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
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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.
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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).
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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-
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(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).
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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
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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.
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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.
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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.
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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.
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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
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