07/16/87
Interim Guidance on Use of Administrative Penalty Provisions of>
Section 109 of CERCLA and Section 325 of SARA>
( OSWER Directive No. 9841.1 )
OSWER # 9841.1
MEMORANDUM JULY 16, 1987
SUBJECT: Interim Guidance on Use of Administrative Penalty Provisions of
Section 109 of CERCLA and Section 325 of SARA
FROM: /s/ Ed E. Reich, for
Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators
Regional Counsels
Directors, Regional Waste Management Divisions
This memorandum provides interim guidance on the use of the new
administrative penalty provisions of the Comprehensive Environmental
Response, Compensation, and Liability Act ( CERCLA ), 42 USC 9601 et seq.
and the Superfund Amendments and Reauthorization Act ( SARA ) of 1986, Pub.
L. No. 99-499. Section 109 of SARA amended CERCLA by adding civil penalties
for violations of certain provisions of CERCLA or agreements entered into
pursuant to the Act. The penalties may be assessed in an administrative
action or in a judicial action. SARA also created the Emergency Planning
and Community Right-to-Know Act of 1986. Section 325 of Title III provides
for civil and criminal penalties for violations of the notification and
planning requirements of that Title.
Background
Section 109 and Section 325(b) established two classes of administrative
penalties. Those classes differ from each other with respect to procedures
for assessing and collecting penalties and the maximum penalty available.
EPA may assess Class I administrative penalties of not more than $25,000 per
violation for violations of the provisions specified in Section 109(a) and
Section 325(b). In determining the amount of the Class I penalty, EPA must
consider the factors specified in Section 109(a)(3) or Section 325(b)(1)(C).
EPA may assess Class II administrative penalties of not more than $25,000
per day for each day the violation continues for violations of provisions
specified in Section 109(b) or Section 325(b). For subsequent Class II
violations, the penalty may be not more than $75,000 for each day of
violation.
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Section 109 and Section 325(b) also established different procedures for
the two classes of penalties. For Class I penalties under Section 109 or
Section 325 EPA must provide notice and opportunity for a hearing but the
proceedings are not subject to the Administrative Procedure Act ( APA ).
EPA may subpoena witnesses and documents for Class I proceedings. The
person aggrieved by the penalty action may seek judicial review in a United
States District Court. In such a case, EPA must file in the court a
certified copy of the record on which the penalty was based. OECM-Waste
Division is developing Class I penalty procedures, and expect to issue these
procedures shortly.
For Class II penalties under Section 109 and Section 325, EPA must
provide notice and opportunity for a hearing in compliance with Section 554
of the APA, 5 USC 554. For Section 109 penalties, the person aggrieved by
the penalty action may seek judicial review in a United States Court of
Appeals. For Class II penalties under Section 325, the person aggrieved by
the penalty action may seek judicial review in a United States District
Court.
Class II proceedings are similar to formal adjudicatory penalty
proceedings conducted by the Agency under other environmental statutes. The
Consolidated Rules of Practice, promulgated by EPA at 40 CFR Part 22, govern
the administrative assessment under the APA of penalties available under
other statutes. To make these rules applicable to Class II proceedings
under Section 109 and Section 325, OECM-Waste Division will promulgate a
rule providing that the Consolidated Rules shall govern proceedings for the
assessment of Class II administrative penalties under those provisions.
The United States may also bring a civil action in a district court to
collect penalties of not more than $25,000 per day for each day of violation
for violations of those provisions specified in Section 109(c) and in
Section 325(b). For subsequent violations, EPA may seek penalties of up to
$75,000 for each day of violation. In addition to the Class I and Class II
penalties for violations specified in Section 325(b), Sections 325(a), (c),
and (d) provide for civil and administrative penalties for violating the
requirements specified in those provisions. The United States may also seek
criminal sanctions under Section 103 of CERCLA for violations of the release
notification requirement. SARA amended Section 103 of CERCLA by increasing
the maximum penalties for such criminal violations. Sections 325(b) and (d)
also provide for criminal penalties.
Current Procedures
Prior to completion of the procedures for Class I penalties and the
promulgation of the rule amending the Consolidated Rules,
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EPA may seek civil penalties under Section 109 or Section 325 under one of
two approaches. First, the Regions may file administrative actions
assessing the Class I or Class II penalties of Sections 109 or 325(b) or the
administrative penalties in Sections 325(c) and 325(d). In filing such
actions, the Region on an interim basis should comply with the Consolidated
Rules, 40 CFR Part 22. After the Class I penalty procedures are completed,
Class I administrative penalties should be assessed in compliance with those
procedures. The Regions may also prepare a judicial referral for civil
action or a judicial referral for criminal action. Orders under Section
325(a) may be enforced after a judicial referral.
