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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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