UnitM Sl«i«i
3EPA
Pro«*ciien
O"'C» of
Soi.a W«il«
DIRECTIVE NUMBER: 95U1.01-82X
TITLE: Assignment of a Memorandum to the Program
Implementation Guidance System (PIG-82-3)
APPROVAL DATE: 05-17-82
EFFECTIVE DATE: 05-17-82
ORIGINATING OFFICE: office of solid waste
0 FINAL
D DRAFT
STATUS:
[ ] A- Pending OMB approval
[ ] B- Pending AA-OSWER approval
[ ] C- For review &/or comment
[ J D- In development or circulating
REFERENCE (other document!): headquarters
OSWER Policy Directive #951*1.01-82
DIRECTIVE DIRECTIVE D
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United tales nvironmental Proiectton Agency
Washington. OC 20460
QSWER Directive Initiation Request
1 Directive Number
Originator Information
Wame ol Contact Person
John Skinner
Mail Code
WH-563
Office
OSW
Telephone Code
M/A
3 Title
Assignment of a Memorandum to the Program Implementation Guidance System
(PIG-82-3)
4 Summary of Directive (include bnel statement of purpose)
Memo brings enforcement memo into PIG system. Title of memo: "EPA Enforcement of
RCRA-Authorized State Hazardous Waste Laws and Begulations".
5 Keywords Enforcement /State Program
aa Does This Directive Supersede Previous Directive{s)r
b Does tt Supplement Previous Directive!*)1
No
Yes What drectrve (number. Idle)
Yes ' What directive (number, title]
#951*1.01-82
Drat Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8.
Document
to
be distributed
to
States by Headquarters?
Yes
X
No
This Request Meets OSWER Directives System Format Standards.
3 Signature ol Lead Office Directives Coordinator
10. Name and Title of Approving Official
John Skinner, Director, SPRRD
Date
Date
05-17-82
EPA form 1315-17 (Rev. 5-87} Previous editions are obsolete
OSWER
OSWER
OSWER
VE DIRECTIVE
DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
PIG-82-3
MAY I 7 882
SOLIO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Assignment of a Memorandum to the Program
Implementation Guidance System
FROM: John Skinner, Director H>*v"
State Programs and Reso/Jrce Recovery Division (WH-563)
TO: Program Implementation Guidance System Addressees
On March 15, 1982, Enforcement Counsel issued the attached
memorandum to Regional Administrators and Regional Counsels. The
Memorandum provided valuable information, guidance, etc. on EPA
enforcement of RCRA-authorized State hazardous waste laws and
regulations. I think that the guidance contained in this memo-
randum is of such value as to warrant wider distribution and incor-
poration into our system of Program Implementation Guidance. For
future'reference and ease in filing, I have designated this memo-
randum as Program Implementation Guidance number 82-3 •
Attachment
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S : 3 ;:-sz
SUBJECT: EPA Enforcement of RCHA-Auchorized State Hazardous «aste
Laws and Regulations
?aOH: William A. Sullivan, Jr.
Enforcement Counsel (i:J-329) \J ' /"4-^
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secsrr.e -ecsssary f-r I?A z~ ~2.<.* ar.f srcar.sr.t ac-^
will cs acdrssssc "..". ;r.s crdsr 321 fcr".". 2«c'-"^.
——- — «.—Ana__ *" ~ u n s s ! ™ a s ccr*.5vi"~2c '^i~n t n2 C z i i c 2
ir. :hs sresarazicr cf --is .r.e.Tcra.-d'jn.
CAtI £?A TAXZ ENFORCEMENT ACTION IN A 3CRA-ACTEOR!ZiD STATE?
WHAT A30CT STATES WITH WEICH £?A HAS COOPERATIVE ARPAKGEMEI^TS?