In the near term, EPA will be using Section 109 most frequently to seek
administrative penalties for violations of the notice requirements of
Section 103(a) and (b). Until further guidance is available, we have
attached for your use a chart showing the elements needed to prove a
violation of Section 103(a) or (b), background information in the reportable
quantities provisions, and a sample certification by a person at the
National Response Center that no notice was received. More detailed
guidance on the assessment of administrative penalties under Sections 109
and 325 is now being developed by OECM-Waste Division and the Office of
Waste Programs Enforcement. For further information contact Frances
McChesney at FTS 475-9437.
Attachments
cc: Lisa K. Friedman
Gene A. Lucero
Regional Counsel Hazardous Waste Branch Chiefs
PRIMA FACIE CASE
SECTION 103(B) CERCLA, 42 USC SECTION 9603(B)
NOTIFICATION
FACT TO BE PROVED STATUTORY BASIS COMMENTS
PERSON IN CHARGE 103(A), (B) EVIDENCE SHOWING
OF VESSEL OR FACILITY PERSON IS IN CHARGE
HAS KNOWLEDGE OF 103(A), (B) KNOWLEDGE OF RELEASE
MAY BE INFERRED;
STANDARD IN CIVIL
CASES LESS THAN IN
CRIMINAL CASES
RELEASE OF 103(A), (B) EVIDENCE OF RELEASE
HAZARDOUS SUBSTANCE 103(A), (B) EVIDENCE THAT
SUBSTANCE RELEASED
IS HAZARDOUS
PRIMA FACIE CASE
SECTION 103(B) CERCLA, 42 USC SECTION 9603(B)
NOTIFICATION
( CONTINUED )
FACT TO BE PROVED STATUTORY BASIS COMMENTS
IN REPORTABLE 103(A), (B) EVIDENCE THAT RELEASE
QUANTITY WAS EQUAL TO OR
EXCEEDED REPORTABLE
QUANTITY
WHO FAILED TO REPORT 103(B) CERTIFICATION BY NRC
THE RELEASE THAT IT WAS NOT
NOTIFIED
BRIEFING ON
REPORTABLE QUANTITIES IMPLEMENTATION
BY
EMERGENCY RESPONSE DIVISION
OFFICE OF EMERGENCY AND REMEDIAL RESPONSE
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE
TOPICS
O STATUTORY AUTHORITY
O PURPOSE OF REPORTABLE QUANTITIES
O RQ ADJUSTMENTS
O RQ ADJUSTMENT METHODOLOGY
O RELATIONSHIP BETWEEN CERCLA AND CWA
O REPORTING REQUIREMENTS
O DETERMINING WHEN AN RQ HAS BEEN RELEASED
O FEDERALLY PERMITTED AND CONTINUOUS RELEASE REPORTING EXEMPTIONS
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STATUTORY AUTHORITY
O CERCLA SECTION 101(14) DEFINES "HAZARDOUS SUBSTANCE" BY REFERENCE TO
OTHER ENVIRONMENTAL STATUTES, INCLUDING:
-- CLEAN WATER ACT ( CWA ) SECTIONS 311 AND 307;
-- CLEAN AIR ACT ( CAA ) SECTION 112;
-- RESOURCE CONSERVATION AND RECOVERY ACT ( RCRA ) SECTION 3001; AND
-- TOXIC SUBSTANCES CONTROL ACT ( TSCA ) SECTION 7.
O IN ADDITION, THE ADMINISTRATOR HAS THE AUTHORITY UNDER SECTION 102 TO
DESIGNATE ADDITIONAL HAZARDOUS SUBSTANCES THAT "WHEN RELEASED INTO THE
ENVIRONMENT MAY PRESENT SUBSTANTIAL DANGER TO THE PUBLIC HEALTH OR
WELFARE OR THE ENVIRONMENT." EPA IS IN THE PROCESS OF DESIGNATING
EXTREMELY HAZARDOUS SUBSTANCES OF TITLE III OF SARA AS HAZARDOUS
SUBSTANCES AND SETTING RQs.
O THERE ARE CURRENTLY 705 HAZARDOUS SUBSTANCES, INCLUDING INDIVIDUAL
CHEMICALS AND WASTE STREAMS. THE SUBSTANCES ARE LISTED AT 40 CFR PART
302.
