09/16/86
Enforcement Strategy and Procedures for the Interim Prohibition, Section 9
of SWDA
9943.3
MEMORANDUM September 16, 1986
SUBJECT: Enforcement Strategy and Procedure for the Interim Prohibition,
Section 9003(g) of SWDA
FROM: /s/ Thomas L. Adams, Jr.
Assistant Administrator
for Enforcement and Compliance Monitoring
/s/ Illegible, for J. Winston Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators, Regions I - X
Regional Counsels, Regions I - X
Waste Management Division Directors,
Regions I, V, VII, VIII
Air and Waste Management Division Director,
Region II
Hazardous Waste Management Division Directors,
Regions III and VI
Water Management Division Director, Region IV
Toxics and Waste Management Division Director,
Region IX
Hazardous Waste Division Director, Region X
INTRODUCTION
The Hazardous and Solid Waste Amendments of 1984 ( HSWA ) added a new
Subtitle I to the Solid Waste Disposal Act ( SWDA, commonly referred to as
RCRA ) for the regulation of underground storage tanks. Section 9003(g) of
Subtitle I, the "Interim Prohibition", establishes a statutory tank
installation standard which became effective on May 7, 1985 and will remain
effective until the promulgation of final new tank standards by the Agency
under Section 9003(e). Section 9003(g) prohibits the installation of an
underground storage tank, as defined in Section 9001, unless such tank
(A) will prevent releases due to corrosion or structural failure for
the operational life of the tank;
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(B) is cathodically protected against corrosion, constructed of
noncorrosive material, steel clad with a noncorrosive material, or
designed in a manner to prevent the release or threatened release
of any stored substance; and
(C) The material used in the construction or lining of the tank is
compatible with the substance to be stored. */
*/ Section 9001(1) defines underground storage tanks as "any one or
combination of tanks ( including underground pipes connected thereto )
which is used to contain an accumulation of regulated substances, and
the volume of which ( including the volume of the underground pipes
connected thereto ) is 10 percent or more beneath the surface of the
ground." Regulated substances include CERCLA hazardous substances other
than RCRA hazardous wastes, plus petroleum, including crude oil ( and
including used oil ). RCRA hazardous wastes stored in tanks are
regulated under Subtitle C.
Under Section 9003(g)(2) metal tanks may be installed witout corrosion
protection
if soil tests conducted in accordance with ASTM Standard G57-78, or
another standard approved by the Administrator, show that soil
resistivity in an installation location is 12,000 ohm/cm or more....
but the remaining requirements regarding structural failure and
compatibility ( paragraphs (A) and (C) above ) still must be met. The
requirements apply to all installations of tanks, whether new or used.
Effective enforcement of the Interim Prohibition is essential to ensure
that the environment is protected from leaking underground storage tanks and
that parties who do not comply with the Interim Prohibition do not have a
competitive advantage over those who do. Therefore, EPA must act to make
noncompliance as unattractive as possible. Enforcement to encourage a high
level of compliance is also important because installation of more leak-
resistant tanks now will provide significant environmental benefits, as well
as reducing future costs to owner / operators for corrective action.
Finally, effective enforcement of the Interim
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Prohibition will lay the groundwork for encouraging compliance with the full
regulatory program as it comes into effect. This guidance serves several
purposes: 1) to assist the Regions in identifying violations of the Interim
Prohibition through a cooperative effort with the States; 2) to focus
limited enforcement resources on the most clear-cut or egregious violations;
and 3) to provide enforcement procedures to follow in enforcing the Interim
Prohibition.
The Agency has published a final Interpretive Rule, 40 CFR Part 280, in
the Federal Register ( June 4, 1986 ). ( See Attachment 1. ) This rule
explains the Agency's legal interpretation of Section 9003(g). The
Interpretive Rule clearly states that some common tank installation
practices, such as installation of bare steel tanks with an asphalt or paint
coating but no cathodic protection, are violations of the Interim
Prohibition. As noted above, an exception to the cathodic protection
requirement is found in Section 9003(g)(2), which provides that in certain
soils, corrosion protection need not be installed. The tank owner /
operator has the burden of demonstrating that soil conditions meet the
standard of Section 9003(g)(2).