A. Authorized states:
ivhen a state is authorized to administer the RCSA program in
lieu of E?A, E?A nas made a determination that the. state's prograr,
is equivalent (in the case of final authorization), or substantially
equivalent (in the case of interin authorization)/ to the federal
arogran, and that the state hazardous waste prograr. can thereafter
be adninistered by the state under state law, in lieu of the Federal
program. {See XCP.A, Section 3006(a) and (c)). After authorization,
can EPA take enforcement action, in such a state, and if so, would
it enforce stats or federal law and regulations?
The provisions of P.CPA Section 3003 (a) (1) and (2; are most
helpful in answering these questions. These provisions state:
"Section 300S{a) Compliance Orders.- (1) Except
as provided in paragraph (2), whenever on the
basis of any information che Administrator
determines that any person is in violation of
any requirement of this subcitle, the
Administrator say issue an order requiring
compliance immediately or within a specified
tLtie period or the Administrator raay 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.
occu^a in a State which is authorized to carry out
a najjlgdous waste progran under Section 3006, tne"
Acninistrator 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
s an authorized hazardous waste program, EPA retains the right
. federal enforcement, subject to the giving of notice to the
atate in which the violation occurred prior to taking enforcement
action.
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d <• « v j ^» •*••«<«• w«^k. •» w v — M^2"^"l'~—^ «• • • • «
ar
"This legislation, permits che scales ~c taha
the lead in the enforcemenc of the hazardous
vasts laws. However, there is enough flexi-
bility in the act to oerr.it the Administrator,
ir. situations where a state is not implementing
a hazardous waste program, to actually i.-nplemer.t
and enforce the hazardous waste program
against violators in a state that does not
meet the federal minimum requirements. Although
t»ie 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 ac-ir.g
in rhose 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 Iirl/ cf this act."
The preamble to 40 CFR 5l23.123(f) and (g) at 43 Tec. Reg. 33394
(May 19, 1990), also briefly sets forth this position regarding
EPA's enforcement of hazardous waste laws and regulations in an
\uthorized state.
We can also look to the Clean Water Act (CWA), which is highly
analocous to P.CRA in this regard, and from which Section 3003 was
drawn!/. Cases involving similar provisions of the CWA (e.g.,
Sections 309 and 402) support the proposition that vhile Congress
intended that the states have primary authority to administer the
the program subject to national guidelines provided sy the Act
and by the SPA regulations, 2?A retained the authority to achieve
the purposes and goals of the Act, inducing the right to take
±/The House Bill (H.R. 14456) was amended subsequent to the
submission cf this report, which chanced the references of Title
III to Subtitl*. C of the final Act.
2/See Report of Senate Committee on Public Works, Mo. 94-988,
?. 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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Kavir.g concluded ti:at EPA can enforce hazardous vasts laws
and regulations in a state with an ZPA-approvsd program, the ques-
tion t.nen becomes: does SPA enforce RCSA and federal regulations,
cr 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 nay initially seem more academic than real sines,
in order to gain interim authorization to administer the RCHA
program, a state must have a program which is "substantially
equivalent" to the Federal program (see SCRA, Section 3006(c!J/
and a program which is "equivalent" to the federal program in
order to gain final authorization (Section 3006(b))» As a result,
aar.y 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 authorisation, and nar.y
states vill have programs which are, in part, more stringent cr
broader in scope of coverage than the federal program. Therefore,
it is very likely that these issues will be encountered frequently
As discussed ir. Part 1 of this memorandum, Section 3008 fa) (2)
of P.CSA authorizes EPA to take enforcement action in an authorized
state/ after notice to the state, in the case of *& violation
cf ar.y requirement of this subtitle." When EPA authorizes a
hazardous waste management program under Section 3006/ the state
program becomes the RCrlA program in that state, and is a part
of the requirements of Subtitle C referred to in Section
300S(a){2)", which EPA 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,..." (?.dA
Section 300S(bJ.*«d (cj). In other words/ the only hazardous
waste program in1 effect in that state is the state program, ar.d
the state laws «Dd regulations are those which must be enforced
by SPA 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 indent of
Congress. If the federal hazardous waste regulations were to
•sly to handlers of hazardous waste in authorized states, these
.•sons would be continously subjected to a dual set of laws and
-.igulations/ 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 ir.
