4>,
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
MEMORANDUM

SUBJECT:
FROM;
TO:
Guidance Concerning EPA Involvement in RCRA Section
7002 Citizen Suits
Thomas L. Adams, Jr.
Assistant Administrator
  for Enforcement ahd -Com
^Wv   W  >\C,x

     Monitoring
J. Winston Porter
Assistant Administfr/ator for SdSlid Waste
  and Emergency Response

Regional Counsel, Regions I-X
Director, Waste Management Division/
  Regions I and IV-VIII
Director, Air and Waste Management Division,
  Region II
Director, Hazardous Waste Management Division,
  Region III and X
Director, Toxics and Waste Management Division,
  Region IX
INTRODUCTION

     This guidance is written to establish a systematic review
of RCRA citizen suit notices and to provide guidance  for EPA
enforcement staff to use in deciding what involvement, if any,
by EPA is appropriate when a notice of intent to file suit  is
received or when an action is filed under RCRA §7002.  This
guidance supplements and is not in lieu of other guidance
concerning procedures for filing judicial enforcement actions
under RCRA.

STATUTORY AUTHORITY

     The Hazardous and Solid Waste Amendments of 1984  (HSWA)
substantially expanded Section 7002 of the Resource Conservation
and Recovery Act (RCRA), the citizen suit provision.   Prior to
the enactment of HSWA, the only actions allowed under Section
7002 were suits brought by any person on his own behalf

-------
                                                 OSWER  9945.1
                             - 2 -
      against any person (including (a) the United
      States, and (b) any other governmental instru-
      mentality or agency, to the extent permitted by
      the eleventh amendment to the Constitution) who
      is alleged to be in violation of any permit,
      standard, regulation, condition, requirement,
      prohibition, or order which has become effective
      pursuant to this Act; [Section 7002(a){1)(A)]
or
      against the Administrator where there is alleged
      a failure of the Administrator to perform any act
      or duty under this Act which is not discretionary
      with the Administrator.  [Section 7002{a)(2)].

     Since the enactment of HSWA, any person also may file suit
on his own behalf

      against any person, including the United States
      and any other governmental instrumentality or
      agency, to the extent permitted by the
      eleventh amendment to the Constitution,  and
      including any past or present generator, past
      or present transporter, or past or present owner
      or operator of a treatment, storage, or disposal
      facility, who has contributed or who is con-
      tributing to the past or present handling,
      storage, treatment, transportation, or disposal
      of any solid or hazardous waste which may
      present an imminent and substantial
      endangerment to health or the environment....
      [Section 7002{a)(l)(B)).

     Subsection (g), added by HSWA, provides a narrow exemption
from liability for transporters which provides that

      A transporter shall not be deemed to have
      contributed or to be contributing to the
      handling, storage, treatment, or disposal,
      referred to in subsection (a)(l)(B) taking place
      after such solid waste or hazardous waste has
      left the possession or control of such
      transporter, if the transportation of such waste
      was under a sole contractual arrangement arising
      from a published tariff and acceptance for
      carriage by common carrier by rail and such
      transporter has exercised due care in the past
      or present handling, storage, treatment,
      transportation and disposal of such waste.

-------
                                                  OSWER  9945.1
     HSWA also  provides  that  in  actions  brought  pursuant  to
 Section 7002(a){1)(A)  (for  "violation of any permit,  standard,
 regulation, condition, requirement, prohibition, or order"),
 the court shall  have jurisdiction  "to apply any  appropriate
 civil penalties  under  Section  3008{a) and  (g)."  (Section
 7002(a)(2)).  Thus, in citizen suits which allege violations
 of RCRA Subtitle C, plaintiffs may ask the court to assess
 penalties for such violations.

 RESTRICTIONS

 1,)  Violation of any  Permit, Standard, etc.

     Actions under Section 7002(a)(1)(A) (violation of any per-
 mit, standard, regulation, etc.) are barred when either
 the State or EPA

      has commenced and  is diligently prosecuting a
      civil or criminal action in a court of the United
      States or a State to require compliance with such
      permit, standard, regulation, condition, requirement,
      prohibition, or order.   (Section 7002(b)(1)(B)].

