipt and will confirm this position
in writing within an additional three working days.
It is our intention to review the Headquarters concurrence
requirement within six months/ and to eliminate this requirement
if the record demonstrates that the review and concurrence process
is no longer necessary. We believe that this combination of an
•interim" requirement and an expedited Headquarters review process
allows for the development of a uniform and consistent Section 3013
processs without unnecessarily delaying Regional actions.
Section 3013 (a) AUTHORITY OP ADMINISTRATOR.
"If the Administrator determines, upon receipt
of any information/ that-
(1) the presence of any 'hazardous waste at
a facility or site at which hazardous waste is/
or has been/ stored/ treated/ or disposed of/ or
(2) the release of any such waste from such
facility or site
may present a substantial hazard to human health
or the environment, he may issue an order requiring
the owner or operator of such facility or site to
conduct such monitoring/ testing/ analysis/ and
reporting with respect to such facility or site
as the Administrator deems reasonable to ascertain
.the nature and extent of such hazard."
This subsection represents a broad grant of authority to. EPA
to order site and facility owners and operators to determine the
existence and/or magnitude of health and environmental problems.
This authority should be used in appropriate circumstances to
gather information upon which decisions concerning further actions
will be based. However/ the use of this provision must be guided
by reasonable and informed judgment to avoid potential abuse.
Under subsection (a)/ before an initial Order!/ may be
issued, the Administrator (or his designee) must first make the
following determinations:
(1) that "information" has been presented that leads
to a determination of the facts set forth in either (a) or
(b) below;
I/Two orders will be issued under 3013: an initial order and
a final order. See page 7 for discussion of the initial order/ and
see page 11 for discussion of the final order.
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(a) the presence of hazardous waste at a site may
present a substantial hazard to human health or the environment,
or;
(b) the release of any such waste from the site may
present a substantial hazard to human health or the environment.
The first requirement (i.e., that "information" be presented)
means .that some reliable information upon which a reasonable person
would base a decision or take action must be gathered or presented
before issuance of the order. Normally, an unsubstantiated citizen
complaint would not be considered sufficient basis to support the
issuance of an order. However, if that complaint were supported
by corroborating evidence (e.g., laboratory analysis of samples),
gathered by an appropriate governmental agency or provided by the
respondent himself, .the complaint and corroboration could normally
be considered "information" upon which the'issuance of an order
might be based. In many circumstances, of course, it will be
necessary to utilize EPA resources to conduct investigations and
sampling and analysis needed to develop or corroborate the required
information. '(Clearly,'much background information regarding the
type and quantity of waste likely to be found on the site can be
located in EPA and State agency records, as well as by the use of
a site-specific request under Section 3007 of RCRA.)
With regard to the second point (l(a)), it should be noted that
the mere presence of hazardous waste at a site or facility is suffi-
cient to cause the issuance of an order, provided that the informa-
tion furnished indicates that the presence of the waste may present
a substantial hazard. This is true even in the absence of definite
evidence of an actual release of waste, and covers the cases where
there is a threat of release, or where it is difficult, if not
impossible, to ascertain whether a release has actually occurred-
or will occur without extensive sampling, analysis and monitoring.
Finally, a determination as to whether known and detectable
or potential releases from the site may. present a substantial hazard
requires gathering of sufficient information to make a determination
of two essential prerequisites:
(1) That there is a known or potential release of hazardous
waste from the'site. This may be determined in a variety of ways,
including actual observation of escape from the site of a substance
known to be hazardous, by governmental sampling or analysis, or
through information supplied by the owner/operator. (See discussion
of quality of "information" above).
(2) That the release may present a "substantial hazard"I/
to human health or the environment. It is significant that Congress
used the words "may present" rather than "is presenting", such as
.I/This is a lower standard than that recuired by section 7003,
iat it requires no evidence of "imminent* endangerment.
in that it requi
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had been used in Section 7003 prior to the 1980 amendments. As in
Section 7003, the effect of the words "may present" is to require
that the information presented to the Administrator show only that
there is a possibility or potential of a substantial hazard to
human health or the environment, rather than show that the hazard
actually exists.
Whether a "substantial hazard" exists involves consideration
of some of the same factors as those used to determine whether an
•endangerment" exists under Section 7003. Again, actual harm to
human health or the environment need not be shown/ but only that
the potential for harm may exist through a release or threat of
release of hazardous waste from a site. The hazard or threat of
harm must be •substantial," which means that it must pose serious
consequences to human health or the environment/ rather than de
minimis effects. Whether a release or threat thereof may present
a "substantial hazard" essentially depends upon the relationship
of a number of factors/ such as the manner of release of the con-
taminant from the site (i.e./ ground or surface water/ air/ etc.);
the characteristics and amount of the waste discharged; current or
potential use of the portion of the environment affected/ potential
for exposure to humans and the environment, and other related
factors. If the site has been investigated and prioritized by the
Federal government as to hazard presented/ as required by Section
105 of the Comprehensive Environmental Response Compensation and
Liability Act (Superfund), Public Law 96-510, that determination
will be useful in assessing the relative risk presented by a
particular site compared to others likewise evaluated.
Section 3013 (b) PREVIOUS OWNERS AND OPERATORS.
"In the case of any facility or site not in
operation at the time a determination is made
under subsection (a) with respect to the
facility or site, if the Administrator finds
that the owner of such facility .or site could
not reasonably be expected to have actual
knowledge of the presence of hazardous waste
at such facility or site and of its potential
for release, he may issue an order requiring
the most recent previous owner or operator of
such facility or site who could reasonably be
expected to have such actual knowledge to carry
out the actions referred to in subsection (a)'.
Subsection (b) entitles the Agency — under certain
circumstances — to go back in time in the chain of title to a
previous owner or operator of the site. However, there are limit-
ations on this authority which should be carefully observed. The
conditions which must be met for issuance of a 3013 Order to a
previous owner or operator of a site are:
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(1) The facility or site must be one which is not "in
operation" at the time a determination is made that the presence
or release of hazardous waste from the site may present a hazard
to human health or the environment under subsection (a). While in
many cases, there will be little question as to whether'a facility
is "in operation" (e.g., a closed landfill), in other cases that
determination will not be as clear. We believe that it was the
intent of Congress to place an interpretation on the words 'in
operation" which would enable EPA to gather information concerning
potentially hazardous sites from those in the best position to
provide that information - the previous owners or operators. We
therefore believe that a facility is not "in operation" if it has
been abandoned or is not otherwise being actively operated by the
current owner or operator. Nevertheless, this is a restriction of
which you should be mindful in making a determination as to whom
the Order should be issued.
(2) The Agency must also make a finding that the present
owner of the facility or site "could not reasonably be expected to
have actual knowledge of the presence of hazardous waste at such
facility or site and of its potential for release". It should be
noted that if the present owner of the site could reasonably be
expected to know of both the presence of the waste and its potential
for release (even though the waste had been placed in or on the
site by a previous owner or operator), this subsection would appear
to prohibit the issuance of an order to the previous owner or
operator.
We consider the key to this clause to be the
requirement that the present owner be reasonably expected to have
actual knowledge (not mere suspicion) of both (a) the presence of
the waste and (b) the potential for release. In cases where the
waste and containment facilities left by the previous owners or
operators are above ground and can be readily observed, the present
owner may, depending on his degree of sophistication, usually be
expected to have actual knowledge of the presence and potential
for release of the waste. However, where the waste and/or contain-
ment system is not observable (such as where the waste is buried),
it may be less likely that the present owner will have actual knowl-
edge of both the presence and potential for release of the waste.
(3) Assuming the two conditions discussed above are met,
the subsection restricts the issuance of the order to the "most
recent previous owner or operator of such facility or site who
could reasonably be expected to have such actual knowledge ...".
Therefore, even though circumstances may indicate that both ABC
Company (the most recent owner) and XYZ Company (from which ABC
purchased the site) both had actual knowledge of the presence and
potential for release of the waste, the subsection would appear to
prohibit issuance of an order to XY2, the more remote owner who
may, in fact, have placed most of the waste in the site. (However,
it should be remembered that the records of XYZ Company could be
inspected and copied under the authority of Section 3007.)
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(4) Finally/ whether an owner or a previous owner or
operator of a site could "reasonably" be expected to have actual
knowledge of the presence of. the waste or its potential for release
depends largely on the circumstances. It should be noted that only
"reasonable" expectation is required, not absolute certainty or
belief beyond a reasonable doubt. This can best be determined
through evidence showing the use of the facility during the period
of ownership by the previous owners. For example, if a previous
owner dumped uncontainerized waste into an unlined pit and then
covered it with dirt, he can reasonably be expected to have both
the actual knowledge of the presence and potential for release of
the waste. The same determination could be made for an owner who
stored waste in leaky containers on the bare ground, without benefit
of a pad or base and containment walls.
Section 3'013 (c) PROPOSAL.—
"An order under subsection (a) or (b) shall
require the person to whom such order is
issued to submit to the Administrator within
30 days from the issuance of such order a
proposal for carrying out the required moni-
toring, testing, analysis, and reporting.
The Administrator may, after providing such
person with an opportunity to confer with
the Administrator respecting such proposal,
require such person to carry out such moni-
toring, testing, analysis, and reporting in
accordance with such proposal, and such modi-
fications in such proposal as the Administrator
deems reasonable to ascertain the nature and
extent of the hazard".
There are actually two (2) types of orders to be issued und'e'r
3013 — an "Initial" and a "Final" Order. Upon the issuance of
the Initial Order, the case should be assigned a Regional Docket
number, which should be used throughout the 3013 proceedings,
ORDER REQUIRING SUBMISSION OP PROPOSAL FOR
SAMPLING, ANALYSIS AND MONITORING
(INITIAL ORDER)
The Order Requiring Submission of Proposal for Sampling,
Analysis and Monitoring, (the Initial Order), requires the owner/
operator to prepare and submit a proposal witain 30 days from the
date of issuance of the Order for the sampling, analysis and moni-
toring of the site from which the waste is or may be escaping.
This order should recite the information and facts upon which it
is based, and the threat or potential threat to human health and/or
the environment, and outline with some degree of specificity the
general areas of concern which should be addressed in the proposal
to be submitted by the owner/operator. However, the Initial Order
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should generally avoid being too specific in attempting to antici-
pate the details of the sampling, analysis and monitoring program,
since the statutory procedure directs the owner/operator to prepare
his own proposal. Attached to this memorandum is an example of an
Initial Order (Appendix B) outlining the general areas of concern
to be addressed in the requested sampling, analysis and monitoring
program. A sample cover letter with which to transmit the Order
is attached as Appendix A.
In addition, the Initial Order must advise the owner/operator
of his right to submit in writing any legal or technical defenses,
objections or contentions which he may desire to make, and that he
is entitled to confer in person and by attorney with EPA regarding
the proposal. The order must specify the name, address and telephone
number of the appropriate official of EPA the owner/operator may
contact to arrange a conference. However, there is no requirement
that the conference must be held within the 30 day period for sub-
mission of the proposal, (see section entitled Proposal Conference,
infra.) The Initial Order should be sent to the owner/operator by
certified mail, return receipt requested.
An Initial Order is ''final" in that it requires the preparation
and submission of a plan* However, no actual sampling, analysis
or monitoring is conducted until after approval of a satisfactory
plan submitted by the owner/operator (except in cases where the
Administrator or his designee determines that there is no owner/
operator who is able to conduct such a program satisfactorily —
see subsection (d)), and a second, or Final Order is issued. For
this reason, where immediate sampling and analysis needs to be
conducted because of an imminent and substantial endangerment to
human health and the environment, that work should be undertaken
pursuant to some other authority, such as Section 7003 of RCRA,
or Section 106 of Superfund.
In the event an owner/operator is unable or unwilling, or
otherwise fails to submit a plan pursuant to the Initial Order, EPA
should consider undertaking the sampling, analysis and monitoring
program under Section 3013(d) with a subsequent effort to later
recover the cost of that program from the responsible party by the
filing of a suit to recover such costs and to assess a penalty for
non-compliance with the terms of the initial order.
PROPOSAL CONFERENCE
Section 3013 Orders must give the owner/operator an opportunity
to confer on the proposal submitted for the monitoring plan. This
conference will also afford the owner/operator his or her due pro-
cess rights regarding the order. In this sense, the conference
should consist of more than a discussion of the proposal itself.
The owner/operator, or his counsel and consultants, should be
allowed to indicate why the respondent should not be subject to the
order. A record in the form of a tape recording or stenographer's
notes should be made and included in the case file. In the event
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of subsequent litigation over the order/ the recording or notes
can then be transcribed for use, if necessary.
While the proposal must be submitted to EPA within 30 days
after the date of the Initial Order/ we interpret 3013(c) to allow
a conference requested by the owner/operator to be held either
before or after the proposal is submitted. However, the holding of
a conference cannot vary or extend the 30 day period for submission
of the proposal/ so that if a conference is requested for a time
before' the proposal is submitted/ the conference must be held and
the proposal submitted within the 30 day period following the date
of the Initial Order.
On the other hand/ if a conference is requested for a time
after the owner/operator has submitted his proposal/ it is not
necessary that the conference be held within the 30 day period
following the date of the Initial Order/ but may be held at a date
beyond that 30 day period. Conferences to be held after submission
of the proposal should be scheduled as soon as possible after sub-
mission (i.e./ not more than 30 days thereafter)/ so as to avoid
delay in issuance of a Final Order.
We expect that various Respondents will wish to approach the
matter of conferences in different ways, and indeed/ may wish to
have a conference both before and after submission of the proposal.
We see nothing wrong with conducting more than one conference,
depending on the complexity of the problems to be addressed by the
sampling/ analysis and monitoring program, the good faith and
diligence shown by the Respondent, and availability of EPA person-
nel. While EPA should make an effort to meet with the Respondent
to define the issues/ assist with technical matters/ and arrive at
a reasonable Final Order/ the Agency, with its limited resources/
should not design the proposal or perform the engineering work fpr
the Respondent. However, if the Respondent/ after reasonable
opportunity/ fails to prepare and submit a satisfactory proposal/
EPA should undertake to develop the sampling/ analysis and monitoring
program and consider making a subsequent claim for reimbursement
from the Respondent under subsection (d). In addition, consideration
should be given to the filing of a civil action under subsection (e)
of 3013 to require compliance with the Order/ and to assess a penalty
for failure to comply with the Agency's Order. (See discussion of
subsection (e) herein).
Under the statute/ there is no requirement for public notice
of the conference or any requirement that third parties be admitted
to the conference. However/ nothing precludes the admittance of a
non-party to the conference if the Region determines that such
participation would be beneficial or desirable. In certain cases/
the Department of Justice/ the State or local pollution control
agency and others may be very appropriate attendees or even
participants.
It is not necessary in every case of issuance of a 3013 Order
to involve personnel from the Department of Justice. For example.
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in cases where a discharge of waste from a site may only be suspected,
and compliance with the Order is anticipated, it will probably not
be necessary to involve DOJ. However, in those cases where eventual
litigation is a foreseeable probability, EPA should notify DOJ
and offer them an opportunity to participate during the .3013 Order
process, and to lend their advice as to the quality and quantity
of potential evidence. Factors to consider in evaluating whether a
foreseeable probability of litigation exists, which would justify
involvement of DOJ, include: indications of respondent's good faith
and readiness to address the issues; apparent ability and disposi-
tion to commit the resources necessary to accomplish the desired
program; or whether there is a known substantial threat to human
health or the environment. As is customary, the contact with DOJ
to participate in such cases should be initiated by Headquarters.
Except in cases that have already been filed, the role of DOJ
during the 3013 Order process should not be construed as one which
must give concurrence to or which may veto actions which EPA person-
nel otherwise deem appropriate, but should be considered as one mem-
ber of a team whose advice has relevance with regard to the actions
of EPA on potential litigation.
In reviewing a proposal, EPA personnel should examine two
areas: first, the sufficiency of the proposal itself to adequately
achieve the goals of the sampling, analysis and monitoring programs;
and second, the competence of the persons or firms who will be
implementing the proposal to conduct the sampling, analysis, moni-
toring and reporting activities in a technically acceptable manner,
so that the information produced thereby will be reliable. The
second area — the competence of the contractor or consultant who
will implement the program — is delicate because EPA should not
place itself in the position of formally approving or disapproving
the professional qualifications of particular contractors. However,
the design and implementation of the type of program which wil-T'be
conducted under a 3013 Order requires engineers and other persons
who are knowledgable in a variety of somewhat unique areas —
hydrology, geology and chemistry, among others.
While an owner or operator of a site should be at liberty to hire
a contractor of his own choice, if that person or firm is inex-
perienced in this field, EPA should require the technical aspects
of the proposal to be very detailed and specific so as to avoid
misunderstandings during the implementation of the program, and
should also require frequent status reports while the work is in
progress.
Pursuant to information developed at the conference, EPA
may modify the proposed sampling, analysis and monitoring require-
ments contained in"the Initial Order as may be reasonably required
to ascertain the nature and extent of the hazard. This may include
modifications making the requirements more strict or extensive, as
well as less extensive.
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THE PROPOSAL
The proposal submitted by the owner/operator is not required
to be in any particular fora. We anticipate that a variety of
forms will be used, ranging from formal documents similar in
appearance to a court pleading, to letters. We are more concerned
about the content, rather than the appearance, of the proposal and
with the creation of a legally binding obligation upon the owner/
operator.
The format of the proposal, therefore, may be formal or
informal. However, it must be critically reviewed by EPA to as-
certain that it covers the areas addressed generally by the Initial
Order, both from a legal and technical standpoint. The proposal
should be as specific as the circumstances and knowledge of the
site will allow, setting forth for example, the number and location
of monitoring wells, the frequency of samples from the wells, the
location of soil samples, parameters and protocols for analysis, and
so forth. In cases in which the sampling, analysis and monitoring
program is to be carried out in stages, or over a significant period
of time, EPA should be furnished periodic status reports from the
Respondent regarding progress being made in implementation of the
program, and EPA should have a right to approve any proposed changes
or modifications after initial approval has been given to the pro-
posal. Provisions requiring such status reports and right of
approval of any change should be included in the Final Order.
In the event a conference results in a modified proposal,
the owner/operator should either resubmit the entire proposal, as
modified, or if the modifications are not extensive, the owner.
operator may resubmit a separate amendment to the proposal. In
all cases, the proposal, and any amendments or modifications,
should be signed by the owner/operator.
FINAL ORDER
Clearly, EPA is not required to accept only the Respondent's
proposal or suggested modifications made during the course of the
conference procedures. Section 3013 (c) permits EPA to modify the
proposal submitted by the respondent or to develop its own program
of sampling, analysis and monitoring in order to ascertain the
nature and extent of the hazard. In the unlikely event
that EPA plans to incorporate any major changes in the final order
that were not discussed at the conference, EPA should notify the
respondent of such changes and provide reasonable opportunity to
the respondent to comment upon such modifications. These measures
will help in affording due process to the respondent, and in estab-
lishing an administrative record should judicial review occur.
The Final Order may, where appropriate, reiterate the technical
language in the proposal, as approved, or adopt the proposal by
reference, if it is accepted iri toto. A suggested form for a proposed
Final Order is attached as Appendix C to this Memorandum.
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A Final Order should be issued as expeditiously as possible
upon termination of the 30 day period for submission of the respon-
dent's proposal. The Final Order is the order that actually directs
the owner/operator to conduct the sampling, analysis and monitoring
program, and should be specific as to details of the program. For
example, the order should set forth the number, location and depth
of monitoring wells, the number and frequency of samples to be
taken, the parameters of the analysis, reporting requirements and
other related details, including dates by which each element should
be commenced and completed and, where appropriate, requirements
for submission of status reports to EPA as work on the program
progresses.
Section 3013(d) MONITORING, ETC., CARRIED OUT BY ADMINISTRATOR—
"(1) If the Administrator determines that no
owner or operator referred to in subsection
(a) or (b) is able to conduct monitoring, test-
ing, analysis, or reporting satisfactory to the
Administrator, [or] if the Administrator deems
any such action carried out by an owner or opera-
tor to be unsatisfactory or if the Administrator
cannot initially determine that there is an owner
or operator referred to in subsection (a) or
(b) who is able to conduct such monitoring,
testing, analysis or reporting, he may—
(A) conduct monitoring, testing, or
analysis (or any combination thereof) which
he deems reasonable to ascertain the nature
and extent of the hazard associated with the
site concerned, or
(B) authorize a State or local authority or
other person to carry out any such action,
and require, by order, the owner or operator
referred to in subsection (a) or (b) to
reimburse the Administrator or other authority
or person for the costs of such activity.
(2) No order may be issued under this subsection
requiring reimbursement of the costs of any
action carried out by the Administrator which
confirms the results of an order issued under
subsection (a) or (b).
(3) For purposes of carrying out this subsection,
the Administrator or any authority or other person
authorized under paragraph (1), may exercise the
authorities set forth in Section 3007".
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The provisions of this subsection provide for three situations
where the Agency may carry out the monitoring activities or authorize
others to do so:
(1) Where no owner or operator is able to conduct these
activities satisfactorily;
{2} Where the testing conducted by the owner/operator is
determined to be unsatisfactory; or
(3) Where it cannot initially be determined whether there
is an owner or operator able to conduct the required monitoring and
testing.
Numbers (1) and (3) are similar, but it appears the difference
is that in number (3) no owner/operator can be identified or located
initially, whereas in number (1) the owner/operator is identified
but unable or unwilling to conduct the required activities.
Whether an owner or operator (either present or past) is "able"
to conduct monitoring/ testing, analysis and reporting satisfactory
to the Administrator will, in most cases, depend upon the financial,
rather than the technical, 'ability of the owner or operator. If the
owner or operator possesses adequate financial resources, it can
usually acquire the necessary technical ability.
If EPA determines that use of Section 3013 is necessary for
either of the first two reasons listed above, EPA must first notify
the owner/op^r^tor that SPA will itself be conducting the sampling,
analysis and monitoring program, and may make claim for reimbursement
under Section 3013(e). A sample form of this notice is attached as
Appendix D.
EPA may use contractors to carry out the necessary sampling,
analysis and monitoring programs authorized by Subsection {e}. -3y
authorizing use of an "other person," Congress clearly intended use
of contractors for this'activity. (Also, see the revision to Section
3007 and the accompanying legislative history which clarifies the
authority to use contractors for Section 3007 inspections.)
It should also be pointed out that in cases where there is a
release or threat of release from a site for which the owner/operator
cannot be initially determined, or where the owner/operator is unable
to conduct the sampling, analysis or monitoring, it may be appro-
priate and. desirable to use the mechanism provided in Section 104(b)
of Superfund to conduct the sampling, analysis and monitoring,
assuming other requirements for the use of Superfund are met.
If the Agency is required to act for any of the three reasons
set out in subsection (d), an order may be issued to require reim-
bursement of the costs of such monitoring, testing and analysis.
The order to.reimburse should be issued to the present owner or
operator or the most recent previous owner or operator who could
reasonably be expected to have actual knowledge of the hazardous
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waste. However, subsection (d) (2) prohibits an order to reimburse
if the results obtained confirm the results of an order issued
under subsection (a) and (b). Our interpretation is that this
provision prohibits seeking reimbursement in circumstance (2),
above/ where the Agency acted because of evidence leading to the
belief that the results from the owner/operator tests were inaccurate
or unreliable, and our subsequent tests, in fact, confirm the
owner/operator test results.
A.sample form of an Order for Reimbursement is attached to this
Memorandum as Appendix E.
Section 3013 (e) ENFORCEMENT
"The Administrator may commence a civil action
against any person who fails or refuses to comply
with any order issued under this section. Such
action shall be brought in the United States
District Court in which the defendant is
located, resides, or is doing business. Such
court shall have jurisdiction to require com-
pliance with'such order and to assess -a civil
penalty not to exceed $5,000 for each day
during which such failure or refusal occurs.'
This subsection authorizes the bringing of a civil action to
require compliance with a Section 3013 Order and to assess a civil
penalty of up to $5,000 per day of violation of the order. These
orders are not self-enforcing, nor does EPA have inherent powers
to require compliance. While we hope to receive a high degree of
voluntary compliance, it is very likely that some orders issued
under Section 3013 will be challenged, and it will be necessary to
resort to the courts to enforce them. This emphasizes the necessity
for laying the proper foundation for the issuance of the orders ,by
obtaining the necessary evidence and by following the proper
procedures as outlined herein. -Needless to say, the authority to
issue the orders is empty unless they are enforceable when tested.
The delegation of the authority to request the Attorney
General to bring an action for violation of Orders under 3013
follows the format of the delegation for bringing civil actions
under Section 7003.
DEVELOPMENT AND PRESERVATION OF THE ADMINISTRATIVE RECORD
We attempt to emphasize throughout this memorandum the
importance of obtaining the evidence or information required by
the statute prior to the issuance of the initial or final orders.
Equally important is the establishment and preservation of a record
where the evidence and all documents relevant to the proceedings
described herein may be kept, since the orders may eventually be
reviewed by a court, and EFA should have a complete record of the
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- 14 -
evidence and documentation which formed the basis for its decisions,
and to show that the respondent's due process rights have been
acknowledged and preserved.
In order to create and maintain a complete record of 3013
proceedings, the Regional office, upon receipt of the first evidence
or information regarding a case in which an order might be issued,
should open a new file in which the original or copies of all docu-
ments generated or received by EPA in the case will be kept. The
file should also be assigned a Regional case number and a docket
sheet begun on which all of the contents of the file will be listed
for easy reference as they are filed. Any documents, samples or
exhibits which are too bulky for the file may be kept in a separate
location or file, but their location should be noted on the docket
sheet.
The Region should encourage communications with the respondent
and his representatives to be in writing insofar as possible. This
practice provides a more complete administrative record, and lessens
the opportunities for misunderstandings between EPA personnel and
the respondent. Certainly, all objections, defenses and contentions
which the respondent wishes to raise to any aspect of the orders
should be in writing and submitted at the earliest possible date
so as to enable EPA to consider them.
•It is also important that the respondent's rights of due
process be protected. This may include permitting the respondent
and his attorney or other representatives to confer with the Agency,
present evidence or otherwise submit information at appropriate
times bearing on his liability to conduct sampling, analysis and
monitoring under Section 3013; the extent and coverage of the
orders issued to him; or any other defenses, objections or conten-
tions which he may have regarding his liability under Section 3013
or the orders. The respondent should be informed of these rights'
in the orders which are issued to him, and timely conferences
arranged to discuss the'respondent's claims. In the case of a
respondent's claim that he should not be subject to a 3013 order,
a "timely conference" should be one held prior to the deadline for
submission of the proposal called for by the initial order.
In any conferences which are conducted beween EPA and the
respondent, a record of proceedings at the conference should be
developed and placed in the case file. This record could be in the
form of a tape recording or stenographer's notes which could be
subsequently transcribed in the event the orders were challenged
in court by the respondent or should EPA find it necessary to
enforce the orders through judicial proceedings.
In the event EPA should reject any objections, defenses or
contentions of the respondent, or modify the respondent's proposal
for sampling, analysis and monitoring without the respondent's
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- 15 -
agreement, EPA should issue, either in the final order or in a
separate memorandum, the reasons for such rejection or modification
and furnish those reasons to the respondent.
Attachments
cc: Surveillance and Analysis Division Directors, Regions I-X
Director, NEIC
Regional Counsel
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
APPENDIX A
Mr. John Smith
plant Manager CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: (location of site)
Dear Mr. Smith:
Enclosed is an Order issued on behalf of the Administrator
of the United States Environmental Protection Agency to
(name of respondent) , pursuant to Section 3013 of the
'Resource Conservation 'and Recovery Act of 1976, as amended (42 USC
Section 6934), directing your company to submit to the undersigned
within thirty (30) days from the date of the Order a proposal for
the sampling, analysis and monitoring for the release or threat of
release of hazardous waste from the site described in the Order,
and for the reporting of information gathered thereby to this
Agency.
If you fail to comply with the terms of the Order, you may
be subject to an action in United States District Court for
enforcement of the Order, as well as a civil penalty in an amount
not exceeding the sum of $5,000 for each day in which you are in
violation of the Order.
You may request a conference with this Agency at which you
may appear in person and by your attorney or other representatives
for the purpose of presenting any objections, defenses or conten-
tions which you may have regarding your liability to conduct the
sampling, analysis, monitoring and reporting program described in
the Order; the scope of such program; or the proposal which you
are ordered to submit. Any objection, defense or contention which
you may make should be in writing, signed and forwarded to the
contact person named below at the earliest possible date.
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If you desire a conference, or if you have any questions,
please write or call the person named below at your earliest
opportunity.
Sincerely,
Regional Administrator or
Regional Enforcement Director
Contact Person:
(name)
(address)
Telephone
Enclosure
cc: Director/ State Agency
Director, Office of Waste Programs Enforcement
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON, D.C. 20460
APPENDIX B
BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OP
XYZ COMPANY (RESPONDENT)
Docket No.
PROCEEDING UNDER SECTION 3013
RESOURCE CONSERVATION AND RECOVERY ACT
(42 USC Sec. 6934)
ORDER REQUIRING SUBMISSION OP PROPOSAL FOR
SAMPLING, ANALYSIS, MONITORING AND REPORTING
The Administrator of the United States Environmental Protection
Agency (EPA)/ acting by and through the person whose name and
signature appears herein, pursuant to the authority of Section
3013 of the Resource Conservation and Recovery Act, as amended, 42
U.S.C. Section.6934 (herein .referred to as "the Act"), has been
presented with information from which a determination has been
made that the presence or release of hazardous waste at the facility
or site described herein may present a substantial hazard to human
health or the environment.
DESCRIPTION OF FACILITY OR SITS
The facility or site is described as follows:
A tract of land known as the Site, located at (road) ,
consisting of acres, more or less, approximately
miles East of the Town of , (county), (state), (herein
referred to as the "site"), which is now or has been owned,
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- 2 -
operated or controlled by the XYZ Company (herein referred to
as the Respondent),
DETERMINATION OF SUBSTANTIAL HAZARD
The information presented from which such determination was
made is as follows:
(1) Record of an oral report on March 23, 1981, by telephone
from John Q. Public, (street address), (city) , (state), to John Doe,
Attorney; Office of Enforcement/ U.S. Environmental Protection
Agency, Region , city , state , reporting visual observation
of liquid substances leaching from an area on the site into a
drainage ditch which empties off-site into a stream known as Little
Muddy, a tributary of Big Muddy River, a navigable water of the
United States of America;
(2) Written report by Richard Row, Environmental Engineer,
and Joe Blow, Biologist, Office of Surveillance and Inspections,
U.S. Environmental Protection Agency, Region , (city) , (rffcate)
on March 24, 1981, of liquid substances leaching from an area on
the site into a drainage ditch which-empties offsite into a stream
known as Little Muddy, a tributary of Big Muddy River, and of samples
gathered of such leachate;
(3) written report dated March 26, 1981, from M.A.D.
Scientist, Chemist; Office of Sampling and Analysis, U.S. Environ-
mental Protection Agency, Region , city, state, stating that the
analysis of a sample of the leachate described in (2) above,
collected by Richard Row and Joe Blow (see address above), on March 24,
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- 3 -
1981, contained the following constituents which are designated by
EPA as hazardous wastes:
CHEMICAL CONCENTRATION (in parts- per million)
(a) DDT 750
(b) Trichloroethelyene 1025
(c) Formaldehyde 550
(d) Toluene 4550
(e) Benzene 810
(4} Written memorandum dated March 21, 1981, from John E.
Smart, Toxicologist, U. S. Environmental Protection Agency, stating
that, based upon the information recited above, it is his opinion
that the discharge of the hazardous wastes in the quantities set
forth above into the environment constitutes a substantial hazard
to human health or the environment;
(5) Records of the (state) Department of Environmental
Protection, indicating that Respondent did, between 1971 and 19,7-9,
operate a landfill for £he disposal of industrial waste on the site;
(6) Records of the County Recorder's Office of ______ County,
(state), showing record ownership of the site in XYZ Company
from 1971 to (the present).
* (If the Respondent is not the current owner of the site, an
additional paragraph should be added here. See Addendum of Optional
Paragraphs attached to this form.)
ORDER
Based upon the information set forth above, and the determi-
nation of a substantial hazard to human health or the environment being
presented by the presence and discharge of hazardous wastes from
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- 4 -
the site, the Respondent is ordered, pursuant to Section 3013
of the Resource Conservation and Recovery Act, as amended
('42 U.S.C. Sec. 6934} to prepare and submit to the undersigned
at the address shown below, a proposal for the sampling, analysis,
reporting and monitoring of the hazardous waste present on or
being discharged from the site. The proposal ordered herein should
include, without limitation, the following matters:
(1) the location, constituents and amounts of all chemical
and other wastes identified by EPA as hazardous wastes in 40 Code of
Federal Regulations-part 261 which have been stored, treated or
disposed of or which may be located on the site;
(2) a description of the facility in which such waste was or
is being stored, treated or disposed of, together with engineering
plans, specifications and drawings, if any, of the facility used
for such storage, treatment or disposal. If such plans, specifica-
tions or drawings are unavailable, please submit any other informa-
tion available regarding the ezistance and characteristics of liners,
leachate collection systems, or other waste containment systems;
(3) the manner in which such waste was stored, treated or
disposed of, including whether all or a part of such waste was or
is containerized or non-containerized and the depth of burial of
any landfilled waste;
(4) a determination of soils depth, type, characteristics
and areal distribution;
(5) determination of horizontal and vertical permeabilities of
soils at the site;
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- 5 -
(6) definition of location/ type, transaiissivity, bedding,
fracture and other characteristics of bedrock and/or other confining
strata;
(7) determination of strike and dip of bedrock; and location
and attitude of any faults;
(8) determination of direction and velocity of groundwater flow
in all water-bearing zones in an area likely to be affected by
migration of wastes from the site, considering soils and bedrock
characteristics, and the location of aquifers most likely to be
affected which are or may be a source of public or private water
supply;
(9) determination of areas of discharge and recharge for
groundwater in the area likely to be affected by migration of wastes
from the site;
(10) determination of interaction between groundwater and
Little Muddy Creek;
(11) establishment of a network of monitoring wells, including
recommendations as to the location, depth, and contruction thereof,
designed to monitor groundwater elevations and water quality;
(12) a sampling and analysis program for monitoring groundwater,
both on-site and off-aite, which describes frequency of sampling
and sampling and analytical procedures.
(13) a proposed schedule for the implementation of the items
set forth above; and
(14) the means and frequency of reporting to EPA the implemen-
tation of the items set forth above, and the results of the sampling,
analysis and monitoring program as the same may be approved.
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•* (If the Respondent is not the owner of the site, an additional
paragraph should be added here. See suggested paragraph in Addendum
of Additional Paragraphs attached to this form.)