In addition, the Office of Underground Storage Tanks ( OUST ) published
in June, 1986, final technical guidance entitled, "The Interim Prohibition:
Guidance for Design and Installation of Underground Storage Tanks." The
guidance is designed to assist Regional and State personnel and owner /
operators in identifying technologies that will achieve compliance with
Section 9003(g). This strategy encourages using a mix of Federal, State,
and local inspection and enforcement authorities to achieve the widest
possible monitoring of new tank installations and enforcement actions to
ensure substantive compliance with the Interim Prohibition.
IDENTIFYING NEW VIOLATIONS THROUGH STATE / FEDERAL COOPERATIVE EFFORT
A key to effective UST inspections and enforcement in support of the
Interim Prohibition is early identification of new tank installations so
that new installations can be inspected before the tanks are placed in the
ground and covered. State and/or local government agencies are generally in
a much better position than EPA to identify and conduct some preliminary
monitoring of new installations of underground storage tanks. Some State
and local agencies may become informed of new tank installations, either
through building permit requirements, State UST notification requirements,
or other mechanisms. In many cases, underground storage tank installations
are subject to local fire codes. Even though Subtitle I does not provide
for State or local enforcement of Section 9003(g), State and local
inspectors may be able to
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identify new tank installations and potential violations, if they are aware
of Interim Prohibition requirements.
Notifications submitted to States pursuant to Section 9002 of the
existence of an underground storage tank may also provide useful information
on tank installations in violation of the Interim Prohibition. Some owner /
operators may have submitted notifications for bare steel tanks which were
installed after May 7, 1985, the effective date of the Interim Prohibition,
and States should be encouraged to identify such notifications.
This approach is dependent on developing networks with State and local
governments. Regions are encouraged to work with State and local agencies,
including local fire marshals, to identify new tank installations and
potential violations, based on notifications, permit applications, or
observations in the field. Efforts should be focused in areas where there
are many new tank installations or in environmentally sensitive areas.
States which have independent inspection authority may conduct
inspections and refer violations to EPA for enforcement action. State and
local inspectors may gather evidence and serve as witnesses for EPA. States
and citizens may also be able to enforce the Interim Prohibition through
citizen suits ( see discussion, infra, at p. 9 ). In addition, State UST
grant funds may be used to fund inspections where the State has adequate
inspection authority.
If the State does not have independent authority or resources to conduct
inspections, they should be encouraged to inform EPA of new installations so
that EPA may conduct inspections. Facilities selected by EPA for inspection
may be based on a random sample of new installations, installations in
environmentally sensitive areas, or installations identified either by State
or Agency personnel or by citizen tips as potential violations of the
Interim Prohibition. EPA and each State should reach agreement on the
preferred approach within a State and on a process for notifying EPA where
Agency involvement is appropriate. A sample letter to State / local
agencies explaining the Interim Prohibition and encouraging a cooperative
approach to identifying violations and enforcement is attached ( Attachment
2 ).
Regions should also develop a communications plan to disseminate
information on the Interim Prohibition as widely as possible to tank
wholesale and retail distributors as well as tank users. Tank sellers may
also be helpful in identifying new installations.
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The Office of Waste Programs Enforcement ( OWPE ) is exploring several
approaches to make inspection resources available to the Regions by the
beginning of FY 1987. OWPE is drafting an inspections checklist which we
hope to make available soon. OUST has developed a video tape on the Interim
Prohibition in coordination with the National Fire Protection Association.
For access to the tape, contact Pamela Harris in OUST (FTS 475-4614).
ENFORCEMENT INITIATIVE FOCUS
This section discusses, in order of priority, types of Interim
Prohibition violations which should be the focus of enforcement actions by
the Agency. This discussion is designed to guide the Regions in deciding
how best to allocate limited resources in taking enforcement actions to
correct violations of the Interim Prohibition. Notwithstanding the
following scheme, situations that may pose threats to human health or the
environment are the highest priority for enforcement action ( e.g., leaking
tanks near drinking water supplies ). Sections 3013 and 7003 of RCRA may be
used to compel investigation and, in the case of Section 7003, cleanup of
spills or leaks from underground tanks. Such actions should be considered
regardless of whether the evidence indicates that enforcement action for
violation of the Interim Prohibition is appropriate.