 Note that the section does not appear to bar such actions if an
 administrative order (AO) has been issued.   Almost identical
 provisions in the Clean Air Act and Clean Water Act have been
 interpreted by two Federal courts of appeals.   The Second
 Circuit found that enforcement actions brought by a
 State agency which culminated in consent orders did not bar
 subsequent citizen suits brought under the Clean Water Act,
 Friends of theEarth y. Consolidated Rail Corporation, 768
 F.2d 57 (2d Cir.1985).  The Third Circuit has suggested that
State administrative proceedings which are "substantially
equivalent" to a Federal court proceeding might bar filing of
a citizen suit under Section 304 of the Clean Air Act.  Baughman
v. Bradford Coal Co.,  592 F.2d 215 (3rd Cir. 1979), cert.
den., 441 U.S.  961 (1979).   A more recent district court
opinion in the Third Circuit, however,  held that only a State
or EPA judicial proceeding to enforce the same emission limita-
 tions prtcludes citizen action under Section 304 of the Clean
Air Act.-  Ma ry 1 and Was te Co a lit ion v_»_ SCM Corp., 23 Env't
Rep.  Cases 1256 (0.  Md. 198 5) {o r de r g ranting in part and
denying in part a. motion to dismiss the complaint).

-------
                                                OSWER  9945.1
2.)  Inaninent Hazard Actions

     Imminent hazard actions pursuant to Section 7002(a)(1)(B)
are barred if EPA

      in order to restrain or abate acts or
      conditions which may have contributed or
      are contributing to the activities which
      may present the alleged endangerment-

               (i) has commenced and is diligently
          prosecuting an action under section 7003
          of (RCRA]  or under section 106 of [CERCLA];

               (ii)  is actually engaging in a
          removal action under section 104 of [CERCLAl;

               (iii) has incurred costs to initiate a
          Remedial Investigation and Feasibility Study
          [RI/FS1 under section 104 of [CERCLA]  and is
          diligently proceeding with a remedial action
          under that Act; or

               (iv)  has obtained a court order
          (including a consent decree) or issued an
          administrative order under section 106 of
          [CERCLA} or section 7003 of (RCRAJ  pursuant
          to which a responsible party is diligently
          conducting a removal action, [RI/FS],  or
          proceeding with a remedial action.

      In the case of an administrative order referred to
      in clause (iv), actions under subsection (a)(l)(B)
      are prohibited only as to the scope and duration of
      the administrative order referred to in clause  (iv).
      [Section 7002(b)(2)(B)].

Note that imminent hazard actions brought under Section
7002(a)(1)(B) are not barred if EPA is prosecuting an action
or has issued an administrative order under RCRA Sections 3008
or 3013.

     Imminent hazard actions brought pursuant to Section 7002
(a) (1MB) are also barred if the State

       in order to restrain or abate acts or conditions
       which may have contributed or are contributing to
       the activities which m-ay present thd alleged
       endangerment-

-------
                                                OSWER  9945.1
                             - 5 -
              (i) has commenced and is diligently
          prosecuting an action under subsection (a)(l)(B);

              (ii) is actually engaging in a removal
          action under section 104 of [CERCLA];  or

              (iii) has incurred costs to initiate a
          {RI/FS] under section 104 of (CERCLAl  and is
          diligently proceeding with a remedial  action
          under that Act. [Section 7002 (b)(2)(C)l.

Citizen suits brought under Section 7002(a)(1)(B) are not
barred if the State has issued an administrative order or has
brought an enforcement action under authority other than Sec-
tion 7002(a){1)(B), such as a State RCRA statute.

3.)  "Diligently Proceeding" and "DiligentlyProsecuting" Defined

     The phrases "diligently proceeding" and "diligently prose-
cuting" are discussed in some detail in the  legislative history
to HSWA.  The legislative history notes that, in general, the
phrases must be applied on a case by case basis.  The Conference
Report states that "diligently proceeding" with  a removal action
applies only "while removal activities are in progress."j/  A
citizen action alleging that an imminent hazard  existed after a
removal action had been completed would not  be barred, if no
remedial action was planned for the site.  "Diligently proceed-*
ing" with a remedial action is intended to apply only to situa-
tions where "the RIPS, design, and construction  activities at a
site occur in a continuous, uninterrupted sequence."^/  The term
"has commenced and is diligently prosecuting an  action", as it
is used in subsection (b)(2)(B)(i), means that a judicial case
has been filed or an administrative order under  CERCLA $106 or
RCRA 57003 has been issued.V

4.)  Miscellaneous (Notice, Service, etc.)

