6EPA
            United $)•(••
            Environment*! Protection
               Sohd w*»i«
               Em*rgtnc«
DIRECTIVE NUMBER:  9541.01(82)

TITLE:  EPA Enforcement of RCRA-Authorized State Hazardous
      Waste Laws and Regulations (PlG-82-3)
             APPROVAL DATE:  5-17-82 (original Sullivan memo dated
                            3-15-82)
             EFFECTIVE DATE:  5-17-82 (original Sullivan memo dated
                            3-15-82)
             ORIGINATING OFFICE: office of Solid waste
             El FINAL

             D DRAFT

              STATUS:
             REFERENCE (other document*):
              [  ]  A- Pending OMB approval
              [  )  B- Pending AA-OSWER approval
                  C- For review &/or comment
              [  ]  D- In development or circulating

                              headquarters
  DIRECTIVE    DIRECTIVE    D

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 PART  271   SUBPART A  -  FINAL  AUTHORIZATION
DOC:  9541.01(82)
 Key Words:    Authorized  States,  Enforcement

 Regulations:  RCRA  3006,  3008(a),  3013,7003 40  CFR 271.l(i);  271.21(b)(4);
              271.121(1)

 Subject:      EPA Enforcement  of  RCRA-Authorized  State  Hazardous  Waste  Laws  and
              Regulations  (P1G-82-3)

 Addressee:    Program  Implementation  Guidance Addressees

.Originator:   John  Skinner  referencing William  A.  Sullivan, Jr.,  Enforcement
              Counsel  OLEC

 Source  Doc:   #9541.01(82)

 Date:         5-17-82  (original Sullivan memo dated  3-15-82)

 Summary:

     Several  legal  and administrative questions arise when  a  RCRA-authorized
 State fails or  is unable  to  take  enforcement action  against hazardous waste
 violations:
 1.  Can  EPA  take enforcement action  in  a  RCRA-authorized  State?
    States with which EPA has cooperative  arrangements?
   What about
     Pursuant  to RCRA §3008(a)(2),  EPA  retains  the  right  of  Federal  enforcement
in authorized  States.  EPA is only  required  to  give  notice to  the  State  prior
to engaging  in any enforcement action.   Under Cooperative Arrangements,  EPA
retains full responsibility  for  the administration  and  enforcement of  the
Federal hazardous waste program.

2.  Does  EPA enforce State law and  regulations  or Federal law  and  regulations
    in an authorized State?

     Upon EPA  authorization  of a hazardous waste program  in  a  State  under  RCRA
§3006, the state program becomes the RCRA program in that State; and therefore,
the State laws and regulations are  those that EPA must  enforce should  Federal
enforcement action be necessary.

     The  above issue becomes more complex 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?   In accordance with  40
CFR 271.1 (i)  and 271.121 (i), State program requirements that exceed  the
scope of  coverage in the Federal program are not a  part of the Federally ap-
proved program.  EPA cannot  enforce those requirements  which exceed  the  scope
of coverage  in the Federal program.  However, EPA may enforce  provisions in
State programs which are more stringent  than their  Federal counterparts, since
such provisions are part of  the  approved state  program.

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Continued From Document 9541.01(82)
     B)  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?

     In States with final authorization, EPA may only enforce State programs
existing as of the latest EPA approval of the program and any revisions thereto.
(40 CFR 271.21 (b)(4)).  However, modifications made after the granting of
interim authorization, but before the granting of final authorization may be
enforced by EPA notwithstanding lack of EPA approval.

     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?

     EPA is not entitled to enforce Federal requirements which are not a part
of an authorized State's program.  The State must first adopt these changes.

3.  If an enforcement action is necessary, in what court should EPA file the
    action?

     EPA should file the action in the appropriate U.S. District Court, applying
the substantive law of the particular State's hazardous waste statutes and
regulations.

4.  If EPA enforcement of State laws, regulations or permits involve administra-
    tive proceedings, should EPA follow Federal or State procedures?

     The Congressional grant of authority to EPA to use Federal procedures for
enforcement of all applicable hazardous waste laws was done so with the inten-
tion that these procedures be used in the event of Federal enforcement of
States' hazardous waste laws and regulations.

5.  In the event of EPA enforcement in an authorized State, what steps should
    be taken to minimize adverse impact upon Federal-State relationships?

     Whether EPA takes enforcement action upon a State's request or not, EPA
should send a written letter to the State informing the state of EPA's intention
to take action if the State fails to do so by a certain date stated in the
letter.

6.  Effect of State authorization on Section 7003 and 3013 actions:

     EPA is not bounded by any provisions of an authorized State's laws or
regulations which could limit or restrict EPA's use of §7003.  EPA's ability to
take action under §3013 is also unaffected by authorized States' programs.