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STATUTORY AUTHORITY
( CONTINUED )
O UNDER THE REGULATIONS IMPLEMENTING SECTION 103, RELEASES OF A HAZARDOUS
SUBSTANCE WITHIN A 24-HOUR PERIOD IN A QUANTITY EQUAL TO OR GREATER THAN
ITS "REPORTABLE QUANTITY" MUST BE REPORTED IMMEDIATELY TO THE NATIONAL
RESPONSE CENTER ( NRC ). CRIMINAL PENALTIES MAY BE IMPOSED FOR FAILURE
TO REPORT PROPERLY.
O REPORTABLE QUANTITIES ( RQs ) ARE STATUTORILY SET AT 1 POUND OR AT THE
RQ ESTABLISHED UNDER CWA SECTION 311.
O THE ADMINISTRATOR HAS THE AUTHORITY UNDER SECTION 102 TO ADJUST BY
REGULATION STATUTORY RQs.
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PURPOSE OF REPORTABLE QUANTITIES
O RQs SERVE AS A TRIGGER FOR NOTIFICATION TO THE FEDERAL GOVERNMENT OF A
HAZARDOUS SUBSTANCE RELEASE.
O RQs DO NOT NECESSARILY REFLECT THE DEGREE OF RISK POSED BY HAZARDOUS
SUBSTANCES.
O ONCE A RELEASE IS REPORTED, EPA DETERMINES WHETHER A FEDERAL FIELD
RESPONSE IS WARRANTED.
O NOT ALL REPORTABLE RELEASES NECESSITATE A FIELD RESPONSE; CONVERSELY,
SITUATIONS CAN OCCUR WHERE A RELEASE OF LESS THAN AN RQ CAN RESULT IN
RISKS TO PUBLIC HEALTH OR WELFARE OR THE ENVIRONMENT.
O EXCEPT FOR FEDERALLY PERMITTED RELEASES, RELEASERS ARE LIABLE FOR
RESPONSE COSTS AND NATURAL RESOURCE DAMAGES RESULTING FROM A HAZARDOUS
SUBSTANCE RELEASE, REGARDLESS OF THE QUANTITY RELEASED.
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RQ ADJUSTMENTS
O RQ ADJUSTMENTS ALLOW GOVERNMENT OFFICIALS TO FOCUS ATTENTION ON THOSE
RELEASES THAT MAY POSE THE GREATEST THREAT TO PUBLIC HEALTH AND WELFARE
AND THE ENVIRONMENT.
O RQ ADJUSTMENTS FOR 387 HAZARDOUS SUBSTANCES WERE PROPOSED IN AN NPRM
PUBLISHED IN THE FEDERAL REGISTER ON MAY 25, 1983. ON APRIL 4, 1985,
EPA PUBLISHED:
-- A FINAL RULE ADJUSTING RQs FOR 340 OF THE HAZARDOUS SUBSTANCES FOR
WHICH RQ ADJUSTMENTS WERE PROPOSED IN MAY 1983, AND
-- AN NPRM PROPOSING RQ ADJUSTMENTS FOR 105 ADDITIONAL CERCLA
HAZARDOUS SUBSTANCES.
O RQs OF THE REMAINING 260 SUBSTANCES ( PRIMARILY POTENTIAL CARCINOGENS )
ARE BEING ADJUSTED AND WILL FORM THE BASIS OF A THIRD NPRM. RQs FOR
POTENTIAL CARCINOGENS AND RADIONUCLIDES WILL BE PROMULGATED IN 1987.
O FUTURE RQ RULEMAKINGS WILL PROVIDE CLARIFICATION OF THE REPORTING
EXEMPTIONS FOR CONTINUOUS RELEASES AND FEDERALLY PERMITTED RELEASES.
THOSE RULEMAKINGS WILL BE PROMULGATED IN 1987.
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OMITTED TEXT: RQ AS TRIGGER FOR RELEASE NOTIFICATION
RQ ADJUSTMENT METHODOLOGY
O THE RQ ADJUSTMENT METHODOLOGY IS BASED ON SCIENTIFIC AND TECHNICAL
ANALYSIS OF THE CHARACTERISTICS OF THE HAZARDOUS SUBSTANCES.