The proposal ordered herein must be submitted by Respondent
to the undersigned official of EPA within thirty (30) days of the
date of this Order. Failure to comply with the terms and provisions
of this Order will subject Respondent to a civil action by EPA for
appropriate relief under the above mentioned Act.
Under the provisions of the Act, you are entitled to request a
conference with EPA at which you -may appear in person and by attorney
or other representatives for the purpose of presenting any objections,
defenses or contentions which you may have regarding your liability
to conduct the sampling, analysis, monitoring and reporting program
described in this Order; the'scope of the program; or the proposal
which you are required to submit. Any objection, defense or conten-
tion which you may maJce should be in writing, signed and forwacd-ed
to the contact person named below on or before the date on which
you are required to submit the proposal ordered herein.
WITNESS MY HAND as (Regional Administrator or Enforcement
Division Director) pursuant to the authority of the Administrator
of the United States Environmental Protection Agency, on this
day of / 198 .
U.S. Environmental Protection Agency
By?
Conference Contact Person:
(name, title, address,' telephone number)
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- 7 -
ADDENDUM OF OPTIONAL PARAGRAPHS
* {for use in findings of fact, where the Respondent is not the
current owner or in control of the site):
(6) Records of the County Recorder's Office of County/
(state), showing record ownership of the site to be in B.A. Farmer
and C.A. Parser, his wife; and an affidavit of B.A. Parser and C.A.
Fanner dated March 26, 1981, before John Scrivener, Notary Public,
stating that they are the record owners of the site, having acquired
the same from XYZ Company on January 10, 1980, and that they have
no actual Knowledge of the presence of hazardous waste materials on
the site, and of the potential of said waste for discharge from the
site.
**(for use in directive portion of Order, where the Respondent is
not the current owner of or in control of the site):
(15) the means whereby the Respondent will gain rights of ingress
and egress to the site and authority to take such actions on or
with regard to the site as may be necessary to carry out the program
for sampling, analysis and monitoring to be proposed pursuant to
this Order.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APPENDIX C
BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OP
XYZ COMPANY (RESPONDENT)
Docket NO,
PROCEEDING UNDER SECTION 3013
RESOURCE CONSERVATION AND RECOVERY
ACT AS AMENDED
(42 USC Sec. 6934 et seq.)
ORDER REQUIRING SAMPLING, ANALYSIS, MONITORING AND REPORTING
An Order Requiring Proposal For Sampling, Analysis, and
Monitoring (herein referred to as "the initial Order') was issued on
the _____ day of _, 19 , to XYZ Company (Respondent herein)/
by the Administrator of the United States Environmental Protection
Agency (2?A), acting by and through her duly authorized designee,
pursuant to the authority of Section 3013 of the Resource Conservation
and Recovery Act of 1976, as amended, 42 U.S.C. Sec. 6934, (hersin
referred to as "the Act*), ordering the Respondent to prepare and
submit to this Agency/ within thirty (30) days of the date of
issuance of the initial order, a proposal for the sampling, analysis
and monitoring for and reporting of information relative to hazardous
waste present on or being discharged from the following site, to-wit:
-------
(describe site)
On the day of , 19 , the Respondent
did present to EPA '3 -proposal in the -time and manner required by
by the aforementioned initial Order. Respondent did also request
a conference with representatives of EPA for the purpose of (insert
any of the following which may be applicable): (discussion of objections/
defenses and contentions of the Respondent respecting his liability
under Section 3013 of the Act}/ (discussion of the scope of the
proposal required to be submitted by Respondent pursuant to the
initial Order)/(and)(discussion of the adequacy of the proposal
submitted by Respondent), which conference was held in the Region
offices of EPA on the day of , 19 .
(If a Proposal is agreed upon between EPA and Respondent,
the following two paragraphs should be inserted):
[As a result of said conference, EPA and Respondent have jointly
agreed on a proposal/ as modified at said conference, for the
sampling, analysis, monitoring and reporting relative to hazardous
waste present on or being discharged from the above described
site. A copy of said proposal, as modified, is attached hereto
and incorporated herein by reference as though set forth herein
word for word.
ORDER
The Respondent is hereby ordered, pursuant to Section 3013(c)
of the Act, to forthwith conduct, carry out and implement the
proposal for sampling,, analysis and monitoring for the presence of
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- 3 -
hazardous waste on or discharge of hazardous waste from the site,
and to report the results of said sampling, analysis and monitoring
tfo^thi's Agency in the tiae and manner set forth in the proposal
attached hereto and incorporated herein.]
(If SPA and the Respondent fail to agree upon a Proposal,
the following three paragraphs should be inserted in lieu
of the two paragraphs above):
[The Respondent and EPA have been unable to agree that the
proposal submitted by Respondent is satisfactory to accomplish the
sampling, analysis, monitoring and reporting which will be required
to determine the nature and extent of any hazardous waste which
may be released from the Site. EPA has furnished to the Respondent
in writing its reasons for determining that the proposal submitted
by Respondent is unsatisfactory.
Pursuant to authority contained in Section 3013(c) of the Act,
the Administrator of EPA has made modifications in the proposal
submitted by Respondent which are deemed reasonable to ascertain"
*
the nature and extent of the hazard from the wastes present on or
which may be released from .the site, .and has developed a program
for sampling, analysis, monitoring and reporting of such wastes.
A copy of the program developed by EPA is attached hereto as
Exhibit A.
ORDER
The Respondent is hereby ordered, pursuant to Section 3013
of the Act, to forthwith conduct, carry out and implement the
program for sampling, analysis and monitoring for the presence of
hazardous waste on or discharge of hazardous waste from the site,
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- 4 -
and to report the results of said sampling, analysis and monitoring
to EPA in the time and manner set forth in the program attached
hereto and incorporated herein.]
(in all Orders, include the following):
Witness my hand as the duly authorized representative of the
Administrator of the United States Protection Agency on this ______
day of / 19 .
United States Environmental Protection Agency
By
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D.C. 20460
i
APPEJTOIX D
Mr. John Smith
Manager
XYZ Company
Re: Sampling, analysis and monitoring of
hazardous waste at (describe site)
Dear Mr. Smith:
Your company is (was) the owner of the site described in the
above caption. Pursuant to the authority of Section 3013 of the
Resource Conservation and Recovery Act of 1976, as amended,
42 U.S.C. Section 6934 (herein referred to as the Act), the United
States Environmental Protection Agency (EPA) has determined that the
presence of hazardous waste at the site or the release of such waste
may present a substantial hazard to human health or the environment,
and that your company is responsible under the terms of the Act
for conducting sampling, analysis, monitoring and reporting of the
site to ascertain the nature and extent of such hazard.
EPA has further determined that (choose the appropriate bracketed
provision) [your company is not able to conduct such sampling,
analysis, monitoring and reporting satisfactory to EPA] (or) [the
sampling, analysis, monitoring and reporting of the nature and extent
of the hazard heretofore conducted by your company is unsatisfactory
to EPA]. Therefore, EPA may, pursuant to authority contained in
Section 3013(d) of the Act, proceed to conduct a program of sampling,
analysis and monitoring which the Agency deems reasonable to ascertain
the nature and extent, of the hazard associated with the site, or may
authorize a state or local authority or other person to carry out
such action.
In the event EPA should proceed to conduct such a program or
authorize a state or local authority or other person to conduct such
a program, your company may be ordered by this Agency to reimburse
the Agency or other authority or person for the costs of such activity.
Therefore, you may determine that, if possible, it would be in the
interests of your company to undertake to conduct the program in a
manner satisfactory to this Agency.
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- 2 -
You may request a conference with this Agency at which you may
appear in person and with an attorney or other representatives for
the.vpurpose, of ..discussing the matters set forth in this letter.
Any V6ra.-cnicati'br.s should be addressed to the Contact Person named
below.
Sincerely,
Regional Administrator or
Regional Enforcement Director
Contact Person:
(insert name/ address and telephone No.)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 204SO
APPENDIX E
BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OP
XYZ COMPANY (RESPONDENT)
Docket No.
Proceeding Under Section 3013(d)
Resource Conservation and Recovery Act
(42 USC 6934)
ORDER FOR REIMBURSEMENT OF
'SAMPLING, ANALYSIS AND MONITORING COSTS
This Order is issued pursuant to Section 3013(d) of the
Resource Conservation and Recovery Act (42 USC 6934)/ by the
undersigned, a duly authorized designee of the Administrator of the
United States Environmental Protection Agency (EPA), to XY3
Company (Respondent), whose address is .
FINDINGS OF FACT
The undersigned, on behalf of the Administrator of EPA, does
hereby make the following determinations and findings of fact:
1. On the day of , 19_ , there was presentee to the
Regional Administrator of Region of EPA in (city) ,
Cstate), information relative to the rslease or threat of release
of hazardous waste or substances from the following site (herein
referred to as 'the site"), to-wit:
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- 2 -
(describe site)
2. The information presented to the Regional Administrator relative
to the release or threat of release of hazardous wastes from the
site is as follows:
(A) a written report dated , 19 , of John Doe, Field
Inspector, Office of Surveillance and Inspections, U.S.
EPA, stating that he did on the day of ,
19 , observe and take five (5) samples of a certain
leachate material being discharged from the ground on the site
hereinafter described into a drainage ditch which empties
into a stream known as Little Muddy, a tributary of Big
Mu,ddy River.
(B) a written report of , 19 , of H.D. Scientist,
Chief Chemist, Office of Surveillance and Inspection, U.S.
EPA, stating that he did, on the day of ,
19__, analyze the samples collected by John Doe described
above, and that the results of said samples disclosed the
presence of the following constituents which are designated
by EPA as hazardous wastes:
CHEMICAL CONCENTRATION (pom)
(1) DDT 750
(2) Trichloroethelyene 1025
(3) Formaldehyde 550
(4) Toluene 4550
(5) Benzene 810
(C) a written report dated March 27, 1981, from John E. Smart,
lexicologist, U.S. Environmental Protection Agency, stating that,
based upon the Information recited above, it is his opinion that
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- 3 -
the discharge of the hazardous wastes in the quantities set forth
above into the environment constitutes a substantial hazard
to human health or the environment.
3. The -presence -of-hazardous 'waste on or in the site, the discharge
of the above described hazardous waste from the site, and the
potential release of additional hazardous waste from the site did
constitute (and continues to constitute) a substantial hazard to human
health and the environment, and it vas necessary and desirable to
determine the nature and extent of the hazardous wastes present on
the site and being discharged therefrom, and the means of such discharge.
(insert the following two paragraphs if the site is
inactive and the order is being issued to a past owner
or operator)
4. [The site is not an active hazardous waste storage, treatment
of disposal facility;
5. The present owner, Church Charities, Inc., acquired the site by
gift, and was unaware of the past uses of the site. The said present
owner could not reasonably be expected to have actual knowledge
of the presence of hazardous waste at the site and of its potential
for release.]
.6. The Regional -Administrator-has determined that Respondent, XYZ
Company, did own the site (did lease the Site from Richard Roe, a
former owner of the Site), during the years 1955-1965, and did
dispose of hazardous wastes on the site during that time. Respondent
was the operator of the site within the scope and meaning of the
said Section 3013 of the Resource Conservation and Recovery Act.
(insert the following paragraph, if appropriate)
7. [On , 19 , an Order was issued by the Regional
Administrator for Region of EPA, to the Respondent, pursuant
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- 4 -
to the authority of Section 3013(a) of RCRA, ordering and directing
Respondent to submit a proposal to EPA for conducting a program for
sampling, analysis and monitoring on or-about the site, which Order
was served 'upon the Respondent by certified mail, return receipt
requested, on , 19 . (Notwithstanding said Order,
Respondent failed and refused to submit a proposal satisfactory to
EPA or to undertake sampling, analysis and monitoring of the Site) (or).
(Pursuant to said Order, Respondent submitted a proposal which was
approved by EPA, as modified, but which Respondent failed to perform
in a manner satisfactory to EPA.]
8. By the authority contained in Section 3013(d) of the Resource
Conservation and Recovery Act (42 DSC 6934), the Administrator of
EPA, acting by and through the Regional Administrator of Region _____
EPA, and after notice in writing to Respondent, did undertake to conduct
sampling, analysis and monitoring of the site to determine the
nature and extent of hazardous waste on or in the site. The cost
of such sampling, analysis and monitoring is in the sum of $
a
(to date).
ORDER
Based upon said Findings of Pact, the Respondent is, therefore,
ordered and directed to reimburse and pay to the Treasury of the
United States for the costs of the sampling, analysis and monitoring
program (to date), said sum to be paid within 60 days of the date
of this Order.
You are entitled to request a conference with EPA at which
you may appear in person and with attorney or other representatives
to discuss the reimbursement by respondent, to EPA of the costs of
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- 5 -
Sampling, analysis and monitoring conducted by EPA as a result of
the presence and release or threat of release of hazardous waste
from the site. Any objections, contentions or defenses which you may
wish to present to this claim should be in writing, signed and
forwarded to the Contact Person named below. If you desire such a
conference, you should notify the Contact Person as soon as possible.
(the following material in brackets is to be added in the
event the sampling, anlaysis and monitoring program is on-going,
and it is desired that the Respondent take over the program.)
..[Respondent is further ordered and directed pursuant to Section
3013(a) of the Resource Conservation and Recovery Act, to prepare
and submit to EPA at the address shown below, a proposal for the
sampling, analysis, reporting and monitoring of the hazardous waste
present on or being discharged from the Site. The proposal ordered
herein should include, without limitation, the following matters:
(see suggested Order Requiring Proposal for Sampling,
Analysis and Monitoring for list of areas of concern)
[The proposal ordered herein must be submitted by Respondent to.
the undersigned official of EPA within thirty (30) days of the date
of this Order.]
[Under the provisions of Section 3013 of the Resource Conser-
vation and Recovery Act, you are entitled to request a conference
with EPA at which you may appear in person and by attorney or other
representative for the purpose of presenting any objections, defenses
or contentions which you may have regarding your liability to conduct
the sampling, analysis, monitoring and reporting program described in
this Order; the scope of the program; or the proposal which you are
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- 6 -
required to submit. Any objections, defenses or contentions which you
desire to make should be in writing, signed and .forwarded to the
Contact Person named below on or before the date on which you are
required to submit the proposal ordered herein.]
(the.following paragraph is to be included in
all Orders issued under Section 3013)
.Failure to comply with the terms of this Order may subject
Respondent to a civil action by EPA for assessment of a penalty
of an amount not to exceed 55,000 for each day of such failure to
comply.
Witness my hand as (Regional Administrator or Enforcement
Division Director) pursuant to the authority of the Administrator
of the United States Environmental Protection Agency, on this
day of , 19 .
U.S. Environments! Protection Agency
By:
Conference Contact Person;
(name)
(address)
Telephone 4
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R 7
-------
OCT 3 I 1983
Issues resolved through final Agency action pursuant to the
settlement of RCRA-related issues in NRDC v. EPA and consolidated
cases.
Issues 3/6,7/8,12,20,22 — 47 FR 15304-15308, April 8, 1982
Issues 4,5,13,14,19 ~ 48 FR 39611-39623, September 1, 1983
-------
5U3JECT: .= ettle-mep.t Agreement en the.- PCHA-Felatec Issuer
ir. ;:?.DC v". FPA and Consolidated Cases
F?C.l!. Cr.ristophcr J. Capper
Acting Assistant Administrator
for Solid Waste, and Emergency Pesponse (VJH-552^.)
1C: "Addressees Below
Attached is the settlement agreement for the RCP.A-r.-ii a ted
is'3'UPs 'in N'P.DC v.' EPA and cor. solicited cases, ?7o. SO-16?"/ (D.C.
Cir. . filed June 2, 1DCO). EPA has agreed to prcnulgat. a P.IM,
sever?! technical amendments and several ^.-cpcsed ar.er.dr.--r.ts to
the ccr.soi lasted pemit regulations as expecitiously as .--ssiHe.
If EPA fulfills its obligations pursuant to the terms cJ- • r.e
settivj.T.er.t agreement, and, after notice and comment rui«-.. i.'r:inc,
tho 7vccncy promulgates final regulations in substantial!/ tr.e
sane f^rra as set forth in the exhibits-to the settlement agree-
ment, the 3CRA petitioners listed in the agreement will
voluntarily dismiss their petitions- to review those reg-. ".. .ions
in 4C CFR Parts 122 - 124 that wcra promulgated en May ,'j, ISoJ
and November 11, 1930.
The issues in Exhibit B of tr-o settlement agreement ^re
considered minor technical changes to the regulations. li.ese
technical amendments and the P.IK mentioned in Exhibit 3 vill
bo promulgated shortly in final form. The Regions and States
should operate as if these changes are already effective.
The issues listed in £::hicic' C and r will br> promulgated
in proposed form shortly. These •-.•..cncmer. t3 are s'uhs tar.r. ive
chanc -r. to the regulations. Sir.; . they will be proposed , and
c>rc rajor chances, the Region?. i.-.~ States must operate ur...er
the existing regulations rather t..=:n the- proposed amendments
until the amendments are final and effective. In the interim,
the State Directors and the Agency have t.ie option of exercising
th^ir enforcement discretion in c-r-clinc '.:ith sit;:3tiers which may
-•c handled differently once these amendments are effective.
-------
If you have any ques'cicns regarding this settlement agreenent,
please contact John Skinner cr Deborah Violpe at (202) 755-9107 or
Dots Darrah at (202) 755-0407.
Attachment
Addressees
Begional Acninistrator, Regions I - X
Regional Counsel, Regions I - X
Director, State Solid & Hazardous Haste Agencies
-2-
-------
IN THE. UNITED STATES COURT OF APPEALS
FOR THE "DISTRICT "OF COLUMBIA CIRCUIT
Natural Resources Defense Council, )
Inc. ,
Petitioner,
v.
United States Environmental
Protection Agency and
Anne M. Gorsuch, Administrator,
Respondents.
AMAX, Inc.
Petitioner,
v.
United States Environmental
Protection Agency and
Anne M. Gorsuch, Administrator,
Respondents.
)
)
]
)
)
No. 80-1607 and
consolidated cases
No. 81-1171
SETTLEMENT AGREEMENT
Industry petitioners and intervenors raising
RCRA-related issues in the above-captioned cases
(hereinafter "petitioners") and respondents United
States Environmental Protection Agency and Anne M.
Gorsuch (hereinafter "EPA"), intending co be bound by
this document, hereby stipulate and agree as follows:
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- 2 -
1. ./The issues that are the -subject of this
Agreement are set forth in Exhibit A to this Agreement,
which is entitled "Consolidated Statement of Industry
Petitioners' RCRA-Related Issues." The undersigned
petitioners agree not to raise in this litigation any
RCRA-relatad issues regarding the May 19, 1980
Consolidated Permit Regulations other than those set
forth in Exhibit A. Issue 1 and Issue 17, as described
in Exhibit A, will'be pursued in Shell Oil Company v.
EPA. No. 80-1532 and consolidated cases (D.C. Cir.),
insofar as they involve regulations promulgated at 40
C.F.R. Parts 260-266, and will not be pursued in this
litigation. Similarly, all issues raised in AMAX, Inc.
v. EPA. No. 81-1171 (D.C. Cir.), insofar as they
involve regulations promulgated at 40 C.F.R. Parts 260-
266, shall be pursued in Shell Oil Company v. EPA, No.
80-1532 and consolidated cases (D.C. Cir.), and will
not be pursued in this litigation. EPA agrees that if
it revises its regulations at 40 C.F.R. Parts 260-266
as a resolution of Issue 1, Issue 17, or any issues
presented in AMAX, Inc. v. EPA, No. 81-1171, it will
then make corresponding changes in its regulations at
40 C.F.R. Parts 122-124 to implement any and all such
revisions. Issue 21, insofar as it involves EPA's
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- 3 -
authority -to enforce state program requirements not
included in State-issued RCXA permits, is not ripe for
review in this litigation and if a permittee who is
represented in this litigation later raises this issue
in a civil or criminal enforcement proceeding, EPA will
not object on the ground that the issue could have been
raised in this litigation.
2. EPA shall notify the states and the
'•Regional -EPA 'Administrators -'of ' this Settlement
Agreement and provide copies of this Agreement to them
immediately upon filing this Agreement with the Court.
3. EPA shall publish the Regulatory
Interpretation Memorandum and shall promulgate in final
form the technical amendments to the Consolidated
Permit Regulations set forth in Exhibit B to this
Agreement.
4. EPA shall publish the proposed
amendments to the Consolidated Permit Regulations set
forth in Exhibits C and D to this Agreement. The
preamble to the proposed amendments will, at a minimum,
include language substantially the same as the language
set forth in Exhibits C and D and, with respect to
Issue 5 and Issue 6, shall include the language set
forth in Exhibits C and D. The comment period on the
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- 4 -
proposed regulations shall be no greacar than 60 days,
except 3.3 specified in paragraph 8.
5. A3 expediciously as possible after che
execution of chis Agreement, EPA shall submit co che
Office of Management and Budgec ("OMB"), pursuant co
che terms of Executive Order 12,291, che Regulatory
Interpretation Memorandum and the technical amendments
set forth in Exhibit B to this Agreement. As
expeditiously as possible after completion of OMB
review, EPA shall submit the aforesaid technical
amendments to the Federal Register for immediace
publication.
6. As expeditiously as possible after the
execution of this agreement, EPA shall submit co OMB,
pursuanc co che tjerms of Executive Order 12,291, the
proposed amendments and preamble language set forth in
Exhibits C and D to this Agreement. As expeditiously
as possible after completion of OMB review, EPA shall
submit che aforesaid proposed amendments and preamble
language to che Federal Register for immediate
publication.
7. EPA shall submit any final regulations
adopted pursuant to paragraph 4 of this Agreement co
OMB, pursuant to the cenns of Executive Order 12,291,
as expeditiously as possible after the close of the
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- 5 -
60-day public comment period. As expeditiously as pos-
sible after 'completion of OM3 review, EPA shall submit
the aforesaid final regulations to the Federal Register
for immediate publication.
8. EPA may extend Che public comment period
for a period not to exceed a total of 30 days if EPA
receives a request for an extension of the comment
period, which, in EPArs.judgment, should be granted
based on compelling circumstances not apparent at the
time of execution of this Agreement. In the event EPA
extends the comment period for that reason, EPA shall
immediately notify the parties to this Agreement, of
the cause or causes and the additional time allowed.
No extension shall exceed the time required by its cause,
9. If (a) the Regulatory Interpretation
Memorandum, is published and technical amendments are
promulgated in substantially the same form as those set
•forth in Exhibit B, and (b) final regulations are
promulgated with respect to all issues (except Issue 5)
in substantially the same form as set forth in Exhibits
C and D, and, with respect to Issue 5, in the same lan-
guage as set forth in Exhibit D, and (c) preamble lan-
guage is published in substantially Che same form as
set forth in Exhibits C and D, or, with respect to
Issue 5 and Issue 6, is published as set forth in
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- 6 -
Exhibits C and D, then the undersigned petitioners will
voluntarily dismiss their petitions to review those
regulations in 40 C.F.R. Parts 122-124 that were
promulgated on May 19, 1980 and November 17, 1980 pur-
suant to the RCRA, and shall not seek judicial review
of the regulations adopted pursuant to this Agreement.
10. If the Regulatory Interpretation Memo-
randum that is published, or the technical amendments
that -are promulgated, or the final regulations that are
promulgated, or the preamble language that is published
are not substantially the same as, or significantly
alter the meaning of, the language set forth in
Exhibits 3, C, and D, or, with respect to Issue 5 or
Issue 6, the proposed regulations that are published,
or the final regulations that are promulgated, or the
preamble language to the proposed or final regulations
are not the same as that set forth in Exhibits C and D,
or if EPA decides to leave an existing regulation
unchanged aqd not revise it as set forth in Exhibits B,
C, and D, then the undersigned petitioners reserve the
right to proceed further with this litigation, as spe-
cified in paragraph 12, and to seek judicial review of
any technical amendments or final regulations that are
not substantially the same as those set forth in
Exhibits 3, C, or D.
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- 7 -
11. If EPA fails Co cake any acCicn required
under this Agreement as expeditiously as possible, the
undersigned petitioners reserve the right to proceed
further with this litigation, as specified in paragraph
12.
12. If noncompliance occurs under paragraph
10 or 11 above with respect to Issue 9, Issue 13, or
Issue 14, as set forth in Exhibit D, the undersigned
-petitioners reserve the right to proceed with respect
to any issue set forth in Exhibit A (other than Issue
1, Issue 5, Issue 6, Issue 17, Issue 19, Common Issue
3, or Common Issue 4). If noncompliance occurs under
paragraph 10 or 11 above with respect to Issue 5, as
set forth in Exhibit D, the undersigned petitioners
reserve the right to proceed with respect to any issue
set forth in Exhibit A (other than Issue 1, Issue 6,
Issue 17, Issue 19, Common Issue 3, or Common
Issue 4). If such noncompliance occurs wich respect to
any other provision of this Agreement, Che undersigned
petitioners reserve the right to proceed only with
respect to those matters that are the subject of or are
necessarily related to such aoncompliance.
13. la the event any of the undersigned
petitioners proceeds with this litigation in accordance
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- 8 -
with this Agreement, EPA will promptly file with the
Court a supplementary administrative record, including
any notices and comments in the rulemaking proceed-
ings. The parties will provide the Court with proposed
briefing schedules.
14. Nothing in this Agreement shall be
deemed to operate as a waiver of any legal right any
party may have, including, but not limited to, the
right to -chal-lenge any future action of EPA, unless
such a waiver is expressly provided herein.
xTtoren &.' Olson
//John Quarles
^MORGAN, LEWIS Sc BOCXIUS
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-5118
Attorneys for the
American Petroleum Institute,
Atlantic Richfield Company,
Chevron, U.S.A., Inc.,
Continental Oil Company,
Getty Oil Company,
Gulf Oil Corporation,
Marathon Oil Company,
Mobil Oil Corporation,
Shell Oil Company,
Standard Oil Company
(Indiana),
The Standard Oil Company
(Ohio), and Texaco, Inc.
(No. 80-1881)
-------
Lloya ^yanngton
Thomas M. Lemberg
Roger Strelow
LEVA, HAWZS, SYMINGTON,
MARTIN St OPPENHEIMER
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Attorneys for The Ferroalloys
Association (Mo. 80-1723)
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- 10 -
Blair S. McMillin
John McN. Cramer
Robert A. Emmet t
REID, SMITH, SHAW S: McCLAY
Suite 900
1150 Connecticut Avenue, N.W.
Washington, O.C. 20036
Attorneys for The American
Iron Sc Steel Institute,
Allegheny Ludlum Industries,
Inc., Armco Inc., Bethlehem
Steel Corporation, Cyclops
Corporation, Jones Sc Laughlin
Steel Corporation, National
Steel Corporation, Republic
•St;eel Corporation, and United
States Steel Corporation
(No. 80-1741)
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- u -7
' j.
..Robert E. Freei ; JL1" — y
timber ly-Cl'afk Corpor^cioa
Suice 2200
1000 Wilson Boulevard
Arlington,' VA 22209
Attorney for Kimberly-Clark
Corporation (No. 80-1809)
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- 12 -
J X
.James T. hemphil/li, jr.'V
Edward S. Shipper, Jr.
ROSE, SCHMIDT, DIXON Se HASLZY
1575 Eye Street, N.W.
Washington, D.C. 20005
Attorneys for Mining and
Reclamation Council of
America, Inc. (No. 80-1821)
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- 13 -
Roger 'Screiow
'LEVA, HAWZS, SYMINGTON,
MARTIN Sc OPPENHEIMER
815 Connecticut Avenue, N.W
Washington, D.C. 20006
Attorney for Avtex Fibers,
Inc. (No. 80-1837)
-------
loma's H. Traitt
Charles C. Abeles
David 3. Weinberg
Gceer S. Goldman
WALD, HARKRADER & ROSS
1300 19ch Street, N.W.
Washington, D.C. 20036
Attorneys for Edison Electric
Institute, et al. (Petitioners
in 80-1889 and Intervenors in
No. 81-1171)
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- 15 -
John Quarles
Kenneth A. Rubin
MORGAN, LEWIS & 30CKIUS
1300 M Street, N.W.
Washington, B.C. 20036
Attorneys for Stablex
Corporation (No. 80-1909)
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- 16 -
A
'imothy Bf. Ackeson
Seth Goldberg
STZPTOE Si JOHNSON
1250 Connecticut Avenue, N.W.
Washington, D.C. 20036
Attorney for American Wood
Preservers Institute
(No. 80-1923)
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- 17 -
Kenneth A.Rubin
MORGAN, LEWIS & BOCKIUS
1800 M Street, N.W.
Washington, D.C. 20036
Attorney for G + W Natural
Resources Group (No. 80-1955)
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- 18 -
•Jonn 3. Faney
Robert J. Wise
United Technologies
Corporation
400 Main Street
East Hartford, CT 06108
Attorneys for United
Technologies Corporation, et
al. (No. 80-1966)
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- 19 -
ills c.. Tosi
cuLLER Sc HENRY
300 Madison Avenue
P.O. Eox 2088
Toledo, Ohio 43603
Attorney for General Motors
Corporation (No. 80-1970)
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- 20 -
Theodore L. Garrect
John T. Smich, II
COVTtfGTON St BURLING
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
Attorneys for Chemical
Manufacturers Association,
American Chrome Sc Chemicals,
Inc., Linden Chemicals Se
Plastics, Inc., Olin
Corporation, Polysar Limited,
PPG Industries, Inc., Rohm &
Haas Co., The BF Goodrich
Company, The Lubrizol
Corporation, Union Carbide
-Corporation, and-Allied
Chemical Corporation
(No. 80-1975)
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- 21 -
Scoct W. 3owen
'BEVERIDGZ Sc DIAMOND
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Attorney for The Dow Chemical
Company (No. 80-1984)
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- 22 -
v/aioes R. Walpoj^e
Frank H. Morison
John D. Fognani
HOLLAND Sc HART
1875 Eye Street, N.W.
Washington, D.C. 20006
Attorneys for American Mining
Congress, et al. (No. 80-1987)
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- 23 -
Turner T.Smith, J
T. S. Ellis, III
William L. Rosbe
HUNTON & WILLIAMS
P.O.Box 1535
Richmond, VA 23212
(304) 788-8340
Attorneys for
Ford Motor Company
(No. 80-1989)
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- 24 -
Norton F.Tennille, Jr.
Lester Sotsky
ARNOLD Sc PORTER
1200 New Hampshire Avenue, N.W,
Washington, D.C. 20036
Attorneys for AMAX,
Inc. (Nos. 80-2002 Sc 81-1171)
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25 -
ird H. Forgocson
i Anderson
i & GOULD
' K Street, N.W.
lington, D.C. 20006
irnevs for Texas Oil & Gas
.. (No. 80-2004)
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- 26 -
Richard J. Dermey, Jr.
JONES, DAY, RZAVIS St POGUE
1735 Eye Street, N.W.
Washington, D.C. 20006
Attorney for Lubrizol
Corporation (No. 80-2007)
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- 27 -
William C. Brashares
Charles A. Samuels
CLADOUHOS & BRASRARES
1750 New York Avenue, N.W.
Washington, D.C. 20006
Attorneys for National Solid
Wastes Management Association
( Intervene r)
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- 23 -
Thomas H. Tmi 11
Charles C. Abeles
David 3. Weinberg
Greer S. Goldman
WALD, HARKSADER & ROSS
1300 19th Street, N.W.
Washington, D.C. 20036
Attorneys for Cincinnati
Gas St Electric Company,
et al. (Intervenors)
-------
njamin W. Soiev..—^
Michael S. Giannotto
SHEA Sc GARDNER
1800 Massachusetts Avenue, N.W,
Washington, D.C. 20036
Attorneys for Atlantic Cement
Company, Inc., et al.
(Intervenor)
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- 30 -
Charlesyfl. Darling, iV
J. Patrick Berry
Stephen L. Teichler
BAKER & BOTTS-
1701 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attorneys for Tenneco Oil
Tennessee Gas Transmission
Company (Intervenor)
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- 31 -
Lisa K. Friedman!
Alan W. Eckert
Dorothy A. Darrah
Office of General Counsel
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
\
*/l'0
Donald W. Stever,
Elizabeth Stein
Lee R. Tyner y
U.S. Department of Justice
9th Street Sc Pennsylvania
Avenue, N.W.
Washington, D.C. 20530
Date: , 1981
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Exhibit A
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CONSOLIDATED STATEMENT OF INDUSTRY PETITIONERS'
RC3A-RZLATED ISSUES IN NRDC v. EPA. NO. 80-1607
1. Definition of "Treatment"
2. Owner and Operator Signature/Certification
3. Topographic Map
4. Noncontinuation of Expiring Federal Permits if State
Program has been Authorized
5. Vice-Presidential Signature/Certification
6. Duty to Halt or Reduce Activities
7. Duty to Provide Information
8. Unannounced Entry at Unreasonable Hours
9. Ten-Year Permits
10. Restrictions on the Transfer of Permits
11. Limitations on Minor Modifications
12. Up-Front Substantiation of Confidentiality
13. Preconstruction Review/180 Day Notice Requirement
14. Modifications During Interim Status
15. Hearings on Interim Status
16. Excessive Detail in Part A Permit Application
17. Permit-By-Rule for Wastewater Treatment Plants
18. Retention of Ground Water Monitoring Data
19. Requirement that States Adopt EPA Penalty Policy
20. Modification of Existing State Permits
21. Federal Enforcement of Terms Not Included in State
Permits
22. Stay of RCRA Permits for Multiple-Permitted New
Facilities
23. Denial of Evidentiary Hearings on RCRA Permits
24. Failure to Set Deadlines for Permit Decisions
-------
*
Common Issue 3. Duty to Mitigate
*
Common Issue 4. Other Federal Lavs
(* denotes issue not included in prior version of
this list previously filed with the Court)
-------
1. Definition of "Treatment"
Section 122.3 contains a definition of "treatment"
essentially identical to that found in section 260.10(73).
It includes any process "designed to change the physical,
chemical, or biological character of any 'hazardous waste*
... so as to recover energy or material resources frora the
waste." The statutory definition of "treatment," on the
other hand, includes only those processes designed to render
the waste "amenable for recovery," but not the recovery
operations themselves. Act S 1004(34). ZPA's perait regu-
lations disregard the clear statutory distinction between
"resource recovery," on the one hand, and "treatment" of
hazardous waste, on the other. As a result, the Agency's
regulations treat "resource recovery" operations as hazard-
ous waste facilities requiring RCRA permits. This approach
flies in the face of the statutory language as well as the
legislative history of RCRA.
This issue is closely related to Issue No. 1 —
Regulation of Recycled and Re-Used Materials—on the Consol-
idated Statement of Industry Petitioners Issues in the Shell
Oil Coaoany cases, No. 80-1532.