Enforcement actions should initially focus on the most clear-cut
violations of the Interim Prohibition, e.g., installation of bare steel
tanks or installation of steel tanks coated with paint or asphalt but
lacking any cathodic protection in areas where the soil resistivity is less
than 12,000 ohm-cm. Evidence of a violation may include testimony and
affidavits of witnesses who saw the tank prior to and during installation;
written reports of EPA, State or local officials who inspected the tank
installation; and information received as the result of Section 9005
requests for information.
The second priority for enforcement actions are those violations which
are clear but for which substantially more evidence is required to prove the
violation. Examples include (1) installation of a fiberglass reinforced
plastic ( FRP ) tank which subsequently is found to be leaking due to
structural failure of the tank, and (2) installation of a tank that is later
shown to leak and the leak can be shown to have been caused by
incompatibility of the tank with the substance stored. The same types of
evidence described above for high-priority violations may be used. The
evidence must be sufficient to show that the leaks came from the tanks in
question and that those tanks leaked due to violations of the Interim
prohibition, e.g., failure to prevent releases due to structural failure for
the operational life of the tank, and incompatibility of the material used
in the construction or lining of the tank with the substance stored.
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A third type of situation exists where EPA finds that the installation
is inadequate to prevent releases for the operational life of the tank, but
where the tank has not yet leaked. Violations in this category should be
considered as a lower priority for enforcement actions than the first two
categories. Examples include installation of a steel tank with inadequate
cathodic protection such that a leak due to corrosion is likely to occur
during the operational life of the tank; or an FRP tank installed with
improper backfill ( e.g., particles too large ), where a leak is likely to
occur during the operational life of the tank. Expert testimony will be
required in such cases to present evidence that the tank is likely to leak
in the future due to the failure of the tank's design, construction, and/or
installation to prevent leaks resulting from corrosion, structural failure,
and/or incompatibility of the tank with the substance stored.
ENFORCEMENT AUTHORITY AND PROCEDURES
Section 9006 of Subtitle I provides both administrative and judicial
enforcement authority for enforcement of the Interim Prohibition, as well as
for enforcement of the UST program generally. The relief provided in
Section 9006 is essentially identical to that in Section 3008(a) of Subtitle
C. Section 9006 provides in pertinent part
(a) Compliance Orders.-
(1) Except as provided in paragraph (2), whenever on the basis of
any information, the Administrator determines that any person is in
violation of any requirement of this subtitle, the Administrator may
issue an order requiring compliance within a reasonable specified time
period or the Administrator may commence a civil action in the United
States district court in which the violation occurred for appropriate
relief, including a temporary or permanent injunction.
....
(3) If a violator fails to comply with an order under this
subsection within the time specified in the order, he shall be liable
for a civil penalty of not more than $25,000 for each day of continued
noncompliance.
....
(d) Civil Penalties.-
....
(2) Any owner or operator of an underground storage tank who fails
to comply with-
....
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(C) the provisions of section 9003(g) ( entitled "Interim
Prohibition" )
shall be subject to a civil penalty not to exceed $10,000 for each tank
for each day of violation.
The Regions may enforce the Interim Prohibition administratively through
compliance orders issued pursuant to Section 9006(a), which are signed by
the Regional Administrator ( or as redelegated within the Region ). Such
orders parallel Section 3008(a) orders procedurally: an administrative
complaint is issued and becomes final in 30 days unless the respondent
requests a hearing. Similarly, the hearing requirements will be satisfied
by the form of hearing provided in the Consolidated Rules of Practice, 40
CFR Part 22.