O THE PROPOSED RQ ADJUSTMENTS USE CRITERIA THAT FOCUS ON A SUBSTANCE'S
TOXICITY AND ITS CHEMICAL CHARACTERISTICS:
-- AQUATIC TOXICITY;
-- MAMMALIAN TOXICITY ( ORAL, DERMAL, INHALATION );
-- IGNITABILITY;
-- REACTIVITY;
-- CHRONIC TOXICITY; AND
-- CARCINOGENICITY.
O RQs CAN BE ADJUSTED UPWARD ONE LEVEL BASED ON BIODEGRADABILITY,
HYDROLYSIS, OR PHOTOLYSIS.
O EACH HAZARDOUS SUBSTANCE IS ASSIGNED ONE RQ APPLICABLE TO RELEASES TO
ALL MEDIA ( LAND, AIR, WATER ).
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RELATIONSHIP BETWEEN CERCLA AND CWA
O THE FOLLOWING ASPECTS OF THE CWA'S APPROACH TO DEALING WITH RELEASES OF
HAZARDOUS SUBSTANCES HAVE BEEN ADOPTED UNDER CERCLA:
-- THE FIVE RQ LEVELS OF 1, 10, 100, 1000, AND 5000 POUNDS;
-- THE MIXTURE RULE FOR DETERMINING IF NOTIFICATION IS REQUIRED FOR
MIXTURES OR SOLUTIONS CONTAINING HAZARDOUS SUBSTANCES;
-- THE 24-HOUR PERIOD FOR MEASURING WHETHER A REPORTABLE QUANTITY OF A
HAZARDOUS SUBSTANCE HAS BEEN RELEASED; AND
-- THE REQUIREMENT THAT RELEASES BE REPORTED IMMEDIATELY TO THE NRC.
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RELATIONSHIP BETWEEN CERCLA AND CWA
( CONTINUED )
O THE CWA IS LIMITED IN SCOPE AND DIFFERS FROM CERCLA IN THE FOLLOWING
RESPECTS:
-- CERCLA COVERS RELEASES INTO ALL ENVIRONMENTAL MEDIA, UNLIKE THE CWA
WHICH COVERS ONLY NAVIGABLE WATERS;
-- CERCLA DOES NOT COVER OIL SPILLS, UNLIKE THE CWA WHICH REQUIRES OIL
SHEENS TO BE REPORTED TO THE NRC;
-- CWA SECTION 311 RQs ARE BASED ON AQUATIC TOXICITY; BECAUSE CERCLA
APPLIES TO ALL ENVIRONMENTAL MEDIA, RQs BASED SOLELY ON AQUATIC
TOXICITY ARE NOT SUFFICIENT FOR THE CERCLA NOTIFICATION AND
RESPONSE PROGRAM; AND
-- CWA SECTIONS 311 AND 307 TOGETHER COVER ONLY A PORTION OF THE
SUBSTANCES DEFINED AS HAZARDOUS UNDER CERCLA.
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REPORTING REQUIREMENTS
O MECHANICS OF NOTIFICATION. AS SOON AS A RELEASER HAS KNOWLEDGE THAT A
REPORTABLE RELEASE HAS OCCURRED, THE NRC MUST BE CALLED IMMEDIATELY.
SUBPARTS E AND F OF THE PROPOSED NCP ALLOW THE RELEASER TO NOTIFY THE
DESIGNATED OSC IN THE APPROPRIATE EPA REGION AND U.S. COAST GUARD
DISTRICT IF NOTIFICATION TO THE NRC IS IMPRACTICAL.
O PERSONS COVERED. PERSONS IN CHARGE OF A FACILITY OR VESSEL ARE REQUIRED
TO NOTIFY THE NRC OF REPORTABLE RELEASES.
-- "PERSONS IN CHARGE" CAN BE INTERPRETED TO INCLUDE INDIVIDUALS AS
WELL AS PUBLIC, PRIVATE, AND GOVERNMENT ENTITIES.
-- "FACILITY" IS BROADLY DEFINED FOR LAND-BASED STATIONARY SOURCES AND
VEHICLES.
-- "VESSEL" IS ALSO BROADLY DEFINED TO INCLUDE PRACTICALLY ANYTHING
THAT FLOATS.
-- THE MAJOR EXCEPTIONS TO THESE DEFINITIONS ARE CONSUMER PRODUCTS IN
CONSUMER USE.