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- 2 -
2. Ovner and Operator Signature/Certificacion
Section 122.4(b) requires the owner of a facility,
as veil as the operator, to sign the RCRA perait application
fora, and EPA clearly intends that each RCRA perait will
bind boch the owner and the operator. See 45 Fed. Reg.
33,169-70, 33,295 (1980). The Agency has already recognized
that this approach can give rise to serious practical diffi-
culties for the operator of a facility who oust obtain the
signature and certification of the property owner. EPA
recently issued a RIM stating that a person holding bare
legal title to the property as security for a financing
agreement is not an-"owner" and.need not sign the perait
application. 45 -Fed. Reg. 74.489 (1980). Many other
problems reaain, however, particularly in situations where
the facility operator is a lessee exploring for oil, gas, or
ainerals and the property owner is not involved in day-to-
day operations on the property. The Agency should adopt a
more reasonable approach that would accooaodate scae of
these concerns.
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- 3 -
3. Topographic Mao
Section J22.4(d)(7) requires submission of a
topographic nap extending one mile beyond the property
boundary of a facility applying for a RCRA permit. This map
must show, inter alia, "veils, springs, other surface water
bodies and drinking vater wells" within the specified
area. Id. In contrast, the instructions for completion of
Iters XI on Form 1 require only that such wells and surface
water bodies within one-ouarter mile of the facility be
identified. 45 Fed. Reg. at 33,547. EPA clearly intend*
the one-quarter mile requirement and not the broader
obligation set forth in the text of the regulation. See 45
Fed. Reg. at 33,519. This drafting anomaly should be fixed.
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- 4 -
4. Noncontinuarion of Expiring Federal Peraits if Scare
P-roerar Has Been Authorized
Section 122.5(d) provides that if an £?A-issued
permit expires in a state that has been delegated permit
authority, the perait will not continue in force unless
state law explicitly so allows. If no such state law pro-
vision exists, the facility will be deeaed to be operating
without a persit and thus be subject to enforcement ac-
tion. In contrast , "when 'an E?A "perait "expires , the perait
continues in force pending a decision on its renewal. 40
C.r.R. 5 122. 5(a) (1980). EPA has aaple authority to
prevent the disruptive situation where a peraittee is forced
to cease operations through no fault of his own and await
the state's decision on a renewal application. The Agency
should anend section 122.5(4) to provide that an E?A-issue
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5-1
5. Vice-Presidential Signature/Certification
Section 122.6(a)(1) requires "a principal execu-
tive officer of at least the level of vice-president" to
sign and certify each RCRA permit application submitted on
behalf of a corporation. EPA has sought to Justify this
regulation as necessary "both to ensure an adequate level of
corporate liability and to ensure a high level of concern
with and responsibility for the corporation's compliance
with environmental laws." 45 Fed. Reg. 33,301 (1980). But
RCRA does not authorize EPA to establish what it deems an
"adequate level of corporate liability," and corporate con-
cern and responsibility can be heightened without disrupting
business activities by requiring vice-presidential signa-
tures. Moreover, this requirement imposes an enormous bur-
den on large corporations that may need hundreds ofRCRA
permits. Even if it were within EPA's legal authority, the
regulation is unreasonable because of the extreme difficulty
of compliance and because of the insubstantial justification
set forth by the Agency.
Finally, EPA's "policy statement" interpreting
section 122.6 does not adequately resolve the problem. It
provides that n[a]n? person who performs similar policy-
making functions for the corporation falls within the
meaning of [the regulation]." 45 Fed. Reg. at 52,149
(1980). At a minimus, it should be incorporated into the
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5-2
regulation icself so that there will be no conflict between
its provisions and the rule.
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- 6 -
6. Dutv to Hale or Reduce Activities
Section 122.7(c) states that it shall not be a
defense to an enforcenent action that it would have been
necessary for the permittee to halt or reduce activities to
comply. This provision effectively requires facilities co
halt or reduce activities to insure compliance. This
requirement ignores section 3008(c) of the Act, which pro-
vides that the Administrator, in assessing penalties for
permit violations, oust cake into account the seriousness of
Che violation and any good-faich efforts co comely. Section
3003(c) appears co assume chat situations will arise in
vhich a facility may not halt operations due to nonccmpli-
ance. This approach recognizes that oany important indus-
trial operations (e.e. . nonferrous smelters, certain iron
and steel operations, electric power generation) cannot be
shut dovn without considerable difficulty and expense and
often cannot be started up again without similar difficulty
and expense. Finally, the regulation is arbitrary and
capricious with respect to utilities, which are required by
state lav to provide service on a continuous basis. Section
122.7(c) should be eliminated or made acre flexible co take
into account situations where the benefits of continued
operation far outweigh minor or temporary violations of the
permit.
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- 7 -
7. Duty to Provide Information
Section 122.7(h) iaposes an obligacion on each
permittee to provide "any information" requested by the
perait-issuing authority to determine if the permittee is in
compliance or if perait aodification, revocation and reis-
suance, or teraination is appropriate. This broad assertion
of data-collection authority exceeds E?A*srstatutory author-
ity. Section 122.7 should only require the peraittee to
subait information that is relevant to the determination to
be aade by the perait-issuing authority.
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- 8 -
8. Unannounced LitTV at Unreasonable Hours
Section 122.7(i)(l) requires the permittee to
allow entry upon his property by the perait-issuing author-
ity, apparently at any hour of the day or night. Although
the perait-issuing authority oay copy records, inspect
equipment, or saaple waste streams only if he does so "at
reasonable tiaes." 40 C.7.R. $ 122.7(1)(2). (3). (4) (1980).
the initial -entry itself is not liaited in this way. Nor is
the oaission an oversight. EPA deliberately- sought to allow
entry "without notice or at unusual tiaes" at its
discretion. 45 Fed. Reg. 33,305 (1980). The regulation
clearly- exceeds EPA's lawful authority under section
3007(a)(1) of the Act, which authorizes EPA or state
employees "to enter at reasonable tiaes any establishment cr
other place" where hazardous wastes are handled. 42 U.S.C.
5 6927(a)(1) (Supp. Ill 1979). as mended bv Solid Waste
Disposal Act Amendments of 1980, Pub. L. No. 96-482, S
12(a), 94 Stat. 2339. EPA cannot override this express
liaitation on its power.
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- 9 -
9. Ten-"Year Permits
Section 122.9 arbitrarily limits the duration of a
RC3A permit to ten years. The statute, however, appears to
contemplate lifetime peraits for TSDFs. Section 3005 states
that a perait is Co be issued if the Administrator deter-
mines that the facility is in compliance with the section
3004 standards. If the facility is not in compliance, the
permit' ••'mus'-'t"specify the tine period-allowed to complete
modifications necessary to achieve compliance. Thus, peri-
odic comprehensive review of RCRA permits is not content
plated by the statute.
Such review is also .ill-advised for practical rea-
sons. Automatic review is wasteful. Indeed, EPA originally
proposed lifetime permits for RCRA facilities "to enable
them to obtain more favorable financing, to avoid continuous
facility siting problems, and to save paperwork burdens on
£?A or State permit writers." 44 Fed. Reg. 34,243 (1979).
This approach should be reinstated in the final permit
regulations. Similarly, section 122.9(e), which authorises
the Director to issue permits for a shorter term than the
duration allowed under section 122.9, should not apply to
3.C3A permits.
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- 10 -
10. Restrictions on the Transfer of Peraits
Section 122.14(4.) places unreasonable restrictions
upon the transfer of RCRA peraits. The requireaents,
details, and foraalities attending property transfers are
burdensome enough without involving EPA. The Agency has
adequate enforcement remedies under RCRA to obtain relief
against violations of a RCRA perait, regardless of the
identity of the owner or operator of the peraitted treat-
'aen't, s'torage. or disposal 'facility, thus, EPA should allov
transfers under an approach siailar to that found in section
122.23(c)(4), which allows autonatic transfers of RCRA
facilities during interia status.
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- 11 .
11. Limitations on Minor Modifications
Section 122.17(e) limits minor modifications of
RCRA permits to technical changes such as modification of
the emergency coordinator lists and equipment in the contin-
gency plan. See 46 Fed. Reg. 2889 (1581). This is unduly
restrictive. Under the proposed regulation, EPA could make
minor modifications, where appropriate, to allow changes in
quantities or types 'of''wastes "handled "'and changes in pro-
cesses for treating wastes. See 44 Fed. Reg. 34,274-75
(1979) (proposed 40 C.F.R. § 122.9(g)). This would have
offered a relatively simple modification procedure where a
facility developed, and sought to implement, new and better
methods for treating, storing, or disposing of wastes.
Under the final regulation, however, new methods may be use'd
only after the permit has been modified in accordance with
the procedural requirements of Part 124. Certainly changes
in quantities of waste handled (within a facility's design
capacity) and other changes such as those included in the
proposed regulation should be permissible minor modifica-
tions of a RCRA permit.
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- 12 -
12. Up-Ytont Substantiation of Confidentiality
Section T22.19(d) requires up-front substantiation
of all confidentiality claims related to RCRA permit appli-
cations. E?A claims that this approach will spare it the
"adninistrative burden" of requesting substantiation in
those cases vhere disclosure of information is sought. See
45 Fed. Reg. at 33,319 (1980). On the other hand, this
regulation inposes an unnecessary and unreasonable burden on
persons submitting RCRA perait applications. EPA has failed
to explain why RCRA perait applicants--and not applicants
under any of the other pro grains--must make this showing at
the time of submission.
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- 13 -
1 3. Precsr.'s t met ion Review/180-Day Notice Requirement
Section 122.22(b) precludes "physical construc-
tion" of a new hazardous waste disposal facility before a
permit has been received. See 46 Fed. Reg. 2348 (1981). It
also requires submission of a permit application 130 days
before physical construction is to begin. These provisions
are beyond EPA's authority under RCRA, as the statute does
not contemplate preconstruction review. Section 3004
empowers the Agency to issue "performance standards" for
TSDFs, not construction permits. Although section 3004(4)
directs EPA to promulgate standards for the "location,
design, and construction" of TSDFs, such regulations can be
implemented without imposing a preconstruction review
scheme. SPA acknowledged this point in the preamble to its
recent amendment lifting the construction ban on new
treatment and storage facilities. As the Agency made
abundantly clear, persons constructing -new facilities prior
to receiving permits run the risk that modification, or even
relocation, may be required before an operating permit is
issued. 46 Fed. Reg. at 2347. The Agency has failed to
show why the same approach cannot be applied to new disposal
facilities. It should therefore eliminate preconstruction
review, which is unauthorized by the Act in any event.
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- 14 -
1 4. vModi'fleg-clOTis 'During Interia Status
Section 122.23 places severe limitations on aodi-
fications of facilities and operational practices during
interim status. These limitations exceed EPA's authority
and conflict with the statutory scheme in that they atteapt
to ci.rcuavent Che statutory "grandfather clause" of interia
status for existing facilities. They are also counter-
productive. As the regulation now stands, an owner/operator
cannot iapleaent improved processes for the treatment, stor-
age, or disposal of wastes unless the changes are found to
be "necessary" either to "prevent a threat" to huaan health
or the environment or to coaply with federal regulations or
state lav. Even those process changes that offer signifi--
cant environmental benefits are apt to be prohibited because
they do net fit either of the overly stringent requirements
for securing approval. Z?A should allow owner/operators to
iapleaent changes in the processes used so long as (1) an
updated ?art A perait application is filed, (2) the Director
does not object within 30 days, and (3) the changes do not
constitute a "reconstruction" of the facility.
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15-1
1 5. Hearings on Interi-a Status
The regulations governing hearings in connection
vich the denial of termination of interim status are confus-
ing and. in several respects, unlawful. Section 122.23(a)
(3) allows EPA to determine "on exaninaton or reexanination
of a Part A permit application that it fails to meet the
standards" of Part 122. Upon making such a determination,
EPA "may" advise the owner/operator "that the application is
deficient and that the owner or operator is therefore not
entitled to interim status." At this point, "[t]he owner or
operator will then be subject to EPA' enforcement for operat-
ing without a permit." This provision (which is difficult
to reconcile with the application review procedures
described in section 124.3(c) and (d)) would enable EPA to
make a unilateral determination that the owner/operator
never acquired interim status, has therefore been operating
in violation of RCRA, and must shut down immediately. Such
an approach is blatantly illegal. Fundamental precepts of
administrative law and constitutional due process command
that a person be given a hearing before being required to
cease operations at a particular facility. The prospect of
an eventual "hearing" as part of an enforcement action is
scarcely adequate.
EPA has recognized the need for procedural safe-
guards in a related situation. Section 124.71(a) provides
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15-2
that the permit applicant is entitled to an evidential
hearing when the Administrator proposes to terminate interim
status for "failure to furnish information needed to sake a
final decision." Under this provision, an applicant whose
Part 3 permit application remains incomplete (after he has
.been afforded an opportunity to cure the deficiency pursuant
to section 124.3(c) and (d)) enjoys the protection of a full
evidentiary hearing before interim status may be terminat-
ed. 'This 'only underscores the inadequacy of section 122.23
(a)(3), under which EPA may summarily determine that because
of an inadequate Part A, the applicant never acquired
interim status to- begin with.
A similar deficiency in the regulations gives the
applicant no right to a hearing before EPA terminates
interim status by virtue of denying a permanent status per-
mit application. If the applicant has furnished the requi-
site information, but the Administrator decides to withhold
permanent status and terminate interim status, a facility
may be forced to shut down without opportunity for a hear-
ing. While a full evidentiary or adjudicatory hearing may
not be appropriate in each instance, the regulations do not
require that any hearing be held. Section 124.12 merely
leaves to the Regional Administrator's discretion whether or
not to allow public hearings or non-adversary panel proceed-
ings (see subpart F of Part 124) with respect to RCRA permit
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15-3
actions. As noted earlier, basic considerations of due
process require the opportunity for a hearing before a
facility operating under interia status is compelled to
cease operations.
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- 16 -
16. .Zxcesslvg Petal! in ?art A Permit Application
Section 122.24 requires excessive detail in a Part
A permit application, including information about past
treatment, storage, or disposal activities, thereby placing
an unnecessary burden on the permit applicant. Section
3005(b) (2) of the Act does not authorize IPA to require
information regarding past disposal sites from all permit
applicants. Item VI on Fora 3, which calls for photographs
cf -all treatment, storage, -and disposal areas, is also espe-
cially burdensome in situations where a large industrial
plant contains hundreds of pieces of equipment that are
subject to regulation as hazardous waste units.
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- 17 -
17. Permit-By-Rule for Vasrevater Treatment Plants
S-ection 122.26(c) arbitrarily discriainates
against industrial vastewater treatment plants by offering
perait-by-rule treatment only to publicly-owned facilities
(?OTWs). Although EPA recently proposed to extend perait^
by-rule treatment to "eleaentary neutralization units" and
tank-type wastewater creataent units, 45 Ted. Reg. 76,076
(1980), this action would not affect surface iapoundnents--
che oosz iaportant type of industrial vastewater treatment
facility. EPA's stated reason for extending perait-by-rule
treataent only to POTWs, and not to industrial surface
iapoundnents, is "the special Congressional intent
applicable to POTW's." '45 Fed. Reg. 33.325 (1980). But the
Agency has recognized (in the preaable to Part 261) that
Congress sought "special" treanaent for donestic sewage, not
for POTWs. 45 Fed. Reg. at 33,097. EPA has acted in an
arbitrary and capricious aanner by liaiting perait-by-rule
treatment to POTWs.
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- 18 -
18. "Retention of Ground Water Monitoring Data
Section 122.23(b) states that each RC3A permittee
shall, in addition to complying with the requirements of
section 122.7(j), "maintain records from all ground water
monitoring wells , . . for the active life of the
facility." (Emphasis supplied.) Although the Agency's use
of the word "maintain" here is ambiguous, section 122.7(j)
requires the permittee to "retain records of all monitoring
information . . . for-a period of-at least -3 years."
(Imphasis supplied.) It therefore appears that. EPA means to
require RCRA peraittes to retain records from all ground-
water monitoring wells for the active life of the
facility.' Such a requirement'is wholly unreasonable, as the
permit-issuing authority can readily obtain the necessary
information from the annual reports required under section
265.75(f) and/or section 265.94.
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- 19 -
"19. Requirement that States Adopt EPA Penalty Policy
Section 123.9(c), in essence, requires that states
adopt EPA's penalty policy. This encroachment upon state
law enforcement authority violates the tenth amendment.
Moreover, EPA's approach is inconsistent with RCRA itself.
Section 3006(b) provides that a state need only assure "ade-
quate enforcement of compliance with the requirements" of
subtitle C. -A state need not adopt EPA's penalty policy in
order to provide adquate enforcement. Tinally, the penalty
provisions of RCRA and most other environmental statutes by
their very terms apply only to civil and criminal enforce-
ment actions brought by the Administrator. This demon-
strates that Congress was careful not to dictate state
enforcement policies, and EPA must respect this decision.
At a minimum, the exceptions to and interpretations of the
federal penalty policy should be applied to the states as
well.
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- 20 -
20. Modification of Existing Scate Permits
Section 123.37(d) requires that, in order for a
state to obtain full authorization, it oust modify existing
state permits to make then comply with Part 123 program
standards. This provision was not in the proposed permit
regulations and is thus subject to challenge for lack of
notice. Moreover, it is arbitrary to require these changes
for state permits when changes in regulations are not cause
fcr "modification of federal permits except at the request of
the permittee.
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- 21 -
21. Federal Enforcement of Terms Not Included In State
Teraics
Sections 123.38(e)(2) and 123.134(e)(20) allow
federal enforcement of permit terms recommended by EPA as
"necessary to implement approved State program requirements"
but not included in the final state permit. This "permit-
by-ambush" approach exceeds EPA's authority under section
3008(a), which authorizes federal enforceaent in a state
with an approved program only for violation of a requirement
of subtitle C. Si'forcecetit 'actions'based on non-binding Z?A
coraoents are grossly unfair to the permittee. They are also
inconsistent with EPA's "shield** policy, which states that
"compliance with a permit . . . constitutes compliance, for
purposes of enforcement, with Subtitle C of RCRA." 40 C.F.R.
5 122.l3(a) (1980).
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- 22 -
22. Seay of RCRA Peraics for Multi?le-Peraitted New
•Facilities
Section 124.16(a) provides that when a RCBA p era it
for a new TSD7 is consolidated for reconsideration in an
evidentiary hearing on an NPDES perait, the effectiveness of
the entire perait is stayed and, therefore, the facility
cannot legally operate in the interia. EPA sought to
Justify this provision as necessary to forestall judicial
review pending-final agency action. 45 Fed. Reg. 33,412
(1980). The regulation is subject to attack as unsupported
by EPA's stated Justification. It is also arbitrary because
it applies to only some RCRA permits and because a different
result obtains for NPDES-peraitted activities by virtue of
section 124.60(a)(2), which allows a source to operate
without an NPDES perait under certain conditions.
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- 23 -
23. Denial of Evidentiary Hearings on RCRA Perries
Section 124.^9 •unreasonably precludes applicants
for RCRA permits froo obtaining evidentiary hearings under
subpart E of Part 124. The inforaal procedures provided for
RCRA perait appeals accord few if any of the rights and
safeguards enjoyed by NPDES applicants under subpart E. Yet
many RCRA perait applications will involve factual issues
that can best be explored in a foraal evidentiary hearing.
In these instances, legislative-type public hearings cannot
satisfy the requirements of due process. EPA should as end
this provision to allow RCRA perait applicants to obtain
evidentiary hearings upon request.
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- 24 -
24. Failure to S«C Deadlines for Perale Decisions
Part 124 sets no deadlines for official decisions
on RC3A permit applications. The regulations merely provide
non-binding "target" dates for ZPA action on "major" HWM
facilities. 40 C.J.R. S 124.3(g) (1980). This oniasion of
meaningful deadlines will create severe difficulties for the
regulated cooaunity in its efforts to plan new facilities.
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Common Issue 3. Duty to Micigata
Section 122.7(d) requires RCRA peraiccees to
"minimize or correct any adverse impact on the environ-
ment resulting from noncompliance" with the permit.
This provision exceeds EPA's authority, as neither
section 3004 nor section 3005 empowers the Agency to
require corrective measures in the wake of permit vio-
lations. Morever, a literal reading of the regulation
could require a permittee to expend vast sums of money
in order 'to m'itigate relatively minor adverse impacts
on the environment.
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Common Issue 4. Other Federal Lavs
"Section 122.12 provides that RCTIA peraits
must contain conditions consistent with other federal
laws, including the National Historic Preservation
Act. Nothing in section 3004 or section 3005 of the
Solid Waste Disposal Act authorizes the Agency to im-
pose RCRA permit conditions based on other federal
laws.
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Exhibit B
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Issue 3
In Part 122, § 122.4(d)(7) is revised co read as
follows:
§ 122.4 Application for a permit.
*****
(d) * * *
(7) A topographic map (or other map if a
topographic map is unavailable) extending one mile
beyond the property boundaries of the source, depicting
the'facility and each of its intake and discharge
structures; each of its hazardous waste treatment,
storage or disposal facilities; each well where fluids
•from the facility are injected underground; and those
wells, springs, other surface water bodies, and
drinking water wells listed in public records or
otherwise known to the applicant within 1/4 mile of the
facility property boundary.
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Issue 7
Add Che following as a second sentence to
§ 122.7(h): For RCRA only, this condition shall
include the word "relevant" Immediately following the
word "any" in the preceding sentence.
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Issue 8
In Part 122, § 122.7(1)(1) is revised Co read as
follows:
§ 122.7 Conditions applicable co all permits
******
(i) * * *
(1) Enter upon the permittee's premises where a
regulated facility or activity is located or conducted,
or where records must be kept under the conditions of
this permit; For RCRA only, this condition shall
include the phrase "at reasonable times" after "enter";
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Issue 12
Del'eca "§
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Issue 20
EPA will clarify this issue by releasing a
Regulatory Interpretation Memorandum (RIM). That
document will make the points outlined in the following
draft language:
EPA has received questions concerning the
interpretation of Section 123.37(d) of the Requirements
for State Hazardous Waste Programs. That section
provides that State permits issued prior to the date of
approv'al of final authorization -shall be reviewed and
modified or revoked and reissued to require compliance
with the requirements of Part 123.
EPA did not intend that this review and
modification of existing State permits necessarily
occur before a State program is approved for final
authorization. Rather, EPA intended that States
seeking final authorization make a commitment to
upgrade existing permits so that those permits will
require compliance with the requirements of Parr 123.
The preamble to this section states that the Stats
Director must review and change permits as necessary
"after a State has received final authorization" (45 FR
33396, May 19, 1980).
Section 123.6(d) (5) requires the Memorandum
of Agreement (MOA) executed by the State Director and
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Che EPA Regional Administrator (and submitted as part
of the State's application for final authorization) to
provide for State review and modification of existing
permits. That section states that "the Regional
Administrator and the State Director shall establish a
time within which this review oust take place."
EPA intends that the schedule in the MOA
provide a reasonable time period for the review and
upgrading of existing State permits, based on such
factors as the number of State permits and the
additional permit terms and conditions needed to
satisfy the requirements of Part 123.
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Issue 22
1. Amend che third sentence of § 124.16(a)(1 ) Co
read as follows:
If the permit involves a new facility or
new injection well, new source, new
discharger or a recommencing discharger,
the applicant shall be without a permit
for the proposed new facility, injection
well, source, or discharger pending
final 'agency 'action, except as provided
in S 124.60(a)(2).
2. Delete the phrase "See also §-124.60."
in S I24.16(a)(l).
3. Amend § 124.60(a)(2) by adding "or
facility" immediately following each
occurrence of the word "source" in chat
paragraph.
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Exhibit C
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Issue 2a
1. 40 CFR Part 122 is amended by revising paragraph
(b) in § 122.4. co read as follows:
(b) Who applies? When a facility or
activity is owned by one person but is operated by
another person, it is che operator's duty co obtain a
permit.
(1) For RCRA only. the owner must also sign
the permit application, except that the Director may
determine, in his or her discretion, that the
application need not bear the owner's signature. The
operator may request that the Director waive the
requirement that the facility owner sign che permit
application by submitting to che Director a written
explanation of why he has not been able co obtain che
owner's signature and why he believes che Director
ought Co waive it and, in addition, by demonstrating
that he has met che following chree requiremencs: (1)
che operacor has identified the owner; (2) the operacor
has sent a copy of Che applicacion wich a copy of che
nocice in paragraph (b)(2) of chis seccion co che owner
by certified mail; and (3) che operacor is able Co
assure compliance wich all applicable scandards and
permic condicions. In deciding whether co waive che
requirement chac che facility owner sign che
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application, Che Director may consider any faccors he
or she deems relevant including, but not limited to,
the number and kind of attempts the operator has made
to obtain the owner's signature, the financial
responsibility of the operator, the number of owners,
the relationship between the owner and the operator,
and the nature of the owner's interest in the
facility. In cases where the owner is a federal,
state, or local governmental entity, the Director shall
accept the application without the owner's signature if
the applicant shows compliance with requirements (1)
and (3) above and has sent a copy of the application
with a copy of the notice in paragraph (b) (2) of this
section by certified mail to the head of the agency
with primary responsibility for managing the land or to
another person designated by the applicable
governmental entity to receive such an application.
(2) For RCRA only, notice to be'sent to
owners who have not signed the permit application.
This application is being submitted to the U.S.
Environmental Protection Agency for the purpose of.
obtaining a permit to operate a hazardous waste
management facility on the property as described. As
owner of the property/facility, EPA considers you and
[insert name of facility operator], the facility
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operator, jointly responsible for compliance with both
Che regulations at 40 C.F.R. Parts 122, 264, 265 and
•257 'and ''any "permit issued pursuant to those
regulations.
2. 40 CFR Part 122 is amended by revising
paragraph (d) in § 122.6 to read as follows:
(d) Certification. Any person signing a
document under paragraph (a) or (b) of this section
shall make the certification in subparagraph (1),
except that in making an application under paragraph
(a) of this section, owners of RCRA facilities may make
.the certification in subparagraph (2) when the owner
and operator are not the same person:
(1) [see Issue 5]
(2) "I certify that I understand that this
application is submitted for the purpose of
obtaining a permit to operate a hazardous
waste management facility on the property as
described. As owner of the
property/facility, I understand fully that
the facility operator and I are jointly
responsible for compliance wich both the
regulations at 40 C.F.R. Parts 122, 264, 265,
and 267, and any permit issued pursuant to
those regulations." For owners of land
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disposal facilities, add; "I further
understand chat I am responsible for
•providing the notice in che deed to the
property required by 40 C.F.R. § 264.120 and
5265.120."
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Issue 4
Revise § 122.5(d) co read as follows:
(d) Scacs Concinuacion. (1) An SPA-issued
NPDES or UIC permit, or a Corps of Engineers 404
permit, does noc continue in force beyond its
expiration date under Federal law if at that time a
State is the permitting authority. States authorized.
to administer the UIC, NPDES, or 404 programs may
continue either EPA or Corps of Engineers or State-
issued permits until the -effective date of the new
permits, if State law allows. Otherwise, the facility
or activity is operating without a permit from the time
of expiration of the old permit to the effective date
of the State-is sued, new permit.
(2) In a State with a hazardous waste
program authorized under 40 C.F.R. Part 123, Subparts A
and 3 or Subpart F, if a permittee has submitted a
timely and complete application under applicable state
law and regulations, the terms and conditions of an
EPA-issued RCRA permit continue in force beyond the
expiration date of the permit, but only until the
effective date of the State's issuance or denial of a
State RCRA permit.
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Issue 6
Amend Che capcion Co § 122.7(c) co read "Need co Hale
or Reduce Noc a Defense." Add Che following preamble
language:
EPA has changed Che capcion of § 122.7(c) co
becter comporc wich che subscance of che seccion, which
is chac a permiccee will noc be allowed co defend ics
noncompliance in an enforcement accion on che ground
chac ic would have ocherwise had co hale or reduce che
regulaced accivicy. Seccion 122.7(c) deals only wich
Che queacion of defenses co liabilicy in an enforcemenc
accion, and noc wich che nature or extent of che remedy
for permit violacions. In cases involving civil
penalties for noncompliance wich RCRA pennies, for
example, che Agency is direcced by Section 3008(c) of
the Act to take into account che seriousness of che
violacion" and any good faich efforts co comply. As
seated in che May 19, 1980 preamble. 45 Fed. Reg.
33,303, che Agency recognizes chac in some instances
halcing or reducing accivieies could have more
delecerious effeccs than to continue them, chac in
cases of trivial noncompliance ic might be inappro-
priate for a permittee to halt or reduce its opera-
tions, that it may be necessary to continue operations
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co Locate the problem, or chac Less drastic means for
assuring permit compliance may be appropriate.
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Issue 10
§ 122.14(b) Automatic transfers. As an alternative to
transfers under paragraph (a) of this section, the
following permits may be automatically transferred to a
new permittee:
(1) Any NPDES permit or UIC permit for a
well not injecting hazardous waste if:
(i) same
(ii) same
(iii) same
(2) Any RCRA permit if Che new permittee
proposes no changes in operation, and:
(i) The Director receives notice from
the existing permittee at least 90 days in advance of
the proposed transfer date in paragraph (b)(2)(ii) of
this section, unless the Administrator allows a shorter
advance notice period for good cause shown by the
existing or new permittee;
(ii) The notice includes (A) a written
agreement between the existing and new permittee,
signed by both, containing a specific date for transfer
of permit responsibility, coverage, and liability; (3)
a demonstration that the financial responsibility
requirements of 40 CFR Part 264 will be met by the new
permittee, including a copy of the revised financial
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instruments or other appropriate documencs; (C) a
signed statement by the new permittee agreeing to
comply with the existing permit conditions, and the
'revised financial requirements; and
(iii) The new permittee receives no
notice from the Director, within 90 days from the date
the Director received the notice referred to in
paragraph (b) (2)(i) of this section, that
modification, or revocation and reissuance of the
permit is necessary. If such notice is not received,
the transfer is effective on the date specified in the
agreement mentioned in paragraph (b)(2) (ii) of this
section. EPA may modify, the permit after the effective
date of the transfer to include the new permittee's
name and the revised financial instruments. If, within
the 90 day advance notice period, the Director gives
notice that modification or revocation and re issuance
of the permit is necessary under § 122.15(b)(2), the
applicable procedures of Part 124 must be .followed,
rather than these procedures for an automatic transfer.
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Issue 1L
1. Revise § 122.17(e) to add new paragraphs (3)-(6)
as follows:
(3) Change, amend, or update an owner
or operator's waste analysis plan,
inspection plan, personnel training
plan, or contingency plan; or an owner
or operator's closure or post-closure
plan or closure or post-closure cost
estimate when the owner or operator has
not requested a corresponding modifica-
tion for a change in the facility's
operation or design; provided that any
such change, amendment, or update is
mino r.
(4) Change, amend, or-update the owner
or operator's financial mechanism(s) for
demonstrating financial responsibility
under Subpart H, provided that any such
change, amendment, or update is minor..
(5) Allow treatment, storage, or
disposal of new wastes not previously
specified in the permit, within the
design capacity of existing processes,
provided that the change is minor,
unless the Director determines that
additional permit conditions are
required to assure the proper management
of such wastes.
(6) Allow new treatment techniques not
previously specified in the permit in
existing tanks, surface impoundments, or
waste piles, provided that the change is
minor, unless the Director determines
that additional permit conditions are
required to assure the proper use of
such treatment techniques."
2. Add preamble language indicating that (e)(4) is
intended to allow complete incerchangeability of
financial mechanisms to the extant permitted under Par'
264, Subpart H.
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Issue 1 5a
Amend § 122.23 by deleting § 122.23(a)(3), adding a new
§ 122.23(e) as follows and renumbering existing §
122.23 (e) as § 122.23(f):
(e) Failure to qualify for interim status.
If SPA has reason to believe upon examination of a Part
A application that it fails to meet the requirements of
§§ 122.4(d) or 122.24, it shall notify the owner or
operator in writing of the apparent deficiency. Such
notice'^shall specify the "grounds 'for" EPA' s belief that
the application is deficient. The owner or operator
shall have 30 days from receipt to respond to such a
notification and to explain or cure the alleged
deficiency in his Part A application. If, after such
notification and opportunity for response, EPA
determines that the application is deficient it may
take appropriate enforcement action.
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Issue 15b
1. Revise § 124.12(e) co read as follows:
(e) (1) Ac his or her discrecion, Che Regional
Adminiscracor may specify chac RCRA or UIC permics be
processed under Che procedures in Subparc F.
(2) For inicial RCRA permics for exiscing HWM
facilicies, che Regional Adminiscracor shall have che
discrecion Co provide a hearing under Che procedures in
Subparc F. The permic applicant may requesc such a
hearing pursuanc Co § 124.114 on one or more issues, if
che applicanc explains in his requesc why he or she
believes chose issues (1) are genuine issues of
macerial face and (2) are decerainacive wich respecc co
one or more conCesced permic condicions, idencified as
such in che applicanc's requesc, chac would require
excensive changes co che facilicy ("concesced major
peraiic condicions"). If che Regional Adminiscracor
decides co deny che requesc, he or she shall send co
che applicanc a brief wriccen scacenienc of his or her
reasons for concluding chac no such decerminacive
issues have been presenced for resolucion in such a
hearing.
2. Add preamble language indicacing chac when
che Adminiscracor remands an appeal co che Regional
Adminiscracor, che Adminiscracor may direcc che
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Regional Administrator co hold a non-adversary panel
hearing if none has been held before.
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Issue 13
Revise •§ 122.28(b) co read as follows:
In addition Co S 122.7(j) (monitoring), the permittee
shall retain records from all ground water monitoring
wells and associated ground water surface elevations
for ten years.
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Issue 19
State Implementation of EPA's
Civil Penalty Policy
Amend § 123.9(c) to read as follows:
(c) A civil penalty assessed, sought, or
agreed upon by the State Director under
paragraph (a)(3) of this section shall be
appropriate to the violation. [Note. -- To
the extent that -State judgments or
settlements provide penalties in amounts
which EPA believes to be substantially
inadequate in comparison to the amounts which
EPA would require under similar facts, EPA,
when authorized by the applicable statute,
may commence separate actions for penalties.
In addition to the requirement of this
paragraph, the State may have other
enforcement remedies. The following
enforcement options, while not mandatory, are
highly recommenced: same]
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Issue 21b
1. Revise 40 C.r.R. §§ 123.38 and 123.134 to read as
follows:
(a) The Regional Adminiseracor may comment on
permit applications and draft permits as provided in
the Memorandum of Agreement under § 123.6 or § 123.126.
(b) Where EPA indicates, in a comment, that
issuance of the permit would be inconsistent with a
provision of the approved State program that is
required by Part 123, EPA shall include in the comment:
(1) A statement of the reasons for the comment,
including (i) the provision of the approved State
program required by Part 123 that is the basis for the
comment and (ii) the basis for the Administrator's
belief that the provision is required by Part 123; and
(2) The actions that should be taken by the State
Director in order to address the comments (including
the conditions that the permit would include if it were
issued by the Regional Administrator).