     Only a Stat» or local government may commence an imminent
hazard action under Section 7002(a)(1)(B) concerning the siting
oC a hazardous waste treatment, storage, or disposal facility
(TSDP) or to enjoin the issuance of a permit for a TSDF.  (Sec-
tion 7QQ2(bH2HD5).
V   H.R. 2867, Conf. Rep., 98th Cong., 1st Sess. 118 (1984),

y   Ibid.

V   Rep.98-284, 98th Cong., 1st Sess. 55  (1983).

-------
                                                 OSWER  9945.1
                             - 6 -
     Sixty (60) days notice must be given to the Administrator,
the State in which the alleged violation occurs, and to any
potential defendant before an action may be brought under
Section 7002(a)(1)(A){violation of any permit, standard, etc.),
except that such an action may be brought immediately after
notification in cases concerning a violation of Subtitle C.
(Section 7002(b)(1)(A)).  Only violations of other subtitles
(Subtitle D or I, for example) trigger the 60 days notice
requirement.

     Ninety (90) days notice must be given to the Administrator,
the State in which the alleged violation occurs, and to any
potential defendant before an action may be brought under
Section 7002(a)(1)(B)(imminent hazard), except that such an
action may be brought immediately after notification in actions
concerning violations of Subtitle C.   (Section 7002(b)(2)(A)).

     Section 7002(b)(2)(F) requires that a copy of the
complaint in any imminent hazard action filed pursuant to
Section 7002(a)(1) (B) be served on the Attorney General of
the United States and on the Administrator.  There is no
corresponding requirement for service of complaints in actions
brought pursuant to Section 7002(a)(1)(A).

INTERVENTION AND COSTS

     In citizen suits filed under Section 7002(a){1)(A) any
person may intervene as a matter of right.  (Section 7002(b)(D)
in citizen suits filed under Section 7002(a)(1)(B)

        any person may intervene as a matter of right
        when the applicant claims an interest relating
        to the subject of the action and he is so
        situated that the disposition of the action
        may, as a practical matter, impair or impede
        his ability to protect that interest, unless
        the Administrator or the State shows that the
        applicant's interest is adequately represented
        by existing parties.  [Section 7002(b)(2)(E)].

Although this is similar to Federal Rule of Civil Procedure 24
(Intervention As Of Rrght), a critical modification has been
made by the amendment in shifting the burden from the applicant
for intervention to the Government, requiring the Government to
show that the applicant's interest is adequately represented by
the Government.  This change only encompasses private interven-
tion into Section 70,02 (a) (1)( B )( imminent hazard) actions;  it
does not apply to private intervention into any EPA enforcement
actions, although legislative history  indicates that the change

-------
                                                OSWER  9945.1
                              -  7  -
 was  intended  to  apply  to  private  intervention  in  enforcement
 actions  as  well.   As discussed  in the  following section,  Section
 7002  is  silent with respect  to  intervention  in EPA  enforcement
 actions.

      The court is  empowered  to  award the costs of litigation,
 including reasonable attorney and expert witness  fees  to  the
 prevailing  or substantially  prevailing party, whenever the
 court determines such  an  award  to be appropriate.   (Section
 7002(e>).

 PARTICIPATION BY EPA

      EPA may  intervene as a  matter of  right  in any  citizen suit
 brought under Section  7002.   (Section  7002(d)).f/   EPA and the
 Department  of Justice may also  choose  to file a separate  suit and
 then move to consolidate  the actions.  Language in  Section 7002
 which previously allowed  any person to intervene as  a  matter of
 right in any EPA enforcement action brought  to require compliance
 with a permit, standard,  regulation, condition, requirement, or
 order issued under RCRA was  deleted in HSWA.  Intervention in
 such enforcement actions  is  no  longer expressly permitted by
 statute,  although permissive intervention remains available
 under the Federal Rules.

