RCRA to the Core: Permitting and Enforcement Coordination

Transcription

1 RCRA to the Core: Permitting and Enforcement Coordination

2 I. THE GOALS OF THIS SESSION: A. To discuss issues that arise in the context of enforcing RCRA permits. B. To identify opportunities for permit writers to improve permit compliance and support the RCRA enforcement program.

3 A permitted ed TSDF is due for an inspection. Violations of RCRA are suspected. WHAT HAPPENS NEXT?

4 Conducting Inspections s and Information o Gathering at Permitted Facilities

5 Conducting Inspections and Information-Gathering at Permitted Facilities Inspection and Information-Gathering Authorities a. Duty to Provide Information (40 C.F.R. Section (h)) be sure this term is included in the permit! - any relevant information which the Director may request to determine whether cause exists to modify, revoke and reissue, or terminate the permit or to determine compliance and copies of records required to be kept pursuant to the permit. Who is the Director? Does duty to provide information set forth in an authorized-state-issued issued permit extend to EPA?

6 Conducting Inspections and Information-Gathering at Permitted Facilities b. Dt Duty to Allow Inspection and det Entry (40 C.F.R. Section (i) be sure this term is included in the permit! The permittee shall allow the Director or authorized representative, upon presentation of proper credentials, to: enter at reasonable times upon the permittee s premises where a regulated facility or activity is located or conducted or where records are kept; have access to and copy, at reasonable times, records required to be kept under the terms of the permit.; Inspect, at reasonable times, any facilities, equipment, practices, or operations that are regulated or required by the permit; and Sample or monitor, at reasonable times, any substance or parameter at any location for purposes of assessing compliance or as otherwise authorized by RCRA.

7 Conducting Inspections and Information-Gathering at Permitted Facilities c. RCRA Section 3007(a) Provides EPA and authorized states authority to obtain physical access to any establishment or place where HW has been generated, stored, treated, disposed of or transported from to inspect, sample and obtain copies of records relating to such HW. May serve as the basis for issuance of a warrant if access is denied. Provides EPA and authorized states with authority to require any person who generates, stores, treats, t transports, t disposes of or otherwise handles or has handled HW to provide information and documents relating to such HW (e.g., Information Request Letters). Agency delegations of authority; credentials. Does the duty to provide information condition in a permit supercede RCRA Section 3007? Does the permit-as-shield (40 CFR 270.4)? Use the RCRA statutory definition of HW (broader than the regulatory definition - regulatory exemptions don t apply). Must tbe for the purpose of developing regulations or enforcing RCRA.

8 Conducting Inspections and Information- Gathering at Permitted Facilities d. RCRA Section 3013 If EPA determines that: (i) HW is present at, or being released from, a facility or site at which h HW is being or has been stored, treated t or disposed d of, and (ii) Such presence or release of HW may present a substantial hazard to human health or the environment, EPA may issue an order requiring the o/o of the facility or site to conduct monitoring, testing, analysis and reporting with respect to the facility as EPA deems reasonable to ascertain the nature and extent of the hazard. Use the statutory definition of HW. Does the duty to provide information condition in a permit supercede or act as a shield against RCRA Section 3013? Does the permit-as-shield? shield? States cannot obtain authorization for Section 3013.

9 Conducting Inspections and Information-Gathering at Permitted Facilities Preparing for inspection at a permitted facility Coordinate with other EPA/state program or enforcement personnel. Determine need for and, if necessary, obtain warrant. Review the permit, modifications, and regulations incorporated into the permit by reference. Be sure to use the applicable regulations: authorized, correct year, etc. [NOTE: Current state regulations may not be the authorized version or the version that was incorporated into the permit.] Review other relevant documents (correspondence, previously submitted reports, prior inspection reports, etc.). Prepare inspection plan. Develop or obtain inspection checklist. [Remember!!! Enforce the terms of the permit, not Part 264 or state equivalent (unless incorporated by reference), with some exceptions (e.g., Part 268).]. Bring permit, applicable regulations, inspection checklist to the facility during the inspection.

10 Case Development 1. Enforcement program reviews Inspection Report. 2. Additional information-gathering as necessary. 3. Identify violations/violators.