     This memo further details the legal and administrative issues arising from
EPA enforcement action in authorized States and the applicability of the relevant
RCRA sections.

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     ^                                                         9541.OL (82)

       \        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
•i ^W^/.                    WASHINGTON. D.C. 20460
' V^T^\P




                                                             PIG-82-3
     HAY I 7 BE                                              OM.CIOP
                                                     SOLID WASTE AND EMERGENCY RESPONSE



    MEMORANDUM

    SUBJECT:  Assignment  of a  Memorandum  to  the  Program
              Implementation Guidance  System
   'FROM:     John Skinner, Director
              State  Programs  and  Resource  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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                           MAS 15 332

   '.GSANDOM

SvJ3uICT:  S3A Enforcement  of HC3A-Authori2ed  state Hazardous «aste
          Laws and Regulations
FROM:     William A. Sullivan,  Jr.
          enforcement Counsel  (£71-329)  \J ' y<^

TO:       Regional Administrators,  Regions  I
          Regional Counsels, Regions  I  - X


     In the administration of  tne  hazardous waste program,  a state
with art authorized RC71A program .nay,  for various  reasons,  be unacis
or unwilling- to take enforcement action t.-.at  £?A  may deem critical,
Several legal and. administrative questions  wr.icn  7,ay be presentac
in such cases include the following:

          1.   Can S3A take  enforcement action in states wnic.i hav-
seen granted authorizaeion to  administer and  enforce the RC2A pro-
crart?  fThar about states with'  which £2A nas Cootserative Arrance-
          2.   Aaauslnq  £?A  can  ta.
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    CAM £3A TAX* 2S?QRCittrNT ACTION  IS  A aC3A-Ai7TSO?.i:2S STATS?
   WHAT A3OCT STATIS WITH WHICH  S?A  HAS C30?E3A?iVT Aa

     A.   Atitho.- '.zed states;
        r. a stats  LS  authorized  to  acair.ister the RC?A srceram in
lieu of S?A, 22A has  made a detarsination  that tne stats ' s "prcgrart
is ecuivaiant  (in  the case of  final authorisation),  cr substantially
equivalent  (in the case of interim  authorization), ts the  federal
crccran, and tr.at  tr.e state hazardous  waste  arcgras can t-nereaftar
;e administered by the state ur.de r  state  lav/ i- iiau cf tr.a "aderal
crogras.  (See ?.C?-\,  Sectior. 300^^2) ans  CO).  Aftar authcrisaticr. ,
can i?A ta^e enfsrcement action  in  such a  stats, and i* so,  would
it enforce  state cr federal law  and regulations?

     The previsions of P.C2A Section 200a(a)(l) and (2\ ara .T»cst
helpful in  ansverinc  tnese questions.   These provisions state:

          "Section 3003 (a) Compliance  Orders.- (1) Sjccect
          as provided in paracrapt:  (2), whenever on the"
          basis cf any information  tr.e Adair.istrator
          deterrtines  that any  person is in violation of
          any  requirement of this subtitle,  the
          Ada^lis tracer =ay issue an order recuirinc
          co-ttpiiance  inaed lately or within a specified
          ti.-ne period or the Administrator .nay ccraner.ca
          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 vhich  is au'tnorizec to' carry cat
          a nazardcus waste groeran under  Section 3006, tne
          Administrator snail  give  notice  to tne State  in
          which such  violation has  occurred prior to issuing
          an order or commencing a  civil  action under this
          section."  (er.phasis  supplied)

     Subsection t( 2) clearly indicates  that even though* a state
has an  authorized  hazardous waste prccran, 2?A retains  the right
-- federal  enforcement, subject  to  the giving of notice to the
   ~ te  in which the violation occurred  prior to taxing enforcement
   ion.

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     The Iscislative nistory z^ Section  3CC3  supports  tr.is
.-farsratation •   That history, contained  in Souse  Ccrur.ittae  en
!nt.s-3tata and Foreign Ccrcaerca P.eport Mo. 94-1451 •Senta.tser  9,
.r~S")., at page 21, states:

          "This legislation permits  the  states  to  take
          the lead in the enforcement cf  the  hazardous
          waste laws. Sowever, there  is  enough  flaxi-
          aiiity in the act to perr.it the  Administrator,
          in situations where a state is  r.ot  implementing
          a hazardous waste program,  to  actually  implement
          and enforce the hazardous  waste  program
          against violators in a  state that does not
          rr.eet the federal minimum requirements.'  Aithougn
          tne Administrator is recuired  to give notice
          of violations of this title ta  the  states
          with authorized hazardous  waste  programs, the
          Administrator is r.ot pronihitad  from  acting
          • M • '•* **> 0 A ^*4CAfi tJ na^o to^A 
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. _____ ^...=..- i --- • .-. -.-. s=?ro?r_ii5  cases,  aver.  iftar a staza  prccra-
has beer, approved.  See Cleveland  Ilectric  :ilur.inati;:c Cc .  •;.  ;?.-.,
503 :. 2d 1 (5th Cir. , 1979 j";  g.a.  v.  C: ty  cr  Colorado 'asrir.es ,
455 ~. Sup?. 125-1, (3.C., Cola./  -373/;  C.-.asa?ea. Ir.c . >  C^v.  So'cicac s80-I35,  (D.C.  Dei.
 "eb. 12, 1981); and aheii Oil  ?.  Trai.Tf  *13 ?. Sapp.  70,  (D.C.  Cal .
 375), where the Court, az-sr  quoting  frcra  Iscisiacive history
^j- the C%~A, stated:

          "The language suggests  that  Ccngress did  r.ct
          intend the  enviror^aental  effort to be  subject
          to a massive federal bureaucracy;  rather/ the
          states were vested with  primary responsibility
          for water quality/ triggering  the federal
          enforceaer.t mechanise only  wr.ere  the state
          defaulted....  The overall  structure is designed
          to give the states the  first opportunity  to
          insure its  proper  implementation.   In z.*e
          event that  a state fails  to  act,  federal
          intervention, is a  certainty".

3 .   States wjrh Which £?A  Has Cooperative  Arrar.ceiaents :

     Regarding states which  have  entered  into  Cooperative
Arrangements/ the federal-state relationship is different fron
-nat of interim or final authorization.  A Cooperative Arrangement
is a device to assist states whose  hazardous waste  programs "are
--t yet sufficiently  deve-loeed to  qualify fcr  authorisation/ and
   provide  financial  assistance to  those  stites.  (See guidance
   lorandua  on Cooperative Arrangements dated August 5, 1930).
There is no authorization by 2?A  of the  staze  to administer  tne
hazardous waste program in  lieu of  the federal program.  In  fact,
the .tcdel Cooperative Arrangement specifically provides that:

         ' "I?A retains full  and ultimate  responsibility
          for the acainistratibn  and  enforcement of the
          Federal hazardous  waste raanagement program in
          the state."

     The right and obligation  of  E?A  to  taka enforcement action
in a state  with which the -Agency has  a Cooperative  Arrangement is,
           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  3C3A,  fcr purposes of maintaining harmo-
nious S?A-state relationships,  appropriate consultations should
precede E?A actiTon/  and written notice should be given by EPA to
she appropriate agency  and the  governor of che affected state.

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       •I3E2AL

     Having concluded that 2?A car. enforce  hazardous  waste 'laws
and regulations -in a state with ar. S?A-acprcved  program,  tie ques-
|:icn t.-.en becomes: does S3 A enforce 3C3A and  faderai  regulations,
;r the state's statute and regulations?  If the  latter, can I3A
enforce a portion of ens state program that goes  beyond the scope
of coverage of the basic federal prograa, or  stata  laws and regula-
tions wnich were adopted after S?A approval of  the  stats  program?
Cn tne other hand, may -?A enforce a  portion  of  the federal pro-
     tzat is not included in the stata program?  .
     These issues cay initially  seen nwrs  acadeaic  than  real  since,
ir. order to gain intaria authorization  co  acair.istar  the P.C2A
trsgran, a stata aust na^e a orogran wnich is  "substantially
equivalent" to the Tecsrai trograa  (see  P.C^A,  5ectior4 300S(c', ),
and a pragrara which is "equivalent" to  the federal  orograa  in
crter to gain final authorization  (Section 30Q6(b))~   As a  result,
T.ar.y authorised states will have provisions  whioh are siailar,  if
not identical, ro the federal regulations.   However,  chers  will
undouotsdiy be diffarencss in the  faderai  and  state laws and
regulations, particularly during interia authorisation,  and aar.y
statas will have orogranis wni-h  are, in  part,  acre  stringent  cr
broader in scope of coverage than  the  federal  program-  Therefore,
it :s very lively that these issues will be  encountered  frequently.