     When a notice or a complaint  in a RCRA  S7002 action  is
 served on the Administrator, copies are sent to the  Office of
 General Counsel,  the Office of  Enforcement and Compliance
 Monitoring - Waste, the Office  of  Waste Programs Enforcement,
 the appropriate Regional Administrator, and  the Department of
 Justice.   A Headquarters enforcement attorney and a  Regional
 attorney are assigned to  track  the development of each case.
 Except for cases in which EPA is  named a party, the  initial
 decision concerning the extent  of  EPA's involvement, if any,
 is to be made by the Waste Management Division Director,  in
 consultation with the Regional  Counsel's office.

     Th« filing of an action by the United States or initiation
 of a response action when a citizen suit notice has  been  re-
 ceived generally will be considered only where an enforcement
 or response action is already planned and is ready  to  be  com-
 menced.   Likewise, in cases  in  which a complaint is  filed
 under Section 7002 and EPA is not  a party, intervention generally
 will be considered in cases concerning sites subject to ongoing
enforcement actions (where the  Agency asserts that  the ongoing
enforcement action bars the citizen suit) and sites  listed on
£/   As with other civil actions, EPA refers recommendations
~"    to intervene or to file amicus briefs to the Department of
Justice for action.

-------
                                               OSWER  9945.1
                             - 8 -


the National Priorities List (NPL).V  Filing an amicus curiae
brief may be considered in such cases if a decision is made
not to intervene.  Filing an amicus brief also will be conside:
if the case involves an important enforcement or programmatic
issue, such as interpretation of what EPA's regulations may
require in a particular instance.

     Before making the initial decision of what, if any, in-
volvement EPA should have in a particular citizen suit, the
Regional attorney assigned to track the notice or complaint
should evaluate the following factors in consultation with the
designated Headquarters enforcement attorney:

     1)  Is EPA named as a defendant?

     If the Agency is named as a defendant, the Office of
General Counsel and the Office of Regional Counsel, along
with the Department of Justice, will represent the Agency
in defending the suit.  If the suit concerns a site which
is the subject of a planned or ongoing enforcement action
or CERCLA cleanup action, the enforcement staff should
remain actively involved in the handling of the suit.


     2)  Is an EPA enforcement or response action planned?

     In cases where the 60 or 90 day notice of intent to file
suit under Section 7002 is properly given, the Regional attor-
ney assigned to track the notice should determine if an enforce
ment action or CERCLA Section 104 response action concerning
the site is planned or is appropriate.  If such action  is con-
templated, the Regional Waste Management Division Director,  in
consultation with the Regional Counsel, OECM-W and OWPE, shoulc
determine if steps should be taken to preempt the filing of
the citizen suit by commencing an enforcement or response
5/   Not all S7002 suits are barred by ongoing EPA or State
    enforcement actions.  See $7002(b>(1)(B), (b)(2)(B),(C),
(D) and (B).  In general, only those actions which attempt  to
duplicate ongoing enforcement actions are barred.  For  example
a suit by a transporter filed pursuant to Section 7002  for
reimbursement by a generator for expenses incurred by the
transporter in paying for fines and removal activities  in
connection with drums found to be leaking while  in transit
would not be barred because of any ongoing enforcement  action
against either the transporter or generator.

-------
                                                OSWER  9965.1
action within the applicable 60 or 90 day notice period.  At
this point, contact with the Department of Justice should
also be initiated.

     If it is decided that no action will be taken to preempt
the filing of the citizen suit, the assigned attorneys should
reevaluate the appropriateness of Agency involvement if the suit
is ultimately filed.  Although it will be too late to preempt a
RCRA §7002 suit after the suit is filed, the assigned attorneys
should decide at this point whether to file a separate action,
or whether intervention or filing an amicus brief is appropriate
Remember that while notice to the Agency is required to be
given in all $7002 cases, a copy of any complaint is expressly
required to be served on the Administrator and the Attorney
General only in cases filed pursuant to Section 7002(a) { 1) (B)
(imminent hazard).  (Section 7002(b) (2) (F) ).

     3)  Is the action barred by Section 7002(b) ( 1MB) ,
(b)(2)(B), (b)(2HC), or (b)(2)(D)?                   '
     Section 7002(b) (1) (B) and 7002(b) (2)(B) and (C) bar the
filing of a citizen suit when EPA or the State has initiated
certain enforcement actions or, in suits alleging an imminent
hazard, has incurred costs to initiate an RI/FS or has com-
menced site cleanup pursuant to CERCLA 5104.