(c) A copy of any comment shall be sent to
the permit applicant by the Regional Administrator
together with a statement advising the permit applicant
that if the comment is not withdrawn by the Regional
Administrator under paragraphs (d) or (e) of this
section, a failure to comply with the identified
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requirements may subject the applicant to enforcement
action as provided in paragraph (f) of this section.
(d) The Regional Administrator shall withdraw
such a comment when the State or the permit applicant
satisfactorily explains why the draft permit is not
inconsistent with a provision.of the State program
required by Part 123 or otherwise refutes the Regional
Administrator's.stated concerns. After reasonable
opportunity for explanation by the State or the permit
applicant, the' Regloria-1 Administrator shall decide
whether or not to withdraw the comment and.shall notify
the permit applicant.
(e) If the Regional Administrator does not
withdraw the comment, and the State issues, the final
permit, the permittee may then request that the
Regional Administrator withdraw the comment. Such
request shall be made in writing and shall be
accompanied by a copy of the final permit issued by the
State. The Regional Administrator shall withdraw the
comment if the permittee satisfactorily explains why
the final permit is not inconsistent with a provision
of the State program required by Part 123 or otherwise
refutes the Regional Administrator's stated concerns.
After reasonable opportunity for explanation by che
permittee, che Regional Administrator shall decide
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whether or not co withdraw the comment and shall notify
the permittee. Such notification shall be deemed final
agency action for purposes of judicial review.
(f) Under section 3008 of RCRA, EPA may,
among other enforcement actions, terminate a State-
issued permit in accordance with the procedures of Part
124, Subpart E, or bring an enforcement action in
accordance with the procedures of 40 CFR Part 22 in the
case of a violation of a State program requirement. In
exercising these authorities, EPA will ob'serve the
following conditions:
(1) The Regional Administrator may take action
under section 3008 of RCRA against a holder of a State-
issued permit at any time on the ground that the
permittee is not complying with a condition of that
permit.
(2) The Regional Administrator may take action
under section 3008 of RCRA against a holder of a State-
issued permit at any time on the ground that the
permittee is not complying with a condition that the
Regional Administrator in commenting on the permit
application or draft permit under paragraph (b) of this
section stated was necessary to implement a provision
of the approved State program that is required fay Part
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123 (unless Che comment has been withdrawn, or unless
the State or the permittee has requested that the
Regional Administrator withdraw the comment and has
submitted an explanation in accordance with paragraph
(d) or (e) above and the Regional Administrator has not
decided whether or not to withdraw the comment or has
not notified the permittee in accordance with paragraph
(d) or (e) above), whether or not that condition was
included in the final permit.
(3) The Regional Administrator may not take
action under section 3008 of RCRA to enforce a
condition not in a State-issued permit on the ground
that the permittee is not complying with a condition
necessary to implement a provision of the approved
State program that is required by Part 123, unless the
Regional Administrator stated in commenting on the
permit application or draft permit that the condition
was necessary and notified the permittee under
paragraph (c) of this section that failure to comply
therewith would subject the permittee to enforcement
action under this paragraph.
(4) The Regional Administrator may take action
under section 7003 of RCRA against a permit holder at
any tiae whether or not the permit holder is complying
with permit conditions.
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2. Add preamble language indicating that final agency
action is only one of che prerequisites for judicial
review and that the last sentence in paragraph (e) does
not purport to address other aspects of jurisdiction or
to address the issue of ripeness.
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Common Issue 3
1. Revise § 122.28(d) co read as follows and renumber
existing § 122.28(d) as (e) and § 122.28(e) as (f):
In Che event of noncompliance with the
permit, the permittee shall take all
reasonable steps to minimize releases to the
environment, and shall carry out such
measiires as are reasonable to prevent
significant adverse impacts on human health
or the environment.
2. Delete § 122.7(d).
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Common Issue 4
Revise the introductory paragraph to § 122.12 to read
as follows:
The following is a list of Federal laws that
nay apply to the issuance of permits under
these rules. When any of these laws is
applicable, its procedures must be
followed. When the applicable law requires
consideration or adoption of particular
permit conditions or requires the denial of a
permit, those requirements also must be
followed.
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Exhibit D
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Issue 5
Amend § 122.6(a)(l) to read as follows:
(1) For a corporation: by a responsible
corporate officer. For the purposes of this
section, a responsible corporate officer
means (i) a president, secretary, treasurer,
vice-president of the -corporation in charge
of a principal business function, or any
other person who performs similar policy- or
decision-making functions for the
corporation, or (ii) the manager of one or
more manufacturing, production, or operating
facilities employing more than 250 persons or
having gross annual sales or expenditures
exceeding $25,000,000 (in second-quarter 1980
dollars), if authority to sign.documents has
been assigned or delegated to the manager in
accordance with corporate procedures.
[Note: EPA does not require specific
assignments or delegations of authority to
responsible corporate officers identified in
§ 122.6(a)(1)(i) . The Agency will presume
that these responsible corporate officers
have the requisite authority to sign permit
applications unless the corporation has
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notified che Director to the contrary.
Corporate procedures governing authority to
sign RCRA and NPDES permit applications may
provide for assignment or delegation to
applicable corporate positions under
§ 122.6(a)(l)(ii) rather than to specific
individuals.]
Amend § 122.6(d) to read as follows:
(d) Certification. Any person signing a
document under paragraphs (a) or (b) of this
section shall make the following
certification:
"I certify under penalty of law that this
document and all attachments were prepared
under my direction or supervision in
accordance with a system designed to assure
that qualified personnel properly gather and
evaluate the information submitted. Based on
my inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information,
the information submitted is, to the best of
my knowledge and belief, true, accurate, and
complete. I am aware that there are
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significant penalties for•submitting false
information, including the possibility of
fine and imprisonment for knowing violations.
Add the following preamble language:
Under the revised § 122.6(d)
certification language, the person signing
the form (the signer) must have some form of
direction or supervision over the persons
gathering the data and preparing the form
(the preparers), although the signer need not
personally or directly supervise their
activities. The signer need not be in the
same corporate line of authority as the
preparers, nor do the persons gathering the
data and preparing the form need to be
company employees (e.g., outside contractors
may be used). It is sufficient that the
signer has authority to assure that the
necessary actions are taken to prepare a
complete and accurate application form. For
example, the signature of an "environmental"
vice-president is acceptable if the signer
has the requisite authority. Such authority
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should include the power Co direct that
revisions be made to the application form if
necessary.
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Issue 9
1. Revise § 122.9(b) Co read as follows:
RCRA. Except as provided in paragraph (e) of Chis
section and §122.30, RCRA permits shall be effective
for the fixed term of the designed operating life of
the facility (in the case of a new facility) or the
remainder of the designed operating life of the
facility (in the case of an existing facility). The
designed operating life of the facility is the period
of'time,"estimated by 'the owner or operator and agreed
upon by EPA, for which the facility is designed to and
is expected to remain in operation. The estimate
should reflect consideration of the construction
materials of the facility, the volume and type of waste
the facility expects to handle, and the processes the
facility will employ.
2. Revise § 122.9(e) to read as follows:
The Director may issue any NPDES, UIC or 404 permit for
a duration that is less than the full allowable term
under this section; .for RCRA permits only, the Regional
Administrator may issue a permit for a duration that is
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Less Chan Che full allowable Cera under chis section
only when Che permit applicant so requests.
3. Revise § 122.15(a)(3) Co read as
follows: New Regulations. The standards or
regulations on which the persxic was based have been
changed by promulgation of new or amended standards or
regulations or by Judicial decision after Che permie
was issued. Permits for RCRA facilities and UIC Class
II or III wells may be modified during their terms for
this cause without following the conditions of
paragraphs (3)(i) and (ii) of this section. All other
permits may be modified for this cause only as
follows: (rest remains the same).
4. Add new §122.15(a)(7) to read as
follows: For RCRA only, when the permit fails to
include any applicable requirement under RCRA which is
in effect prior to the date of-permit issuance.
5. Revise §123.129(e) to read as follows:
No permit may be issued by a State with incerim
authorization for Phase II for a Cera greater than Che
designed operating life of the facility.
6. Add preamble language explaining Chat
Che permiccee can seek renewal of che permie cera if ic
Curns out that he underestimated che designed cperacing
life of che facility.
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7. Add preamble language seating chat EPA,
in aodifying RCRA permits based on new regulations,
'w'il-1 'di'stingui'sh between' new and existing facilities in
accordance with section 3004 of the Act.
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Issue 13
1. Revise §122.22(b) co read as follows: New HWM
facilities. (1) No person shall begin physical
construction of a new HWM facility without having
submitted Part A and Part B of-the permit application
at least 180 days in advance of beginning such
construction, and without having obtained the Federal
(other than RCRA), State and local permits or approvals
necessary to begin such physical construction; for
-•landfills, injection wel-ls, land treatment facilities
and disposal surface impoundments, no person shall
begin physical construction without also having
received a finally effective RCRA permit. For purposes
of this paragraph, .physical construction does not
include grading, grubbing, preliminary soil testing,
construction of access roads, fences or general site
drainage, or movement of earth incidental to those
activities. This does not relieve any person of any
applicable preconstruction requirements other than
those imposed under RCRA. For good cause shown, the
Administrator may allow a shorter advance application
period. No person may begin operation of a new HWM
facility without having received a finally effective
RCRA permit.
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(2) An application for a permit for a new HVM
facility (including both Part A and Part 3) may be
filed any" t'ize ''after promulgation of those standards in
Part 264, Subpart I et seq. applicable to such
facilities. (Applicants for new land disposal
facilities shall apply under Part 267 until final
standards are issued under Part 264 for such
facilities.) The application shall be filed with the•
Regional Administrator if at the time of application
the State in which the new HWM facility is proposed to
be located has not received either Phase II interim
authorization for permitting such facility or final
authorization; otherwise the applicant shall follow the
procedures of the authorized State.
2. Add preamble language reminding the states that
the federal program proposes to allow pre-permit
construction and that they may want to consider a
similar provision if EPA promulgates this in final
.form, although they are authorized to impose more
stringent requirements than those in the federal
program. In states that either do not prohibit pre-
permit construction or that adopt a similar provision,
an applicant will be free to begin construction
provided the other conditions are met.
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Issue 14
1. Add preamble language and/or definitions in
Part 122 indicating that for purposes of 40 C7R §
122.23(b) and (c), the terms "process" and "unit" are
defined as follows:
process: A process is a generic type of HWM
activity. Processes include, but are not limited to:
storage/treatment in containers
"storage/treatmentf-in tanks
storage in waste piles
storage/treatment in surface impoundments
treatment in incinerators
land treatment and disposal
disposal in injection wells
disposal in landfills
disposal in surface impoundments
disposal in waste piles
unit: A unit is a single process entity. A process
at a facility may include several units.
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Example: A facility consists of 1 incinerator, and 3
tanks. The facility has 2 processes (i.e..
'•'incinerator and tank) and 4 units.
2. In Pare 122, § 122.23(b) is revised to read
as follows:
(b) Coverage« Except as provided in paragraph (c) of
this Section, during the interim status period the
owner or operator of a facility may make any changes to
his facility except that the owner or operator shall
not:
'(1) Treat, store, or dispose of hazardous
waste not specified in its initial Part A permit
application;
(2) Employ processes not specified in its
initial Part A permit application;
(3) Exceed the design capacities specified
in its initial Part A permit application;
(4) Replace units specified in its initial
permit application; or
(5) Transfer the facility to a new owner or
operator.
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3. In Part 122, § 122.23(c) is revised to raad
as follows:
•122.2 3^I-n-ter-im -s-t a tus
*****
(c) Changes during interim status.
(1) Hazardous wastes not previously
identified in Part A of the permit application may be
'treated, stored, or disposed of at a facility if the
owner or operator submits a revised Part A permit
application prior to treating, storing, or disposing of
such waste.
(2) Units may be replaced if the owner or
operator submits a revised Part A permit application by
certified mail no less than 60 days before beginning
physical construction for such a replacement.
Replacement means the substitution of a new unit or
units for one or more units of the same process at the
same or a different location at the facility without
increasing the design capacity of the process. No
revised Part A permit application is required for the
replacement of tanks or containers or for the
replacement of a unit at exactly the same location as
the original unit.
(3) Processes for the treatment, storage, or
disposal of hazardous waste may be added, or the design
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capacity of such processes may be increased if the
owner or operator submits a revised Part A permit
a-ppT'ica"tion by certified mail before beginning physical
construction for such a change along with a
justification explaining the need for the change, and
the Director approves the change because it is
necessary to comply with Federal, State, or local laws
or regulations (including 40 CFR Parts 264 and 265).
(4) Tanks or containers used to treat or
store hazardous waste may be added, or the design
capacity of tanks or containers may be increased if the
owner or operator submits a revised Part A permit
application by certified mail no less than 60 days
before beginning physical construction for such a
change. For purposes of this paragraph, "tank"
includes any device, structure, or facility, other than
a surface impoundment, constructed of sturdy, leakproof
material and designed and operated to prevent spills or
leakage .of hazardous waste.
(5) The design capacity of one or more
processes for the treatment, storage, or disposal of
hazardous waste may be increased if the total of all
increases of each process made during the interim
status period, other than those covered by paragraphs
(c)(3) and (c) (4) , does not exceed fifty percent of the
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design capacity of Che process as reflected in the
facility's initial Part A permit application. The
•owner or operator must submit a revised Part A permit
application by certified mail no less than 130 days
before beginning physical construction for such an
increase. Increases which in the aggregate do not
exceed ten percent of the design capacity of a process
as reflected in the facility's initial Part A permit
application may be made if the owner or operator
submits a revised Part A permit application by
certified mail before beginning physical construction
for such an increase.
(6) Changes in the ownership or operational
control of a facility may be made if the new owner or
operator submits a revised Part A permit application by
certified mail no less than 90 days prior to the
scheduled change. When a transfer of ownership or
operational control of a facility occurs, the old owner
or operator shall comply with the requirements of 40
CFR Part 265, Subpart H (financial requirements), until
the new owner or operator has demonstrated to the
Director that it is complying with that Subpart. All
other interim status duties are transferred effactive
immediately upon the date of the change of ownership or
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operational control of the facility. Upon
demonstration by the new owner or operator of
compliance with that Subpart, the Director shall notify
the old owner or operator in writing that it no longer
needs to comply with that Subpart as of the date of
demonstration.
(7) For good cause shown, the Director may
allow a shorter advance notice period for any changes
made under this section.
4. Add preamble language indicating.
(a) that EPA will publish notice in the
Federal Register of each revised Part A permit
application it receives covering expansions of more
than ten percent of design capacity;
(b) that the 180-day waiting period in
§ 122.23(c)(5) is meant to allow the Director to decide
whether or not to call up the Part 3 permit application
on any new units being constructed at the facility;
(c) that new units constructed after the
effective date of Part 264 regulations applicable to
units of that type shall be subject to new facility
permitting standards when they are permitted;
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(d) chat the following criteria, among
others, will be used in deciding whether or noc Co call
up che Part 3 on any such new units:
(1) any history of poor management
practices;
(2) Cype and total volume of
wastes to be handled in new
unit(s);
(3) type of process involved
(e.g.. storage versus land
disposal)
(4) proximity of new unit(s) to
ground water, surface water,
and population; and
(5) any history of citizen
complaints;
(e) that EPA is considering amending 40
C.F.R.. Part 267 so that new land disposal units at
existing facilities can be permitted under Part 267;
(f) that once the Director decides not to
call up the Part 3 permit application, he should
promptly notify the owner or operator that the changes
covered in the revised Part A permit application may be
implemenced wichcut awaiting Che end of Che 180-day
period; and
(g) ChaC equipmenc malfunctions and ocher
evenCs of an emergency nature are examples of "good
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cause" for reducing or waiving any of Che tiae periods
ur.cTer 5 1-22.23 (c) (7) ; and .
(h) Chat EPA solicits public commenc on Che
definicion of "unit" in the context of a landfill.
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R-8
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"
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
-< r-
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Cntil the regulation is amended, our policy will be to en-
force the interim status standards against these facilities, pre-
ferably in conjunction with an administrative order based on con-
sent, or if necessary, through issuance of a unilateral order.
BACKGROUND
The language of 40 C.F.R.§265.1(b), which defines the general
application of the interim status standards provides that "[t]he
standards in this Part apply to owners and operators of facilities
which treat, store, or dispose of hazardous waste who have fully
complied with the requirements for interim status..." This
regulatory language has created uncertainty as to whether the
Part 265 interim status standards can be enforced against existing
facilities which have failed to qualify for interim status.
This language presents no enforcement problems if we are
interested merely in shutting down an existing facility for operat-
ing without either interim status or a permit. A problem arises,
however, where there is an existing facility operating without
interim status—and a determination has been made that continued
'"improved" operation of "the facility would be in the public
interest.
We have adopted a policy that allows facilities in existence on
November 19, 1980, that have failed to achieve interim status to
continue operations pursuant to the exercise of enforcement discre-
tion, if continued operation is in the public interest, and the
facility owner and operator complies with the appropriate RCRA
performance standards.1/ These facilities will, in most cases,
receive notice of the exercise of enforcement discretion and of
the Region's decision to allow the facility to continue operations
if it meets certain conditions. This notification and the outline
of the necessary conditions will be provided through the issuarice
of either a compliance order under RCRA Section 3008 or an Interim
Status Compliance Letter (ISCL).
The compliance order or ISCL issued to a non-interim status
facility should require the facility to comply with the statutory
requirements for interim status (even though the facility can never
actually have interim status if it failed to meet one or more of
the statutory requirements for interim status by the required
deadline) and to comply with the interim status standards (Part
265 regulations) as a condition of continued operation. Under the
current policy, if a compliance order is issued, we may assess an
administrative penalty for the statutory violation of operating
without either interim status or a permit. We may point out viola-
tions of the interim status standards in the cover letter accompany-
i/Se.e July 31, 1981 Memorandum, "RCRA, Section 3005(e); Continued
Operation of Hazardous Waste Facilities by Owners or Operators Who
Have Failed to Achieve Interim Status" (ISCL iMemo).
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ing the order, or in the order itself, but we currently do not
assess penalties for these regulatory violations, given the
uncertainty regarding the applicability of these standards to
non-interim status facilities.
As a result of this procedure, the owner or operator of a
non-interim status facility may attain an unfair advantage over
competitors who did comply with the statutory requirements for
interim status and who therefore may be assessed penalties for
violation of the interim status standards.
Our concern over this potential inequity has caused us to
re-examine the applicability of both the Part 264 and Part 265
standards to existing facilities without interim status.
APPLICABILITY OF THE PART 264 AND PART 265 STANDARDS TO EXISTING
FACILITIES WITHOUT INTERIM STATUS
It is clear we have the authority to enforce the Part 264
general permitting standards against existing facilities without
interim status, since these standards apply to all hazardous waste
treatment, storage, or disposal facilities (TSDP's), regardless
of whether the facility has a permit, or interim status.
However, exclusive application of these standards in enforce-
ment actions against non-interim status facilities creates a number
of problems and anomalies given that the Part 264 standards
currently being enforced comprise a less comprehensive set of
standards than the interim status standards. This may lead to a
situation where a facility that has fully met the requirements for
interim status would be subject to more comprehensive regulatory,
requirements than a facility that has not met the requirements*tor
interim status.
In addition, requiring a non-interim status facility to comply
with the Part 264 standards may require an owner to retrofit the
facility without the EPA oversight ensured by the permitting pro-
cess. Incorporating site-specific technical requirements and
compliance schedules into a §3008 order would delay issuance of
the order, and may present legal problems if we, in effect, end up
writing a permit into the compliance order.
Our re-analysis of the interim status standards indicates we
arguably have a legal basis for directly enforcing these standards
against non-interim status facilities without delaying enforcement
action until we issue a §3008 order requiring compliance with the
Part 265 standards and can act to enforce the order if non-com-
pliance occurs.
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This analysis is based upon an interpretation of 40 C.F.R.
5265.l(b) which does not preclude application of the interim status
standards to non-interim status faclities, given that these
standards were promulgated under Section 3004 of RCRA to ensure
that existing facilities meet at least the threshold requirements
of Section 3004 during the interim status period. The language of
Part 265.l(b) does not expressly limit the application of the Part
265 standards to only interim status facilities. In addition,
Paragraph (a) of Part 265.1 provides that the purpose of the Part
265 standards is to establish minimum national standards during
the period of interim status. Therefore/ it appears that the Part
265 standards can be applied to all existing unpermitted facilities
until such time as the facility receives a final RCRA permit.
ENFORCEMENT
While it would provide EPA with maximum flexibility if we
could determine on a case-by-case basis whether it would be more
appropriate to enforce the Part 264 standards or the Part 265
standards/ we believe that both legal and practical considerations
require us to apply only one set of performance standards to
these facilities.
The Part 265 regulations represent a relatively comprehensive
set of standards which can be applied to all existing facilities
until these facilities receive a final RCRA permit. The Part 265
groundwater monitoring requirements which became effective on
November 19/ 1981/ provide us with an additional means of regulat-
ing unpermitted facilities.
We intend to amend 40 C.F.R.§265.1(b) as soon as possible in
order to provide clear notice to owners or operators of existing"
facilities without interim status that they must comply with the
Part 265 regulations.
Until the regulation is amended/ you should proceed to enforce
the interim status standards where violations of the RCRA per-
formance standards are evident/ preferably in conjunction with an
administrative order based on consent. Where a consent order
cannot be obtained, you should proceed to enforce the Part 265
standards through issuance of a unilateral order. In both cases,
penalties may be assessed/ where appropriate/ at the time the
§3008 order is issued to allow the facility to continue operation.
In addition, if a significant number of violations of the Part
265 performance standards are evident-, it may be appropriate to
call in the Part B of the permit application at the time the §3008
order is issued in order to ensure that the facility is permitted
as expeditiously as possible. Of course, if a facility appears to
present an environmental hazard, we always retain the option of
ordering the facility to cease operating until such time as it
receives a final RCRA permit.
If you have any questions, please contact Paula Abrams at
(FTS) 382-3101.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
JAN 2 2 TS82
- OP'ICE Of
SOLlO WASTE A,\iO 6MEBGENCV RESPQNSS
MEMORANDUM
SUBJECT:
PROM:
TSROOGS:
Guidance on Developing Compliance Orders under Section
3008 of the RCRA; Enforcement of Ground-Water Monitoring
Requirements at Interim Status Facilities
Douglas MacMillan, Acting Director^-VflM '
Waste Programs Enforcement (WB*-527-F)
Off
_
^C^pper, 'Assistant Administrator
e or Sdlld Waste and Eaeflgency Response
William A. Sullivan, Jr.
Enforcement Counsel
Regional Administrators
Regional Counsels
Air and Hazardous Waste Division Directors
Regions I-X
As you are aware, owners or operators of surface impound-
ments, landfills and land treatment facilities for management of
hazardous waste were to have implemented a ground-water monitoring
program as specified in 40 C.P.R. S265.90 by November 19, 1381.
The Agency regards the ground-water monitoring requirements to be
a fundamental component of the Federal hazardous waste management
program. Enforcement of the requirements will be a major new
undertaking for the Agency. Because of their innovative nature,
broad scope and the variety of circumstances to which they must be
applied, it is important that a consistent framework exist for
the enforcement of the requirements. This memorandum, developed
in conjunction with Office of General Counsel and Office of Solid
Waste, provides such a framework.
Background
Strategies for the enforcement of the ground water monitor-
ing requirements must be designed to reflect a number of considera
tions. The number and type of facilities subject to the ground-
-ter monitoring requirements present a wide variety of monitoring
oblems and the enforcement policy must be flexible enough to
•omodate those dif f srences. On the ether hand, enforcement
icy should be generally consistent in its application so
tsat like situations will be treated in a similar manner and the
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regulated community will have adequate notice of what actions are
xpected of it. In addition, an enforcement policy for the
crounc-water monitoring requirements must reflect the possibility
that, due to the comprehensive and innovative nature of the program,
substantial noncompliance may exist, particularly during the
initial months of the program.
Inspections
During the next several months {at least until inspections
have been conducted at a representative nunber of the facilities
required to conduct ground-water monitoring) particular emphasis
should be placed on ground-water monitoring when conducting comp-
liance inspections. A determination should be made at each
facility as to the existence and proper operation of a ground-water
monitoring system. Compliance with the more specific requirements
of §265.90 should also be determined. The inspector should discuss
the §263.90 provisions with the owner/operator to ensure that the
owner /opera tor understands the 'requirements "which -are applicable
to that facility. All detected violations and appropriate remedies
should be recorded in the inspection report, carefully explained
to the owner/operator, and a copy of the inspection report should
be supplied to the owner/operator. In addition, all facilities
which are thought to require groundwater monitoring but which do
not submit quarterly reports should be assigned a high priority
:or early inspection.
All required documentation (i.e.,
waiver' demonstration,
sampng an anayss pans, sampng resuts, reports an, a-^
November 19, 1982, assessment plans) should be examined. (If t
adequacy of these documents cannot readily be determined on the
basis of the' site inspection, copies should be made for further
Response to Detected Violations
When violations . are detected enforcement should proceed in
accordance with previously issued guidance on developing compliance
orders under §3008 of RCHA. (See July 7, 1981 Memorandum, Douglas
MacMillan to the Regional Administrators, Guidance on Developing
'.crapliance Orders Under Section 3008 of the Resource Conservation
and Recovery Act). The classification scheme contained in the
7/7/81 memo, however, addressed only the interim status require-
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.tents in effect at that time. In that guidance/ violations which
pose direct and immediate harm or threats of harm to public health
oc the environment are classified as Class I violations. Since
failure to have or, properly operate/ a monitoring system may
'prevent "a"isec-Very "of 'conditions which clearly could constitute-
such harm/ such failures should be considered to constitute
threats of harm.
Violations of the following ground-water monitoring require-
ments should therefore be presumed to be Class I violations:
failure to monitor (§265.90(a}), waivers by the owner/operator of
all or part of the ground-water monitoring requirements which are
not justifiable on the basis of low migration potential (5265.90(c)),
failure to design and operate an acceptable monitoring system
(S265.91), failure to develop and implement an acceptable sampling
and analysis plan (S265.92)/ failure to prepare and implement*an
acceptable assessment program on a timely basis either when an
alternative monitoring system is chosen pursuant to §265.90(d) or,
after November 19/ 1982, when contamination is detected (5265.93)',
and failure to submit required reports when contamination is
detected (S2S5.94). Section 3008 compliance orders should be
issued to the owners/operators of all facilities at which these
violations are detected. Violations of other requirements (these
would-primarily be-documentation, recordkeeping and routine
reporting requirements} should be considered Class III violations
and addressed through a warning letter.
As is the case with section 3008 orders generally (see July 7,
1981 Memorandum/ p.4), questions may arise as to whether/ in a
particular set of circumstances/ a violation should be considered a
Class I or Class III violation. For example/ a single late sub-
mission of a required report, when no contamination is detected,
would, under this scheme/ be considered a Class III violation.
General disregard of the routine reporting requirements could/
however/ be considered a Class I violation.
On the other hand/ particular Class I violations may be de
minimis in nature. Violations of some of the ground-water monitor-
ing requirements, which should otherwise be presumed to be Class I
violations/ may, in many instances, not pose a direct and immediate
threat of harm to public health or the environment. Specifically/
the requirements relating to the monitoring system (5265.91), the
5a-.pling and analysis plan (5265.92)/ and the assessment program
(5265.93) may be violated because the system/ plan or program is
somewhat incomplete or technically inadequate/ but not sufficiently
incomplete or inadequate as to pose a direct and immediate threat
of harm. In such cases the warning letter approach for-Class III
violations would be more appropriate. However, because they will
always pose a direct and immediate threat of harm, the remaining
Class I violations (i.e./ failure to monitor (5265.90(a))/ waivers
vhich are not justifiable on the basis of low migration potential
.5255.91 (c))/ and failure to submit required reports when contami-
nation is detected (5265.94)) should always be addressed through
*'::- issuance of a section 3008 compliance order.
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There will-no-doubt-be many close calls. In those cases
gional assessment as to the proper Agency response must be guided
y informed judgement. As with section 3003 compliance orders
generally, questions which arise concerning the proper classifi-
cation of a particular violation should be discussed with the
appropriate Eeadguarters liason staff prior to preparation of
the proposed order.
As is the case with 3008 orders generally, the inclusion of
penalties-in compliance orders relating to ground-water monitoring
will be at the discretion of the Regional Offices. When determin-
ing whether to include penalties in a section 3008 compliance
order the Regional Office should take into account the harm which
has or may result from the violation and any *good faith" efforts
on the part of the owner/operator to bring the facility into com-
pliance. It is expected, based on these criteria, that section
3008 compliance orders issued for violation of the following
requirements will generally include penalties: failure to monitor
{S2S5.90(a)), waivers which :are 'not justifiable on the"basis of
low migration potential (S265.90(c)), and failure to submit required
reports wnen contamination is detected (§365.94). When compliance
orders are issued which do not include penalties, it should
emphasized that failure to comply with a compliance schedule can
result in a civil action being brought in Federal District Court
'irsuant to section 3008 (a) with penalties being judicially imposed.
is anticipated that as the program progresses and owner/operators
--iccme increasingly familiar with the ground-water monitoring
requirements, penalties will be included in compliance orders for
all types of Class I violations with greater frequency.
The compliance schedule specified in the order should coincide
with the quarterly analyses required by $265.92(c) and should
require compliance within as short a period as possible. In
general, the order should specify that the next quarterly analysis,
which is required to be completed in not less than three months,
be performed. ?or example, a facility inspected February 1, 1982,
at which a Class I violation is found would be issued a compliance
order requiring that the analysis required by S2S5.92(c) be com-
pleted by May 19, 1982, the. end of the next quarter. Such a
schedule would allow owners/operators at least three months but
no more than six months to complete the monitoring necessary for
a quarterly report. In the overwhelming majority of cases this
should be a sufficient period of time for an owner/ operator to
comply.
The Regional Offices should attempt to adjust compliance
schedules according to the circumstances found at particular
facilities. In those cases where a facility is considered to be
Capable of complying within a shorter period of time (e.g., where,
•e to the nature of the facility, the waste, or hydrcgeolocic
' iditions, monitoring is a relatively simple matter, or where
-^rtial compliance has occurred) an earlier date for final com-
pliance should be included in the compliance schedule. Compliance
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schedules with a final compliance date later than the due date of
'•-he facility's next quarterly analysis, which is due in not less
ihan three rncnths, should not be allowed however, except upon a
strong showing of impcacticability.. (Absent this strong showing
facilities would be required to comply in no more than six months.)
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UNITES 5TATI3 ENVIRONMENTAL. r.9C-7SC7ICN AGENCY
TCN. 3.C. 2:-cC
JAN 2 7 1SS2
UBJECT: Ground-water 'lonitcrir.g Requirements During
Interim Stats
Fr-CI : Garv M. Dietrich, Director
Office of Solid Waste (:-.TH-5o2)
James Sunting, Acting Deczjj^y Associate
Enforcement Counsel ;-^AV /xx^
Office of Waste Programs Enforcement
Office of Legal Enforcement Counsel ("7K-527-F)
TO: Directors, AS! Divisions Regions I, III-X
Director, Air and «aste "'.anagement Division, ?.egion II
Directors, Enforcement Divisions, P.ecions I-X
Owners/operators of existing surface impoundments, landfills,
and land treatment, facilities are requires: by Vcvemher 1?, 1931 to
have installed ground-water monitoring systems that conform with
40 CF?. 55255.90-94, Subpart F. The purposes of this memo are to
notify you of several changes which the Agency stay propose to reduce
tr.e paperwork burden of Subpart F requirements anr? to provide
guidance regarding the implementation of the subpart.
CT*. 3 cleared the recordkeeping and reccrtinc requirements for
ground-water monitoring on Mcvember 13, 1951. During review of
the panervor!< requirements, EPA identified three possible chancss
to reduce the burden on the regulated community. First, the assess-
ment outline {5255. 93(a)) may never be needed and could be eliminates:
Second, if the requirement for an outline is deleted, the 15 day
period for submission of the assessment plan ( 5 255. 92 (d ) < 2) ! may need
to be extended, possibly to 90 days. Finally, routine reccrtinc
required in 5255.94 could possibly be reduced to exception reccrtinc.
That is, owners and operators would !
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against owners or operators whose analyses indicate values exceeding
the iir.i ts expressed in Appendix III of ?art 253. Sines these
are not readily identifiable; inspection schedules should be
adjusted to include a higher percentage of non-reporting facilities.
If the owner or operator has assumed (or knows) that his
facility is affecting ground-water, then he may install an al-
ternate monitoring system in accordance with 5265.90(d).
2y November 19, 1931, the owners or operator -ho elect to install
alternate systems must have submitted to the Regional Ac.minstrator'
a plan for an alternate ground-water monitoring system that
meets the requirements of §255. 93(d)(3). These plans should he
reviewed as soon as possible. The P.C3A Implementation Contract
may be used for these reviews. To provide for consistency, the
first assessment plans received in the Regional Offices should be
forwarded to the Headquarters ?emit Assistance Team Coordinators
for review.
Owners and operators who can demonstrate low probability for
migration of hazardous waste constituents, in accordance with
5 253. 9G (c) , may waive- ail or part of the ground -water monitoring
requirements. /Then waivers are encountered upon facility inspection.
or voluntary notification, you should provide timely resccr.se,
notifying the owner or operator of any inadequacies noticed in
his waiver demonstration. Demonstrations based on misunderstand-
ing *cf the regulations should be readily apparent; examples in-
clude assuming that the absence of Appendix III contaminants
from the waste justifies deleting any suitability parameters
from background determinations, or contending that facii ity^/i-esigr.
(liners, etc.) results in the low probability of migration.*
On January 11, 1*382, the regulations were amender hy adding
5255.90(e) which provides waiver eligibility for rapid neutralisation
impoundments handling wastes which are hazardous solely because
they exhibit the corrosivity characteristic. This is a
ccnplete waiver; under 5265.90(c), however, we expect that complete
waivers will be rarely justifiable in most parts of the country.
Complete waivers warrant higher priority for review. Other criteria
for high priority review include proximity to water supplies, high
recharge or infiltration rates and high mobility and toxicity of
wastes. Headquarters Land Disposal Branch and ?.C?.A Implementation
Contact support is available for waiver review.
If you have any questions concerning technical issues, please
feel free to contact Barry Stoii at FTS 753-9113; questions con-
cerning enforcement issues mav be directed to Permit Racer at FTS
332-2092.
cc: PAT Coordinators:
Dan Derbies (WE-563)
Susan Absher (WE-563}
Oenise Hawkins (WE-563)
'*. ike Cook (775-5 5 2 )
Jack lehnan (WE-563)
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UNITES STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 1 5 1332
MEMORANDUM
SUBJECT: EPA Enforcement of RCRA-Authorized State Hazardous Waste
Laws and Reaulations
FROM: William A. Sullivan, Jr.