     As discussed in ?art 1 of this mersorandua,  Section  3003  fa) (2)
   ?.C?JV, authorises £?A to tajca enforcement action  in  an  authorized
stata, after notice to the state,  in the case  of "a violation
rf any requirement of this subtitle.*   when  Z?A  authorises  a
r.atardous waste aanagenent program  under Section 30QS, tne  state
prograa becomes the RC3LA program in that state,  and is a part
of t.ie requirements cf Subtitle  C  referred to  in Section
3003ta)(2), which £?A is nandated  to enforce.  Upon development
of the state's prograa and acceptance  of that  program by £?A,
"such stata is authorized Co carry  out such  program in lieu cjf
the federal prograa under this subtitle in such  state ---- "   (?.CSA
Section 30Q5(b) and (e>)).  In other words, tr.e only hazardous
waste prograa in effect in, that  state  is the state  prograa, and
t.ie stata laws and regulations are  those which aust be 'enforced
by S3 A should federal enforcement  action be  necessary!  This, of
caurse, does not limit EPA's right  to  take action under Sections
7Q02 cr 3013 cf SCP.A {see Section  6 of this  meaorandum) .
                                 •

     This result is undoubtedly  in  keeping with  the indent  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  arc
   ^ulaticns, a situation which presently exists  in  those states
   ,ch have not yet received interim authorisation.   Such dual
   uiation is presumably what Congress intended  to  phase out  in

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               ....  »..-.. .; iC-pzsc t.-.e prcvis.-r.s of Secticr. iCCi


    .Again,  ar. analogy can be drawn to tr.e provisicr.s cf tha
Claar. tfater  Act and  tr.e cases decided under it to reir.fcrca tnis
opinion.   See  Tr.ited  States v.  Car?ill. Inc., (T.C., Tel.)  Civil
"o. 30-135,  Slip* Op.  fecr-iary 12,ijc:.; she-1 Oil v. Train,
 upra; United  States  v. I.T.T.  aavenier, inc., 527 • . js ??j (9 •..
-ir., 1550).   The  proclaa cecomes aore cosp.ax,  however, wnen
tr.e following  questions are considered:

           (A)   If  ar.  authorised state progras includes regulations
or statutory previsions which ara greater in scope of coverage
than the  federal program, can I?A also enforce tnose additional
state requirements?

           (3)   If  the federal regulations contain provisions -v.icr.
ara not included in  tr.e stata program (e.g., by reason cf prcrsul-
g at ion by S3A  subsequent to authorization cf the stata progra.t sy
£?A), can i?A  enforce tr.e federal regulatio-.s wp.isr. ara'-ct a
part of the  stata  program? and,

           (C)   If  the state makes modifications in its program
aftar authorisation,  does S?A enforce the stata pragra.t as originally
approved,  or the state prograa as sccified s.ftar approval by 2?A?

     These questions  will oe of particular significance curing
ir.teri.-a authorisation, when the states are required only to have
          which are "substantially equivalent" 'to tr.e federal pro gran,
               ar.d  the states continue to "fine-tune" thair crccrar.s.
     A.    If  an  authorized state program includes regulations
           or  statutory provisions which are greater in scope of
           coverage  or acre stringent than the federal program,
           can I?A also enforce those additional state requirements?

     Individual  states will,  in addressing industrial, agricultural,
geographic, hydrclcgical and  other factors which exist within their
"oorders,  undoubtedly develop  portions cf their hazardous waste
trograas  w-hic:: are  greater in scope cf coverage t.ian the federal
program.  Examples of such additional coverage could ir.cluce "he
Listing of wastes which are not included in the federal u.-.i?«rs«
cf hazardous  waste; the permitting of generators or transporters;
recordkeeping or reporting recuirentents not included in tr.e federal
regulations;  and requireaents for pnysical examination cf employees
and  their families.  State requirements which ara greater in scope
cf coverage than the federal  regulations are generally those for"
wr.ich  no  counterpart can be found in the federal requirements.
                 r
     State orograa requirements that ara greater in scope cf
coverace  than the federal progran are not a cart of the faderaliv-
  -roved  progran (40 C"3 $5123.1{JO and 123.121(g)!.  Since thac"
   •ticn of the state program  does not have a counterpart in the
   ieral prccraia, is does not  become a requirement of Subtitle C,

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     It should be mace ciaar,  however,  that  there  is  a  distinction
 etveen portion's' of a stata  program  which  ara  broader in  scope  of
 overage, and -hose vtiicn ara  "rare  stringent"  than  t.te federal
prcgraa.  Section 3009 of 3C3A and 40 CJR  S?i23.i{:<)  and  I23.12i(g)
-rovica thaz nctair.g shall prchibi*  a scace  front i.-nsosinc  ar.y
racuiranenzs which are more  s-rincer.t than chose inpcsed  by  che
federal regulations.

     «"hiia scaca pro^isicr.s  wp.ic- >ra sroader  ir. soose  of  coverage
generally do noc have a counterpart  in  tr.e faderai program,  the
subject matter of the nore stringent state provisions is  usuallv
covered in sinilar provisions  of"the faceral program,   ixaasles'cf
.T.cra stringent stata provisions  would include:  a "requirement t.iat
not only a fance oe erected  arc  maintained around a  facility, buz
that it be a fance of specific heignt and  of specific rsaterial
{e.g., a ten-foot, cnain-linlc  fence); a  recuirer.ent  tr.at  containers
for storage of wasta be of a specific satariai  and/or color-coded;
a lesser ancunt of waste exempted from  reguiaticn under the  saail
quantity generator sxenozion (40 C??. 5251.3);  and a  recuire=ent
tnat final cover of a land disposal  facility be of a  particular
material or tnicJcness.