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s-es
-,
I.ic. v. v'irci.-.ia Szars Water Ccr.trsl 3carc, 45 J T . 3 up?". _22 i Z .C.
Va . , -973); C. 5. v. Camil/ Inc., Civ. Cochet ±80-135, (D.C. Dei.
'?eb. 12, 1981); anc Shell Oil '/Terrain, 415 F. Supp. 70, (D.C. Cal
1975), where the Cour-c, a:~sr cuocing from legislative history
of the C7A, stated:
"The language suggests that Congress did r.oc
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 spates the first opportunity to
i.-.sure its proper implementation. In the
event that a state fails to act, federal
intervention is a certainty".
3. States With Which E?A Has Cooperative Arrangements;
Regarding states which have entered into Cooperative
Arrangements, the federal-state relationship is different from
-\a~ of interim or final authorization. A Cooperative Arrangement
a device to assist states whose hazardous waste programs are
: yet sufficiently developed to qualify for authorization, and
provide financial assistance to those stares. (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 «nd obligation of EPA to take enforcement action
in a scate with ."which the Agency has a Cooperative Arrangement is,
therefore, the fane 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 S?A-state relationships, appropriate consultations should
precede SPA action, and written notice should be given by EPA to
•;/ appropriate agency and the governor of the affected state.
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. Ss-s '.'" i ted 5t a - e s v. Cars :. 11, Ir.c . , (Z.C., 2el.) -iv
30-135, Slip Op. feoruary 12, IrSl; SoeTl 3:1 v^ ^vy'
susra; United Stages v. I.T.T. Rayonier, Inc., 627 r.2c 9Sd {9-r.
Cir., 198OK The pracie.'n becomes'mora com?Lax/ however, wnen
the following questions are considered:
(A) If an authorized state progran includes regulations
or statutory previsions which are greater in scope of coverage
than the federal program/ can E?A also enforce those additional
state requirements?
(3J If the federal reculaxions contain provisions which
are noc included in the state program (e.g., by reason of croraul-
cation by I?A subsequent to authorization of the state progra.-n by
£?A), can EPA enforce the federal regulations which are r.cz a
part of the state program? and,
(C) If the state makes modifications in its program -
after authorization/ does SPA enforce the state program as originally
approved, or the state program as modified after approval by E?A?
These questions will be of particular significance durir.c
ihteri.-a authorisation, when the states are required only to have
programs which are "substantially equivalent" to the federal pro<:
and"while SPA 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
coverace cr'more stringent than the federal program,
can S?A also enforce those additional state requirements?
Individual states will, in addressing industrial, agricultural/
geographic, hydrolcgical and other factors which exist within their
listing of wastes which are not included in the federal universe
of hazardous w«ate; 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 .
-overage than the federal program are not a part of the federally-
proved program (40 CFR §Si23.i(!c) and 123.121(g]}. Since that
-ortion 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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I- sr.ouid ae -ads clear, however, chat tr.ere is a. distinction
between portions of a state program which are broader i.-. scope of
coverage", and those which are "more stringent" than the federal
program. Section 3009 of RC3A and 40 CFR 55123.IjJc) and 123.12i(g)
Provide that nothing shall prohibit a state from imposing any
requirements which are more stringent than those imposed by the
fed'eral regulations.
While state provisions which are broader in scope cf coverage
generally do not have a counterpart in tne 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 onlv a"fence be erected and maintained around a facility, but
that it'be a fence of specific heignt and of specific material^
(e.g., a ten-foot, chain-link fence); a requirement that containers
for storage of waste be of a specific material and/or color-coded;
a lesser amount of was^e exempted from regulation under the small
cuantity generator exemption (40 C??. §251.5); and a requirement
that final cover of a land disposal facility be of a particular
material or thickness.