11 Case Development MOST COMMON PERMIT VIOLATIONS: Operating beyond the scope of the permit (units, capacity). Management of unpermitted hazardous wastes. Failure to meet deadlines. Reporting/Record-keeping. Failure to meet operating standards (e.g., open drums, lack of secondary containment). Training deficiencies. AA/BB/CC. Wait! There s more

12 Case Development MOST COMMON PERMIT VIOLATIONS (continued) Financial assurance. Inadequate, outdated contingency yplans. Groundwater monitoring deficiencies. Failure to comply with corrective action requirements. Failure to provide information. Manifest requirements. Fil Failure to Report tnon-compliance.

13 Case Development Identify violators Who is (or was at the time of the violations) the owner? The operator? The permittee? Same? Related? Unrelated? Individual? Corporation? Partnership? State? Municipality? Federal facility? Was the permit properly p modified to identify a new permittee? Is the violator still in existence? Solvent? Address? Liability: Joint? Several? Joint and Several?

14 Case Development Identify and attempt t to resolve issues: State-issued permits: Which permit terms are enforceable by EPA and which are not? Broader in scope vs. more stringent. Permit terms are based on, or incorporate by reference, current state regulations that differ from authorized state regulations. EPA comments on draft state-issued permits that are not addressed in the state-issued permit are enforceable by EPA under the circumstances set forth in 40 C.F.R. Section (e)(2). Permit terms have been stayed. Permit terms are poorly worded, ambiguous or defective. Federal or state regulations incorporated into the permit are poorly worded, ambiguous or defective. Wait there s more.

15 Case Development Identify and Attempt to Resolve Issues: Deadlines/requirements waived or incorrectly interpreted/applied, by EPA or the state, intentionally or inadvertently, in writing or verbally. Permit-as-shield issues. Failure to document actions, decisions, modifications in writing. Commingling of functions. Tacit approval; historic tolerance of violations. Lack of coordination between EPA and state. Wait there s still more.

16 Case Development Identify and Arrange to resolve issues: Lack of coordination between permitting and enforcement programs. Forum-shopping by permittee. EPA or the state has taken an inconsistent enforcement position in the past. Fair notice. Obsolete, superceded, confusing or incorrect Agency guidance undermines or complicates our current enforcement position. Evidence issues (samples; records; witnesses).

17 Case Development Determine relief sought: Civil penalties. Injunctive relief. Compliance. Remediation. Changes to the permit. Criminal sanctions (fines, imprisonment or both).

18 Select Enforcement Response Enforcement options: No action. Refer to EPA/state. Notice of Violation or other Informal Action. Expedited Enforcement Actions. Administrative i i Enforcement Action. Civil Judicial Action Criminal Judicial Action... and Permit Actions!!!!!!!!!!

19 Ui Using Permitting Authorities to Address Violations or Environmental Threats at Permitted Facilities EPA or an authorized state may use permit administration authorities to address permit violations and/or environmental threats or harms. These authorities provide for: Modification of permits. Revocation and reissuance of permits. Termination of permits. Denial of permit renewal applications.

20 Using Permitting Authorities to Address Violations or Environmental Threats at Permitted Facilities Modification (40 C.F.R. Section and.42) Permits may be modified during their terms based upon information that was not available at the time of issuance and would have justified the application of different permit conditions at the time of issuance. Procedures are set forth in 40 C.F.R. Section or authorized state program.

21 Using Permitting Authorities to Address Violations or Environmental Threats at Permitted Facilities Revocation and Reissuance (40 C.F.R. Section ) Permits may be revoked and reissued where cause exists for permit termination under 40 C.F.R. Section Procedures are set forth in 40 C.F.R. Section or authorized state program.

22 Using Permitting Authorities to Address Violations or Environmental Threats at Permitted Facilities Termination (40 C.F.R. Section ) Permits may be terminated on the basis of: (1) noncompliance by the permittee with any permit condition; (2) failure in the application or during the permit issuance process to disclose fully all relevant facts, or misrepresentation of any relevant facts at any time; or (3) the permitted activity endangers human health and the environment and can only be regulated to acceptable levels by permit modification or termination. Procedures are set forth in 40 C.F.R. Part 22 or Part 124 or authorized state program.

23 Using Permitting Authorities to Address Violations or Environmental Threats at Permitted Facilities Denial of Permit Renewal Application (40 C.F.R. Section ) An application for permit renewal may be denied on the same pp p y grounds as would support termination of the permit. Procedures are set forth in 40 C.F.R. Section or authorized state program.

24 DEEEEEE-FENCE!!! The Top Twenty Permit Enforcement Defenses 1. The permit was improperly issued. (Collateral attack) 2. The permit has improper p terms, conditions. (Collateral attack) 3. The permit is unconstitutional. 4. The permit is a shield!!! 5. That s not what the permit says. 6. That s not what the Guidance says!!! 7. We did so do it!!! 8. We did not do it!!!