     Provisions  in state prograas which  ara  ^ora stringent than
  air faderai counterparts ara,- nevertheless,  a part  of the  approved
  ate program, and are enforceable, by i?A7 Ccr.grass  apparently"
..itended that result when, in  Section 3009,  it"authorized  states  to
develop mora stringent orograas, and, at the sane tiiae,  authorized
Z?A to enforce those programs  under  Section  3003(a)(2).   In  addition,
sera stringent state provisions  in an approved  procraa  ara,  unlike
those which have no counterpart  in the  federal  program,  a part  of
the recuiramer.ts of Subtitle C,  whic.i £?A  is required to  enforce.

     3.   If. the. state modifies  its  program  after authorisation,
          can I?A enforce the  stata  procraa  as  modified,  or  the
          state program as approved  before the  modification?

     -his issue assuaes- that,  after  either interim or final
authorisation of a state prograa, the state  aakas modifications
in that program.  Such modifications could aaxa the  prograa
more stringent, less stringent or enlarge  or restrict the scope
of the program.  In such event,  must E?A enforce the  procraa as
modified, or the prograa in  existence at the time of  authorization?

     With regardT to modifications made  by  the  states  in their programs
after final authorization, 40  C7R §123.13  sets  forth  specific ?ro-
r-'iuras for such revisions by  the states and approval thereof by  £?A.
    :ate program revision aftar final authorization must be submitted
    u?A for approval, public  notice given,  and  a public  hearing  held
.- chera is sufficient public  interest.  The revision to  the stata

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,40 CJ?. §122.13 (z ) i, -i) ) .   I-  13,  tr.erarora,  c:.aar c.-.ac ^r.cer
prasar.c £?A regulations,  .tccif icaticns  aade to  a staca  program
aftar ii.-.al autr.crisatiorr racmra  53 A approval  :;r such'acdifica-
cisr.s to be effective, and -hat  ".a scaca  prccrar -T. icn I?A -ay
er.ssrca is chat vr.icr.  existed  as cf -ha latest  £5A apprcval .£/"

     However,  -he  faderal  regulations relating  to Phase I  au-r.ori-
 acion coc-ainsd  ia  40 CF?. 5123.121 throuca 122.137 do  r.o? csntair.
specific cravisiar.s  ccmparaala  zo  5123.13  wi-ii  rascec-  co  how acii-
flcacicns'may  be raace  by  a staza i.i its ?rc
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      ••
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     C.    If  -he  federal regulations contain provisions  vp.is;-
           are not included i.- ar. approved stats program,  csn
           £?A enforce tr.csa federal regulations ir.  tr.at  state"

     The situation presented oy tr.is cues-ion will  seat:  liloly
 ccur when I? A modifies its regulations cr adopts new  regulations,
 uch as the addition of a waste to -he ur.iverse of  federally-
reguiatec  wasts,  aftar tie approval of a state program.   This  issue
is significant because, with apcroxisa-aiv one-half of che  sc-a-es-
having received  inter ia authorization, it is iaportant co xr*cw
whether chances made i.i the federal procrao sucsecuenc to a state
havir.c been granted authorization car. be enforced in thaz state.
     Tnder  the  procedure  established by Secticn 3QOS. and  40
?ar-t 123' , a state,  i.*r order to gain i.-.term cr fir.al authorization,
aust suctait to  i?A  its crocran consisting of, aaionc other thincs,
the state laws  and  regulations which constitute its crocran.
Thase are compared  to tr.e a-ialocous provisions of  cr.e  federal
orocraz: to determine  wretr.er tr.e state program raeets the  necessary
standards for  inter-in- or  final authorization.  Approval  is granted
for tr.e specific  state prccrran as submitted, which then  becor.es
-he hazarncus waste prograr. in effect ir. ~r.at state in lieu  of  the
federal orogran.3/  The federal orograa, in effect, ceases  to
exist in that  state/  except for the potential of federal  enzorcener.-
of tr.e state program  cr the ocssibilitv of action  under  Sections
7003 or 3013.