Enforcement Counsel (EN-329)
TO: Regional Administrators, Regions I
Regional Counsels, Regions I - X
In the administration of the hazardous waste program, a state
wirh an authorized RCRA program may, for various reasons, be unable
or unwilling to take enforcement action that EPA may deem critical.
Several legal and administrative questions which may be presented
in such cases include the following:
1. Can EPA take enforcement action in states which have
been granted authorization to administer and enforce the RCRA pro-
gram? What about states with which EPA has Cooperative Arrange-
ments?
2. -Assuming EPA can take enforcement action, does i*£
enforce the state laws and regulations, or the Federal RCRA law and
regulations?
3. If an enforcement action is necessary, in what court
should EPA file the action?
4. If the enforcement action involves administrative
proceedings, does EPA follow federal or state procedures?
5. Since the taking of an enforcement action by EPA
in an authorized state might, in some cases, endanger or irritate
federal-state .relationships, what procedures should be developed
to insure, to the greatest possible extent, that any federal
enforcement actions taken in a RCRA-authorized state are done at
such times and in such a manner as to eliminate or minimize
any possible impact upon that federal-state relationship?
6. VThat is the effect, if any, of state authorization
upon EPA's ability to take action under Sections 7C03 and/or 3013
of RCRA?
This memorandum will attempt to suggest some answers to
these questions and procedures which might be employed to avoid
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irritation between EPA and the state agency or agencies should it
becoir.e necessary for EPA to take enforcement action. The questions-
will be addressed in the order set forth above. The Office of
Enforcement Counsel has consulted with the Office of General Counsel
in the preparation of this memorandum.
1.
CAM EPA TAKE ENFORCEMENT ACTION IN A RCRA-AUTHORIZED STATE?
WHAT ABOUT STATES WITH WHICH EPA HAS COOPERATIVE ARRANGEMENTS?
A. Authorized states;
When a state is authorized to administer the RCRA program in
lieu of EPA, EPA has made a determination that the state's program
is equivalent (in the case of final authorization), or substantially
equivalent (in the case of interim authorization), to the federal
program, and that the state hazardous waste program can thereafter
be administered by the state under .state law, in lieu of the Federal
program. (See RCRA, Section 3006(-b) and (c)). After authorization,
can EPA take enforcement action in such a state, and if so, would
it enforce state or federal law and regulations?
The provisions of RCRA Section 3008(a)(l) and (2) are most
helpful in answering these questions. These provisions state:
"Section 3008(a) Compliance Orders.- (1) Except
as provided in paragraph (2)-, whenever on the
basis of any information the Administrator
determines that any person is in violation of
any requirement of this subtitle, the
Administrator may issue an order requiring
compliance immediately or within a specified
time period or the Administrator may commence
. a civil action in the United States district
court in the district in which the violation
occurred for appropriate relief, including a
temporary or permanent injunction."
"(2) In the case of the violation of any
requirement of this subtitle where such violation
occurs in a State which is authorized to carry out
a hazardous waste procran under Section 3006, the
Administrator shall give notice to the State in
which such violation has occurred prior to issuing
an order or commencing a civil action under this
section." (emphasis supplied)
Subsection .(2) clearly indicates that even though a state
has an authorized hazardous waste program, EPA retains the right
of federal enforcement, subject to the giving of notice to the
state in which the violation occurred prior to taking enforcement
action.
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The legislative history of Section 3008 supports this
interpretation. That history, contained in House Committee on
Interstate and Foreign Commerce Report No. 94-1461 (September 9,
1976), at page 31, states:
"This legislation permits the states to take
the lead in the enforcement of the hazardous
waste laws. However, there is enough flexi-
bility in the act to penr.it the Administrator,
in situations where a state is not implementing
a hazardous waste program, to actually implement
and enforce the hazardous waste program
against violators in a state that does not
meet the federal minimum requirements. Although
the Administrator is required to give notice
of violations of this title to the states
with authorized hazardous waste programs, the
Administrator is not prohibited from acting
in those cases where the states fail to act,
or from withdrawing approval of the state
hazardous waste plan and implementing the
federal hazardous waste program pursuant
to Title III!/ of this act."
The preamble to 40 CFR §123.128(f) and (g) at 45 Fed. Reg. 33394
(May 19, 1980), also briefly sets forth this position regarding
EPA's enforcement, of hazardous waste laws and regulations in an
authorized state.
We can also look to the Clean Water Act (CWA), which is highly
snalooous to RCRA in this regard, and from which Section 3008 was
drawn^/. Cases involving similar provisions of the OVA (e.g.,*
Sections 309 and 402) support the proposition that while Congress
intended that the states have primary authority to administer the
the program subject to national guidelines provided by the Act
and by the EPA regulations, EPA retained the authority to achieve
the purposes and goals of the Act, including the right to take
A/The House 3ill (H.R. 14496) was amended subsequent to the
submission of this report, which changed the references of Title
III to Subtitle C of the final Act.
Z/See Report of Senate Committee on Public Works, No. 94-983,
p. 17, dated June 25, 1976, which states with reference to what is
now Section 3008:
"In any regulatory program involving Federal
and State participation, the allocation or
division of enforcement responsibilities is
difficult. The Committee drew on the similar
provisions of the Clean Air Act of 1970 and the
Federal Water Pollution Control Act of 1972."
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enforcement action in appropriate cases, even after a state program
has been approved. See Cleveland Electric Illuminating Co. v. EPA,
603 F. 2d 1 (6th Cir., 1979); U.S. v. Ciry of Colorado Springs/
455 F. Supp. 1364, (D.C., ColoTj1978); Chesapeake Bay Foundation,
-Inc.. v. .wVi-rginia .State Water Control Board/ 453 F.Supp. 122 (D.C.
Va . , i97a);'U .S. V. Carcill, Inc. , Civ. Docket #80-135, (D.C. Del.
Feb. 12, 1981); and Shell_Oil v. Train, 415 F. Supp. 70, (D.C. Cal.
1976), where the Court,after quoting from legislative history
of the CWA, stated:
"The language suggests that Congress did not
intend the environmental effort to be'subject
to a massive federal bureaucracy; rather, the
states were vested with primary responsibility
for water quality, triggering the federal
enforcement mechanism only where the state
defaulted.... The overall structure is designed
to give the states the first opportunity to
insure its proper implementation. In the
event that a state fails to act, federal
intervention is a certainty".
3. States With Which EPA Has Cooperative Arrangements;
Regarding states which have entered into Cooperative
Arrangements, the federal-state relationship is different from
that of. interim or final authorization. A Cooperative Arrangement
is a device to assist;states whose hazardous waste programs are
not yet sufficiently developed to qualify for authorization, and
to provide financial assistance to these states. (See guidance
memorandum on Cooperative Arrangements dated August 5, 1980).
There is no authorization by EPA of the state to administer the"
hazardous waste program "in lieu- of the federal program. In fact,
the model Cooperative Arrangement specifically provides that:
"EPA retains full and ultimate responsibility
for the administration and enforcement of the
Federal hazardous waste management program in
the state."
The right and obligation of EPA to take enforcement action
in a state with which the Agency has a Cooperative Arrangement is,
therefore, the same as in a state which has neither interim or
final authorization.
Although notice to such states of impending enforcement
action is not required by RCRA, for purposes of maintaining harmo-
nious EPA-state relationships, appropriate consultations should
precede EPA action, and written notice should be given by EPA to
the appropriate agency and the governor of the affected state.
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2.
DOES'EPA ENFORCE STATE LAW AUD REGULATIONS OR
FEDERAL LAW AND REGULATIONS IN AN AUTHORIZED STATE?
Havi'nc concluded that EPA can enforce hazardous waste laws
and regulations in a state with an EPA-»approved program, the ques-
tion then becomes: does EPA enforce RCRA and federal regulations,
or the state's statute and regulations? If the latter, can EPA
enforce a portion of the state program that goes beyond the scope
of coverage of the basic federal program, .or state laws and regula-
tions which were adopted after EPA approval of the state program?
On the other hand, may EPA enforce a portion of the federal pro-
gram that is not included in the state program?
These issues may initially seem more academic than real since,
in order to gain interim authorization to administer the RCRA
program, a state must have a program which is "substantially
equivalent" to the Federal program (see RCRA, Section 3006(c)),
and a program.which is "equivalent" -to the .federal program in
order 'to gain final authorization (Section 3006(b)). As a result,
many authorized states will have provisions which are similar, if
not identical, to the federal regulations. .However, there will
undoubtedly be 'differences in the federal and state laws and
regulations, particularly during interim authorization, and many
states will have programs which are, in part, more stringent or
broader in scope of coverage than the federal program. Therefore,
it is very likely that these issues will be encountered frequently.
As discussed in Part 1 of this memorandum, Section 3008 (a)(2)
of RCRA authorizes EPA to take enforcement action in an authorized
state, after notice to the state, in the case of "a.violation
of any requirement of this subtitle." When EPA authorizes a
hazardous waste management program under Section 3006, the state
program becomes the RCRA program in that state, and is a part
of the requirements of Subtitle C referred to in Section
3008(a)(2)~, which SPA is mandated to enforce. Upon development
of the state's program and acceptance of that program by EPA,
"such state is authorized to carry out such program in lieu of
the federal program under this subtitle in such state...." (RCRA
Section 3006(b) and (c)). In other words, the only hazardous
waste program in effect in that state is the state program, and
the state laws and regulations are those which must be enforced
by EPA should federal enforcement action be necessary. This, of
course, does not limit EPA's right to take action under Sections
7003 or 3013 of RCRA (see Section 6 of this memorandum).
This result is undoubtedly in keeping with the intent of
Congress. If the federal hazardous waste regulations were to
apply to handlers of hazardous waste in authorized states, those
persons would be continously subjected to a dual set of laws and
regulations, a situation which presently exists in those states
which have not yet received interim authorization. Such dual
regulation is presumably what Congress intended to phase out in
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an orderly manner when it adopted the provisions of Section 3006
(b ) and (c) .
Again, an analogy can be drawn to the provisions of the
Clean Water Act and the cases decided under it to reinforce this
bp'ir.ion. See United States v. Cargill, Inc., (D.C., Del.) Civil
No. 80-135, Slip Op. February 12, J981; Shell Oil
supra; United States v. I.T.T. Rayonier, Inc., 627 c . 2d 996 (9th
Cir., 1980 ) . The proolem becomes" more complex, however, when
the following questions are considered:
(A) If an authorized state program includes regulations
or statutory provisions which are greater in scope of coverage
than the federal program, can EPA also enforce those additional
state requirements?
(3) If the federal regulations contain provisions which
are not included in the state program (e.g., by reason of promul-
gation by EPA subsequent to authorization of the state program by
EPA), can EPA enforce the federal regulations which are not a
part :of the state program? and,
(C) If the state makes modifications in its program
after authorization, does EPA enforce the state program as originally
approved, or the state program as modified after approval by EPA?
These questions will be of particular significance during
interim authorization, when the states are required only to have
programs which are "substantially equivalent" to the federal program,
and while EPA and the states continue to "fine-tune" their programs.
A. If an authorized state program includes regulations
or statutory provisions which .are greater in scope of
coverage or more stringent than the federal program,
.can EPA also enforce those additional state requirements?
Individual states will, in addressing industrial, agricultural,
geographic, hydrological and other factors which exist within their
borders, undoubtedly develop portions of their hazardous waste
programs which are greater in scope of coverage than the federal
program. Examples of such additional coverage could include the
listing of wastes which are not included in the federal universe
of hazardous waste; the permitting of generators or transporters;
recordkeeping or reporting requirements not included in the federal
regulations; and requirements for physical examination of employees
and their families. State requirements which are greater in scope
of coverage than the federal regulations are generally those for
which no counterpart can be found in the federal requirements.
State program requirements that are greater in scope of
coverage than the federal program are not a part of the- federally-
approved program (40 CFR §§123. l(k) and 123.121(g)). " Since that
portion of the state program does not have a counterpart in the
federal program, it does not become a requirement of Subtitle C,
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the violation of which EPA is entitled to enforce pursuant to
Section 3008 (a) (1) and (2). Therefore, EPA may not enforce that
portion of a state program which is broader in scope of coverage
than the federal program.
It -should be -made clear, however, that there is a distinction
between portions of a state program which are broader in scope of
coveraae, and those which are "more stringent" than the federal
program. Section 3009 of RCRA and 40 CFR §§123. l(k) and 123.121(g)
provide. that nothing shall prohibit a state from imposing any
requirements which are. more stringent than those imposed by the
federal regulations.
While state provisions which are broader in scope of coverage
generally do not have a counterpart in the federal program, the
subject matter of the more stringent state provisions is usually
covered in similar provisions of the federal program. Examples of
more stringent state provisions would include: a requirement that
not only a fence be erected and maintained around a facility, but
that it be a fence of specific height and of specific material
re strngent state provsons wou ncude: a requrement that
t only a fence be erected and maintained around a facility, but
at it be a fence of specific height and of specific material
.g., a ten-foot, chain-link fence); a requirement that containers
r storage of waste be of a specific material and/or color-coded;
lesser a'mount of waste exempted from regulation under the small
antity generator exemption (40 CFR §261.5); and a requirement
t final cover of a land disposal facility be of a particular
erial or thickness.
.Provisions in state programs which are. more stringent than
their federal counterparts are, nevertheless, a part of the approved
state program, and are enforceable by EPA. Congress apparently
intended that result when, in Section 3009, it authorized states to
develop more stringent programs, and, at the .same time, authorised
EPA to enforce those programs under Section 3008(a)(2). In add'ition,
more stringent state provisions" in an approved' program are, unlike
those which have no counterpart in the federal program, a part of
the requirements of Subtitle C, which EPA is required to enforce.
3. If the state modifies its program after authorization,
can EPA enforce the state program as modified, or the
state program as approved before the modification?
This issue assumes that, after either interim or final
authorization of a state program, the state makes modifications
in that program. Such modifications could make the program
more stringent, less stringent or enlarge or restrict the scope
of the program. In such event, must EPA enforce the program as
modified, or the program in existence at the time of authorization?
With regard to modifications made by the states in their programs
after final authorization, 40 CFR §123.13 sets forth specific pro-
cedures for such .revisions by the states and approval thereof by EPA.
A state program revision after final authorization must be submitted
to EPA for approval, public notice given, and a public hearing held
if there is sufficient public interest. The revision to the state
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program becomes effective upon approval by the Administrator
"(40"CFR §123.13(b) (4) ) . It" is, therefore", clear that under
present EPA regulations, modifications made to a state program
after final authorization require EPA approval for such modifica-
tions to be effective, and that the state program which EPA may
enforce is that which existed as of the latest EPA approval.3/
However, the federal regulations relating to Phase I authori-
zation contained in 40 CFR §123.121 through 123.137 do not contain
specific provisions comparable to §123.13 with respect to how modi-
fications may be made by a state in its program after interim
authorization, or how approval of any such modifications could be
made by EPA, short of Phase II or final authorization. This is a
significant omission, since it is apparent that many, if not all,
states will be making modifications in their programs between the
approval for interim authorization and the filing of their appli-
cations for final authorization.j/
In the absence of requirements in RCRA or EPA's regulations
for submission of program modifications by a state with interim
authorization to EPA for approval, it is presently our opinion
'£hat'EPA may enforce such modifications made by a state with
interim authorization, notwithstanding that EPA may not have
approved those modifications^/
2/Discussions with representatives of the Office of General
Counsel and the Office of Solid Waste indicate that 40 CFR §123.13
is under review, and may be amended to eliminate the requirement
that EPA approve modifications made after final authorization of
state programs before the modifications may be effective. The
consequences on enforcement of such an amendment to §123.13 are,- -
addressed in the following discussion.
£/There are, however, stages during interim authorization in
which state program changes may be approved by EPA. For example,
when the states, having received Phase I authorization, apply to
EPA for Phase II interim authorization, they must demonstrate that
their programs have been modified, if necessary, since Phase I
authorization so as to contain the elements necessary to meet the
requirements of one or more of the components of Phase II. Likewise,
changes in the state program during interim authorization are sub-
mitted to EPA for approval as part of the process for final authori-
zation. There is also a provision in the model Memorandum of Agree-
ment between EPA and the state which requires the state to inform
EPA of any program changes which would affect the state's ability
to implement the authorized program. Nevertheless, there is no
requirement, as in 40 CFR §123.13, which delays the effective date
of modifications in a state program during interim authorization
until after EPA approval of such modifications. ,
the event EPA should eliminate the requirement of 40 CFR
§123.13 (see footnote 3), then by much the same reasoning contained
herein, EPA could also enforce modifications made in the state pro-
gram after final authorization, notwithstanding whether EPA had
approved the modifications.
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have come to this conclusion for the following reasons:
1. Congress provided in Section 3006 for two types
of authorization: interim authorization, to be granted upon a
showing by the states of "substantial equivalence" with the
federal program; and final authorization, upon a showing by the
state of "equivalence" with the federal program. Obviously, in
the journey from substantial equivalence to ecuivalance, some
changes must be made, and were undoubtedly contemplated by
Congress. Yet, Congress also authorized EPA to enforce the
hazardous waste program during this interim period, including
the programs in. effect in those states to which interim authori-
zation had been granted. It therefore appears that Congress
ir.rended that EPA enforce such laws and regulations as were in
effect at the time of violation in a state with interim authori-
zation, notwithstanding whether EPA had formally approved each
and every one of those laws or regulations.
2. To conclude that EPA could not enforce state laws
and regulations adopted after granting of interim authorization,
but 'Was, instead, restricted' to'enforcement of only "those which
were in existence at time of approval of the state program by
EPA, would" potentially subject the regulated community to the
dilemma of being required to comply with two sets of laws or
regulations on the same subject: those which were a part of
the EPA-approved state program at the time of granting of
interim authorization; and those which the state promulgated
after the granting'of interim authorization. Such dual regula-
tion defeats the whole purpose of state authorization.^/
We therefore conclude that changes made by a .state in its
hazardous waste programs after granting of interim authorization/
and before granting of f,inal authorization, may be enforced by*
EPA regardless of whether the changes have been formally approved
by EPA. In so doing, we recognize that there are several forceful
arguments which can be made on the other side of the issue.Z/
Notwithstanding these, we believe the weight of the arguments
tilts in favor of the conclusion which we reached herein.
apply with equal force to
•ogram during final authorization
11 be making many fewer modificati
thorization.
Z/For example, if a state, after receipt of interim authoriza-
tion, makes changes in its program which are less stringent, is EPA
required to enforce the portions of the state program which are
less stringent? The answer must be "yes", and if the state makes
many such changes in 'its program, EPA's only resort may be to
revoke the State's authorization.
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C. If the federal regulations contain provisions which
are not included in an approved state program, can
EPA enforce those federal regulations in that state?
The situation presented by this question will most likely
occur when EPA modifies its regulations or adopts new regulations,
such as the addition of a waste to the universe of federally-
regulated waste, after the approval of a state program. This issue
is significant because, with approximately one-half of the states
having received interim authorization, it is important to know
whether changes made in the federal program subsequent to a state
having been granted authorization can be enforced in that state.
Under the procedure established by Section 3006 and 40 CFR
Part 123, a state, in order to gain interim or final authorization,
must submit to EPA its program consisting of, among other things,
the state laws and regulations which constitute its program.
These are compared to the analogous provisions of the federal
.program to- -determine -whether the state program meets the necessary
standards for interim or final authorization. Approval is granted
for the specific state program as submitted, which then becomes
the hazardous waste program in effect in that state in lieu of the
federal program..§/ • The federal program, in effect, ceases to
exist in that state, except for the potential of federal enforcement
of the state nrogram or the possibility of action under Sections
7003 or 3013.
Since the state hazardous waste laws and regulations are
effective in lieu of the federal program after authorization, any
changes in the federal program made after the granting of interim
authorization to a state do not become a part of the state program
unless and until the strate adopts such changes..§/ Inasmuch as the
state laws and regulations are those which EPA is required to
, where the state program has a greater
required under the federal program, that
am is not a part of the federallv-arsproved
(k)(2) and 123 .121(g.) ( 2 ) . Also as noted earlier,
program. 40 C.R §§123 . l(k) ( 2)
during interim authorization,
program, notwithstanding that
modification.
program, notwi
modifications.
or a discussion of the .adoption of modifications by a state
in its program, and when those modifications become a part of the
EPA-authorized program, see Subsection 3 of this Section, supra.
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-• 11 -
enforce, EPA is, conversely, not entitled to enforce federal
requirements which are not a part of the state program.££/
With regard to states which have been granted final authori-
zation, there are provisions in the federal regulations which
'"gc'-vern the state adoption of modifications in the federal program.
Section 123.13 of 40 CFR requires the states, afcer final authori-
zation, to adopt amendments which are made to the Federal program
within one year of the promulgation of the federal regulation,
unless the state must adopt or amend a statute, in which case the
revision of the state- program must take place within two years.
However, until the state adopts the Federal amendments, the state
program does not include them, and EPA cannot enforce them in that
stare.
We recognize that this could create a situation in which
regulations promulgated by EPA subsequent to authorization of a
substantial number of states would not be effective in those
states until such time as the states adopted them,ii/ while being
in effect as part of the federal program in those states which
do not yet have interim authorization, and in those states which
receive authorization after promulgation of the regulations and
have included a counterpart of the regulations as part of their
state program."
3.
IF. AN ENFORCEMENT ACTION IS NECESSARY,
IN WHAT COURT' SHOULD EPA FILE THE ACTION?
Section 3008(a)(l) of RCRA provides that whenever the
Administrator determines that any person is in violation of
requirement of Subtitle^ C, "... . the Administrator may commence
A2/It should be noted here that there are components of the
federal program which are not included in Phase I interim authoriza-
tion or in some phases of Phase II authorization to the states.
For example, the granting of Phase I interim authorization to the
states does not include the authority to issue RCRA permits to
hazardous waste management facilities. Likewise, the granting of
Phase II, Component A authorization (covering permitting of
storage facilities) does not include authority to issue RCRA permits
to hazardous waste land disposal facilities, which will be covered
by Component C of Phase II. The portion or portions of the federal
program not covered by an authorization to the state continues
as a part of the federal program in effect in that state until it
is covered by a subsequent authorization. In the meantime, EPA
is entitled to enforce those portions of the federal program which
the state has not yet been authorized to administer.
Ai/For a discussion of the adoption of modifications by a state
in its program, see Subsection 3 of this Section, supra.
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civil action in the United States District Court in the district
in which the violation occurred...."
This statute vests jurisdiction of suits involving violations
-of th'e -'hazardous "v?as't'e program under Subtitle C in the U.S. District
Courts, and the venue of such actions in the U.S. judicial district
in which the violation occurred. Therefore, in a suit brought
by EPA to enforce a portion of the hazardous waste program of a
state which has received interim or final authorization, the
suit should be brought in the appropriate U.S.•District Court,
but the substantive law .to be applied to the facts of the case
should be the state hazardous waste statutes and regulations
which were applicable to those facts.
The state nay, of course, file its enforcement actions in the
state courts. In this regard, EPA should be aware of the potential
which may exist for a final decision in a state court action to
act as collateral estoppel to a subsequent action which EPA may
bring against the same offender over the same violation. See U.S.
v.'- iTT^Rayibner, Inc. ,'-'627 'F.2d 996 (9th Cir, 1980), for a discus-
sion of state court judgments acting as collateral estoppel against
EPA.
4.
IF EPA ENFORCEMENT OF STATE LAWS, REGULATIONS OR
PERMITS INVOLVES ADMINISTRATIVE PROCEEDINGS, SHOULD
EPA FOLLOW FEDERAL OR STATE PROCEDURES?
Since the bulk of the RCRA enforcement activity of EPA will
involve administrative proceedings, particularly with the authority
to issue administrative orders under Sections 3008, 3013 and 7u03,
the question' of whether^federal- or state administrative procedures
will be followed in enforcement actions is an important one.
There can be little question that Congress provided EPA with
the necessary authority to use federal procedures for enforcement
of all applicable hazardous waste laws, and that it intended that
those procedures be used in the event of federal enforcement of a
state's hazardous waste laws or regulations.AZ/ For example,
Section 3008(a)(l) of RCRA authorizes the Administrator, in the
event of a violation of any requirement of Subtitle C, to issue
an order requiring compliance immediately or within a specified
time. Section 3008(a)(2) makes it clear that such orders may be
issued in states which are authorized to carry out the hazardous •
waste program under Section 3006 (after noticeto the affeczec
state); and Section 3008(a)(3) provides for a penalty for non-
compliance, as well as the authority of the Administrator to revoke
interpret RCRA as limiting the use of the administrative
orders mentioned herein to EPA, and that they are not available,
as such, to the states. The states statutes may, of course,
contain authority for state administrative orders.
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any perr.it issued to the violator, whether by EPA or the State.
Provisions for public hearings on any order issued under this
"Sec-ion, and authority for the Administrator to issue subpoenas
are also included in Section 3008(b). Section 3008(c) specifies
the scope and content of the. compliance orders which may be
issued under this Section.
Congress provided a specific mechanism for federal administrative
enforcement proceedings, to be used in cases of federal enforcement
of state programs in lieu of any administrative procedures contained
in the laws and regulations of the state in which the violation
occurred. Furthermore, it would seem inconceivable as a practical
matter that EPA would consider using state administrative procedures
even should it legally be possible to do so, since that would, in
most cases, necessitate submitting the violation to the state
agency whose inability or failure to take enforcement action would
have been responsible for bringing about EPA's involvement in the
'matter.
5.
IN EVENT OF EPA ENFORCEMENT IN AN AUTHORIZED STATE,
WHAT STEPS SHOULD BE TAKEN TO MINIMIZE ADVERSE
IMPACT UPON FEDERAL-STATE RELATIONSHIPS?
There are several circumstances under which EPA may be
required to take enforcement action in a state with an authorized _
RCRA program, most primarily because of the state's lack of
resources to take adequate or timely action. Whatever the reason,
EPA should carefully avoid the appearance of being "overbearing"
or disregarding the states' role as the primary agency for admin-
istration and enforcement of the hazardous waste program.
In some cases, the state will request EPA to take enforcement
action. In such cases, few problems are encountered in EPA-state
relations. However, a letter confirming the State's request, and
the notice provided for in Section 3008(a)(2) should be issued
to the state before the action is commenced. On the other hand,
when the state is passive or unwilling to initiate a timely,
appropriate enforcement action, EPA should take care to handle
the matter with diplomacy.
Since it is clear, as outlined above, that Congress intended
the states to have the primary enforcement authority of the RCRA
program, if it appears that federal enforcement intervention may be
required, a letter should be written from EPA to the appropriate
state agency administering the program containing the following:
1. A description of the violation, including the name
and address of the violator; the date of violation and location
of the facility or site at which it occurred; references to the
provisions of the state program which are being violated? and
any other pertinent details which will aid in the identification
and the nature of the violation. Additional information, such as
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- 14 -
r.arr.es of witnesses, laboratory reports, inspection reports, and
other evidence in SPA's possession should be offered upon request
of the state should the state decide to take enforcement action.
2. A statement that under RCRA and the Memorandum of
Agreement between EPA and the state, it is the primary obligation
of the state to take necessary and timely actions to enforce the
provisions of the state hazardous waste laws and regulations, and
that SPA believes it is appropriate that the state take such
action. In some cases., it would be appropriate to suggest the
type of action to be taken, such as issuance of a compliance
order, other administrative orders, revocation of a permit, or
filing of an injunctive action.
3. A statement that should the state agency fail to
take appropriate and timely action by a date certain stated in
the letter, EPA may thereafter exercise its right to initiate
enforcement action under Section 3008 (a) (-2).
The question of what is a "timely" action by the state agency
will depend upon a variety of circumstances. If an uncorrected vio-
lation could constitute a threat to human health or the environ-
ment, a relatively short period of time may be required for either
the state or EPA to act. If, through telephone conversations or
ether communications between EPA and state agency officials, there
is already an indication before the letter is mailed to the state
that it will probably not take action regardless of the request,
then a relatively short period of time (e.g., 10 days) for state
response may be allowed before EPA initiates the action. In such
case, the-letter should also refer to the previous communication'
with the state which indicated the liklihood of inaction on its part,
On the other hand, if th,ere is an indication that the state will or
nay act, but has failed to do so because of scarce resources or for
other clear and understandable reasons, a ..longer period of time
may be allowed to give the state ample opportunity to fulfill its
role as the primary enforcement authority.
At the end of the time period stated in the letter, if the
state agency has not initiated an enforcement action or indicated
its willingness and intent to do so, EPA may proceed to commence
action as the enforcing authority without further notification.
6.
EFFECT OF STATE AUTHORIZATION ON SECTION 7003 AND 3013 ACTIONS
Section 7003 of RCRA states, in pertinent part:
"Notwithstanding any other provision of this Act,
upon receipt of evidence that the handling... of
any solid waste or hazardous waste may present
an imminent and substantial endangerment to
health or the environment, the Administrator
may bring suit ... to immediately restrain any
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- 15 -
person contributing to such handling..., or to
take such other action as may be necessary.
The Administrator shall provide notice to the
affected State of any such suit. The Administrator
may also, after notice to the affected State,
take other action under this section including,
but not limited to, issuing such orders as may
be necess.ary to protect public health and the
environment." (emphasis supplied)
The first clause of. the section indicates that it was the intent
of Congress to allow EPA to take emergency actions to protect human
health and the environment in cases of imminent hazard, without re-
gard to any other provisions of the Act. It is not within the scope
of this memorandum to review the purposes and uses of Section 7003,
but it is clear that EPA is not bound by any of the provisions of an
authorized state's laws or regulations which may appear to restrict
or limit the use of this Section. -Again,- however, notice must be
given to the state prior to the commencement of such an action.
It is also clear from the express wording of the section that
only .the Administrator of EPA, or other Agency personnel to whom he
has delegated authority, may take the actions authorized by Section
7003, and that -therefore a state which has been authorized to admin-
ister the hazardous waste program may not employ Section 7003 as a
state enforcement mechanism. States are authorized by EPA to
administer and enforce the hazardous waste program only under Sub-
title C of RCRA, which does not include Section 7003. Use of
Section 7003 is within the exclusive province of EPA. This does
not, however, prohibit the states from adoption and use of thei-r'
own "form of imminent hazard authority in the state courts.
the guidance on issuance of 3013
and reference should be made
, , ,
f Administrative Orders under Section 3013 of the Resource Con-
servation and Recovery Act.
model Memorandum of Agreement between EPA and the states
:or.tained in the RCRA State Interim Guidance Manual, provides:
"Nothing in this Agreement shall be construed
to restrict in any way EPA's authority to ful-
fill its oversight and enforcement responsi-
*-i Titles under RCRA."
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- 16 -
If you have any questions or problems relating to the matters
contained in this memorandum, please contact Richard K. Mays of ny
office at FTS 332-3108.
cc: Christopher J. Capper
Acting Assistant Administrator
Office of Solid Waste and Emergency Response
Robert M. Perry
General Counsel
Office of General Counsel
Mr.. C. Raymond Marvin
General Counsel
National Association of Attorneys General
444 N. Capitol Street - Room 1777
Washington, D.C. 20001
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R 12
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*
UNITED STATES ENVIRONMENTAL PROTECTION
WASHINGTON. D.C. 20460
JUL I I L. . Attachment E
OFFICE OF
•OLIO WASTE AMD IMEftOENCl RESPONSE
PIG-83-1
MEMORANDUM
SUBJECT: Pefinition.of "Major Handlers" of Hazardous Waste
FROM: *^lee M. Thomas
Assistant Administrator.
TO: Program Implementation Guidance Addressees
ISSUE
What definition will provide consistency in the designation
by EPA and authorized States of "major handlers" of hazardous
waste?
DISCUSSION
Compliance with the 40 CFR Parts 270 and 271 requires certain .
hazardous waste handlers to be designated as "major." This desig-
nation is intended to identify, for administrative purposes, envirdh'-
mentally significant hazardous was.te handlers and to be used in
concentrating inspection, permitting, and reporting resources on
those handlers.
The original definition of a "major handler" of hazardous
waste, which was the subject of PIG-82-2 (May 14, 1982), was based
on information available to the Agency at the time, including our
experience with imminent hazard and Superfund sites. It was a
first stop in p«-rwi<1inn a uniform, nationally consistent standard
to identify major handlers to serve as a focus for limited RCRA
resources. As more data have become available, it has become
evident that changes and clarifications to the existing definition
would make it more useful in the implementation of RCRA. That
revision is identified below.
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- 2 -
The States and EPA Regional Offices should jointly develop
updated lists of designated "major handlers" based on this
revised definition. The lists will be used by authorized States
and the Regions for program implementation, budget decisions,
inspections, reporting, and permit overview. The increased
attentipn which must be directed to these facilities is resource*
intensive. Thus, the resulting lists of major handlers will be
considered in the budget planning process for allocations of
resources. The effective implementation date for this definition
is October 1, 1984. The Regions and the States will develop
lists of major handlers on the basis of this definition during
FY 1984 for use in PY 1985.
DECISION
The following hazardous waste handling activities are to
be designated as "major":
I. All facilities subject to ground-water monitoring
and/or protection requirements
II. All incinerators
III. Up to 10% of remaining TSDF's
IV. Up to 3% of generators and transporters
Percentages are to be based on the number of known handlers in
HWDMS as of October 1, 1983. EPA or the State may add facilities,
generators or transporters to the list, subject to the 10% and 3%
ceilings, and shall notify the other party in writing. However,
the deletion of any facility, generator or transporter must be
agreed to in writing by both parties. The list will be reviewed
and renegotiated at least annually.
Reporting requirements in 40 CFR 270.5 or in the annual
RCRA Guidance whicn refer to major handlers apply to the above-
designated list. Those major handlers which comprise categories
I,II, and III are designated as major facilities for EPA permit
overview.
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R 13
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
AUG 91982
/ f
t
PIG-82-5
OPPICS OP
SOUO WASTE AND EMERGENCY B6SPC-'
MEMORANDUM
SUBJECT
FROM:
TO:
Status of State Permits Issued Before a State
Receives RCRA Phase II Authorization
Rita M. Lavelle - **
Assistant Administrator for
Solid Waste and Emergency Response (WH-552-A)
P'ro'gram I'm pi ementati'on Guidance Addressees
ISSUE
Once a state is authorized for a component of Phase II,
what is the status of hazardous waste facility permits which
the state issued prior to being authorized for the component?
