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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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