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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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