Can they be considered RCRA permits? What is the status
an EPA-issued federal permit in a state authorized for a
component of Phase II?
of
DISCUSSION
Prior to bei ng
state may requi re f
hazardous waste to
visions within RCRA
for designating the
permits. RCRA perm
rized state. Autho
ri zed state will be
to the federal perm
of course, meet the
and wi 1 1 be requi ri
substanti ally the s
technical standards
authorized for a component of ?
acilities that treat, store, or
obtain a state permit. There ar
or the federal hazardous waste
se pre-authorization state permi
its can be issued only by EPA or
rization requirements ensure tha
using procedures substantially
itting procedures (state procedu
requirements of Section 7004(b)
ng compliance with standards pro
ame degree of protection as the
(See 40 CFR 123.129).
hase 11 a
dispose of
s no pro-
regu1ati ons
ts as RCRA
an aut-ho-
t an autho-
equi valent
res must,
of RCRA)
v i d i n g
federal
Before a state is granted Phase II authorization, five
ituations are possible for a hazardous wasta management facility
perating in a particular state. In all of these situations
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- 2 -
RCRA Section 3005«(a) applies. That is, owners and operators of
facilities that treat, store, or dispose of hazardous waste can
legally do so only when they have a RCRA permit. Also, RCRA
Section 3QQ5(e) applies, allowing qualified facilities to continue
to operate under fV&eVal "int'eri'm status". When the state receives
interim authorization different results occur in each of the five
situations as described below.
A facility has neither a sta-te permit nor a fedi
RCRA permit (but does have federal interim stati
This situation 1s very straightforward. The state must
eventually issue the facility a state RCRA permit. Of
course, before the state could have obtained Phase I
interim authorization, it must have had some mechanism
in place to apply standards substantially equivalent
to federal interim status standards to all of the hazard-
ous waste management facilities within its borders.
2) A facility 'has a state-issued permit but no federal
RCRA permit (but does have federal interim status)
This situation is also fairly straightforward; the state
must eventually issue a RCRA permit to the facility.
The facility can continue to operate lawfully until that
time, provided the facility will be subject to state
standards substantially equivalent to the federal
interim status standards. The timetable for reissuance
can be negotiated between the Regional Administrator and
the State Director and is to be delineated in the Memorandum
of Agreement and discussed in the Program Description.
Legally, the stats permit cannot be considered a RCRA
permit even if the, state, permit was issued using standards
and procedures that were eventually authorized. However,
under these circumstances there would be very little reason
to reissue the permit in the near future, and the state
could plan to reissue the permit at the end of the current
permit term or at some other convenient time.
3) A facility has a federal RCRA permit but does
not have a state permit
In this situation the state can assume responsibility
for the administration of the RCRA permit if it has
explicit authority allowing it to directly administer
and enforce permits issued by the federal government.
As an alternative, the state can issue a RCRA permit to
the facility. Where the state issues a RCRA permit, EPA
should suggest to the federal permittee that the permittee
should agree to the termination of the federal permit.
The £?A-issued RCRA permit cannot be terminated with-
out the agreement of the permittee unless one of the
causes for termination in 40 CFR 122.15'is present.
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4) A facility has both a federal RCRA
permit and a state permit
Th'Ts "s'ftuatron is a combination of cases (2) and (3),
above. The state must eventual ly issue a state RCRA
permit to the facility or can assume responsibility to
administer the federal permit if it has the authority
to do so. The schedule for reissuance of the state
permit is to be specified in the Memorandum of Agreement.
Since the facility has a federal RCRA permit, the urgency
for state reissuance of a state RCRA permit diminishes.
This would be especially true if the previous state
permit was issued using standards and procedures that
were eventaTly authorized.
5) A facility has identical federal RCRA and
state permits that were issued jointly
-Pn those s i'tua'tiohs"wher'e bot'h 'permi ts are identical and
were issued jointly, EPA can propose its intent to con-
sider as RCRA permits the jointly-issued or identical
state permits when the Agency announces receipt of the
state's complete Phase II application.' In this last
situation, the RCRA permit can be terminated with the
agreement of the permittee (or for one of the causes
for termination in 40 CFR 122.16). If the RCRA permit
is not terminated, then the facility will operate under
"two identical permits.
The assumption underlying all of the above scenarios is that
any EPA-issued permit continues in full force and effect after
Phase II authorization. EPA-issued permits continue in
force until terminated*either -under 40 CFR 122.15 [see 40
CFR 123.6 (b)(l), 123.126 (c)(l) and 124.5(d)] or by the
agreement of EPA and the permittee. Permittees with EPA-issued
permits thus would be subject to the requirements of 40 CFR
Parts 122 and 124 until their EPA-issued permits are terminated.
The permit terms and conditions, as well as the applicable
requirements of Part 122, would be the "requirement of
this subtitle" (Subtitle C) which EPA could enforce under
Section 3003 of RCRA.
EPA would prefer not to be administering and enforcing federal
permits in authorized states. Thus, it is extremely desirable that
EPA and a non-authorized state coordinate their permitting activities
so that whenever possible they hold joint hearings and issue identi-
cal or nearly identical permits. Then, upon authorization, those
state permits can be considered RCRA permits. Alternatively, it
would be extremely desirable for those states that are currently
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snaking legislative or regulatory changes to incorporate in their
legislation (or in their regulations, if their legislative author-
ity is already broad enough to allow it) a provision allowing them
"to summarily transform federal RCRA permits into state RCRA permits.
That is, the state would want to be able, through some very simple
procedure, to issue state RCRA permits incorporating all the terms
and conditions of the federal permits.
DECISION
All -facilities that treat, store, or dispose of hazardous
waste can do so legally only under a state or federal RCRA permit,
federal interim status, or a state analogue to interim status.
The only instance where a state permit that was issued prior to
Phase II authorization can constitute a RCRA permit is where the
state permit was issued jointly with and is identical to a federal
RCRA permit. In such a case, when EPA receives the state's appli-
cation for Phase II, EPA should announce (as part of the Federal
Regi ster notice of receipt of a 'compl ete "Ph-ase II appl icati on) fts
intent to consider the identical, jointly-issued state permits to
be RCRA permits and .take comment on that intention. At the time of
joint permit processing, EPA should also announce such an intent
if the state Is one that may seek Phase II interim authorization.
Except for the above situation where joint identical state and
federal permits occurred, all state permits will need to be modified
or reissued.by the state as RCRA permits once the state is author-
ized. The schedule for reissuance can be negotiated between the
state and the Region and must be delineated in the Memorandum of
Agreement and described in the Program Description. In those cases
where there are previously-i ssued federal RCRA permits, the,--state
may possess the authority to assume the administration of those
permits, thereby negating the need for issuance of a state RCRA
oemit.. EPA-issued RCRA permits cannot actually be terminated
without the agreement of the permittee unless one of the causes
for termination in 40 CFR 122.15 is present.
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R 14
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. DC Zff-U'ff"
OCT 4 1982
orricc or
CNPOMCKMCNT COUMSKU
MEMORANDUM
SUBJECT: Applicability of Interim Status Standards, 40 C.F.R.
Part 265, to Small Quantity Generators Who Have
Notified and Filed a Part A Perait Application
FROM: Edward A. Xurent
Acting Associate Enforcement Counsel -
TO: Robert Schaefer
Regional Counsel/ Region V
ISSUE
A March 23, 1982, memorandum from your office requested
guidance on the problems created by small quantity generators who
submit "protective" RCRA section 3010 notifications and Part A
permit applications. We appreciate your concern that different
positions may have been taJc'en on. this issue by several Regions.
This memorandum will provide guidance on the following question:
Do the special requirements for hazardous waste
generated by small quantity generators (i.e./ that
the waste is not subject to regulation under 40 C.F.R.
Parts 262 - 265, if the generator complies with the
requirements of § 261. 5(g)) remain in effect if those
small quantity generators "file protectively", i.e. ,
notify under RCRA section 3010 (a), and submit a
Part A permit application under 40 C.F.R. § 122.22(a)?
We conclude that the special requirements remain in effect and
that only the requirements of § 261.5 apply to such generators.
For the reasons discussed below, such generators never achieved
interim status. Accordingly, small quantity generators who have
"filed protectively" should be sent written notification explaining
EPA's interpretation of the law as ataolied to them.
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DISCUSSION
y
The owner or operator of a hazardous waste management facility
who meets three conditions achieves interim status under RCRA
section 3005(e), and implementing regulations. Such owner or
operator is treated as having been issued a permit until EPA makes
final administrative disposition of his permit application. The
three conditions for achieving interim status are:
a. the facility was in existence on November 19, 1980,
and is required to have a RCRA permit; .
b. the owner or operator complied with the preliminary
notification requirements of RCRA section 3010; and
c. the owner or operator submitted a Part A permit
application under 40 C.F.R. § 122.22(a).
The owner or operator of a facility which qualifies for interim
status must comply with the interim status standards of 40 C.F.R.
Part 265.
Under 40 C.F.R. § 261.5, a conditional exclusion from the
requirements of Parts 262 - 265 was granted to generators of 1000
kg/month or less of hazardous waste. Some of these small quantity
generators/ otherwise conditionally excluded from interim status
requirements/ have "filed protectively", i.e., notified under RCRA
section 3010 and submitted a Part A permit application under 40
C.F.R. § 122.22(a), in an attempt to secure additional rights ,JEor
themselves in case they sometime in the future exceed the terms
of their exclusion.
This "protective filing" dees not create additional rights
for the generators involved because the "protective filing" does
not cause the generator's facility to achieve interim status when
the generator is not required to have a RCRA permit. (See the
first condition that must be met for the owner or operator of a
y "Facility" is defined in § 260.10 and means "all contiguous
land and structures, other appurtenances, and improvements on the
land, used for treating, storing or disposing of hazardous waste.
A facility may consist of several treatment, storage, or disposal
operational units (e.g., one or more landfills, surface impoundments
or combinations of them)." This definition of "facility" clearly
would include any areas used by a generator for the treatment,
storage, or disposal of hazardous waste.
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-3-
facility to achieve interim status.) Therefore, Region V should
advise those small quantity generators who have notified or sub-
.•ai.tte_d Part A permit applications, or both, that SPA does not
consider them to have achieved interim status because they are not
owners or operators of facilities required to have a RCRA permit.
Region V should also advise small quantity generators that the
Region will retain the notification because the SPA I.D. number
is often necessary for proper disposal of small quantities of
hazardous wastes. (Even facilities which are excluded from interim
status have found that- disposal facilities require them to have an
EPA I.D. number.) In addit.ion, Region V should advise small quan-
tity generators that their Part A permit applications are regarded
by EPA as having no effect, but that when a small quantity generator
has a change in operation which causes loss of his exclusion he
should submit a Part A within 30 days after the date he first
becomes subject to the 262-265 standards (i.e., he loses the
exclusion).
CONCLUSION
A "protective filing" by a small quantity generator does not
cause that generator's facility to achieve interim status. Thus the
small quantity generator is not subject to interim status standards.
cc: Regional Counsels, Regions I-IV, VI-X
Director, Office of Solid Waste
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R 15
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UNI7S3 STATES ENVIRONMENTAL ?«C7iC7iCN AGENCY
'.VASHINGTON, OC 20440
SU3JZCT: Guidance on Developing Compliance Orders Under Section
30C8 of the Resource Conservation and Recovery Act;
enforcement of the Financial Responsibility Requirements
under Subcart S of 40 CPR. Parts 264 and 265
FRCM: Robert M. Perry ^sV. 7 Xl>r•
Associate Administrator
for Legal and Enforcement Counsel
•'T——• '^ —
-Rita M.-'-La-velle ^.~'''- /// ' ^.
Assistant Administrator
for Solid Waste and Emergency Response
TO: Regional Administrators, Regions I-X.
Regional Counsels, Regions !-:<
Air and Hazardous Materials Division Directors
Regions !-X
3AC!
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40 CJ3. ?arts 2 = 4 and 255, Subcart S---Financial Recuiraments, 42
Federal Racistar 2S21, January 12, 1931).i/
Under revissd interim filial 'regulations of April 7, 19S2
(47 Federal Register 15032-13074) and April 15, 1932 (47 Federal
Register 15544—16361) , owners and operators of hazardous waste
management facilities must provide financial assurance for three
ceneral our^os«s: facility closure ("closure")/ under 40 CTR
§5264.142 and' 143 or 40 CTZ H 265.142 and 143; cost-closure
monitoring and maintenance ("pest-closure"), under 40 CT3. §§264.144-
and 145 or 40 CJR. §§255.144 r»nd 145; and, liability coverage for '
claims arising from accidental occurrences that cause bodily injury
to oerscns or crcrertv damage ("liasilitv insurance"), under 40
CTS*§254.147 or 40 CTR §265.147l/.^
Financial assurance for closure, (required of all owners or
operators) and for pest-closure care (required only of owners or
operators of land disposal facilities), for both interia status
and permitted facilities, must be provided by one of the following
r.echanisas: a trust fund, a surety bend guaranteeing payaent into
a tr*:st fund, a letter of credit, closure and/or pest-closure
insurance, a financial test or a corporate guarantee. ?er=it
hcldars have the additional option of obtaining a surety bend
guaranteeing closure or pest-closure performance. Owners or
operators of interia status facilities cay not exercise that option.
Any owner or operator may use any of. the financial me
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Under 40 C7R $§264.149 and 255.143, any of the requirements
say also be mat, in who la cr in part, by showing compliance with
State required mechanisms which provide equivalent, financial
assurance or Liability coverage. An owner or operator may also
satisfy financial assurance cr Liability coverage requirements ay
showing that the Stata has assumed responsibility for these obli-
gations in accordance with 40 CT3. H254.150 or 265.130.
Implementation of these- financial responsibility requirements
has seen cna of the most complex and difficult tasks in tha 5ub-
title C ragulatory prcgraa. Subpart H was originallv proccsed on
December 13, 1973, (43 Federal Recistar 53995,- 59006-7") and pub-
lished in interim final fora on Januarv 12, 1981, (46 Federal
Register 2321-2329, 2SS1-2366, and 2377-2383). The closure and
post-closure assurance requirements, rapubiished in revised
interia final fora with amendments, on April 1, 1932, (47 Federal
• Racistar 15032-74,--.1932 ) became- effective on-July 6, 1932. The
liability coverage requirements, rapubiished in revised intaria
final fora with amendments, on April 16, 1932, (47 Federal Recistar
15544-15561) were effective July 15,. 1932. Compliance catas for
aea-cing tha ncnsudcen accidental liability coverage requirements
are dependent upon the amount of the annual sales or revenues of
the owners cr operators according to a phased schedule. If an owner.
operator has annual sales greater than or equal to S10 million, he
is required to provide liability coverage by January 15, 1933;
those with sales between ?5 and 310 million, ay January 15, 1934;
and all others by January 15, 1935.
RSS?CETSZ TO VIOLATIONS
When violations of-the financial reversibility requirements
are defected, enforcement should proceed in accordanca with axis^.-
ing -ruidanca on developing compliance orders -undar Section 3C03 cf
RC?»\' (See, July 7, 1931, Memorandum from the Acting Director,
Office of Waste Programs Enforcement to tha Regional Administrators,
entitled "Guidance on Developing Compliance Orders "Jnder Section
3008 of the Resource Conservation and Recovery Act.") Classification
of violations under the scheme provided in that guidance, however,
covered cnlv the- interim status requirements in affact at that
tiae, with the intention of supplementing that guidance when
other P.C3A Subtitle C requirements became effective. Accordingly,
that guidance was supplemented on January 22, 1982, to cover the
ground water monitoring requirements at interim status facilitias
which became effective on November 19, 1931. (See, Memorandum
from tha Acting Assistant' Administrator for Solid Waste and
Emergency Response and the Enforcement Counsel to the Regional
Administrators, et al., entitled "Guidance on Developing Compliance
Criers Under Section 2008 of RC7.A; Enforcement of 'Ground Water
Monitorinc Racuirements at Interim Status Facilities.")
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-4-
The purpose of this memorandum is to further 5upplar.er.-t the
existing guidance by providing guidance on classifying violations
cf the financial responsibility requirements and on issuing compliance
orders in accordance with the July 7, 1981, memorandum.
Class I Violations
Class I violations are these violations chat pose dire
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- Failure to send an originally signed duplicate of
financial instrument to the RA, e .?. , for closure using the trust
agreement as specified in §254. 143 (a) ( 1) ;
- Failure to submit financial assurance instruments to
the SA, e.g./ surety bends for cost-closure under §§264. 145 Co) (1)
•and (c) (1);
- Failure to establish a stand-by trust fund when another
financial instrument is chosen, e.c., for closure using a surety
bond under §254.143 CD) ( 3 };
- Owner or cnerator cancelling surety bond without, RA's
written consent under §264. 143 (b) (9) or §254,143 ( c) ( 9) ;
- Failure to increase the amount of the letter of credit
to the current closure cost estimate and/or not obtaining alternate
financial assurance under §264. 143 (d) ( 7) ; .
- Obtaining closure insurance with an insurer who is
either unlicensed or ineligible to provide insurance as an excess
or surplus lines insurer, as required 'under §254. 143 ( a) ( 1) ;
- Failure to pay insurance prsniurt causing receipt by
cz notice of cancellation of liabiiitv insurance cclicv under
;>264.143(e) (5);1/
- Failure to submit to RA'a letter from the owner's or
operator's chief financial officer, a copy of the independent .
C?.V s report and the special report frcm the C?A as required to
.^eet the financial test as specified in §264. 143 ( f ) ( 3 ) ;
- Failure to notify ?--. when owner "or operator r.o longer
seets the financial test under §264. 143 ( f ) (5 ) ;
- Failure to crovide alternate financial assurance '^nder
§264,143(f)(7) ;
- Using multiple financial mechanisms which provide for
less than the amount ecrual to the current closure cost estimate
•under § 254. 143 (g) ;
I/The regulation states that such violation is significant
"•warranting such remedy as the HA de^ns necessary." 'The raculaticr.
goes en to state that the "violation will se deemed to begin u~cn
receipt by the RA of a notice of future cancellation, termination
or failure to renew due to nonpayment . . . rather than upon the
data cf eysiration" (emphasis added).
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- Failure to submit, information required on multiple
facilities covered by one fi.ta.icia! mechanism under )264.143(h);
- Failure to nctify RA by certified ,-aail of commencement,
of voluntary or involuntary bankruptcy proceedings under §254.143(a);
- Failure to Ob-tain Liability insurance for sudden
accidental occurrences 'a's specified under §264.147(a);
- Failure to submit to the RA the Hazardous Was-ts Facility
Liability indorsement, or certificate of insurance as specified in
§254.147U) 7
- Failure of owner or operator of a surface impoundment,.
Landfill cr land treatment facility to o'ctain Liability coverage
for nonsucden accidental occurrences as specified in §264.147(b).
Class III Violations I/
Class III violations are these procedural or reporting
violations which/ in themselves, do not pose direct short-term
threats to the pubLic health cr environment. The Agency's usual
response to this type of violation is the issuance of a letter of
warning. Seme examples of Class III violations are as follows:
- Timing requirements where such violation does hot Lead
tc the endangement, of human health or the environment such-as the
delivery of a dupLicate trust agreement to the ?.A where such delivery
is .trade 55 rather than 60 days before hazardous waste is first
received at a new facility under §264.143(a)(1);
- Payment to trust fund is made between 30 and 50
days -after anniversary data under } 254 .143 ( a) ( 3 } ( i) ;
- Payment to increase penal sum of-surety is aade, 'cut
acre than 60 days after closure cost estimate is increased under
$254.143tc);
- Delivery to HA of trust agreement with photocopied
signature rather than original signature under •) 254.143 ( a) (1) ;
— Failure to include with Letter of credit a Letter frcrr.
the owner or ocerator srcvidinc recuired information 'under
}2S4.L43(d)(4}~
Z/Class II violations ara, of course, inappropriate because
thev involve sonccmoliance with specific racuiranients nandatad bv
the statute itseLf and for which implementing regulations are net
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Consideration cf Situation-Specific Factors in 5e termini.-? the
.-.ctrrcsr-az-a Class of Violation
As is the case with Section 3003 orders generally (sag,
July 7, 1981 / rsescrandun, p.4) questions say arise as to whether,
in a • particular set or circumstances, a. violation, should be
considered a Class I or Class III violation. Tor example,
habitually late remittances of trust fund payments required under
§254.143(a)(3)(i) should be considered a Class I violation.
Another example of a Class I violation is when the duplicate of
the financial agreement is delivered to the RA after hazardous
waste has seen received at a new facility. -That owner or operator
would be considered to be without financial assurance for the
period of time before the duplicate was received' by the HA. If,
however, the instrument vere effective before hazardous waste was
received a.t the facility, the violation wcuid, .Tsore appropriately
be considered a Class III.
In addition, whether a particular violation is de ainirtis
should also be considered. For example, failure to rsaka proper
trust fund payments constitutes a violation of 40 CTR §255.143
which is a Class I violation. If, however, one annual payment is
made five 'days later than the required date or the amount paid is
only ainimaily deficient, and the owner or operator has previously
.tada ~r.e proper payments on time, a waminc letter (rather than an
administrative ordar) should be issued.
If you have any questions recardinc this guidance or applica-
tion of the guidance to a' specific fact situation, please contact
Any Schaffer, Office of Waste Programs Enforcement, 'CSWZR at
3TS 332-4326 or Ann Strickland, Office cf Enforcement Counsel/
te, OLZC at ITS 382-2037.
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R 16
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f
\. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. O.C. 20460
MAR 2 I £33
S OP
SOLID WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Enforcement of Ground-water Monitoring Requirements
FROM: Gene A. Lucero, Director Lx-^Kj£ r\ -
Office of Waste Programs Enforcement
TO: Air and Hazardous Waste Division Directors
Regions I - \
As you know, implementation of the ground-water monitoring program is
the highest priority activity in the RCRA program, after authorization of
State programs. .This priority holds true for both permitting and enforcement,
This memorandum focuses on the enforcement of the ground-water monitoring
requirements.
Background
On January 22, 1982, guidance on the enforcement of the ground-water
monitoring requirements at Interim Status facilities was distributed to
the Regional Offices (See Attachment A). That guidance went into detail
concerning the type of inspections which the Regional and State inspectors
should be conducting at these facilities and further stated that "(w)hen
violations are detected, enforcement should proceed in accordance with
previously issued guidance [dated July 7, 1981] on developing compliance
orders under §3008 of RCRA." Under the July 7, 1981 guidance, violations
of the ground-water monitoring requirements were categorized according
to their severity. Class I violations are those violations which pose
direct and immediate harm or threats of harm to public health or the
environment. The January 22, guidance goes on to state that "(s)ince
failure to have or,.properly operate, a monitoring system may prevent
discovery of conditions which clearly could constitute such harm, such
failures should be considered to constitute threats of harm." Class I
violations are properly addressed through the issuance of compliance
orders.
The FY 1983 RCRA Guidance requires that all facilities required to
monitor ground water be inspected during FY 1983, and that appropriate
enforcement actions be taken in those cases where non-compliance is
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rh'scovered. The targets for inspections assume, that, all' such facilities
will be inspected, at the expense of inspecting other hazardous waste
handlers. Resources have been allocated to carry out these inspections
and subsequent enforcement, if needed.
The definition of "major" hazardous waste handler (PIG-82-2) includes
those facilities required to monitor ground water. The redraft of the
definition also includes those hazardous waste facilities.
Finally, the draft FY 1984 RCRA Guidance again requires all facilities
required to monitor ground water to be inspected during the fiscal year,
and enforcement actions taken where violations are found. Again, the
inspection targets provide that these inspections occur, even at the
expense of other hazardous waste handlers. Again, resources have been
allocated to carry out the inspection strategy and any necessary enforcement
actions.
.Ground-water-Monitoring EvaTuation
As part of the Office of Solid Waste's review of the Interim Status
Ground-water Monitoring Regulations, as required by OMB, inspections
were conducted at a sample number of facilities to assess the implemen-
tation of the requirements (see Attachment B for Executive Summary. The
full report was sent to RCRA Branch Chiefs under separate cover). The.
results showed a suprising number of facilities out of compliance -- more
than 60% — and that most of those facilities (70 of the 109 facilities
out of compliance) had not received any kind of 'enforcement action as
dictated by the January 22, 1982 guidance.
Furthermore, preliminary information provided by the States in the
Quarterly Ground-water Monitoring Reports show that few facilities
are being inspected. Itxgoes on to show that of those inspected and
found to be out-tff compliance, few enforcement actions (especially com-
pliance orders) are being issued, even for Class I violations.
This review raises a significant number of questions about Regional
and State effectiveness in enforcing the ground-water regulations. I am
especially concerned about the seeming continued noncompliance of facilities
with the regulations, and the apparent lack of enforcement against those
facilities.
Required Action
As a result, the following activities should be undertaken by both
the Regions and the States to implement an effective enforcement program
to ensure compliance with the ground-water monitoring requirements.
a. Continue to inspect all facilities required to monitor ground
water.
b. Bring enforcement actions against all facilities found to be
out'of compliance, in accordance with the January 22, 1982 guidance.
The incentive to comply with the regulations must be created by a
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strong and even-handed enforcement program. Even in those cases
where the facility is awaiting additional test results or other
^technical information, the Region or the State should ensure that
they will:be forthcoming by placing the facility under an enforceable
compliance schedule through a warning letter or compliance order.
c. Ensure'the States are'fonowing the FY 1983 RCRA Guidance by
evaluating, during your State Mid-year Program Reviews:
1. the number of facilities inspected,
2. the number of facilities In violation,
3. the types of violations,
4. the State's progress in bringing the facilities into
compliance, including number and type of enforcement
actions, rate at which facilities are returning to
compliance, and problems which the States are encoun-
tering, and
5. the number and types of facilities remaining out of compliance,
d. Use the State Grant to provide'incentives to the State to implement
an effective ground-water monitoring enforcement program. A State
which fails to. effectively implement such a program should be placed
on a schedule to develop and carry one out. This should be tied to
the Grant monies available to the State during the second half of.
FY 1983. Furthermore, the Grant for FY 1984 should be negotiated "in
such a .manner as to ensure the continued implementation of such programs.
e. Provide information to Headquarters concerning the success in
implementing this program. In the very near future, instructions will
be sent to you concerning the addition of data elements into the
Hazardous Waste Data Management System to enable Headquarters and the
Regions to identify those inspections and reports which identify
violations and compliance with the ground-water monitoring requirements.
By Inputting such information into HWDMS, we will be able to show how
the Regions and the States are effectively ensuring compliance of the
regulated community with these requirements.
In summary, this Office has continued to single out facilities required
to monitor ground water as the highest enforcement priority in the RCRA
program. The resources are available to carry out the inspections and
subsequent enforcement activities in addition to the permitting activities
and State authorization activities that your offices are conducting.
I am convinced that, in concert with the States, EPA can and will
establish a strong ground-water monitoring program. I plan to discuss the
success of this program at the next Regional Air and Hazardous Waste
Division Directors meeting. If you have any question, please do not
hesitate to call me.
Attachments
cc: John Skinner
Kirk Sniff
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ATTACHMENT A
UNITED STATES EN V1RONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
JAN --2-21332
SOUO WASTE
8Me*G8NCY
MEMORANDUM
SUBJECT:
PROM:
THROUGH:
Guidance on Developing Compliance Orders under Section
3008 of the RCRA; Enforcement of Ground-Water Monitoring
Requirements at Interim Status Facilities
Douglas MacMilIan, Acting Director
Programs Enforcemen
Offi
Tid
^Assistant Administrator
Waste .and -Emergency Response
William A. Sullivan, Jr.
Enforcement Counsel
TO: Regional Administrators
Regional Counsels
Air and Hazardous Waste Division Directors
Regions X-X
As you are aware, owners or operators of surface impound-
ments, landfills and land treatment facilities for management of'-"
hazardous waste were to have implemented a ground-water monitoring
program as specified in. 40.C.F.R..S265.90 by November 19, 1981.
The Agency regards the ground-water monitoring requirements to be
a fundamental component of the Federal .hazardous .waste management'
.program. Enforcement of -the requirements will be a major new
undertaking for the Agency. Because of their innovative nature,
broad scope and the variety of circumstances to which they must be
applied, it is important that a consistent framework exist for
the enforcement of the requirements. This memorandum, developed
in conjunction with Office of General Counsel and Office of Solid
Waste, provides such a framework.
Strategies for the enforcement of the ground water monitor-
ing requirements must be designed to reflect a number of considera-
tions. The number and type of facilities subject to the ground-
water monitoring requirements_gresens _a_wjlde.. 7.a_rie.ty__Qf, xnni t-nri ng-
:~bTears~and the enforcement policy must be flexible enough to
,omcdate those differences. On the other hand, enforcement
. .:y should be generally consistent in its application so
. like situations will be treated in a similar manner and the
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regulated community will have adequate notice of what actions are
xpectad of it. In addition, an enforcement policy for tha
•ound-water monitoring requirements, must reflect the possibility
\t, due to the comprehensive and innovative nature of the program,
jstantial noncorapliance may exist, particularly during the
initial month's of the "program.
Inspections
During the next several months (at least, until inspections
have been conducted at a representative number of the .facilities
required to conduct ground-water monitoring) particular emphasis
should be placed on ground-water monitoring when conducting comp-
liance inspections. A determination should be made at each
facility as to the existence and proper operation of a ground-water
monitoring system. Compliance with the more specific requirements
of 5265.90 should also be determined. The inspector, should discuss
the 5265.90 provisions with the owner/operator to. ensure that the
owner/op«rator understands the requirements which are applicable
"to 'that 'facility. -All "detected violations and appropriate remedies
should be recorded in the inspection report/- carefully explained
to the owner/operator/ and a copy of the inspection report should
be supplied to the owner/operator. In addition,, all facilities
which are thought to require groundwater monitoring but which do
lot -submit quarterly reports should be assigned a high priority
or early inspection.
All required documentation (i.e., waiver demonstration,
assessment plan outlines, alternative monitoring system plans,
sampling and analysis plans, sampling results, reports and, after
November 19, 1982, assessment plans) should be examined. (If .the
adequacy of these documents cannot readily be determined on the
basis of the site inspection/ copies should be made for further
analysis at the office). Moreover, since failure by the Agency
to detect and respond to deficiencies could be interpreted as
.-approval, priority should be placed on the analysis of any waiver
demonstrations and assessment plans developed. pursuant to 5265. 90(c)
and (d) respectively. In addition, any alternative monitoring
system plans submitted in accordance with 40 C.F.R. S265.90(d)
or waiver demonstrations voluntarily submitted by an owner/operator
should be reviewed and a response provided within thirty days.
The Office of" Solid Waste will be providing further guidance in
the near future concerning evaluation of these documents.
Response to Detected Violations
When violations .are detected enforcement should proceed in
accordance with previously issued guidance on developing compliance
'orders "under --$3003 -of RCRA.^-( See- -July -7 ,—1961- Memorandum,— Doug l
MacMillan to the Regional Administrators, Guidance on Developing
•npliance Orders Under Section 3008 of the Resource Conservation
• *d Recovery Act). The classification scheme contained in the
7/7/81 memo, however, addressed only the interim status require-
-------
:s8nts in effect at that tine. In that guidance, violations, which
pose direct and immediate ham or threats of harm to public health
>c the environment are classified as Class I violations.. Since
•\ilure to have or,. properly operate, a monitoring system may
.-event discovery of conditions which clearly could constitute
'such h%rm , ."''such ' fa 11 or e s :s houl d be cons id e red to cons ti tute •
threats of harm.
Violations of the following ground-water monitoring require-
ments should therefore be presumed to be Class I violations :
failure to monitor (S2S5.90(a) ) , waivers by the owner/operator of
all or part of the ground-water monitoring requirements which are
not justifiable on the basis of low migration potential (S265..9Q(c) )
failure to design and operate an acceptable monitoring sys tern
(5265.91), failure to develop and implement an acceptable sampling
and analysis plan (5265.92), failure to prepare and implement an
acceptable assessment program on a timely basis either when an
alternative monitoring system is chosen pursuant to 5265. 90 (d) or,
after November 19 / 1982, when contamination is detected (5265.937,
--and -failure "to -submit '-required ••reports 'when ' contamination is
detected (5265.94). Section 3008 compliance orders should be
issued to the owners/operators of all facilities at which these
violations- are detected. Violations of other requirements (these
would primarily be -documentation, recordkeeping and routine
reporting requirements) should be considered Class III violations ,
addressed through a warning letter.
As is the case with section 3003 orders generally (see July 7 ,.
1.981 Memorandum, p. 4), questions may arise as to whether, in a
particular set of circumstances, a violation should be considered a
Class I or Class III violation. For example, a single. late sub-
mission of a required report, when no contamination is detected,
would, under this scheme,, be considered a Class III violation.
General disregard of the routine" reporting requirements could,
however, be considered a Class I violation.
On the other hand, particular Class I violations may be de_
minimis in nature. Violations of some of the ground-water monitor-
ing requirements, which should otherwise be presumed to be Class I
violations, may, in many instances, not pose a direct and immediate
threat of harm to public health or the environment. Specifically,
the requirements relating to the monitoring system (5265.91), the
sampling and analysis plan (5265.92), and the assessment program
(5265.93) may be violated because the system, plan or program is
somewhat incomplete or technically inadequate, but not sufficiently
incomplete or inadequate as to pose a direct and immediate threat
of harm. In such cases the warning letter approach for -Class III
violations would be more appropriate. . However, because they will
always, pose a direct and immediate threat 'of harm, the remaining • .
riass "i" violations" ( i.e. , " failure to monitor" ( 5255 .90 ( a) ), waivers
ich are not justifiable on the basis of low migration potential
265.91 (c)), and failure to submit required reports when contami-
tion is detected (5255.94)) should always be addressed through
e issua o a section 003 comliance order.
nation
naton s etecte . sou aways e a
the issuance of a section 3003 compliance order.
-------
-4-
There will-no-doubt-be many close calls. In those cases
rional assessment as to the proper Agency response must be guided
informed judgement. As with section 3008 compliance orders
orally, questions which arise concerning the proper ciassifi-
ion •• of "a "particular violation should be discussed with the
appropriate Headquarters liason staff prior to preparation of
the proposed order.
As is the case with 3008 orders generally, the inclusion of
penalties in compliance orders relating to ground-water monitoring
will be at the discretion/of the Regional Offices. When determin-
ing whether to include penalties in a section 3008 compliance
order the Regional Office should take into account the harm which
has or may result from the violation and any "good faith* efforts
on the part of the owner/operator to bring the facility into com-
pliance. It is expected/ based on these criteria/ that section
3008 compliance orders issued for violation of the following
requirements will generally include penalties: failure to monitor
(S265v90(a) ),:;waivers""which "•are 'not justifiable on the basis of
low migration potential (S265.90(c)), and failure to submit required
reports when contamination is detected ($365.94). When compliance
orders are issued which do not include penalties, it should
emphasized that failure to comply with a compliance schedule can
result in a civil action being brought in Federal District Court
:suant to section 3008(a) with penalties being judicially imposed.
is anticipated., that .as the program progresses and owner/operators
' me increasingly familiar with the ground-water monitoring
ex, ..irenents, penalties will be included in compliance orders for
ail types of Class I violations with greater frequency.