The Agency is in the process of amending the Consolidated Rules of
Practice to include Section 9006(a) administrative actions. Until that
process has been completed, each administrative complaint should append the
40 CFR Part 22 procedures and state that the appended procedures apply to
the case. Regions should consult with the Office of Waste programs
Enforcement ( OWPE ) if they wish to issue a unilateral order. In
situations which can be resolved through negotiations, a consent order
should be issued under Section 9006(a). Section 9006(a) orders may be
modeled after 3008(a) orders at this time. A model Section 9006(a) order
for violations of the Interim Prohibition is currently being developed by
OWPE and OECM-Waste.
Section 9006(a) also provided judicial enforcement authority. The same
referral procedures apply for Section 9006 actions as for other RCRA
actions. OECM-Waste will distribute a model litigation report in the near
future to assist the Regions in preparing appropriate UST judicial
enforcement actions. When expeditious action is required, referrals may be
made orally to Headquarters. The Region must follow up the oral referral
with a written referral within a week and should be prepared to provide
support activities ( preparation of affidavits, drafting of pleadings,
etc. ) to the U.S. Attorney's office. Regions should forward civil
referrals to the Office of Enforcement and Compliance Monitoring, with a
copy to the Director, RCRA Enforcement Division, OWPE.
While initial contacts with the tank owner / operator seeking voluntary
compliance are encouraged, especially in cases where the owner / operator
may be unaware of the requirements, the Agency should take formal
enforcement action as appropriate. Where a tank has already been installed,
preliminary written contact with the owner / operator should be made before
any formal enforcement
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action is taken. A request for information may be sent under the authority
of Section 9005 to the tank owner or operator explaining the requirements of
the Interim prohibition and seeking information concerning the facility's
compliance with Section 9003(g). Attachment III is an example of such a
letter. Section 9005 is similar to Section 3007 of Subtitle C and may be
used to request documentation concerning the type of tank installed and the
presence or absence of cathodic protection. It can also be used to pinpoint
the source of a regulated substance leak. EPA can require the owner /
operators of the suspected UST leak source(s) to test their tanks for leaks.
Such information would be particularly useful in the second category of
violations, discussed in the previous section.
Administrative enforcement is generally preferable in situations where
the tank has already been installed ( i.e., where time is not of the
essence ), including cases where the tank owner / operator agrees to take
whatever action is needed to come into compliance. Clearly, if an UST is
found to be leaking, immediate enforcement action should be considered under
Sections 3013 or 7003, as appropriate.
In cases where the owner / operator agrees to comply with the Interim
Prohibition after the installation has been completed, the agreement must be
reflected in a consent order or consent decree under Section 9006(a). In
cases where the owner / operator refuses to agree to comply, the Region
should proceed directly to unilateral enforcement action, i.e., issue an
administrative order or refer a judicial action to Headquarters.
In cases where a tank is about to be installed or is being installed in
violation of RCRA Section 9003(g), it may not always be feasible to seek
voluntary compliance before taking enforcement action. Limited informal
contact with the tank owner / operator to obtain compliance prior to
enforcement action is encouraged, but should not be undertaken if it will
delay the taking of enforcement action seeking to halt the illegal tank
installations.
In situations where the tank has not yet been completely installed,
quick enforcement action is crucial because of the short time required to
complete installation of a tank. Clearly, enforcement action prior to tank
installation is preferred because compliance is easier to achieve if the
tank is still exposed and accessible. In such cases, judicial enforcement
action to obtain quick relief is appropriate. Accordingly, the Regions
should refer such cases to obtain temporary restraining orders and
preliminary and permanent injunctions enjoining the tank owner / operator
from installing the tank(s) in violation of Section 9003(g). Judicial
enforcement in these instances is more appropriate because compliance orders
issued under Section 9006(a) do not become final for 30 days and then only
become final if the respondent does not request a hearing.
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In addition, under the citizen suit provision, actions may be brought to
enforce Section 9003(g) through RCRA Section 7002(a)(1)(A). */
*/ RCRA section 7002(a)(1)(A) provides that "any person may commence a
civil action ... against any person ... who is alleged to be in
violation of any ... prohibition ... which has become effective pursuant
to this Act." The Interim Prohibition became effective on May 7, 1985.