Provisions in state programs which are more stringent than
eir federal counterparts are, nevertheless, a part of the
late
_ no counterpart in the federal program, a part cf
the requirements of Subtitle C, which EPA is required to enforce.
3. If. the. stats modifies its program after authorisation,
can S?A enforce the state program as modified, or the
state program as approved before the modification?
This issutfr assumes that, after either interim or final
authorisation of a state program, =he 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 SPA enforce the program as
modified/ or the program in existence at the time of authorization?
With regard to modifications mace by the states in their programs
*' *r -i-1}*- authorization, 40 CFR §123.13 sets forth specific pro-
r*es for such revisions by the states and approval thereof by I?A.
state program revision after final authorization must be submitted
t »A for approval, public notice given, and a public hearing held
i Ure is sufficient public interest. The revision to the state
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".c-.rrsss provided :..-. Secticr. 2 ^-i fcr v«c "'/pas
s r.c •«••:.-.= oy i.-.e s-arss of "substantial equivalence" •-•izr. r.-.a
federal program; ar.d final authorization, upon a showing ay -l-e
state of" "equivalence" vizr. trie federal program. Obviously, in
the journey "from substantial equivalence to ecuivalar.ee, some
the programs in effect in those states to which interim authori-
zation had been granted. it therefore appears that Congress
intended that EPA enforce such laws and regulations as were in
effect at the ti.-ne 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 wa^, 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 whi,cii._were. a .?ar_t_p.f.
•the-E-PA-appro-ved state program at the time of granting of
nteris authorization; and those which the state promulgated
after the granting of interim authorisation. Such dual regula-
tion defeats the whole purpose of state authorisation..!'
We therefore conclude that changes made by a state in its
hazardous waste programs after granting of interim authorization,
and before granting of final authorization, may be enforced by
EPA regardless of whether the chances 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.IS
Notwithstanding these, we believe the weight of the arguments
tilts in favor of the conclusion which we reached herein.
I/This reasoning would not apply with equal force to
modifications made in a state program during final authorization
because the States presumably will be making many fewer modifications
of their programs after final authorization.
Z/?or example, if a state, after receipt of interim authcriza-
,n, makes changes in its program which are less stringent, is EPA
equired to enforce the portions of the state program which are
• _es"s stringent? The answer must be "yes", and if the state makes
many such changes ir. its program, EPA's only resort may ae to
revoke the State's authorization.
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rac-
vr.ic.- .
•sr.fcrcs :s tr.ac vr.icr. 2:<-3-ac =LS cf the latest £?A approval ./
cations- for- final authorization. j/
In the absence of recuireraents in RCRA or E?A's regulations
for suoraission of program modi ficat ions by a state with interim
authorization to EPA for approval, it is presently our opinion
that £?A nay enforce such modifications nade by a state with
inter in authorization, notwithstanding that EPA say not have
aooroved those nodif ications .57
^/Discussions with representatives of the Office of General
Counsel and the Office of Solid Waste indicate that 40 CFR $123.13
iis under review, and may be amended to eliminate the requirement
that E?A approve•modifications made after final authorization of
state programs before the raodifications nay be effective. The
consequences on enforcement of such an amendment to §123.13 are
addressed i.i the following discussion.
j/There are, however, stages during interim authorisation in
which~state program changes may be approved by E?A. For exanple,
when the states, having received Phase I authorization, apply to
EPA for Phase II interim authorization, they aust 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 pare 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
f modifications in a state prograra during interim authorization
.til after E?A approval of such modificaticns.
f/In the event SPA should eliminate the requirement of 40 CrS
23.13 (see footnote 3), then by much the same reasoning contained
nerein, 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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C 2 ~ "- C 3 2 f 3 C S r i .1 T S C ",il iZiC™ 5 IT. - T. SI 5 ~ 3 Z 3 ~
The situation presented by this question will most li.'oly
occur when EPA modifies its regulations or adopts new regularises
such as the addition of a waste to the universe of federaiiy-
reguiated vasts, after the approval of a stats program. This issue
is "significant because, with approximately one-half of t.ie states
having received interim authorization, it is important to :
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"«"iir. recard -c states wr. icr. r.ave seen granted final autr.cri-
ration, there are prcvisicr.s in tne federal regulations whicr.