The compliance schedule specified, in the order should coincide
with the quarterly analyses required by 5265.92(c) and should
require compliance within as short a period as possible. In
general, the order should specify that the next quarterly analysis,
which is required to be completed in not less than three months,
be performed. For example,"a facility inspected February 1, 1982,
at which a Class I violation is found would be issued a compliance
order requiring that the analysis required by $265.92{c) be com-
pleted by May 19, 1982, the. end of the next quarter. Such a
schedule would allow owners/operators at least three months but
no iacre than six months to complete the monitoring necessary for
a quarterly repoct. In the overwhelming majority of cases this
shoaid be a sufficient period of time for an owner/ operator to
comply.
The Regional Offices should attempt to adjust compliance
schedules according to the circumstances found at particular
.-.ilitias. In those cases where a facility is considered to be
> aKI *L. /*C ./»,fr~*-err~"r^-r*iiTi+!~n-£—rt~£"S^=f~^T O".—7' ^
of •ccraplying-wi^h-^-^--TS^arter~?
-------
.—3 —
schedules with a final compliance .date later than the dus date of
.the facility's next quarterly analysis, which is due in not less
than three raonths, should not be allowed however, except upon a
strong showing of ^practicability. (Absent this strong showing
facilities would be required to comply in no more than six months.)
-------
ATTACHMENT 3
EXECUTIVE SUMMARY
Background
0 The Phase II Ground-Water Monitoring Evaluation was conducted between
May 1982 and January 1983. The purpose of the study was to analyze
the performance of RCXA hazardous waste management facilities in
implementing first-year ground-water monitoring programs (during
which background data are collected).
0 A random sample of 200 facilities was originally selected for
Investigation. Such a random sample would have enabled extrapolations
from the sample to the total population of facilities required to
Implement ground-water monitoring programs. The final sample.of lay
facilities actually Investigated differed considerably from the
original random sample of 2UU. Therefore, extrapolations to the
total population cannot be made. However, statements about the 189
-tacilities can confidently be made and form the basis for this report.
0 Site Investigations of the 189 facilities were conducted between
July and September 1982. Investigations were conducted by a mix
of EPA and State personnel and contractors experienced 1n ground-
water .monitoring and hydrogeologic evaluations. Major data points
were verified by the EPA Regional and State Offices during January
1983.
Analysis of 189 Facilities
0 Out of the 189 facilities investigated, 148 Instituted detection
monitoring programs; 12 Instituted alternate assessment programs;
eight.claimed waivers; three did nothing to comply with the
regulations; and 18 were not actually required to comply with the
_ijf.yjn<^.Mai?9r m^rH * ryri mj -nrpii remAOffep-A^-ag^gfTgi-fled - during the
January data verification effort.
-------
11
0 The number of waivers may be underrepresented because in order to
collect as much Information as possible about monitoring programs
some Regions tended not to select facilities for investigation 1f
they knew that the facility had claimed a waiver.
* Of the 171 facilities required to implement ground-water monitoring
programs, 62 are in total compliance with the regulations as Indicated
by the Regions and States during the January data verflcation effort.
Fifteen (15) of these facilities have come Into compliance since the
original data were collected.
• Of the 109 facilities that are not 1n total compliance:
— 14 have deficiencies related only to recordkeeping and reporting;
— 31 have deficiencies related to sampling and analysis procedures
1n addition to any deficiencies noted on recordkeeping or
reporting; and
— 64 have deficiencies related to the number, depths, and/or
locations of monitoring wells 1n addition to any deficiencies
noted on sampling and analysis procedures or recordkeeping/reporting,
0 Enforcement actions have been taken or are planned by Regions/States
to correct deficiencies noted at all 109 facilities not in total
compliance. Specifically, there have been:
— 36 warning letters or notices of violation Issued; and
— six (6) administrative or compliance orders issued;
In addition, there are:
— 40 cases in which the facility 1s currently complying or 1s
expected to comply shortly as a result of discussions with
Regional/State staff ("voluntary compliance"); and
-------
111
— 34 cases where action win be taken if compliance aoes not
occur by April 1983.
The numbers add up to more than 109 because more than one action
has been taken or is planned at some facilities.
0 Of the 148 facilities with detection monitoring programs, deficiencies
were noted that include:
— 36 (24%) that did riot have adequate upgradient wells;
— 48 (32%) that did not have adequate downgradient wells;
—37 (25%) that had problems related to sampling and analysis
procedures;
— 53 (36%) that did not maintain required records; and
— 59 (40%) that did not submit required reports.
* Most of the 12 alternate assessment programs were initiated as a
result of previous monitoring activities, required by the State,
that revealed contami nation. Nine (9) of the 12 facilities had
prepared an assessment program plan of some sort, but only six (6)
of those plans included all the required information.
0 Of the eight (8) waiver demonstrations reviewed, six (6) based their
waiver on the low potential for migration of wastes L§26t>.9U(c)J and
two (2) on the fact that they managed only corrosive wastes in surface
impoundments [§265.9G(e)]. Both corrosive waste demonstrations
have been approved by the Involved State. Only two (2) of the six (6)
low potential for migration demonstrations included all information
necessary to determine if the waiver 1s appropriate.
-------
RCRA HAZARDOUS WASTE
COMPLIANCE MONITORING AND ENFORCEMENT LOG
INSTRUCTIONS
The Compliance Monitoring and Enforcement'Log contains all
information which nust be submitted quarterly by States to the
EPA Regional Office. All information described in the log is
-required. However» use of the Log itself is voluntary.
The Iioq covers all compliance monitoring and enforcement
activities including inspections, and report reviews. The I.og
should be used for all inspections, whether the facility is in
compliance or not, and for. those report reviews or crther'~activities
where violations are detected. Any enforcement actions not
previously reported should he reported. ".
Column 1 - RT: Indicate whether the activity described in the
entry is new or an update of a previously reported activity.
- If this entry represents a new action, circle NEW.
- If this is report updating an entry reported in a previous
quarter, circle UPD (for Update.)
NOTE: If Update, also Complete Column 3
Column 2 - Handler- Fill out the handler's EPA I.D. number, name
and address (street, city, state, ZIP).
Column 3 - Type of Handler: Check the line or lines which describe
the handler.
GEN - Generator
TRANS - Transporters
TSD - Treatment, Storage or Disposal Facility
TCP - Tanfc, Container or Pile
INC - Incinerator
GWM - Facility required to monitor ground water, as specified
by type of monitoring system:
detect - detection system
assess - assessment proqran
waiver - waiver allowed
-------
-2-
Column 4 - Type and Date of Evaluation: Provide the date next to
the appropriate type of evaluation.
Inspections; thorough review of the facility including record
review, visually inspection of the facility's operations and,
if necessary, sampling.
Sampling Inspections: inspection consisting only of sampling.
Usually triqqored by other inspections, hut most often used
during the development of an enforcement action.
Special Inspections; most in-depth inspections, usually
concentrating on one particular aspect of a facility, such as
ground -water,
Record Review; examination of facility records (either at the
facility or at the State) of tests and analyses performed,
self -monitoring conducted, sampling performed, amounts and
types of waste handled, manifests, closure and post-closure
'plans/
Other: any compliance monitorinq activity not described above.
When completing "other" also specify type of. activity.
Column 5 - Reason for Evaluation. Check the appropriate lines nnd
specify when "other" in checked.
neutral - neutral inspection scheme
follow-up - an inspection or other activity which purpose is to
verify compliance with an enforcement action
other - inspections resulting from citizen complaints, probably
cause or other reasons.
Column 6 - Compliance Status; Check whether the handler was in,
or out of, compliance, when the evaluation was performed. This is
before any enforcement action has been taken.
Column 7 - Type of Violation (if any):
- If violation. is of an interim status standard, just mark the
violation type.
— If the violation is of permit conditions, nark under both Pormit
Viol, and the appropriate violation type.
- Significant violations (those which posn short-term, direct and
immediate harm or threats of harm to public health or the environ-
ment) : Mark "1".
- Minor violations (those procedural or reporting violations which,
in themselves, do not pose direct, short-term threats to publi
health or the environment): Mark "3
"
Types of violations:
GWM - ground-water monitoring violations
Finan - financial assurance and insurance violations
Clos/PC - closure and post closure plan violations
Permit viol — permit violations
Manifest - generator, transporter or facility manifest violations
Other - other violations not specifically cited
-------
-3-
Column 8 - Enforcenent Actions and Date: Provide the date next to
the specific enforcement action was taken against the facility.
The log should reflect all actions taJcen until the facility is
returned to compliance.
- Informal; the facility returned to compliance through means
short of an enforcement action, discussions with the inspector,
or telephone calls, or informal exchange of letters would be
considered informal.
- NOV/WL; Notice of Violation/Warning Letters. These arc the al
first stage of enforcment action. They are used for notifying
the facility that there is some degree of noncompliance at the
facility; They may he required in the Stat's statutory enforce-
ment provisions or, as in the case of the Federal program,
informal actions which are used to resolve minor violations
without using a formal administrative order. These actions
should he issued by the State agency without going to court.
- AO; Administrative Order. Those which the State is specifically
authorized to issue under its statutory enforcement provisions
and which require compliance with the State's statute or regula-
tions. They should he issued by the State agency without qninq
to court. They may or may not be used to assess penalties.
They should be enforceable documents which, if violated, can'he-
enforced through further administrative or civil action.
— Civil Ref; Civil Referral. Those enforcement cases which require
the State to socle correction of a violation through the-'j'udicial
system. The State may or may not seek fines or penalties
through this aqtion. The State environmental agency need not
be the agency actually seeking the action, i.e., the State'n
Attorney General's office or other legal entity nay actually
file the cane-on behalf of the State environmental agency.
- Grim. Ref; Criminal Referral. Those cnforcenent cases normally
involving the knowing violation of a State statute or regulations,
As with Civil Referrals, the State's legal entity nay actually
file the case on behalf of the State environmental agency.
- Jud. Ord: Judicial Order. This includes judicial approval of
a settlement agreement between the defendaants (consent agree-
ment) and EPA and a judicially imposed consent decree. The
nature of the order should he indicated in Column 11.
- Settle; Negotiated Settlement. V7hen a settlement is reached
between the defendants and EPA after issuance of an AO (or
complaint), this should be checked. Use this box whether the
settlement is reached before or after initiation of litigation.
- Penalty Assess; The amount of penalty actually assessed aqainst
the facility.
- Penalty Collect: The anount of penalty actually collected from
the facility.
-------
-4-
Column 9 - Projected Compliance Date: Insert the date when,
according to the enforcement action checked in Column 3, the
facility is required to come into compliance. This is the pro-
jected, rather than the actual, date compliance is to be achieved.
Column 10 - Final Status Date: List the date compliance was actually
achieved/ or the facility withdrew from the system. Filling in
this date completes the log of the enforcement action.
Column 11 - Comments: Space is provided for comments or clari-
fication of points checked in the first ten columns.
-------
COMPLIANCE MONITORING AND ENFORCEMENT LOG
-1-
FT
NEW
UPD
ET
NEW
UPD
ET
NEW
OPD
-2- v
Handler
IDI t
Mane i
Address!
Randier
IDIi
Name i
Addreaat
Handler
IDI i
Namei
Address i
r— rjr
Type
Handler
GENi
TRANS t
TSD
TCPl
INCl
GHMl
detect
aaseie
waiver
Typo
Handler
GENi
TRANS i
TSDi
TCP!
INC|
GWMl
detent .
aciiesii
will vet"
TYP«
Handler
GENi
TRAN3i
TSD!
TCPl
INC|
GWHl
detect
aaaeas
r^ —
Type
Evaluation
(date)
Inapi
Samp
Inspi
Special
Inspi
Record
Revlewi
Other i
Type
Evaluation •
(date)
Inapt
Samp
Inapt
Special
Inapt
Record
Reviewt
Other t
Type
Evaluation
(date)
Inapt
Samp
Inspt
Special
Inapt
Record
Reviewt
Othert
1 ^
Reason Cor
Evaluation
Neutt
PlwUpt
Other i
Reaaon for
Evaluation
Heuti
PlwUpi
Other i
Reaaon tor
Evaluation
Neuti
FlvUpt
Othert
1 — =&
Complnce
Status
Int
Outt
Complnce
Status
Int
Out!
"
Complnce
Status
Ini
Outt
I v7=
TYP«
Violation
CHMi
Plnant
Clos/PCi
Permit Violi
Manifest! ^_
Other t
Type
Violation
GHHl
Plnant
Clos/PCi
Permit Violi
Nanlfesti
Other i ;
Type
Violation
GWMi
Pi nan t
Clon/PCt
Permit Vloli
Manifests
Other i
••-0-
Enforcement
Action
Tdate)
Informal!
NOV/WLt
AOi
Civ.Ref.
Crim. ReC.
Jud. Ord.
Settlet
Penalty.
Assess t
Collect!
Enforcement
Action
(date)
Informal!
NOV/WLt
AOi
Civ. Reft
Crim Reft
Jud Ordt
Settlet
Penalty
Asscsst
Collect!
Enforcement
Action
(date)
Informali
NOV/HLl
AOt
Civ. Reft
Crim. Reft
Jud. Ord I
Settlet
Penalty
Assess! '
Collect!
-9-
jEHlf
Compl
(
-------
R 17
-------
.*=
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
5 WASHINGTON. D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
Subject: .^delegation/Designation of Enforcement Related
(peleg£fcipj>< of Authority Under RCRA and CERCLA
c^C^—^\Wu^^
From: Lee Thomas
Acting Assistant Administrator for Solid Waste
and Emergency Response
To: Gene Lucero, Director
Office of Waste Programs Enforcement
William N. Hedeman, Director
Office of Emergency and Remedial Response
John Skinner, Director
Office "of Solid Waste
On March 17, 1983, the Acting Administrator issued new
delegations of_ a ut hor i ty_^r..g.qa r d.i ng enforcement activities
under RCBA ancPc'ERCLA.
In an effort to promote a more efficient enforcement
process, I have authorized the attached redelegations and
designations of authority. In general, I have delegated the
RCRA and CERCLA enforcement authorities to 'the Director of
the Office of Waste Programs Enforcement. Please note that
there are several restrictions which I have imposed regarding
the use of these redelegations. These restrictions are
imposed to assure communication and cooperation among the
various offices which are concerned with RCRA and CERCLA
activities. In issuing these redelegations, I have also
attempted to maintain consistency with the April, 1983
redelegations and designations issued by the Acting General
Counsel.
These redelegations and designations are effective
immediately.
-------
vlid Uaste Disposal Act
Rodelcgation/DesignationAtoiver Matrix
i legation
Numbers
n-Q
-9-A
0-9-B
fl-9-C
Title of
Delegation
Inspections and
Information
Gathering
Administrative
Enforcement :
Issuance of
Complaints,
Signing of Con-
sent Agreements,
Etc.
Administrative
Enforcement i
Agency Ropre-*
sentation in
Hearings and
Signing of Con-
sent Agreements
Issuance of
Consent Orders
and Final
Description of Authority
Transferred /Via ived
All Authorities Delegated
to the Assistant Admini-
strator, OSWER Regarding
Inspections and Information
Gathering
Exercise of These Authori-
ties in nulti -regional
cases or cases of National
Significance
Advance Concurrence Compli-
, ance Orders, Complaints,
Negotiate and Sign Consent
Agreements
Concurrence for Gises
Initiated, hy QSWER, and
Regions
Consultation Prior to
Initiating an Appeal
s~\
( ' VN
Rode legation
Designation
Redeleqation
Redelegation
Waiver
Designation
Designation
From
AA,
OBWER
AA,
OSWER
AA,
OSWER
AA,,
OfiWER
AA,
OSVJER
TO
Directors
OHPK and
OSW
Director
OWPE
RA'a
Director
OWPE
Director
OWPE
Restriction
Submit copies of
all orders
ie M. Thomas
Signature
Acting Deputy
"Administrator"
Title
May 10, 1983
Date
-------
id Waste Disposal Act
Redelegation/Designation/VJaiver Matrix
egation
mibera
10-A
-10-B
-10-C
-10-D
Title of
Delegation
Civil Judicial
Actions
Criminal
Enforcement
Actions
Settlement or
Concurrence in
Settlement of
Civil Judicial
Actions
Emergency TRO't
Description of Authority
Transferred/Waived
To Receive Notice of Civil
Judicial Enforcement Action
fron AA, OLEC
Concurrence on Settlement
of Civil Judicial Actions
for Cases Initiated by
the AAf OSWER and by the
> Regional Administrators
i
Redelegation
Designation
Designation
Designation
From
AA,
OSWER
AA,
OSWER
To
Director
OWPE
Director
OWPE
Restriction
Signature
Acting Deputy
Administrator
Title
May 10, 1983
Date
-------
lid Waste Disposal Act
Redelegation/Designation/Waiver Matrix
legation
inibera
-20
-22
Title of
Delegation
Monitoring,
Testing,
Analysis and
Reporting
Imminent
hazard Admini-
strative Orders
Description of Authority
Trans f erred/Wa ived
Exercise Authorities in
Multi-Regional Cases or
Cases of National Signifi-
cance
Advance Concurrence of AA,
OSWER before Regional
Administrators Can Exercise
Authority
Advance Concurrence of AA,
OSWER before Regional
Administrators can Exercise
Authority
Exercise Authorities in
Multi-Regional Cases or
Cases of National signifi-
cance
. *
Redelegation
Designation
Redelegation
Redelegation
Designation
Redelegation
Fran
AA,
OSWER
AA,
OSWER
AA,
OSWER
AA,
OSWER
To
Director
OWPE
Director
OWPE
Director
OWPE
Director
OWPE
Restriction •
Signature
Acting pcpntv
Administrator
Title
May 10. 19R3
Date
-------
:ERCIA
Redelegation/Designation/Waiver Matrix
Delegation
Numbers
14-6
14-8-B
14-10-B
14-12
Title of
Delegation
Inspections and
Information
Gathering
Studies and
Investigations
Related to Cost
Recovery and
Enforcement
Decisions
State Legal
Assistance
Civil Judicial
Enforcement
Actions
Description of Authority
Transferred/Waived
Exercise Authorities Rela-
ting to Inspections and
Information Gathering
To Make Determinations on
Studies
Advance Concurrence before
AA( OLEC and Regional
Administrators can Begin
Such Studies and Investiga-
tions
To Receive Notice from the
AA, OLEC v/hen this Authori-
ty is Exercised
To Receive Notice of Civil
Judicial Enforcement Action
from AA, OIJHC
b
Redelegation
Designation
Redelegation
Redelegation
Designation
Designation
Designation
From
AA,
OSWER
AA,
OSWER
AA,
OSWER
AA,
OSWER
AA,
OSWER
TO
Director
OWPE &
OERR
Directors
OWPE & OER1
Director
OWPE
Directors
OWPE and
OERR
Director
OWPE
Restriction
I
Notify Director
OERR
Notify OERR
Signature
Acting Deputy
Administrator
Title
May 10. 1983
Date
-------
CERCLA
Redelegation/Designation/Waiver Matrix
Delegation
Numbers
14-13-A
14-13-B
14-1 3-C
14-14
Title of
Delegation
Criminal
Enforcement
Actions
Concurrence in
Settlement of
Civil Judicial
Emergency TRO;s
Administrative
Determination
and Abatement
Actions
Description of Authority
Transferred/Waived
Concurrence in Settlement
of Civil Judicial Actions
for Cases Initiated by the
AA, OSWER and by the
Regional Administrators
To Exercise Authorities in
Multi-Regional Cases and
Cases of National Signifi-
cance
To Provide Advance Concur-
rence to the RA's on
Determination of Imminent
and Substantial Endangermen
and Pursuant Adminsitrative
Actions ^
Redelegation
Designation
Designation
Redelegation
Designation
:
From
AA,
OSWER •
AA,
OSWER
AA,
OSWER
I
To
Director
OWPE
Director
OWPE
Director1
OWPE
Restriction
Notify OERR
Notify OERR
Notify OERR
n ^^-f
^- V-^O\Ua
Signature
Acting Deputy
Administrator
Title
May 10, 1983
Date
-------
CERCLA
Redelegation/Designation/Waiver Matrix
Delegation
Numbers
14-17
Title of
Delegation
Guidelines for
Use of Imminent
Hazard,
Enforcement and
Emergency
Response Autho-
rities
Description of Authority
Transferred/Waived
To Provide Advance Concur-
rence to AA, OLEC Prior
to Exercise of these
Authorities
' ' A
Redelegation
Designation
Designation
From
AA,
OSWER
•
To
Director
OWPE
Restriction
Consult with OERR
Signature
Acting Deputy
Administrator
Title
May in. 1983
Date
-------
tan Water Act
Redelegation/Designation/Waiver Matrix
Legation
unbera
-14-D
-15
-22
-30
Title of
Delegation
Emergency TRO's
Actual or
Threatened Dis-
charge of oil
or Hazardous
Substance
Administrative
Enforcement
Actions
Placing and
Removing Faci-
lities from the
List of Viola-
ting Facilities
Description of Authority
Transferred/Waived
No Redelegation
Redelegation
Designation
From
To
Restriction
Signature
Acting Deputy
Administrator
Title
May 10, 1983
Date
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
SEP 91983
MEMORANDUM
SUBJECT: Guidance on Developing Compliance Orders Under Section
3008 of the Resource Conservation and Recovery Act;
Failure to Submit and Submittal of Incomplete Part B
Applications
FROM: Lee M. Thomas
Assistant Administrator
Courtney M. Price \_^
Special Counsel forTThforceme
TO: Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Air and Hazardous Materials Division
Directors, Regions I-X
BACKGROUND
Six months after the promulgation of regulations identifying
and listing a waste as hazardous (40 CFR Part 261), the treatment,
storage, or disposal of that waste by any person who has not
received a RCRA permit is prohibited (40 CFR § 270.Kb)).
However, an owner or operator of an existing facility
(a facility which was in operation or for which construction was
commenced on or before November 19, 1980 (40 CFR §270.2)) is
allowed to continue to conduct hazardous waste management (HWM)
activities without having received a permit provided that he:
1) submitted Part A of the permit application within six months of
promulgation of the regulations in Part 261, and 2) sent EPA
notification of his HWM activities within 90 days of promulgation
of the regulations in Part 261. An owner or operator who complied
with these requirements qualified for "interim status." The
owner or operator of a facility with interim status is treated
as if he has been issued a permit until EPA makes a final decision
concerning issuance of the permit.
An owner or operator must submit Part B of the permit appli-
cation when required to do so by the Regional Administrator (R.A.),
The R.A. is required under 40 CFR §270.l(b) to allow an applicant.
six months to submit a Part B application; he may allow additional
time for submission at his discretion. Failure to furnish a
Part B application by the date specified by the R.A. or failure to
furnish in full the information required in Part B is grounds
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for denial of a RCRA permit (-40 CFR Sl24.3(d)) and termination
of interim status (40 CFR $270.10(e)(5)).
Last year, the Regions began to "call-in" (require submission
of) Part B of the permit applications from existing hazardous
waste management facilities. Some of the Part B applications
have not been submitted by the deadline specified in the call-in.
Others, though submitted on time, did not contain all of the
information required under 40 CFR SS270.14-21. This memorandum
sets forth the procedures to be followed when an applicant fails
to submit a timely Part B application or submits a timely but
incomplete Part B application.
I. FAILURE TO SUBMIT A TIMELY OR COMPLETE PART B APPLICATION BY
THE DATE SPECIFIED WHEN THE PART B APPLICATION WAS CALLED-IN
When an owner or operator 1) has'not submitted a Part B
application or a closure and post-closure plan _V by the date
specified when the application was called-in, or 2) has submitted
a timely but incomplete Part .B application, the R.A. should take
the following actions: .
1) Issue a Notice of Deficiency (40 CFR §124.3(c))
a) detailing the deficiencies in the Part B application,
and
b). requiring submission of a complete Part B application
by a specific date, (the date should generally be
within 30 days from the date of issuance of the notice
of deficiency), AND
2) Issue a Warning Letter
a) stating that failure to submit a complete Part B
application is a violation of 40 CFR §270.10(a),
'_/ 40 CFR §265.lT2(cT requires an owner or operator of any HWM
facility to submit a closure plan 180 days before he expects
to begin closure but in no event later than 15 days after
1) termination of interim status or 2) issuance of a judicial
decree or RCRA S3008 compliance order to cease handling hazardous
waste. 40 CFR §265.118(c) requires owners and operators of hazardous
waste disposal facilities to submit a post-closure plan within the
same timeframe. An owner or operator may also submit a closure plan
(and, where required, a post-closure plan) with a statement
of his intent to cease handling hazardous waste in lieu of a
Part B application. If an owner or operator submits the plan(s)
with such a statement, the Agency will not take enforcement action
against the owner or operator for failing to submit a Part B
application, but rather will proceed to review the closure or
post-closure plan under Part 265.
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b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days after date
of issuance of the warning letter/ and
c) stating that failure to submit a complete Part B
application by the date specified in the warning
Jetter may result in i) the assessment of a civil
penalty against the applicant pursuant to RCRA §3008
and ii) initiation of procedures to terminate the
facility's interim status, and
d) stating that a closure plan (and post-closure plan,
where required) and a statement of the owner or
operator's intent to cease handling hazardous waste
may be submitted in lieu of a complete Part B
application.
If the owner or operator submits a complete Part B applica-
tion by the date specified in the warning letter, the R.A. should
begin to process the permit application.
If the owner or operator submits closure and post-closure
plans along with a statement of his intent to cease handling
hazardous wastes, the R.A. should review the plan(s) and require
closure in compliance with 40 CFR Part 265.
II. FAILURE TO SUBMIT A COMPLETE PART B APPLICATION BY THE DATE- -
SPECIFIED IN THE WARNING LETTER
A. FAILURE TO SUBMIT THE PART B APPLICATION BY THE DATE
SPECIFIED IN THE WARNING LETTER
If the owner or operator does not submit a Part B application
(or closure and^post-closure plans with a statement of his intent
to cease handling hazardous waste by the date specified in the
warning letter), the R.A. should:
1) Issue a Compliance Order under RCRA §3008(a)(l):
a) assessing a $15,000 penalty for failure to submit
information required by 40 CFR §270.10(a),
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from the
date, of issuance of the compliance order, and
c) stating that failure to submit a complete Part B applica-
tion by the date specified in the compliance order may
result in the initiation of procedures to terminate
interim status.
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If the owner or operator submits a complete Part B application
''by the date specified in the compliance order/ the R.A. should
begin to process the permit application.
If the owner or operator does not submit a complete Part B
application by the date specified in the compliance order, the
R.A. should:
Initiate procedures to terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR §124.6(b).
Issuance of a Notice of Intent to Grant or Deny Permit is the
appropriate mechanism for initiating procedures to terminate
interim status under the RCRA regulations. Under 40 CFR §124.3(d),
a permit may be denied for failure to correct deficiencies in
the permit application.
B. SUBMISSION OF A PART B APPLICATION WHICH IS MISSING
. MAJOR ITEMS OF REQUIRED INFORMATION
If., by the date specified in the warning letter, a facility's
Part B application is still missing major items of information
required under 40 CFR Part 270.14-21 **/ or the information provided
to meet these requirements is insufficient, the R.A. should:
1) Issue a Compliance Order under RCRA §3008(a)(l):
a) assessing a penalty in an amount equal to—
i) $1000 for each major item of information which is
missing or clearly insufficient, plus
ii) $500 for each non-major item of information which
is missing or insufficient; and
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from the
date of issuance of the compliance order, and
c) stating that failure to submit a complete Part B
application by the date specified in the compliance
order may result in the initiation of procedures to
terminate interim status.
If the owner or operator submits a complete Part B application
by the date specified in the compliance order, the R.A. should
begin to process the permit application.
If the owner or operator does not submit a complete
Part B application by the date specified in the compliance
order, the R.A. should:
**/ A list of"major items" is contained in the appendix to this
policy.
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i't'e procedures ''to 'terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR §124.6(b).
C. INCOMPLETE PART B APPLICATIONS WHICH CONTAIN ALL MAJOR ITEMS
OF REQUIRED INFORMATION
When an owner or operator submits an incomplete Part B
application by the date specified in the warning letter which
contains all major items of information required under
40 CFR Part 270.14-21, the RA should:
Issue a Compliance Order under S3008 of RCRA:
a) assessing a penalty in an amount equal to $500 per
missing -item of information 'for-"failure to submit
information required under 40 GFR §270.10(a), and
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from date
of . issuance of the compliance order, and
c) stating that failure to submit a complete Part B
application by the date specified in compliance order
may result in the initiation of procedures to terminate
interim status.
If the owner or operator submits a complete Part B application
by the date specified in the compliance .order, the R.A. should
begin to process the application.
If the owner or operator does not submit a complete Part B
application by the date specified in the compliance order, the
RA should:
Initiate procedures to terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR §124.6(b).
III. INITIAL PENALTY ASSESSMENT AND PENALTY REDUCTION DURING
NEGOTIATIONS
The penalties set forth in this policy are based on the
1) the type of information which is missing or insufficient (a
higher penalty is proposed for information designated as "major"
than for other missing or insufficient information), and 2) the
number of items of information which are missing or insufficient.
During initial penalty assessment under this policy, the type
and amount of missing or insufficient information in the Part B
application are the only factors which should be considered in
determining the amount of the penalty.
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The following factors, should be considered, during settlement
negotiations'-i'n deciding whether to lower the penalty .which was
initially assessed: 1) good faith efforts by the owner or operator
to develop the information/ and 2) history of non-compliance
(when this information is available). No penalty assessed under
this policy should be reduced by wore than 40% during settlement
negotiations.
PURPOSES AND USE OF THIS MEMOHANDUK
The policy and procedures set forth in this memorandum and
internal office procedures adopted pursuant to this memorandum are
intended solely for the guidance of attorneys and other employees
of the United States Environmental Protection Agency. They
are not intended to nor do they constitute rule-making 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. The Agency may take any action which is at variance
with the policy or procedures contained in this memorandum or
with internal office procedures that may be adopted pursuant to
this memorandum.
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APPENDIX
Major items of information include the following (where required
for the type of facility being permitted):
1} waste analysis plan,
2) inspection plan,
3) contingency plan,
4) location information,
5) closure plan,
6) post-closure plan,
7) documentation of financial responsibility mechanisms,
8) cost estimates for closure and post-closure,
9) principal design plans for the facility {40 CFR §270.15(a),
S270.16(a-e), §270.17(b), §270.18(c ), and §270.21(b)),
10) results of trial burn, plan for trial burn, or information
indicating that the facility will meet the 40 CFR §264.343
performance standards,
11) land treatment demonstration,
12) description of land treatment program,
13) summary of any groundwater monitoring data collected during
the interim status period,
14) description of the groundwater monitoring system to be
installed at the facility (40 CFR §270.14(c)(5)), and
15) hydrogeologic information (40 CFR §270.14(c)(2)-(3)).
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Program Implementation Guidance (PIG) System
The "Program Implementation Guidance System" (PIGs) was
established October 3, 1980, as a means of documenting and
disseminating information on the implementation of the RCRA
regulations. PIGs are developed by the Office of Solid Waste,
signed by the Assistant Administrator for Solid Waste and
Emergency Response with concurrence by the Office of General
Counsel and the Office of Waste Programs Enforcement. They
are distributed to Regional Offices and State Solid Waste
Agencies.
Attached is a list of all PIGs issued to date, providing
the document number/ date, and title.
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PROGRAM ,I#£LE2iENTATION GUIDANCE SYSTEM - MEMORANDA
(PIGS)
FY/J>
PIG-80-1,
Anended
PIG-80-2
PIG^-80-3
PIG-80-4
PIG-81-1
PIG-81-2
PIG-81-3
PIG-81-4
PIG-81-5
PIG-81^6
PIG-81-7
PIG-81-8
PIG-81-9
PIG-81-10
PIG-81-11
PIG-81-12
PIG-82-1
DATE
9/8/81
10/3/80
10/3/80
10/3/80
10/17/80
10/23/80
10/30/80
10/31/80
11/14/80
11/14/80
12/1/80
11/26/80
12/10/80
3/24/81
2/12/81
9/29/81
11/20/81
TITLE
Establishment of RCRA "Program Implementation Guidance
Systeirs (PIGs)"
Interim Authorization of Prcgrairs Based on Eirergency
State Regulations
Requirement That Sta.tB-Penra.tted Hazardous Waste Facilities
Have "Interim Status"
Short-Term Financial Assistance for States Expected to
Receive Authorization Before January 1, 1981
The Use of State Permitting Systems During Phase I Interim
Authorization Which Are Not Based on Explicit Regulatory
S tandards
Federal Register Notice of Public Hearing and Comnent
Period on State Applications for Interim Authorization
Effect of RCRA Regulation Changes on Phase I Interim
Authorization Approval
Delisting of Wastes by Authorized States
Used Oil Recycling Act of 1980 (P.L. 96-463)
State Regulation of Federal Agencies for Purposes of
Interim Authorization
Final Determinations on State Applications for Injterim
Authorization: Action Memorandum and Federal Register
Notice
Program Implementation Guidance on Issuance of Provi-
sional EPA Identification Nunters
Effect of EPA's Memorandum of Understanding With the
Department of Transportation on Activities in States
With Cooperative Arrangements
Transfer of Notification and Permit Application Information
to States
Involvement of States Without Phase II Interim Authorization
in RCRA Permitting
States' Role in Assigning EPA Identification Nuitbers
Universe of Wastes for EPA Permit Activities in States
Authorized for Phase I Only
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PROG^AM IMPLEMENTATION GUIDANCE SYSTEM MEMORANDA (Continued)
(PIGS)
FY/» DATE TITLE
PIG-82-2 5/14/82 Designation of "Major" Hazardous Waste Generators,
Transporters, and Facilities
PIG-82-3 5/17/82 Assignnent of a Memorandum to the Program Implenentation
Guidance System (EPA Enforcenent of RCRA-Authorized State
Hazardous Waste Laws and Regulations)
PIG-82-4 5/25/82 State and EPA Interaction Regarding Exclusion of
Wastes Generated at Individual Facilities ("Delisting")
PIG-82-5 8/9/82 Status of State Permits Issued Before a State
Receives RCRA Phase II Authorization
"PIG-83-1 7/11/83 Definition of "Major Handlers" of Hazardous Waste
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Reg.ulatory Interpretation Memoranda (RIMs)
Regulatory Interpretation Memoranda (RIMs) were developed
'to interpret and answer questions on hazardous' waste regulations
promulgated by the Agency. RIMs are published in the Federal
Register and, to date, three have appeared-.