Although there is a recent holding in a Clean Water Act case which finds
that a State is not an appropriate plaintiff in a citizen suit brought under
the Clean Water Act, there are also contrary court rulings. **/
**/ Section 304 of the Clean Air Act contains a citizen suit provision
which is nearly identical to Section 7002(a)(1)(A) of RCRA. In Hancock
v. Train, 426 U.S. 167, 196 (1976), the U.S. Supreme Court stated
that the Clean Air Act citizen suit provision ( Section 304 ) is a
means for States to enforce against a violation by a Federal facility.
In addition, Section 505 of the Clean Water Act authorizes actions by
citizens, which includes persons ( Sections 505(g), 502(5) ). In
Commonwealth of Massachusetts v. U.S. Veterans Administration, 541 F.
2d 119 ( 1st Cir. 1976 ), the court held that a State may seek to
enforce the provisions of the Clean Water Act through its citizen suit
provision. See also, People of State of Illinois v. Outboard Marine
Corp., 619 F. 2d 623, 631 ( 7th Cir., 1980 ) vacated and remanded on
other grounds, 453 U.S. 917, (1981), and National Wildlife Federation
v. Ruckelshaus, 99 F.R.D. 558, 560 ( D.N.J. 1983 ). But see, State of
California v. Department of the Navy, 631 F. Supp. 584 ( N.D. Cal.
1986 ), where a district court held that a State is not an appropriate
plaintiff under Section 505 of the Clean Water Act.
Further, some States have already filed suits to enforce other provisions of
RCRA under the RCRA citizen suit provision. Regions should encourage States
and localities to enforce their own comparable authorities where applicable.
In accordance with the Agency policy on press releases, issuance of
administrative orders and filing of judicial actions under Section 9006
should be accompanied by a press release to keep the regulated community
aware of our activities.
For further information concerning this guidance, contact Elizabeth Cox
( OECM-Waste Division ) at FTS 382-3118 or Libby Clemens ( OWPE ) at FTS
475-9313.
Attachments (3)
cc: UST Coordinators, Regions I - X
OMITTED TEXT: 51 FR 20418-20420
ATTACHMENT 2
SAMPLE LETTER TO STATE / LOCAL GOVERNMENT AGENCIES
State UST Agency
State RCRA or Groundwater Agency
County UST Agency
Dear ______________,
As you are aware, the 1984 amendments to the Resource Conservation and
Recovery Act ( RCRA ) added a new Subtitle I for the regulation of
underground storage tanks ( UST ). Section 9003(g) of Subtitle I, 42 USC
Section ____, the Interim Prohibition, establishes a statutory tank
installation standard pending the promulgation of final new tank standards
by the U.S. Environmental Protection Agency under Section 9003(e). Section
9003(g) prohibits the installation of an underground storage tank, as
defined in Section 9001, unless such tank
(A) will prevent releases due to corrosion or structural failure
for the operational life of the tank;
(B) is cathodically protected against corrosion, constructed of
noncorrosive material, steel clad with a noncorrosive material, or
designed in a manner to prevent the release or threatened release of any
stored substance; and
(C) the material used in the construction or lining of the tank is
compatible with the substance to be stored.
Under Section 9003(g)(2), metal tanks may be installed without corrosion
protection,
if soil tests conducted in accordance with ASTM Standard G57-78, or
another approved by the Administrator, show that soil resistivity
in an installation location is 12,000 ohm/cm or more...,
but the remaining requirements regarding structural failure and
compatibility ( paragraphs (A) and (C) above ) still must be met. The
Agency has published an Interpretive Rule in the Federal Register setting
forth its legal interpretation of Section 9003(g) ( see Attachment ).
Our estimates are somewhat imprecise, but there are approximately one
million storage tanks subject to Subtitle I and approximately 40,000 new
installations of tanks subject to the Interim Prohibition each year. This
is an enormous regulated universe, and the success of the UST regulatory
program will depend, in large part, on State and local governments taking an
active role in program implementation.
The Interim Prohibition is a relatively simple requirement that the
regulated community must adhere to. RCRA authorizes EPA to enforce the
prohibition but does not provide for direct authorization to the States.
