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!    •—.». <"«» 
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:;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
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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

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         "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

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                                                 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

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                                                              . .-.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

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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)

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              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

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                             -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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                              -4-
           •   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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R   4

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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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                               - 2 -

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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R   5

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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.

                              - 3 -

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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.


                              -  4 -

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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.
                              - 5 -

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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.
                              - 6 -

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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
                              - 7 -

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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.
                              - 8  -

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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.
                              - 9 -

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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.
                             - 10 -

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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 -

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           (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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                              -  2 -
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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                               - 4  -

 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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                                - 5  -


 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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                               - 7  -

 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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                              -  2 -
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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                              - 3 -


        (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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                              - 2 -
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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                               -  3  -
                (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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                                -  4  -
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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                                -  5  -
           (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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                               -  6  -


           (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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                                -  7  -
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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                                -  8  -


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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                                -  9  -


 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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                                - 10  -


                             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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                               - 11 -
     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:

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                           (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

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                             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

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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.

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     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-

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         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)

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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)

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  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)

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  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

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                                 *
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)

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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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                                  -2-


      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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                                -3-


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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                                -4-

    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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R   9

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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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                                -2-


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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                                 -3-


.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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                                 -4-


      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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R 10

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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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R 11

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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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                               -  2  -


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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                             - 4  -


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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                               -  5  -
                                 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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                             -  7  -
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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                             - B  -
 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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                             -  9  -


        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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                             -  10  -


     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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                             - 12 -•


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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                               - 13  -


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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                             - 3 -
           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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                              -  4  -
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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                                 -2-


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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                                 -3-


      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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                                    -2-


 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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                                   -3-


     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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                                -2-


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-

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 :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.

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                                 -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~?
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                               .—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.)

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                                                               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.

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                                 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

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                                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.

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                        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

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                                -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

-------
          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

-------
                               -2-


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.

-------
                              -3-


        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.

-------
                                -4-


      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.

-------
                                -5-


           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.

-------
                               -6-


     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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                             -7-
                           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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                             -wi O I  :~:-'fc
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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                                       -2-
           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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R 18

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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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                            - 2 -


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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                            - 3 -


     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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                            - 4 -
     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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                            - 5 -
     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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                             - 2 -

      (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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                            - 3 -


.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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                           « 4 -


.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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                             .-. 5  -


 '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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                            - 6 -

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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R 19

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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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                               -5-


     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
                                   275

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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.
                              277

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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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