     Upon receipt of a complaint in a citizen suit, the Regional
attorney assigned to track the suit should determine what,
if any, enforcement or CERCLA response action has already
been taken by EPA or the State.  If any such actions have been
taken which would bar the commencement of a suit under Section
7002, the Region may want to consider in a particular situation
whether to intervene in the citizen suit.  Generally, such
defenses will b* left to the defendant to the Section 7002 suit
to raise.  In situations where the State has commenced an
enforcement or response action which bars the suit, EPA should
coordinate closely with the State to determine whether action
is appropriate under the circumstances.

     Section 7002(b)(2) (D) bars the filing of a citizen suit
by any person, other than a State or  local government, with
respect to th» siting of a treatment, storage or disposal
facility or to enjoin issuance of a permit to a TSDF.  If such
an action is filed by any one other than a State or local
government, a motion to dismiss may be filed along with a motion
to intervene.

-------
                                                 OSWER  9945.1
                              -  10  -
      4)   Is  the  action  an  intervention  in  an  EPA  RCRA
enforcement  action?

      As  noted  on page 6, supra,  the  Language  in Section  7002
which provided that  any person may  intervene  in an  EPA RCRA
enforcement  action was  deleted by HSWA.  Therefore,  if an
action is  filed  pursuant to  Section  7002 seeking  to  intervene
in an EPA  RCRA enforcement action,  filing  a motion  to oppose
the  intervention may be appropriate.  Given the apparent con-
flict between  the legislation and the legislative history noted
above on p.  6, opposition  to intervention  in  such a  situation
normally should  be considered only where permissive  interven-
tion  is not  Likely to be granted.

      5)  Is  a Federal facility named as a  defendant?

      If a  Federal facility is named  as a defendant  in a  RCRA
Section 7002 action, EPA will not, as a matter of policy, in-
tervene as a plaintiff, because  of the justiciability problems
associated with  a case  in which  the  Federal government is
represented on both sides of the case.  However,  if  EPA
receives a notice regarding  a citizen suit against a Federal
facility under Section  70G2(a)(1)(B) (imminent hazard),  the
action could be  barred  if, inter alia, an  administrative order
under CERCLA $106 or RCRA $7003  has  been issued (See Section
7002(b)(2)(B)(iv)), but such action would  be  barred  "only as to
the scope  and duration  of the administrative  order referred to
in clause  (iv)."  (Section 7002(b)(2)(B),  emphasis added).

      On the other hand, citizen  suits against Federal facil-
ities under Section 7002(a)(1)(A) (violation  of any permit,
standard,  etc.)  cannot  be barred by such orders, since such
suits can only be barred if  the Administrator (or State) has
commenced and is  diligently  prosecuting a  civil or criminal
judicial action.  (See  Section 7002(b)(1)(B)).

ADDITIONAL CONSIDERATIONS

     Because of  the wide variety of possible  situations which
may arts* under  actions taken pursuant to  Section 7002, each
case must be dealt with individually, taking  into consideration
the specific facts presented.  Actions brought by or against a
State or municipality will require that particular attention be
paid  to consultation with the State in order  to determine
whether EPA involvement is appropriate or  necessary.  Likewise,
in actions brought concerning an NPL site  which has been desig-
nated a State lead site, coordination with the State will be
required as a matter of policy before a decision concerning
whether or not EPA should become involved  is made.

-------
                                                OSWER 9945.1
                             -11-
USE OF THIS GUIDANCE

     The policy and procedures set forth here, and  internal
office procedures adopted in conjunction with this  document,
are intended for the guidance of staff personnel, attorneys,
and other employees of the U.S. Environmental Protection
Agency.  They do not constitute rulemaking by the Agency, and
may not be relied upon to create a right or benefit,
substantive or procedural, enforceable at law or in equity,
by any person.  The Agency may take any action at variance
with the policies or procedures contained in this memorandum
or which are not in compliance with internal office procedures
that may be adopted pursuant to those materials.
cc:  Gene A. Lucero, Director, Office of Waste Programs
       Enforcement
     Lisa K. Friedman, Associate General Counsel, Solid Waste
       and Emergency Response
     Thomas E. Hookano, Deputy Assistant Attorney General, Land
       and Natural Resources Division, Department of Justice

-------