Types of and Approaches to RCRA Corrective Action Enforcement Actions
There are several types of actions and approaches that can be taken to address violations of Resource Conservation and Recovery Act (RCRA) corrective action requirements at a facility. The type of action and approach taken depends on the nature of the violation and site-specific circumstances.
On this page:
In this section:
- Administrative Actions
- Regulations Governing Administrative Actions
- Civil Judicial Actions
- Criminal Actions
- Citizen Suits
RCRA gives the EPA the authority to issue an administrative order to an owner and/or operator of a facility. An administrative order on consent is an agreement between the EPA and the owner and/or operator of a facility for achieving compliance.
- Administrative orders can be issued unilaterally (issue an order) or on consent (reach an agreement)
- Unilateral administrative orders demand compliance with permit requirements and RCRA regulations.
EPA has authority to issue administrative orders under RCRA sections 3008(a) and (h), 3013, and 7003. If appropriate, the EPA may issue an order under enforcement authorities found in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as "Superfund").
If a facility fails to comply with an administrative order, the EPA may seek to enforce the order in federal district court. The Agency may also seek a penalty for non-compliance with the administrative order. Under RCRA section 3013, the EPA has authority under certain circumstances to perform the work required by the order and then seek reimbursement from the facility for the money spent to perform the work.
EPA has promulgated regulations outlining the procedures that govern administrative actions.
40 C.F.R. Part 22, the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits (PDF) (26 pp, 275 K, About PDF) governs the issuance of a compliance order, a corrective action order, the termination of a permit pursuant to Section 3008(a)(3) of RCRA, the suspension or revocation of authority to operate pursuant to Section 3005(e), or any penalty order under RCRA § 3008.
40 C.F.R. Part 24, Rules Governing Issuance of and Administrative Hearings on Interim Status Corrective Action Orders (PDF) (9 pp, 223 K, About PDF), governs issuance of and administrative hearings on interim status corrective action orders, i.e., orders issued under Section 3008(h) of RCRA. However, the hearing procedures appearing at 40 C.F.R. Part 22 govern administrative hearings on any order issued pursuant to RCRA § 3008(h) which: is contained within an administrative order that includes claims under RCRA § 3008(a); includes a suspension or revocation of authorization to operate under RCRA § 3005(e); or seeks penalties under RCRA § 3008(h)(2) for non-compliance with a RCRA § 3008(h) order.
Civil judicial actions are formal law suits filed in federal district court. The EPA or a state agency may also take a civil judicial action against a person or company that has:
- Not complied with the statutory or regulatory requirements of RCRA (this includes failing to comply with a RCRA permit);
- Caused a release or threat of release of hazardous wastes or hazardous constituents;
- Not complied with an administrative order; or
- Caused an imminent and substantial endangerment to health or the environment.
Civil judicial actions are often used in cases of repeated violations, those of significant nature, or when serious environmental damage is involved. In these actions, the U.S. Department of Justice (DOJ) prosecutes the cases for the EPA. For state cases, the state attorney generals, are usually the prosecutors.
RCRA § 3008(d) authorizes the EPA or state agencies to use criminal judicial actions to enforce against people who knowingly violate RCRA, including RCRA’s corrective action requirements. Information on criminal enforcement is available on the EPA's criminal enforcement program website.
RCRA § 7002 authorizes citizens to bring enforcement actions against potential or actual violators of RCRA, including those who violate RCRA’s corrective action requirements, and against the EPA in federal district court. Citizens are generally required to provide notice to the EPA, to the state in which the violation occurred, and to the alleged violator.
The EPA considers the following elements listed below when using enforcement to achieve facility cleanups under the RCRA.
In this section:
- Meaningful Public Participation
- Environmental Justice factors
- Coordinating cleanup programs
- Expediting cleanup
- Brownfields redevelopment
EPA’s public involvement policy aims to provide citizens with both access to information and opportunities to participate in the RCRA permitting and cleanup process. The public is encouraged to become involved early and often in the RCRA permitting process and cleanup programs. While there are formal public participation activities required under RCRA regulations, the EPA also supports communities in their efforts to carry out informal means of public participation from community members; representatives of consumer, environmental, faith, and minority associations; trade, industrial, agricultural, and labor organizations; public health, scientific, and professional societies; civic associations; public officials; and governmental and educational associations. More information is available from the RCRA Public Participation Manual.
Environmental Justice (EJ) is a high priority for the Agency. The EPA gathers information about specific areas to identify EJ concerns and issues at RCRA corrective action facilities. Based on this information, the EPA works to address the needs of vulnerable populations by decreasing environmental burdens, increasing environmental benefits, and working collaboratively to cleanup contaminated sites and build healthy, sustainable communities. EPA's EJ website contains additional information.Information is also available from the Agency’s “Revitalization Handbook: Addressing Liability Concerns at Contaminated Properties” (2020 edition).
When cleaning up a site involves both RCRA and Superfund authorities, the EPA coordinates the two cleanup programs to eliminate duplication of effort and streamline cleanup processes. The EPA encourages close coordination among RCRA, Superfund, and state/tribal cleanup programs. Where appropriate, the EPA uses Superfund tools to support RCRA corrective action and increase the speed of cleanups. Additional information is available from the Agency’s “Coordination Between RCRA Corrective Action and Closure and CERCLA Site Activities.”
The EPA's enforcement approach to expediting cleanup work depends on facility-specific circumstances, including the size and urgency of the threats, and the cooperation of the involved parties. More information is available from the Agency’s “Enforcement Approaches for Expediting RCRA Corrective Action.”
In some circumstances, the EPA can provide a notice of liability letter (“comfort letter” or “status letter”) to purchasers or developers of property that may have RCRA cleanup liability potential. Such letters are provided solely for informational purposes and relate only to the Agency’s RCRA corrective action enforcement intentions at a property based on known information. The February 15, 2001, “Comfort/Status Letters for RCRA Brownfields Properties” includes sample RCRA notice and status letters.
The Prospective Purchaser Agreement (PPA) is an agreement not to file a lawsuit against a purchaser of property that was contaminated prior to the purchase. Initially, PPAs were done only at sites where Superfund was the legal authority if cleanup was necessary, but the EPA will consider site-specific circumstances to determine if a PPA is appropriate for use at a particular RCRA site. To date, the EPA has entered into only a few RCRA PPAs. The Agency’s April 8, 2003, “Memorandum on Prospective Purchaser Agreements and Other Tools to Facilitate Cleanup and Reuse of RCRA Sites” provides factors that should be used to evaluate a request for a RCRA PPA.
Learn More: Enforcing RCRA Corrective Action Permits