     Since  the  state  hazardous waste laws ar.d regulations are
  fective in lieu of  the  faderal program after authorization,  any
changes in  the  federal progran aade after tr.e granting of" intariir,
authorization  to  a  state  do not becoce a part of the state program
unless and  until  the  state adopts such cnanges.i/  Inasmuch  as  the
state laws  and  regulations are those whicr. £?A is  recuired  to
     I/As noted  earlier,  where the state prograa has  a  greater
scope of coverage  than required under the federal prograr.,  that
part of the stats  program is net a part of the federally-approved
•»«••»*?•*• 3 »••  ifl f  3  SS""'''  " f > ^ .' 2 ^  ^ «e 1^1 I T t ~ } I 1 *   i' «tn  ^ «  «••» -a/s  a» — *
-•to -»*~ - =£• • ~U *• • s\  53^-pj«-.\.^/vi/  c..<_i j»«w«^»_iw I \ f* i •  
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aniorzs, I?--,  is, conversely,  not entitled  to enforce federal
rscuiracsr.cs which  ara  not  a  ?*-~  of the  stata ?rcqram.i£/

     ;»ith regard to  statas  wr.ich have been granted final authori-
zation i" there ara provisions  in  the  federal regulations which
coVem  cr.e stats adoption of  modifications in the federal program.
 Section 123.13 of 40~ crs requiras  the s.tatas,  after final authori-
sation, to adont asendm^ts "which  are made to the Federal program
wichin  one year of  the  .- romulgation  of tha federal regulation,
unlass  the state srust adept or amend a statute,  in which case the-
revision of  the stata program must taxe place within two years.
Scwevar, until the  stata adopts  the  Federal amendments, the stata
procram does  not include them,  and £?A cannot enforce then in tha;
stata.
     tfe recognise  that  this  could  craate a situation in which
 in affact as  part  of  the  faderal program in these states which
 co not  yat nave  intaris authorization,  and in tsose states which
 racetva"authorisation aftar promulcaticn of. the regulations and
 have  included 2  countarpart cf the raculations- as part of their'
 stata program,

                                 3.

               :? A^  s:T?oRcsxs:rr ACTION is NZCZSSAS?,
             IN WHAT  CCCHT 3EOCLJ3 SPA FILZ: TZZ ACTION?

      Section  2003(2)(1J of 3CSA provides that whenevar the
 Administrator determines  that any person is in violation of any
 racuirament  of Subtitle C,  "... 'the Administrator may commence a
     •l'"/r-  gaauld be noted here that there ara 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.
 -or example,  the'graritinc of Phase I interim authorisation to the
 states does not include trie authority to issue SC?-A permits to
 hazardous wasta management facilities.  Likewise, the granting of
 Phase  II, Component A. authorisation (covering permitting of
 storage  facilities)  does not include authority to issue RC3A permi-s
 to hazardous waste land disposal facilities, which will be covered
 bv 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 ooverad  by a subsequent authorization.   In the meantime, EPA
 is entitled to enforce those portions of the federal program which
    stata has not yet been authorized to administer.

     «iz/~or a discussion of the adoption of -edifications by a state
 in  its program, see Suosection 3 of this Section, suara.

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civil action  ir.  tr.e  r-"nitac  States District Court i- t.ie district
i.-. wr.icr.  tr.e  violation .occurred. ..."

     This  statute  vasts  ;urisdicticr. cf sui:s i.-.volvi.-.g violations
cf t.ia hazardous waste  program under Subtitle C in the G.5.  Distric:
 ';urts, ar.d the  venue of such actions in the C.3. judicial district
  : which  the  violation  occurred.   Therefore, in a suit crouch c
  / SJrA co  enforce  a  portion of the hazardous waste program cf a
state which has  received interim  or final authorization, tha
suit should be brought  i.-i the aperosriate C.S. District Court,
but the substantive  law  co  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  recard, 2?A snouid oe aware of the potential
wr.icr. ^ay  exist  for  a fi.tal decision in a state court action to
act as collateral  estoppel  to a s us sequent ac_ion wr.icr. E?A  rsay
ari.ic aciir.st the  same  offender ever tr.e sa.*?.e violation.  See :2 . S .
•,-. ITT P^yioner,  Inc.,  527  ?.2d 996 {9tn Cir, 1930), for a discus-
sion oz szaze court  Tuccaents actinc as collateral estoppel  acainst


                                 4.

          u I?A  Z^FORCZ.MZ:JT OF STATS IAWS, assriATiows OP.
       rSSMITS  IIIVQLVtS  ADK^ISTaATI'/I ??.CCii3::iGS , SECCLJ
                  FOLLCW TIDEP-AL GR STATS PRCCSDCSSS?
      3ir.ce  the  bulk of the P.C3A enforcement activity of  £?A will
 i.-.vclve  administrative proceed incs, particularly with the authority
 to  issue  administrative orders under Sections 3008, 2013 and  7003,
 the question  of whether federal or state administrative  procedures
 will  be  followed in enforcement actions is an important  one.