A list is provided on the next page including date of
publication, effective date, page number, title, 40 CFR part
number, and OSW shelf number.
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Date
Published
11-10-80
12-10-81
Effective
Date
11-10-80
12-10-81
Page
No.
74489-74490
RIMs published to date
Title
40 CFR
Part No.
Consolidated Permit Regulations and 122.262
Hazardous Waste Management System:
Notice of Issuance of RIM.
55386-55388 /Consolidated Permit Regulations and 122
.Hazardous Waste Management System:
Notice of Issuance of RIM (122-80-1)
OSW
Shelf No.
857e
4-8-82
4-8-82
15304-15308
Hazardous Waste Management System:
General and EPA Administered Permit
Programs; final rule. This RIM con-
cerns permits issued to hazardous
waste management facilities, under-
ground injection control facilities,
and facilities that discharge pollu-
tants to navigable waters.
122.24
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UN1TED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
22 JUN 1983
orrict or
QKNCMAU COUMCCL
MEMORANDUM
SUBJECT: RCRA Regulation of Wastes Handled by
DOE Facilities
FROM: A. James Barnes
Acting General Counsel (LE-130,
TO: Pasquale A. Alberico
Acting Director
Office of Federal Activities (A-104)
Issue Presented;
In your June 2, 1983 memorandum, you have asked whether
RCRA applies to Department of Energy ("DOE") facilities.
Conclusion;
RCRA does apply to DOE facilities, including those operated
under authority of the Atomic Energy Act of 1954, as amended
("AEA"), 42 U.S.C. §2011 et seq. However, specific RCRA
regulations may not apply to some aspects of DOE operations, if
it is determined, on a case-by-case basis, that the application
of those regulations would be inconsistent with the requirements
of the AEA. In addition, RCRA does not apply to "source, special
nuclear,or by-product materials" as defined by the AEA. I/
I/ This memorandum will use the term "nuclear wastes" to
refer to wastes consisting of "source, special nuclear
or by-product material". Other types of wastes are referred
to herein as "chemical wastes".
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Discussion;
A. Ruclear Wastes
The only materials which EPA can regulate under RCRA are
"solid wastes" and "hazardous wastes" (which are a subset of
"solid wastes"). Section 1004(27) of RCRA expressly exempts
from the definition of "solid waste":
source, special nuclear or byproduct
material as defined by the Atomic
Energy Act of 1954, as amended.
Thus, it is clear that RCRA does not apply to nuclear wastes
handled at DOE •facilities.
B. Chemical Wastes
Section 6001 of RCRA expressly provides that federal
facilities which manage wastes are subject both to EPA and
state requirements respecting the control and abatement of
solid waste or hazardous waste disposal. However, such regu-
lation of chemical wastes at DOE facilties is limited by
Section 1006 of RCRA, which provides in part that:
[n]othing in this Act shall be construed
to apply to (or to authorize any state...
to regulate) any activity or substance
which is subject to the...Atomic Energy
Act of 1954...except to the extent that
such application (or regulation) is not
inconsistent with the requirements of
[the AEA].
While this provision clearly precludes any EPA or state
regulation that would be inconsistent with DOE responsibilities
under the AEA, we cannot agree with DOE's contention 2_/ that
because "the AEA itself establishes a regulatory framework
by which DOE...is authorized to prescribe and enforce regula-
tions and other requirements necessary for the sound management
of the AEA activities," any application of EPA's hazardous
waste management regulations would be inconsistent with the
requirements of the AEA (DOE Letter, p. 2).
2_/ This contention was expressed in a letter (copy attached)
dated November 14, 1980, from Stephen Greenleigh, Assistant
General Counsel for Environment at DOE to the former Associate
General Counsel for Water and Solid Waste at EPA. The letter is
* — <* -a herein as the "DOE letter".
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First, DOE's analysts would render the cited language in
Section 1006 a nullity. By its very presence in RCRA, that
provision clearly suggests that there may be some activities
and wastes subject to the AZA which EPA can regulate.
Second, the notion that national security considerations
dictate a general exemption of all DOE AEA facilities is belied
by Section 6001 of RCRA, which authorizes the President to:
exempt any solid waste management facility
of any department...in the executive branch
from compliance with [a federal or state solid
or hazardous waste] requirement if he determines
it to be in the paramount interest of the United
States to do so.
If the application of a federal or state standard to DOE facili-
ties is inimical to national security, DOE may seek a Presidential
"paramount interest" exemption from those standards. Absent
such an exemption, the applicability or inapplicability of EPA
and state solid and hazardous waste regulations must depend on
their consistency (or inconsistency) with AEA requirements.
Third, the AEA provision which DOE cites as evidence of
its broad regulatory authority under the AEA-(Section 161(i)(3))
does not by itself compel the conclusion that the regulation
of DOE facilities under RCRA would necessarily be inconsistent
with that authority. 3/ Section 161(i)(3) authorizes DOE to •
prescribe "standards and restrictions governing the ...operatidn
of facilities used to conduct [AEA activities] in order to
protect health and to minimize danger to life and property."
Even if we admit the possibility that all of EPA's hazardous
waste regulations could be inconsistent with the standards and
restrictions of facility operations promulgated by DOE under
this provision, there is no way of determining this without a
comparison of the two sets of standards. Neither EPA nor DOE
has undertaken such a comparison. Indeed, in its correspondence,
DOE has not identified a single RCRA regulation that is incon-
sistent with requirements that DOE facilities must meet under
the AEA.
3/ It has already been judicially determined that the fact
~~ that RCRA may overlap with another statute does not mean
that RCRA regulations are inapplicable. CMA v. EPA. 673 F.2d
507 (D.C. Cir. 1982).
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In its letter, DOE also asserts that Section 161(j) of
the AEA preempts any application of RCRA to chemical wastes
managed at DOE facilities. Section 161(J) provides that DOE
may:
without regard to the provisions of the
Federal property and Administrative Services
Act of 1949...or any other law, make such
disposition as it may deem desirable of (1)
radioactive materials, and (2) any other
property, the special dispositon of which
is, in the opinion of [DOE] in the interest
of the national security.
Again, this provision does not compel the "conclusion reached by
DOE. Section 161(j) was adopted in 1959, well before enactment
of RCRA and any manifestation of Congressional concern about the
problem of hazardous.waste disposal. The quoted section,'despite
its "without regard to...any other law" provision, cannot be con-
strued to limit the application of a law enacted seventeen years
later, which pertains to an area of concern that: (1) is unrelated
to Federal disposition of property 4/; (2) specifically requires
all Federal facilities to meet applicable state and Federal solid
waste management requirements; and (3) establishes a special
procedure for exempting Federal facilities from those requirements
if it is in the "paramount interest" of the United States to do so.
Thus, in our opinion, Section 161(j) cannot be construed to confer
on DOE facilities a blanket exemption from RCRA requirements. 5_/
4/ It is doubtful that the term "property" in Section 16l(j)
even encompasses wastes. The citation in Section 161(j) -
to the Federal Property and Administrative Services Act of 1949,
the title of Section 161(j) ("surplus materials") as well as
references to the purchasing and leasing of property in other
paragraphs of Section 167 all suggest that the term has a very
traditional meaning and does not include sludges, garbage, tars,
trash and other wastes.
5/ Although we believe that §161(j) was not intended to abridge
subsequently enacted statutes pertaining to different subject
matter, it is an elementary principle of statutory construction
that inconsistent provisions must be resolved in favor of the later
enacted statute. See, e.g., Georgia v. Pennsylvania R. Co. . 324
U.S. 439, 456-57 (T9T5); International Telephone & Telegraph Co.
v. General Telephone and ETectronics Corp. . 516 F.2d 913,935
(9th Cir. 1975).
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In short, we cannot conclude that DOE activities under the
AEA, simply by their virtue of being AEA activities, are exempt
from RCRA requirements. However, we do not reject the possibility
that some RCRA regulations might be inconsistent with AEA require-
ments and therefore inapplicable to DOE facilities. Such inconsis-
tency can only be determined on a case-by-case basis. EPA and
DOE should be able to identify inconsistent regulations by a
cooperative effort.
C. Mixtures of Chemical Wastes and Nuclear Wastes
EPA1s authority to regulate chemical wastes at DOE facilities
may be limited to the extent that such wastes are mixed with nuclear
wastes. An argument can be made that any regulation of mixtures of
chemical and nuclear waste would'amount-to de facto regulation of
nuclear wastes, and is thus precluded under Section 1004(27).
It may also be argued that the addition of small quantities of
nuclear waste to solid waste does not remove such solid wastes
from RCRA Jurisdiction.
Further information as to the precise nature of such mixtures
is necessary in order to reach a definite legal position on this
issue, which goes far beyond the question of whether DOE facilities
are subject to RCRA regulatory requirements. £/ We would need to .
consult further with DOE on this matter and to analyze additional
data before making a final decision.
Attachment
cc: Lee Thomas
Regional Counsel, Regions I-X
6/ Our interpretation would affect our ability to regulate
private facilities handling mixtures of nuclear and chemical
wastes and our ability to bring imminent hazard actions under
Section 7003 of RCRA.
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Department of Energy
Washington. D.C. 205S5 NQV 141980
Kr. James A. Rogers, Esq.
Associate General Counsel
U.S. Environmental Protection
Agency
A-131
401 M Street, S.W.
Washington, D.C. 20460
Dear Mr. Rogers:
In a July 30, 1980 letter to you I called to your attention
an issue -regarding the applicability of EPA'-s hazardous
waste management program established under authority of the
Resource Conservation and Recovery Act (RCRA) (Pub. L.
94-580), to certain Department of Energy programs conducted
under authority of the Atomic Energy Act o 1.954 (AEA)
(42 U.S.C. 2011 et seq.) This letter is intended to convey
the position of the Department of Energy with regard to this
issue.
Section 1006(a) of RCRA provides:
Nothing in this Act shall be construed to apply to
(or to authorize any State, interstate, or local
authority to regulate) any activity '. - substance
which is subject to...the Atomic Enei9
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(1) nuclear processes;
(2) the theory ar>d production of atomic energy, including
processes, materials, and devices related to such
production;
(3) utilization of special nuclear material and
radioactive material for medical, biological, agricultural,
health, or military purposes;
(4) utilization of special nuclear material, atomic
energy, and radioactive material and processes entailed
in the utilization or production of atonic enercy or
such material for all other purposes, including'industrial
or comercial uses, the generation of usable energy,
and-.the..-demonstration .of advances in the commercial or
indus trial '''• app'l ic a tion "or";atonic' -'energy;
(S) the protection of health and the promotion of
safety during research and production activities; and
(€) the preservation and enhancement of a viable
environment by developing more efficient methods to
meet the Nation's energy needs.
DOE is also authorized and directed by section 41(b) of
the AEA (42 D.S.C. 52061 (b)> to "produce or to provide for
the production of special nuclear material in its own production
facilities.0 Section 91 (a) of the AEA (42 D.S.C. $2121 (a)).
further authorizes DOE to perform research and development
work in the military application of atomic energy, and to
engage in the production of atomic weapons. These statutory
provisions constitute the basic legal authority for DOE to
engage in its various atomic energy activities. Accordingly,
it may readily be seen that these activities are "subject
to" the ASA within the meaning of section 1006 (a) of RCRA.
The application of EPA's hazardous waste management regulations
to these DOE atoaic energy activities would be duplicative
and inconsistent with the retirements of the AEA and with
DOE's responsibilities under that statute, because the AEA
itself establishes a regulatory framework by which DOE, as
successor to the Atoaic Energy Commission, is authorized to
prescribe and enforce regulations and other requirements
necessary for the sound management of its AEA activities.
Section 161(i)(3) of the AEA (42 U.S.C. $2201(1)(3)), for
example, authorizes DOE to prescribe regulations necessary
•to govern any activity authorized pursuant to this chapter,
including standards and restrictions governing the design, .
location, and operation of facilities used in the conduct of
inch activity, in order to protect health and to minimize
danger to life or property." Paragraph (j) of the same
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.section-authorizes DOE, "without regard to... any other
law," to BmaXe such disposition as it »ay deem desirable of
'(1) radioactive.materials 'arid (2) any other property, the
special disposition of which is, in the opinion of [DOE], in
the interest of the national security...,° In light of this
broad regulatory authority conferred upon DOE by the AEA,
any effort to subject DOE's atonic energy activities, '
especially activities involving the disposition of radioactive
materials, to further regulatory requirements under the RCRA
hazardous waste progran would be duplicative and inconsistent
with DOE's discharge of the responsibilities conferred upon
it by the AEA.
Specifically, RCRA's authorization of any State regulatory
power is inconsistent with the AEA to the extent that RCRA
is .interpreted to apply to any radioactive materials, because
the AEA scheme for the regulation .of atonic energy has been
authoritatively interpreted as'•preemptihg any State regulation
of radiation hazards which is not sanctioned by the AEA
itself. Northern States Power Co. v. Minnesota, 447 T'»2d
1143 (8th Cir. 1971), aff'd, 405 U.S. 1035 (1972). Accord,
Train v. Colo. Public Interest Research Group, 426'U.S. 1 .
(1976}r in which a unanimous Supreme Court at page 16 characterized
Northern States, supra, as holding "that the AEA created a
pervasive regulatory scheme, vesting Exclusive authority to
regulate the discharge of radioaptive effluents from nuclear
power plants in the AEC, and pre-empting the States from
regulating such discharges." The applicability of the doctrine
of preemption is generally dependent upon whether under the
circumstances of a particular case a State requirement
stands as an obstacle to the accomplishment of the Federal
purpose. Northern States holds, however, that the regulatory
scheme embodied in the AEA is sufficiently pervasive to
preempt all State regulation of radiation hazards, regardless
of factual circumstances, unless sanctioned by the AEA
itself:
[Regulation of the radioactive effluents discharged
froa.a nuclear power plant is inextricably intertwined
with the planning, construction and entire operation
'Of the facility....Congress vested the AEC with the
authority to resolve the proper balance between desired
industrial progress and adequate health and safety
standards. Only through the application and enforcement
of uniform standards promulgated by a national agency
will these dual objectives be assured....In short, a
dual system of licensing and regulation with control
exerted by both the states and the Federal government
over the level of radioactive effluents discharged
fron nuclear power plants would create an obstacle
to the accomplishment and execution of the full
purposes and objectives of Congress1« 447 F.2d at
1153-4.
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.Although the particular language cited above refers to
'preemption of State regulation of "radioactive effluents,*"
the.Northern States, court and courts in successive cases
have without exception viewed the-A2A as preempting, except
to the extent authorized by the AEA itself,.all State
regulation of radiation hazards generally. See, e.g.,
United States v. City of New York, 463 F. Supp. 604 (S.D.
N-;Y., 1978J; Pacific Legal Foundation v. State Energy
Resources Conservation and Development Commission, 472 F. Supp.
191 (S.D. Cal., 1979); Pacific Gas and Electric Co. v.
State Energy Resources Conservation and Develocrtem: Commission,
489 F. Sup?. 699 (E.D. Cal., I960). As the Northern States
court stated, "Congress intended Federal occupancy of
regulations over all radiation hazards except vhere jurisdiction
was expressly ceded to the States £i.eog by the ASA].0 447
F.2d at 1150. '
All of these cases involve State efforts to regulate
commercial nuclear power plants. Accordingly, these eases
in their analysis of Federal preemption focus upon the
Federal interest associated with the commercial development
of nuclear energy. Even acre compelling, from the standpoint
of preemption, is the Federal interest associated with
DOE's AZA activities, which deal primarily with national
security and the national defense. Thus, there can be no doubt
that the AZA's preemption of State regulation of radiation
hazards in the commercial context is equally preemptive
in the context of DOE's atomic energy activities under
any factual circumstances. There is nothing in RCRA itself
or its legislative history to suggest that RCRA was intended,,
to alter the preemptive aspect of the AZA regulatory structure,
and ve believe that the language of section 1006 (a) of RCRA
plainly disclaims any such intention. Accordingly, it is
our view that radioactive materials produced in connection
with DOE's AZA activities are not subject to.regulation
tinder RCRA.
Indeed, this same legal conclusion would appear equally
valid for nonradioactive wastes produced by DOE's AZA programs,
in view of the national security interests associated with
those programs. Although section 3009 of RCRA provides that
no State requirements may be less stringent than the EPA
requirements, there is no comparable provision which woulfl
prevent ajiy state from adopting requirements which are more
stringent than EPA's. Both RCRA and the implementing EPA
regulations provide that approvable state plans must be
•equivalent to" and "consistent with" Federal requirements,
but the fact remains, as EPA stated in its May 19, 1980,
Federal Register preamble (45 FR 33385), that "States nay
iapose requirements under their own laws which are acre
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'Stringent than the-Federal .requirements". This possibility
is further underscored by the new language added to section
3009 pursuant to section 14 of P.L. 96-482, the Solid Waste
Disposal Act Amendments of 1980, which provides that "[n]othing
in this title shall be construed to prevent any State or
political subdivision thereof from imposing any requirements
including those for site selection, which are more stringent
than [EPA1sj regulations." Such State requirements must be
fulfilled by Federal agencies to the extent that section
60C1 of RCRA is applicable. Failure or inability of a
particular Federal or non-Federal facility to comply could
result in the State's refusal to issue a RCRA permit, the
consequent cessation of all hazardous waste treatment,
storage or disposal operations at that facility, and perhaps
even the closure of that facility.
Even conceding the probable good faith of all concerned
State and Federal agencies, DOE anticipates that-some.States
may prescribe hazardous waste requirements which could be
unnecessarily restrictive but arguably not "inconsistent"
within the meaning of section 123.32 of the EPA regulations.
Any actual occurrence of this type which interfered with the
conduct of DOZ activities under the AZA would clearly be
inconsistent with the AZA provisions ..discussed above, which
TOvide sufficient direction and authority for DOE itself to
oanage those activities in an environmentally acceptable
manner. The mere possibility of such an occurrence, measured
against the national defense implications of the DOE activities,
argues for recognition of the preemptive effect of the AZA
regulatory scheme under any factual circumstances for
nonradioactive as well as radioactive wastes. The breadth
of the language employed by Congres-s..,yin,.,-section 1006 (a) of
RCRA supports this view. Ead the legislative intent been to
apply that section's exclusionary effect only to radioactive
E&terials, Congress could easily have chosen language having
only that narrow effect. Instead, section 1006(a) is broadly
drafted to exclude from RCRA1s aabit "any activity or substance"
(esphasis added) which is subject to the AZA, to the extent
that the application of RCRA- would be inconsistent. Accordingly,
we believe that section 1006 (a) of RCRA must be read in '
conjunction with the AZA to exclude nonradioactive as well
as radioactive AZA progran wastes froa RCRA's coverage.
Z wish to stress DOE's commitment to the sound management of
'all activities, including waste disposal, conducted under
the AZA. DOE is currently in the process of issuing new
environmental,' safety and health management directives to
replace the existing directives which were developed by
DOE's predecessor agencies. The result of this process will
be a series of Orders and supplemental chapters establishing
policies and detailed procedures for meeting all of DOE's
environmental, health and safety responsibilities including
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matters, such as occupational health and safety in atonic
energy programs-* for which DOE is- independently responsible.
As part of this effort DOE is presently studying EPA's new
RCRA regulations' to' determine 'how best to- assure that management
of even those activities which we believe are not directly
regulated by RCSA will achieve comparability with the.intent.
of. £PA's regulations. A staff of 350 Federal employees,
including 275 stationed at field installations, are occupied
full tine in assuring that DOE complies with all applicable
environmental, safety and health requirements. Their efforts
are guided' and monitored by D0£fs Assistant Secretary for
Environment.
DOE's record of performance in this area, particularly with
regard to ASA activities involving occupational health and
safety, has been exemplary. DOE's management of hazardous
waste, including waste associated with A£A activities, will
be designed to be equally successful.
Sincerely
Step/e/ E. Greenleigh
Ass distant General Counsel
for E/vironment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
SEP 9 1983
MEMORANDUM
SUBJECT:
FROM:
TO:
Guidance on Developing Compliance Orders Under Section
3008 of the Resource Conservation and Recovery Act;
Failure to Submit and Submittal of Incomplete Part B
Permit Applications
Lee M. Thomas
Assistant Administrator
Courtney M. Price
Soecial Counsel- for
Thf orceme
Regional Administrators/, Regions I.-X
Regional Counsels, Regions I-X
Air and Hazardous Materials Division
Directors, Regions I-X
BACKGROUND
Six months after the promulgation of regulations identifying
and listing a waste as hazardous (40 CFR Part 261), the treatment,
storage, or disposal of that waste by any person who has not
received a RCRA permit is prohibited (40 CFR § 270.l(b)).
However, an owner or operator of an existing facility
(a facility w.hich was in operation or for which construction was
commenced on or before November 19, 1980 (40 CFR-"$270.2.) } is
allowed to continue to conduct hazardous waste, management (HWM)
activities without having received a permit provided that he:
1) submitted Part A of the permit application within six months of
promulgation of the regulations in Part 261, and 2) sent EPA
notification of his HWM activities within 90 days of promulgation
of the regulations in Part 261. An owner or operator who complied
with these requirements qualified 'for "interim status." The
owner or operator of a facility .with interim status is.treated
as if he has been issued a permit until EPA makes a final decision
concerning issuance of the permit.
An owner or operator must submit Part B of the permit- appli-
cation .when required to do so by the Regional Administrator (R.A.),
The R.A. is required under 40 CFR $270.l(b) to allow an applicant
six months to submit a Part B application; he may. allow additional
time for submission at his discretion. Failure to furnish a
Part B application by the date specified by the R.A. or failure to
furnish in full the information required in Part B is grounds
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for denial of a RCRA permit (40 CFR §124.3(d)) and termination
of interim status; (40 CFR §270.10 ( e )"."( 5 ) ) .""
Last yearf the Regions began to "call-in" (require submission
of) Part 'B oc the permit applications from existing hazardous
waste management facilities. Some of the Part B applications
have not been 'submitted by the deadline specified in the call-in.
Others, though submitted on time, did not contain all of the
information" required under 40 CFR SS270.14-21. This memorandum
sets forth the procedures to be followed when an_applicant_ fails
to "s"ubmYt"~a 'tTmely Part" B" a'pplication ' or "submits a timely "but
incomplete Part B. application.
I. FAILURE TO SUBMIT A TIMELY OR COMPLETE PART B APPLICATION BY
THE DATE SPECIFIED WHEN THE PART B APPLICATION WAS CALLED-IN
.When an owner or operator -1) has rio-t submitted a Part B -
application or a closure and post-closure plan _^/ by the date
specified when the ..application was called-in, or 2) has submitted
a timely but incomplete Part B application, the R.A. should take
the following actions:
1) Issue a Notice of Deficiency (40 CFR §124.3(c))
a) detailing the deficiencies in the Part B application,
and
b) requiring submission of a complete Part B application
by a specific date, (the date should generally be
within 30 days from'the date of'issuance of the notice
of deficiency), AND
2) Issue a Warning Letter'•
a) stating that failure to submit a complete Part B
application is a violation of 40 CFR §270.10(a),
40 CFR §265.112(c) requires an owner or operator of any HWM
facility to submit a closure plan 180 days before he expects
to begin closure but in no "event later than 15 days after
1) termination of interim status or 2) issuance of a judicial
decree or RCRA §3008 compliance order to cease handling hazardous
waste. 40 CFR §265.118(c) requires owners and operators of hazardous
waste disposal facilities to submit a post-closure plan"wi.thin the
same timeframe. An owner or operator may also submit a closure plan
(and, where required, a post-closure plan) with a statement
of his 'intent to cease handling hazardous waste in lieu of a
Part B application. If an owner or operator submits the plan(s)
with such a statement, the Agency will not take enforcement 'action
against the owner or operator for failing to submit a Part B
application, but rather will proceed to review the closure or
post-closure plan under Part 265.
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b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days a'fter date
of issuance of the warning letter, and
c) stating that failure to submit a complete Part B
application by the date specified in the warning
letter may result in i) the assessment of a civil
penalty against the applicant pursuant to RCRA §3008
and ii) initiation of procedures to terminate the
facility's interim status, and
d) stating that a closure plan (and post-closure plan,
where required) and a statement of the .owner or
operator's intent to cease handling hazardous waste
may be submitted in lieu of a complete Part B.
application.
If the owner or operator submits a complete Part B applica-
tion by the date specified in. the warning; letter, the R.A. should
begin to process the permit application.
If the owner or operator submits closure and post-closure
plans along with a statement of his intent to cease handling
hazardous wastes, the R.A. should review the plan(s) and require
closure in compliance with 40 CFR Part 265.
II. FAILURE TO SUBMIT A COMPLETE PART B APPLICATION BY THE DATE
SPECIFIED IN THE WARNING LETTER :
A. FAILURE TO.SUBMIT THE PART B APPLICATION BY THE DATE
SPECIFIED IN THE WARNING LETTER '
If the owner or operator does not submit a Part B application
(or closure and'post-closure plans'with a statement of his intent
to cease handling" hazardous waste by the date specified in the
warning letter), the R.A. should:
1) Issue a Compliance Order under RCRA S3008(a)(l):
a) assessing a $15,000 penalty for failure to submit
information required by 40 CFR §270.10(a),
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from the
date of issuance of the compliance order, and
c) stating that failure to submit a complete Part B applica-
tion by.'the date specified in the compliance order may
result in the initiation of procedures to terminate
interim status'.
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If the owner or operator submits a complete Part B
by the date specified in the compliance . order,. the R. A..
begin ..to process the permit application.
application
should
If the owner or .operator does not submit a complete -Part B
application by the date specified in the compliance order, the
R.A. should:
Initiate procedures to terminate interim status by issuing
a Notice of Intent.to Deny Permit under 40 CFR Sl24.6(b).
Issuance of a Notice of Intent to Grant or Deny Permit is the
appropriate mechanism for initiating procedures to terminate'
interim status under the RCRA regulations. Under "40 CFR §124.3(d),
a permit may be denied for failure to correct deficiencies in
the permit application.
B. SUBMISSION OF A PART 'B APPLICATION WHICH 'IS MISSING
MAJOR ITEMS OF REQUIRED INFORMATION
If,:, by the date specified in the warning letter, a,facility's.
Part B application :is still missing major items of information
required under 40 CFR Part 270.14-21 **/ or the information provided
to meet these requirements is insufficient, the R.A. should:
1.) Issue a Compliance Order under RCRA §3008 ( a:) (1 ) :
a')"-assessing a penalty in an amount equal to—r
i) $1000 for each major item of information which is
missing or clearly insufficient, plus
ii) . $500 for each
is missing or
non-major item of
insufficient; and
information which
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from the
date of issuance of the compliance order, and
c) stating that failure to submit a complete Part B
application by the date specified in the compliance
order may result in the initiation of procedures to
terminate interim status.
by
If the owner or operator submits a complete Part B implication
the date specified in the compliance order, the R.A. should
lin to process the permit application.
If the owner or operator does not submit a complete
Part B application by the date specified in the compliance
order, the R.A. should: .
A list
policy.
of "major items" is contained in the appendix to this
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Initialte procedures to terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR §124.6(b).
C. INCOMPLETE PART B APPLICATIONS WHICH CONTAIN ALL MAJOR ITEMS
OF REQUIRED INFORMATION
When an owner or operator submits an incomplete Part B
application by the date specified in the warning letter which
contains all major items of information required under
40 CFR Part 270.14-21, the RA should:
Issue a Compliance Order under §3008 of RCRA:
a) assessing a penalty in an amount equal to $500 per
missing item of information for failure to submit
information required under 40 CFR §270.10(.a), and
b) requiring submission of a complete Part B application
by a date generally not to exceed 30 days from date
of issuance of the compliance order, and
c) stating that failure to submit a complete Part 3
application by the date specified in compliance order
may result in the initiation of procedures to terminate
interim status.
If the owner or operator submits a complete Part B application
by the date specified in the compliance .order, the R.A. should
begin to process the application.
If the owner or operator does not submit a complete Part B
application by the date specified in the-compliance order, the
RA should:
Initiate procedures to terminate interim status by issuing
a Notice of Intent to Deny Permit under 40 CFR §124.6(b).
III. INITIAL PENALTY ASSESSMENT AND PENALTY REDUCTION DURING
NEGOTIATIONS
The penalties set forth in this policy are based on the
1) the type of information which is missing or, insufficient (a
higher penalty is proposed for information designated as';"major"
than for other missing or insufficient information), and-2) the
number of items of information which are missing or insufficient.
During initial penalty assessment under this policy, the type
and amount of missing or insufficient information in the Part B
application are .the only factors which should be considered in
determining the amount of the penalty.
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The following factors should be considered during settlement
negotiations in deciding whether to lower the penalty which was
initially assessed: 1) good., faith, /.efforts by .the owner or ^operator
to develop the information, and 2) history of non-compliance
(when this information is available). No penalty assessed under
this policy should be reduced by wore than 40% during settlement
negotiations.
PURPOSES AND USE OF THIS MEMORANDUM
- The-poiicy a>nd -pr-oeedu-r-es se-t forth -in-,this --memorandum. and_
internal office procedures adopted pursuant to this memorandum are
intended solely for the guidance of attorneys and other employees
of the United States Environmental Protection Agency. They
are not intended to nor do they constitute rule-making 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.. ' The Agency may take any action which' is "at variance
with the policy or pro.ced.ures contained in this memorandum or
with internal office procedures that may be adopted pursuant to
this memorandum. . : •
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APPENDIX
Major'items of information include the following (where required
for the type of facility being permitted):
1) waste analysis plan,
2) inspection plan,
3) contingency plan,
4) location information,
5) closure plan,
6) post-closure plan,
7) documentation of financial responsibility mechanisms,
8) cost estimates for closure and post-closure,
9) principal design plans for the facility (40 CFR §270.15(a),
§270.16(a-e), §270.17(b), §270.18(c), and §270.21(b)),
10) results of trial burn, plan for trial burn, or information
'indicating that the facility will meet the 40 CFR §264.343
performance standards,
11) land treatment demonstration,
12) description of land treatment program,
13) summary of any groundwater monitoring data collected during
the interim status period/
14) description of the groundwater monitoring system to be
installed at the facility (40 CFR §270 .14 ( c ) (.5) ) , and
15) hydrogeologic information (40 CFR §270.14(c)(2)-(3)).
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Programi Implementation GuidajTce_( PIG ) System
The "Program Implementation Guidance System" (PIGs) was
established October 3, 1980, as a means of documenting and
disseminating information on the implementation of the RCRA
regulations. PIGs are developed by the Office of Solid Waste,
signed by the Assistant Administrator for Solid Waste and
Emergency Response with concurrence by the Office of General
Counsel and the Office of Waste Programs Enforcement. They
are distributed to Regional Offices and State Solid Waste,
Agencies.
Attached is a list of all PIGs issued to date, providing
the document number, date, and title.
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PROGRAM IMPLEMENTATION GUIDANCE SYSTEM MEMORANDA
(PIGS)
FY/3 DATE TITLE
PIG-80-1, 9/8/81 Establishment of RCRA "Prcgrarr Implementation Guidance
Anended Systeire (PIGs)"
PIG-30-2 10/3/80 Interim Authorization of Programs Based--on Emergency
State Regulations
PIG^SO-S 10/3/80 Requirement That State-Permitted Hazardous Waste Facilities
Have "Interim Status" . •
PIG-80-4 • 10/3/8U Short-Term Financial Assistance for States Expected to-
Receive Authorization Before January 1, 1981
PIG-81-1 10/17/80 The Use of State Permttihg'^Systems .During "Phase"T Interim-
Authorization Which.Are Not Based on Explicit Regulatory
Standards
PIG-81-2
PIG-81-3
PIG- 81 -4
PIG-81-5
PIG-81-6
10/23/80
10/30/80
10/31/80
11 A 4/80
11/14/80
; Federal Register Notice of Public Hearing, and Comment
Period on State Applications for Interim Authorization
Effect of RCRA Regulation Changes on Phase I Interim
Authorization Approval
Del is ting of .Wastes by Authorized States
Used Oil Recycling Act of 1980 (P.L. 96-463)
State Regula tion of . Federal Agencies .for Purposes of
Interim Authorization
PIG-81-7 12/1/80 Final Determinations; on State Applications for Interim
Authorization: Action Menorandum and Federal Register
Notice
PIG-81-8 11/26/80 Program Implementation Guidance .on Issuance .of Provi-
sional EPA Identification Nunters
PIG-81-9. ' 12/10/80 Effect of EPA's Memorandum of Understanding With the
Departnent of Transportation on Activities in States
With Cooperative Arrangements
PIG-81-10 3/24/81 Transfer of Notification and Permit Application Information
to States .
PIG-81-11 2/12/81 Involvement of States Without Phase II Interim Authorization
in RCRA Permitting
PIG-81-12 9/29/81 States' Role in Assigning EPA Identification Nunfeers
PIG-82-1 11/20/81 Universe of Wastes for EPA Permit Activities in States
Authorized for Phase I Only
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FY/S
PIG-82-2
PIG-82-3
.PIG-82-4
PIG-82-5
PIG-33-1
PROGRAM IMPLEMENTATION GUIDANCE SYSTEM • MEMORANDA (Continued)
(PIGS)
DATE TITLE
5/14/82 Designation of "Major" Hazardous Waste Generators,
Transporters, and Facilities
5/17/82 Assignnent of: a Menorandun> to the Prograin Implementation
Guidance System (EPA Enforcenent of RCRA-Authorized State
Hazardous Waste Laws and Regulations)
5/25/82
8/9/82
7/11/83 Definition of "Major Handlers" of Hazardous Waste
State and EPA Interaction Regarding Exclusion of
Wastes Generated at Individual Facilities ("Delis ting"]
Status of State Permits Issued Before a State
Receives RCRA Phase II Authorization
276
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Regulatory Interpretation Memoranda (RIMs)
Regulatory Interpretation Memoranda (RIMs) were developed
to interpret and answer' questions on hazardous waste regulations
promulgated by the Agency. RIMs are published in the Federal
Reg ister and, to date, three have appeared.
A list is provided on the next page including date of
publication, effective date, page number, title, 40 CFR part
number, and OSW shelf number.
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Date
Published
.11-10-80
Effective
Date
Page
No.
RIMs published to date
Title
40 Cl'K
Part No.
11-10-80 74489-74490 Consolidated Permit Regulations and 122.262
Hazardous Waste Management System:
Notice of Issuance of RIM.
OSW
Shelf No.
12-10-81
12-10-81
55386-55388
Consolidated Permit Regulations and
Hazardous Waste Management System:
Notice of Issuance of RIM (122-00-1)
122
857e
CO
4-8-82
4-8-02
15304-15308
Hazardous Waste Management System:
General and EPA Administered ;Permit
Programs; final rule. This RIM con-
cerns permits issued to hazardous
waste management facilities, Bunder-
ground injection control facilities;
and facilities that discharge pollu-
tants to navigable waters.
122.24
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