07/28/81

Use of RCRA 3008(g) Independently of 3008(a)

                              JUL 23 1981


SUBJECT:  Use of RCRA Section 3008(g) Independently of Section 3008(a)


FROM:     Douglas MacMillan, Director
          Office of Waste Programs Enforcement


TO:       Enforcement Division Directors
          Regions I-X


     In discussions with Regional enforcement personnel the question has
frequently arisen of whether the civil penalty authorized by Section
3008(g) of RCRA may be sought for a violation of the requirements of
Subtitle C in cases in which no administrative order authorized by
Section 3008(a) has been issued.  We interpret the Act as clearly
authorizing the imposition of civil penalties, regardless of whether an
administrative order has been issued or violated, when otherwise
appropriate.  The Office of General Counsel concurs in this
interpretation.  This memorandum sets forth the basis for this
conclusion.
     Both the language and structure of Section 3008 indicate that
subsection (g) was intended to operate independently of subsection (a).
First, the fact that civil penalties and administrative orders are
provided for in separate subsections indicates that they are to be
treated as separate means of enforcing Subtitle C.  ( See 2A SUTHERLAND,
STATUTES AND STATUTORY INTERPRETATION Section 47.02 (4th ed. 1964) "if
the meaning of any particular phrase or section standing alone is clear
no other section or part of the act may be applied to create doubt." )
Subsection (g) makes no mention of administrative orders.  In addition,
subsection (a)(3) provides for a penalty specifically applicable to
failure to comply with an administrative order.  Were issuance and
non-compliance with an administrative order a prerequisite for the
imposition of a civil penalty subsection (g) would be superfluous.  In
general, a statute, "...should be construed so that effect is given to
all its provisions." ( Sutherland Section 46.06 ).
     Furthermore, the legislative history of Section 3008(g) leaves
little doubt that civil penalties may be imposed for violations of
Subtitle Subsection (g) was added by the 1980 Amendments.  The language
adopted with regard to civil penalties was contained in Senate Bill
1156.  (H. Rep. No. 96-1444, 96th Cong., 1st Sess. 36(1980).


                                 - 2 -


According to the Report of the Committee on Environment and Public Works
the relevant section of S.1156:

        ...amends the enforcement provisions of subtitle C to bring them
     into line with those in the Clean Air and Clean Water Acts.  First,
     it provides a civil penalty of up to $25,000 per day for dumping of
     hazardous wastes regardless of whether the dumping party has been
     served with an order to stop dumping.
          Under existing law, only persons actually ordered to halt
     dumping are liable for a civil penalty.  S.Rep. No. 96-172, 96th
     Cong., 1st Sess. 3-4 (2979).

     Although the Report speaks only in terms of dumping, given the
broad language of Section 3008(g), the reference clearly is intended to
provide an illustration of how the penalty provision would operate in
the context of a violation of a particular requirement of Subtitle C.
The civil penalty provisions of the Clean Air and Clean Water Acts,
after which Section 3008(g) is explicitly modelled, both provide for the
imposition of civil penalties for the violation of regulatory
requirements promulgated pursuant to those Acts, regardless of whether
an administrative order has been issued.  ( See Section 113(b) CAA and
Section 309(d) CWA ).
     In conclusion, it is the policy of the Office of Waste Programs
Enforcement that, Section 3008(g) provides discretionary authority for
the imposition of civil penalties regardless of whether an
administrative order has been issued pursuant to Section 3008(a) and
that such penalties should be sought for violations of Subtitle C of
RCRA when otherwise deemed appropriate.  If you have any questions or
problems relating to the relationship of civil penalties to
administrative orders please contact Doug Farnsworth at FTS 382-3058.