      •There— c-an— be little question that Congress provided S?A  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.^/  "or example ,
 Section  3003{a)(l)  of RC?A authorizes the Administrator, in,  tr.e
 event cf  a  violation of any requirement of Suotitie C, to issue
 an  order  requiring compliance immediately or within a specified
 time.  Section  3008(a)(2) makes it clear that such orders siay be
 issued in states which are authorized to carry out the hazardous
 waste program under Section 3006 (after notice to c.ie azf acted
 state);  and Section 300S(a)(3) provides for a penalty for non-
 compliance, as  w%ll as the authority of the Administrator to  revoke
      JiT/we  interpret RC3A as limiting the use of  the  administrative
 c	rs  mentioned herein to EPA, and that they are  net availaola/
 as  such,  to the states.  The states statutes stay,  of  course,
 contain authority for state administrative orders.

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ar.v perait issued  to  the  violator,  wr. ether by £?A cr the State.
Provisions for pusiic  hearings  or. ar.y srcer issuad ^r.car t.'is
Sectisr., ar.r authority for  t.ie  Administrator to issue subpoenas
ari'al'ao included  i"  Section  2008(3).  Section 30C3(c)  specifies
tr.a scope and consent  of  the  compliance orders wr.icr. say be
  sued under this  Section.

     Congress provided a  specific mechanism for fadarai administratev
enforcement proceedings,  to be  used in cases of federal enforcement
of state programs  in  lieu of  any administrative procedures contained
ir. the laws and  regulations of  the state in which the violation
occurred.  Furthermore,  is  would seem inconceivable as a practical
aassar that S3 A  would  consider  usir.c szasa administrative procedures
even should is lecaily be possible -z do so, since shac would, Li
^ioss cases/'necessitate  submittinc the viclacicn to the ssata
acency whose inability or failure co taJca enforcement action would
have been responsible  for bringing about £?A's involvement in tne
       1:1 s'Tsrr  c?  Z?A S:I?CRCSMS^T ::i Aii AC^so-iizsr STATS*
          WEAT  STS?S  SHOULD SS TAKZ^ TO MZNI.MI2S ADVIP.SS
              IMPACT C3OS rSSS2AL-STATS SSIATIONSSZPS?

     There  are  several  circumstances under which Z3A say be
recuired  to take  enforcement: action in a state wish an authorized
   ~\ aragraa/ ntost  primarily because cf the state's iacic of
    surces to' taka adequate or timely action.  "-Thatever the reason/-
i--rt should  carefully  avoid the appearance of seing "overbearing"
or  disregarding the states' role as the primary agency for adiain-
istracion and enforcement of the hazardous waste program.

     In  some cases, the state will request S?A to taxs enforcement
action.  In  such cases,  few problems are encountered in Z?A-state
relations.   However/  a  letter confirming the State's request, and
.the notice  provided for in Section 3008(a)(2) should se issued
to  tne scate before the action is commenced.  Or. tne ot-ter hand,
unen the  state  is passive or unwil-ling to initiate a timely,
arpropriase enforcement action, Z?A snculc saxa care to handle
tne aastar  with diplomacy.

     Since  it is  clear/ as outlined above, that Congress intended
the states  to have  the  primary enforcement authority of the 3C2A
nrogram,  if it  appears  that federal enforcement intervention may be
"required, a letter  should be wristan from E?A to the appropriate
state  agency administering the program containing the following:

          1.   A description of the violation, including the name
s.r~. address of  the  violator; the date of violation and location
     le  facility or site at which it occurred; references to the
     Lsicns  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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      cf witnesses, lac-oratory  reports,  inspection reports,  and
other evidence in £?A's possession  should  be  offered upon request
of the stats should the state decide  to  take  enforcement action.  '

          2,   A statement  that under RCP.A ar.d  tr.e Memorandum cf
'creement between £?A and the stare/  it  is the  primary obligation.
 f the state to take necessary  ar.d  timely  actions  to enforce the
.revisions of the state hazardous waste  laws  and regulations, and
chat S?A believes it is appropriate that 'the  state take such
action.  In some cases, it  would be appropriate to suggest the
t/?e of action to be taken,  sues as issuance  of a  compliance
order/ other administrative  orders/ revocation  of  a peraic,  or
filing of an in-unctive action.

          3.   A statement  that should tr.e state agency fail to
take appropriate and tiaeiy  action  oy a  date  certain stated  in
the letter/ ZPA r:ay thereafter  exercise  its right  to initiate
enforcement action under Section 30Q3(a)(2).