Govern the state adoption of modifications in the federal program.
Section 123.13 of 40 CF3 requires che states, after final authori-
zation, to adopt asendm^ts which are made to the Federal program
within one year of the - romulgation of the federal regulation,
unless the state must adopt or amend a statute, in which case the
revision of the state program must tafce 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
state.
We recognize that this couid 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,±-L/ 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 COraT SHOULD EPA FILZ TEE ACTION?
Section 3003 (a) (15 of 3CRA provides that whenever the
Administrator determines that any person is in violation of any
requirement of Subtitle C, "... the Administrator may commence a
JL2/It sh~buld be noted here that there are components of the
federal program which are not included in Phase I interim authorisa-
tion or in some phases of Phase II authorization to the states.
For example, the grantinc of Phase I interim authorization to the
states does no£ include the authority to issue RCPA permits to
hazardous wasta management facilities. Likewise, the granting of
Phase II, Component A authorization (covering permitting of
storage facilities) does not include authority to issue RC3A 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
covered by a subsequent authorization. In the meantime, EPA
, entitled to enforce those portions of the federal program which
-^'-"*. state has not yet been authorized to administer.
.LL/For a discussion of the adoption of modifications by a state
in its progran, see Subsectio.ij_.S of this Section, supra.
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T'->5 5ti---e v-=5r3 ; .iriscicricr. si suns i-.vc_vir.c vic.iti
c- ~ne .-.azirdous waste program under Suctitle C in the CJ.3. Sis'
Courts, and t.-.e venue of such actions in the CJ.5. judicial ci5t-._-ww
in which the violation occurred. Therefore, in a suit brought
bv 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 sta-ts may
state courts. In
which nay exist
4.
IF EPA ENFORCEMENT OF STATE LAWS, REGULATIONS OR
PERMITS INVOLVES ADKIKISTRATIVE 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 7003,
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 SPA with
.the necessary authority to use federal procedures- for enforcement
of ail 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 reguiaticns.il/ For example,
Section 3003(*,JttU of RCRA authorizes the Administrator/ in the
event of a vioiBftion of any requirement of Subtitle C, to issue
an order requifl&fcng 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 notice to the azcectec
state); and Section 3008(a)(3) provides for a penalty for non-
compliance/ as well as the authority of the Adrainistrator-to revoke
il/We interpret RCRA as limiting the use of the administrate-/
orders mentioned" herein to EPA, and that they ara not available,
as such, to the states. The states statutes may, of course,
contain authority for state administrative orders.
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?r;visis.-.s :"cr p-zli: .-.eari.-.gs or. a.-y srcar issued .-r.cer ".".is
= *cti;r., a.-.- s_z.-.cri :y for t.-.e Ad.T.i.-.istratsr to issue s^.Tpoer.as
ar= also ir.cl-cec i- Secticr. 2C05(:). Sectior. 30C3(c) specifies
tr.e scape and content of the compliance orders which nay be
issued under tr.is 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
natter that £?A would consider using state administrative procedures '
even should i; legally be possible to do- so,, since- chat 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
.-natter.
Ill EVEJIT OF -?A ENFORCEMENT IN AN AUTHORIZED STATS/
WHAT STSPS SHOULD 3S TA2CZS TO MINIMIZE ADVS3S2
IMPACT CTP017 FSDE21AL-STATS RELATIONSHIPS?