However identifying and inspecting even a small portion of new tank
installations is a task beyond EPA's limited resources. State and local
governments are in a much better position to become aware of new tank
installations through UST programs, fire code regulations, or through other
inspection programs. Therefore we are seeking your assistance to identify
new installations and/or potential violations, where EPA should become
involved.
There are several ways which your agency may become aware of new tank
installations: through notifications under an UST program or a building
permit requirement, or through field inspectors who may identify potential
violations of the interim prohibition in the course of their inspection
rounds. When you have appropriate inspection authorities, you may conduct
initial inspections and refer any potential violations to EPA for
enforcement action. Another approach could be to identify environmentally
sensitive areas that would benefit from a stronger monitoring presence, and
develop a cooperative approach with our office to expand inspections of new
tank installations in that area.
We encourage state and local governments with independent authorities to use
those authorities to compel adequate new tank installations. In addition,
where State and local inspectors find violations of the Interim prohibition,
you may bring citizen suits under RCRA Section 7002(a)(1)(A), 42 USC Section
6972(a)(1)(A).
I recognize the constraints on State resources as well as EPA's. However, I
hope that we could develop a cooperative system for making the best use of
information that may routinely be available in your office, and for
expanding the scope of EPA and State / local inspections of new
installations. This will build a visible Federal / State effort to enforce
the Interim Prohibition and provide incentives for compliance with all
phases of UST regulatory programs. It is also possible to use a portion of
the UST State program grant to provide support for the interim prohibition.
Please contact ______________ to discuss the Interim Prohibition and
potential EPA and State / local enforcement and inspection efforts. We also
will be pleased to provide technical information and assistance concerning
new tank installations.
Sincerely,
CERTIFIED MAIL September 18, 1985
RETURN RECEIPT REQUESTED
Mr. Wendell Roberson
Roberson Farms
FRD #3
Tifton, Georgia 31794
Dear Mr. Roberson
It has come to the attention of this agency that your facility may have
installed or may plan to install a bare metal underground storage tank.
This tank would allegedly contain a regulated substance defined by 40 CFR
280.1. If you have installed such a tank, it is a violation of 40 CFR
280.2.
Until national standards are adopted, no new underground storage tank
may be installed for the purpose of storing a regulated substance unless
such tank ( whether of single or double wall construction ):
a) will prevent releases due to corrosion or structural failure for
the operational life of the tank;
b) is cathodically protected against corrosion, constructed of
noncorrosive material, steel clad with a noncorrosive material, or designed
in a manner to prevent the release or threatened release of any stored
substance; and
(c) the material used in the construction or lining of the tank is
compatible with the substance to be stored.
Any owner who installs a tank which does not meet the above standards is
in violation of the standards and is subject to an administrative order
requiring compliance and a civil penalty not to exceed $10,000 for each tank
for each day of violation.
This letter is to advise you of your responsibility to comply with the
requirements concerning tank installation and to solicit the required
information on the design and use of the tank. Pursuant to Section 9005 of
the Resource Conservation and Recovery Act ( RCRA ) Subpart I, you are
hereby required to submit whatever documents or information you may possess
pertaining to your actual or proposed tank installation and its contents
within fifteen (15) days of your receipt by certified mail of this letter.
Failure to submit the required information within the specified time will
subject your facility to administrative or judicial enforcement action.
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Please submit the requested information to:
Mr. James H. Scarbrough, Chief
Residuals Management Branch
U. S. Environmental Protection Agency
345 Courtland Street
Atlanta, Georgia 30365
Enclosed with this letter is a copy of the applicable regulations to aid
your understanding of the basis for this action. If you should desire an
informal conference to discuss the requested information, please contact Mr.
Allan Antley at 404/881-4552.
Sincerely yours,
J. Winston Porter
/s/ _________________
J. WINSTON PORTER
Assistant Administrator of Solid
Waste and Emergency Response
OMITTED TEXT: Attachment 4 - RCRA
OMITTED TEXT: Attachment 5 - 50 FR 28755
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