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REPORTING REQUIREMENTS
( CONTINUED )
O SUBSTANCES COVERED. ALL 705 HAZARDOUS SUBSTANCES LISTED IN THE APRIL 4,
1985 FINAL RULE ARE COVERED; ADDITIONAL SUBSTANCES MAY BE ADDED. ( OSW
INTENDS TO ADD ABOUT 120 MORE HAZARDOUS WASTES TO THE RCRA SECTION 3001
LIST IN THE NEAR FUTURE. ) SUBSTANCES THAT ARE NOT LISTED IN THE FINAL
RULE ALSO MAY BE HAZARDOUS:
-- SUBSTANCES ARE NOT LISTED UNDER ALL POSSIBLE NAMES; AND
-- WASTES WITH ICRE CHARACTERISTICS ARE HAZARDOUS ( IF NOT
SPECIFICALLY LISTED THESE WASTES HAVE AN RQ OF 100 POUNDS ).
O RELEASES COVERED. THE DEFINITION OF RELEASE COVERS VIRTUALLY ALL WAYS
THAT SUBSTANCES MAY ENTER THE ENVIRONMENT. HOWEVER, FOUR EXEMPTIONS ARE
PROVIDED UNDER SECTION 101(22):
-- RELEASES WHOLLY CONTAINED WITHIN A BUILDING OR STRUCTURE;
-- MOBILE SOURCES OF AIR EMISSIONS;
-- SOURCE, BY-PRODUCT, AND SPECIAL NUCLEAR MATERIAL; AND
-- NORMAL APPLICATION OF FERTILIZERS.
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DETERMINING WHEN AN RQ HAS BEEN RELEASED
O REPORTING PERIOD. CERCLA ADOPTS 24-HOURS AS THE PERIOD TO DETERMINE,
FOR NOTIFICATION PURPOSES, WHETHER AN RQ HAS BEEN RELEASED.
O MIXTURE RULE. RELEASES OF MIXTURES OR SOLUTIONS MUST BE REPORTED IF A
COMPONENT HAZARDOUS SUBSTANCE OF THE MIXTURE IS SPILLED IN AN AMOUNT
EQUAL TO OR GREATER THAN ITS RQ.
-- RQs OF DIFFERENT SUBSTANCES IN A MIXTURE ARE NOT ADDITIVE, SO THAT
SPILLING A MIXTURE CONTAINING HALF AN RQ OF ONE SUBSTANCE AND HALF
AN RQ OF ANOTHER SUBSTANCE DOES NOT REQUIRE A REPORT.
-- WHEN THE IDENTITIES AND CONCENTRATIONS OF ALL SUBSTANCES IN A
MIXTURE ARE NOT KNOWN, THE RQ THAT APPLIES TO THE MIXTURE IS THE
LOWEST RQ OF THE COMPONENT SUBSTANCES.
O MULTIPLE RELEASES. WHEN REPORTABLE RELEASES OF THE SAME HAZARDOUS
SUBSTANCE ARE OCCURRING AT SEVERAL LOCATIONS IN A FACILITY AT THE SAME
TIME, ONLY ONE REPORT IS REQUIRED RATHER THAN MULTIPLE REPORTS.
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FEDERALLY PERMITTED AND CONTINUOUS RELEASE REPORTING EXEMPTIONS
O SECTION 103 PROVIDES A COMPLETE REPORTING EXEMPTION FOR FEDERALLY
PERMITTED RELEASES AND A LIMITED REPORTING EXEMPTION FOR CONTINUOUS
RELEASES. THE RULEMAKING WILL BE PUBLISHED IN 1987.
O THE LIMITED EXEMPTION FOR CONTINUOUS RELEASES APPLIES TO RELEASES THAT
ARE "CONTINUOUS" AND "STABLE IN QUANTITY AND RATE," AND FOR WHICH THE
APPROPRIATE INITIAL REPORTS HAVE BEEN SUBMITTED.
O RELEASES THAT MEET THESE CONTINUOUS RELEASE CRITERIA NEED ONLY BE
REPORTED ANNUALLY, OR WHEN A "STATISTICALLY SIGNIFICANT" INCREASE IN THE
AMOUNT RELEASED OCCURS.
O SECTION 101(10) OF CERCLA DEFINES RELEASES THAT ARE "FEDERALLY
PERMITTED." THESE RELEASES ARE COVERED BY SPECIFIED PERMITS OR
REGULATIONS UNDER CWA, RCRA, CAA, THE MARINE PROTECTION, RESEARCH, AND
SANCTUARIES ACT, THE SAFE DRINKING WATER ACT, AND THE ATOMIC ENERGY ACT.
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