There are several circumstances under which E?A may be
(equired to take enforcement action in a state with an authorised
C3A program, most primarily because of the state's lack of
resources co take- adequate or timely action. Whatever, the reason,-
SPA 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 2PA to take enforcement
action. In such cases, few problems are encountered in £?A-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, -?« should take care to handle
the matter w
Since it is clear, as outlined above, that Congress intended
the states to have the primary enforcement authority of the RCSA
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
address of the violator; the date of violation and location
the facility or site at which it occurred; references to the
._./isicns 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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afiec-ec Srata cf a.-.y sucr. suit., The Acnir.istraior
-ay also, aftsr r.ctice to the affected Scare,
tajce o trier action under this section including,
but: not limited to, issuing such orders as mav
be necessary to protect public health and the"
environment." (emphasis supplied)
The first clause of the section indicates that it was the in&en:
of Congress to allow EPA to take emergency actions to protect human
health and the environment in cases of imminent hazard/ without re-.
card to any other provisions of the Act. I: 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 cf an
authorised state's laws or regulations which may appear to restrict
or limit the use of this Section. Again, however, notice m'ist 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 SPA to
administer and enforce the hazardous waste program only under Sut
title C of RCRA, which does not include Section 7003. CJse of
Section 7003 is within the exclusive province of SPA. This does
not, however, prohibit the states from adoption and use of their
own fort of imminent hazard authority in the state courts.
The ability of SPA to take action under Section 3013 is
likewise unaffected by authorization of a state program. By such
authorization, SPA does not relinquish the enforcement options
which it possesses, but merely agrees to hold them in abeyance to
be used in the event the state fails to take appropriate and timely
enforcement action.il/ Before issuing a 3013 order to a person ir."
an authorized state, however, notice should be given to the appro-
priate agency in the affected state in the manner suggested hereir.,
and raferenc*4Bfaould be made to the guidance on issuance of 2013
orders cor.taijB&£ in the -Memorandum from Douglas Mac.Miilan, Acting
Director of tint Office of Waste Programs Enforcement to the Regional
Enforcement Directors dated September 11, 1981, entitled, "Issuance
of Administrative Orders under Section 3013 of the Resource Con-
servation and Recovery Act."
ii/The model Memorandum of Agreement between EPA and the 'state
contained in the RCRA State Interim Guidance Manual, provides:
"Nothing in this Agreement shall be construed
to restrict in any Jja^-EPA's authority to ful-
fill its oversight and enforcement responsi-
bilities under RCSA."
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-»—ss cf J~ -r.233-23' -iccri~cr"/ r=pcr~s, i.-3sc~^rr. , a~c
r-r.er eviiar.cs :•. E?Vs ccsssss^cr, s.-.O'-ld oa cfiarac :pcr. raciest
cf tr.a stats ar.c'-lz ".".2 stata .-tacida to ti.o ar. forcsr.arst actic".
2. A statement tnat under RC^A and the y.eraorar.dun of
Agreement between SPA and the state, it is the primary, obligation
of the state to taJce necessary and timely actions to enforce the
provisions of the state hazardous waste, laws and regulations, and
that EPA believes it is appropriate that the state taXa such
action. In so
type of action
order* other a
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 hunan health cr the environ-
ment, a relatively short period of time may be required far either
the state or S?A to act. If, through telephone conversations or
other communications between E?A 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 S?A initiates the action. Zn such
case, the letter should also refer to the previous communication
with the state which indicated the likiihood of inaction on its par'
On the other hand, if there 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 tc fulfill its
role as the priraary 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-lwforcing authority without further r.otificaticn.
6.
EFFECT OF STATE ACTHORIZATION ON SECTION 7003 A2ID 3013 ACTIONS
Section 7003 of RCRA states, in pertinent part:
"Notwithstanding any other provision of this Act,
upon receipt of"evidence tnat 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 ... t«—immediately restrain any
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If ycu '~£'/3 -•"•"/ q-3S---r.s cr prcclerzs relanr.c -c ^'r.a .-.att
zcr.tair.eci ir. "his ~smor2.r.d'-~/ plaasa ccr.iact. P.ichard H. Mavs sf
office a^ 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 3. Caoitol Street - Room 1777
VJashir.gton, D.C. 20001
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