February 15, 2021

Penalty Policy Amended for GIR Violations

In May 2020, EPA’s Office of Enforcement and Compliance Assurance released a memo amending the agency’s 2003 RCRA civil penalty policy. The amendments add a new section that reflects the legal consequences and enforcement response to noncompliance with hazardous waste accumulation requirements at generator facilities. Although it has been EPA’s long-standing position that noncompliance with certain generator regulations results in the loss of the exemption from the need to have a RCRA storage permit, this position was emphasized in the agency’s 2016 generator improvements rule (GIR). In that rule, the generator regulations in Part 262 were reorganized and revised to clarify those requirements with which a generator must comply (called conditions for exemption) to be exempt from RCRA permitting and associated storage facility requirements. The amendments to the 2003 policy provide guidance to regulators assessing penalties for violations of these regulations.

The following language has been added to the policy:

“A generator must meet these conditions [for exemption] in order to be exempted from the storage facility permitting and operating requirements.... As the 2016 generator improvements rule clearly states, and given the optional nature of the conditional exemption, noncompliance with any condition for exemption from the storage facility permit and operating requirements cannot be cited and penalized as a violation of Part 262.... Rather, noncompliance with one or more conditions for the exemption means that the generator’s storage is not exempt from, and can potentially result in violations of, applicable storage facility permitting and operating requirements in 40 CFR Parts 124, 264 through 267, and 270....”

Although the above language seems onerous, the policy amendments provide discretion when determining the violation. For example:

Regulators can allege a violation of a Part 264 or 265 requirement where a condition for exemption (found in Part 262) has a corresponding provision in Part 264 or 265. For example, if a large quantity generator failed to meet a condition for exemption found at §262.17(a)(7) regarding personnel training, the case team could allege a violation of the corresponding personnel training requirement found in §264.16 or 265.16.
Regulators can allege a violation of a Part 264 or 265 requirement that does not have a corresponding condition for exemption in Part 262, but the violation of which merits a penalty given the circumstances of the case.
Regulators can allege a “storage without a permit” violation of the Part 270 storage permit requirements. A decision to claim such violation does not necessarily mean that settlement of the case requires the generator to obtain a storage permit. Instead, the facility may be allowed to operate in compliance with the conditions for exemption rather than be required to apply for a permit.

Calculating penalties

When calculating any penalty, a violation’s seriousness is measured via the potential for harm it poses and its extent of deviation from applicable regulations. If a generator fails to comply with a condition for exemption and, therefore, violates a Part 264 or 265 storage facility operating requirement, the potential for harm is based solely on the violation of that provision and is not based on the harm of not having a RCRA permit. The extent of deviation is a measure solely of the generator’s deviation from the Part 264 or 265 requirement alleged to have been violated. In calculating penalties for violations of storage facility operating requirements, consideration of whether the generator met a few or most of the conditions for exemption is neither relevant nor appropriate.

In contrast, when calculating penalties for violations of Part 270, regulators should consider how many of the conditions for exemption the generator met and the circumstances related to the generator’s noncompliance with the underlying requirement. If the generator has met most of the conditions for exemption, the penalty evaluation should reflect a lower potential for harm. Similarly, where the generator has met many of the conditions for exemption, the extent of deviation could be considered low.

In instances where regulators assess penalties for violations of both Part 264 or 265 and Part 270, they should not include the same considerations and facts in the determination of the seriousness of the Part 270 permit violation as those used to support the alleged Part 264 or 265 operating violations. Each calculation should be independently supported to avoid duplicative penalties.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.