     The cues-ion cf what is a  "timely*  action  by  the state  acency
will depend upon a variecy  of circumstances.   If an uncorrected  vio-
lation could constitute a threat za hucan  healt-T cr the environ-
ment/ a relatively short period of  -i.-ne  say oe  recuired for  either
the state or I?A to act. If, through  telephone  conversations or
other coranunications between S3A and  state acency  officials, there
is already an indication before  the letter is .-nailed to the  state
that it will probably not take  action regardless of the request,
-^en a relatively short period  of ti.tie (e.g., 10 days)  for staca
   spcnse may be allowed before  E3A  initiates  the action.   "a such
   se, the letter should also refar  to the  previous communication
with the state which indicated  the  iikiihooc  of inaction on  its  par*
On the other hand, if there  is  an indication  that  the state  will  or
say act, but has failed to  do so because of scarce resources' or  for
other clear and understandable  reasons,  a  lancer period of time
aay 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 cr indicated
its willingness and intent  to do so,  £?A may  proceed to commence
action as- the enforcing authority without  further  notification.

                                 6.

  EF72CT OF STATS AUTHORIZATION ON  SECTION 7003 AiTD 3013  ACTIONS

     Section 7002 of RC3A states, in  pertinent  cart:
                r
          "tTotwjthstandinc  any  other  provision  of  this  Act,
          upon receipt or evidence  tnat  the r.anciir.g. . . of
          any solid waste or hazardous waste  may present
          an imminent and substantial endangermer.t to
          health or the environment,  the Administrator
          may bring suit ... to  immediately restrain any

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          person contributing  to  such  handling...,  or to
          taka- such other action  as  r.av  be  necessary.
          The Administrator  snail provide notice  to c.-.e
          affected Srata cf  any such suit.  Tha  Administrator
          T.ay aisc, aftar notice  to  the  aff acted  Stata,
          take other action  under this section  including,
          but not  limited to,  issuing  such  orders as may
          be necessary co protect public health and the"
          environaent.'  (emphasis supplied)

     The first clause of the section indicates  that it was  the  inter.:
of Congrass to aliww EPA to  take  emergency  actions  to protact huaan
health and the environment in  cases  of imminent hazard,  without re-
gard to any other  provisions of the  Act.   Ic  is 'not wizhin  the  scope
of tnis memorandum, to review cne-  purposes and uses  of Section 7001,
but it is clear that EPA is  not bound  by any  of the provisions  cf s.r.
authorized state's laws or regulations which  may  appear  to  restrict
or. limit the use of this Section.  Again, hcwever,  r.otica must  oe
riven to t.-.e stata prior to  c.-.e ccmroer.csment  of such an  action.

     It is also clear -from the express wording  of the section tr.at
only tne Administrator of EPA, cr other  Agency  personnel to wp.om he
.-.as delegated authority, say take the  actions authorized by Section
7003, and t.iat therefore a state  which has  oeen authorized  to admin-
ister trie hazardous waste program may  not employ  Section 7003 as a
stata enforcement  mechanism.   States are authorized by EPA  to
administer and enforce the hazardous waste  program  only  under Sua-
titia C cf RC3A, which does  not include  Section 7002.  Use  of
   iticn 7003 is within the exclusive province of  EPA.  This does
   '., however, prohibi^the states from adoption and use  of  their
own forr. of imminent hazard  authority  in the  stats  courts.

     The ability of EPA to take action under  Section 3013  is
likewise unaffactad by authorization of  a stata program.   3y such
authorization, EPA does not  relinquish the  enforcement options
wnich it possesses, but merely agrees  to hold chant  in abeyance  to
be used in the event the state fails to  take  appropriate and timely
enforcement action..zJI/  3efore issuing a 3013 order to a person in
an authorized state, however,  notice should be  given to  the appro-
priate agency in the affected  state  in the  manner suggested herein,
and rafaranca should be made to the  guidance  en issuance of 3C13
orders contained in the Memorandum fron  Douglas MacMiiian,  Acting
Director of the Office of Waste Programs Enforcamenc 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
                           ."
     iiThe model Memorandum of Agreement between  EPA  and  the  stazas
c- -tained in the RC?.A Scata Interim Guidance Manual, provides:

          "Nothing in this Agreement .shall be construed
          -o restrict in any way EPA's authority to ful-
          fill its oversight and enforcement responsi-
          bilities under RCPJk."

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     'If  ycu have a::y  ruasiisns cr  prr'clanis ralacir.c
	i-alnac ir. -r.is .r,an3r3.r.d-^r., -sla                 '
'*Sica a- FTS 332-3103.
cc:  C-.ristorhar J.  Casper
     Ae-iiir issis-caj:-  Lf.rr.-. ilsir^ns r
     Office of Solid Was*a and  Esercencv Rasrc.-.aa

     ?.osar^ M. Parry
     C-anarai Cstiasel
     Office of General Counsel
     Mr.  C. 3lay=ond  .'-Jarvi^
     C-enar^l Ccurisal
     ITacional .--ssociaiicn cf A-_srr.ays C-^neral
     A 44  IT. Ca.oit.oL  5tra«- - Roca  1777
                  2 . C .   200 0 1

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