25 DEEEEEE-FENCE!!! The Top Twenty Permit Enforcement Defenses (continued) 9. It wasn t my fault. (Strict liability) 10. It wasn t my fault. (Force Majeure). 11. The state/epa inspector told us it was okay. (Estoppel) 12. We ve been doing it that way for years and nobody ever said anything. (Estoppel) 13. Region 12 lets us do this. 14. We tried! It was impossible, infeasible, impractical, cost too much. 15. Too late!!!! Statute of Limitations.

26 DEEEEEE-FENCE!!! The Top Twenty Permit Enforcement Defenses (continued) 16. Permit and enforcement staff are commingling functions. (Too much coordination!!!) 17. You re out to get us. Selective prosecution. 18. What the state ordered us to do five years ago is good enough. 19. Missed it by this much. De minimis. 20. These are mere record-keeping violations. 21. Nobody was actually hurt. 22. It isn t fair. (Fair notice) 23. The sun was in my eyes. 24. The dog ate my ypermit.

27 How Can the Permit Program Help the Enforcement Program? 1. Review all permit applications and submissions carefully. 2. Use clear and unambiguous language when drafting permits, modifications, information requests, approvals/disapprovals, correspondence, etc. 3. Be sure to use the correct set of federal or authorized state regulations when drafting permits, modifications, etc. 4. Establish clear and firm deadlines for permit activities. Avoid terms like as soon as possible or promptly or with all deliberate speed. 5. Put everything in writing. Document all actions and decisions. 6. Build a record of every violation, i missed deadline, dli inadequate or incomplete submission, delay, lack of cooperation, missed anniversary Be careful when granting extensions of time. Do not routinely forgive missed (or about to be missed) deadlines and substituting new ones. Consider advising permittee that t the deadline dli is not officially i extended d but it would be prudent for the permittee to submit the document or perform the required activity quickly, before the Agency feels inclined to take enforcement activity. (I.e., the meter is running. )

28 How Can the Permit Program Help the Enforcement Program? 8. Review all reports and submissions, even if they are routine. Trouble may be hiding in unreviewed submissions and reports. Failure of EPA/state to react to a problem identified in an unreviewed submission may appear to be tacit approval or acquiescence. 9. Coordinate with enforcement program. Build a strong and trusting relationship. Cross-train. 10. Ditto with the attorneys. Avoid trouble before it starts, mitigate trouble quickly once it does. 11. EPA should comment on draft permits issued by authorized states! Preserve the Agency s right to enforce unaddressed Agency comments under 40 C.F.R. Section (e)(2). Serve as gorilla in the closet. 12. Keep good records of all permit-related related documents. 13. Refer instances of non-compliance to the Enforcement Program. 14. Be careful when paraphrasing regulations in a permit. It is safer to quote or incorporate regulatory requirements by reference.

29 How Can the Permit Program Help the Enforcement Program? 15. The Agency is the decider. E.g., work should not merely be completed, but completed to the Agency s satisfaction or in accordance with clearly specified performance standards established by the Agency. 16. Respond to all correspondence by the permittee, especially if such correspondence reveals a potential violation, misunderstanding or erroneous interpretation of a permit term, or a position contrary to that of the Agency. Failure to respond can be interpreted as acquiescence. Set the record straight. 17. Be aware of the statute of limitations for enforcement actions. 18. Do not make statements or take actions that appear to be vindictive or that may provide the permittee with a basis for alleging selective prosecution or abuse of discretion. 19. Be sure you understand the meaning of boilerplate language in permit models and other documents the language may not make sense in the context of the particular document you are working on.

30 How Can the Permit Program Help the Enforcement Program? 20. Be prepared from the outset to support the enforcement program by: a. Assisting in targeting facilities for inspection and enforcement. b. Assisting in the development of an inspection plan. c. Participating in an inspection. d. Assisting in internal and external information and evidence gathering. e. Assisting in identifying and resolving legal and factual (including technical) issues. f. Assisting in selecting an appropriate p enforcement response. g. Assisting in the preparation of pre-hearing exchanges or responses to document requests during discovery. h. Signing affidavits to support motions. i. Being deposed. j. Serving as a witness at hearing or trial. k. Reviewing briefs and other submissions for factual/technical accuracy. l. Assisting in defining/describing the technical components of compliance orders, other injunctive ij relief, lifand remedial dilaction.