Federal Facility Compliance Act
Before the passage of the Federal Facility Compliance Act (FFCAct), the federal government maintained that it was not subject to administrative and civil fines and penalties under solid and hazardous waste law because of the doctrine of "sovereign immunity." The State of Ohio challenged the federal government's claim of sovereign immunity in Ohio v. the Department of Energy (DOE). In this case, the U.S. Circuit Court of Appeals found in favor of the State (June 11, 1990) stating that the federal government's sovereign immunity is waived under both the Clean Water Act's (CWA's) sovereign immunity provision and the Resource Conservation and Recovery Act's (RCRA's) citizen suit provision (although not RCRA's sovereign immunity provision). The Circuit Court's decision was overturned by the Supreme Court on April 21, 1992, in DOE v. Ohio. The Supreme Court held that the waiver of sovereign immunity in RCRA and CWA is not clear enough to allow states to impose civil penalties directly, although penalties could be pursued in certain situations (i.e., where some type of court order had been issued and subsequently violated).
After the high court's ruling, many in Congress believed that there was a need to enact legislation that would bring federal facilities into the same legal framework as the private sector. The consensus among lawmakers was that there was a double standard in the United States by which the same government that developed laws to protect human health and the environment, and required compliance in the private sector, was itself not assuming the burden of compliance.
Enactment of the Federal Facility Compliance Act
As a result, Congress enacted the FFCAct (October 6, 1992, Pub. L. 102-386), which effectively overturned the Supreme Court's ruling. In the legislation Congress specifically waived sovereign immunity with respect to RCRA for federal facilities.
Under section 102, The FFCAct amends section 6001 of RCRA to specify that federal facilities are subject to "all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature." These penalties and fines can be levied by EPA or by authorized states. In addition, the FFCAct states that "the United States hereby expressly waives any immunity otherwise applicable to the United States." It should be noted that federal agents, employees, and officers are not liable for civil penalties, however, they are subject to criminal sanctions. No departments, agencies, or instrumentalities are subject to criminal sanctions.
Section 104 (1) and (2) require EPA to conduct annual RCRA inspections of all federal facilities. As part of the first inspection conducted under this authority, EPA is required to "conduct a comprehensive ground water monitoring evaluation," unless such an evaluation was conducted in the preceding 12 months. Authorized states are also given authority to conduct inspection of federal facilities for the purpose of enforcing compliance with the state hazardous waste program [section 104(3)].
Under section 104(4), the federal agency is required to reimburse EPA for reasonable service charges associated with conducting the inspections of its facilities. States are allowed to recover the costs of inspections under the authority granted in section 102(3). In the case of corrective action DOE can expect more frequent progress inspections by the regulator and that all eligible expenses incurred will have to be reimbursed. It should be noted that on an annual basis, EPA negotiates Interagency Agreements (IAGs) with other federal agencies, including DOE, for reimbursement for these costs. Once the IAGs are executed and processed, only a few basic steps must be followed to use and track these funds appropriately (EPA brochure, Reimbursement Agreements for RCRA/FFCA Inspections at Federal Facilities, April 1996)
The FFCAct was effective upon enactment on October 6, 1992, with the exception that "departments, agencies, and instrumentalities of the executive branch of the Federal Government" would not be subject to the sovereign immunity waiver until three years after enactment for violations of RCRA section 3004(j) "involving storage of mixed waste that is not subject to an existing agreement, permit, or administrative or judicial order, so long as such waste is managed in compliance with all other applicable requirements." Section 3004(j) forbids the storage of hazardous waste prohibited from land disposal unless the storage is for the purpose of accumulating such quantities as necessary to facilitate proper recovery, treatment, or disposal. After October 6, 1995, the waiver of sovereign immunity shall still not apply to DOE so long as the Department "is in compliance with both (i) a plan that has been submitted and approved pursuant to section 3021(b) of the Solid Waste Disposal Act and which is in effect and (ii) an order requiring compliance with such plan which has been issued pursuant to such section 3021(b) and which is in effect." The plan required under section 3021(b) is for the development of treatment capacities and technologies to treat all of the mixed wastes at each DOE facility.
Many DOE facilities are now subject to federal facility compliance agreements and other binding administrative clean-up orders. The FFCAct will allow regulators to impose fines or penalties on federal entities that fail to meet milestones or deadlines contained in such agreements or orders. Penalties specified in the agreements will now be enforceable and may result in substantial financial penalties to noncompliant facilities.
Section 105 of the FFCAct further amends RCRA by adding the new section 3021 mentioned above. This section, "Mixed Waste Inventory Reports and Plan[s]," provides the mechanism for fulfilling the requirements cited above by imposing several new reporting requirements on DOE related to mixed waste.
First, not later than 180 days after the date of enactment, the Secretary of Energy had to submit (1) reports containing a national inventory of mixed wastes on a state-by-state basis and (2) a national inventory of mixed waste treatment capacities and technologies to the EPA Administrator and the governors of states in which DOE stored or generated mixed wastes. The mixed waste inventory was to, among other things, describe each mixed waste type, list the amount currently stored, and estimate the amount of each type of mixed waste expected to be generated in the next five years at each DOE facility. Wastes that had not been characterized by sampling and analysis also had to be described. The inventory of treatment capacities and technologies was to contain an estimate of available treatment capacity for each waste described in the waste inventory, and provide information to support determinations that no treatment technology exists. DOE submitted its initial draft Mixed Waste Inventory Report to EPA and affected states for comment in April 1993. DOE published a notice of its availability on April 23, 1993 (58 FR 25822).
Second, the Secretary was directed to prepare and submit plans for developing treatment capacities and technologies for all facilities generating or storing mixed waste that are not subject to any permit, agreement, or order. Such plans were to include schedules for developing treatment capacity where treatment technologies exist and schedules for identifying and developing treatment technologies where none is currently available. These plans were to be reviewed and approved either by EPA or the states, depending on whether the state is authorized to regulate mixed waste. Upon approval of the submitted plans, EPA or the states were to issue orders requiring compliance with the plans. Plans were not required where agreements and orders were already in place.
According to a DOE Chief Financial Officer's Report - FY 1996:
Currently, 32 of 35 Site Treatment Plans are approved and final orders are in place. Twenty-eight of these 35 Site Treatment plans were approved by October 6, 1995 [the deadline set in section 102(c) of the FFCAct], or shortly thereafter. For the remaining seven sites, the states and the DOE mutually agreed to continue negotiations during FY 1996. Four of these seven sites obtained approval and their final orders were in place in FY 1996. These final orders include consent orders and unilateral orders issued under state law and EPA compliance orders issued under the RCRA enforcement provisions. At the remaining three sites, the Argonne National Laboratory-East, the Brookhaven National Laboratory, and the Lawrence Livermore National Laboratory, the Site Treatment Plans are currently in various stages in the approval process (i.e., the states and the DOE are still negotiating or the state is completing state requirements for approval of the Site Treatment Plan).
Federally Owned Treatment Works
Section 108 of the FFCAct added a new section 3023, "Federally Owned Treatment Works," to Subtitle C of RCRA. This new section provides that if certain conditions are met, Federally Owned Treatment Works (FOTWs) are essentially exempted from RCRA regulation based on the domestic sewage exclusion to the definition of solid waste. For solid or dissolved materials entering an FOTW to be exempt from the solid waste definition, they must meet at least one of the following criteria:
- Materials must be subject to a pretreatment standard under section 307 of the CWA (provided the source is in compliance with established pretreatment standards).
- Materials not currently covered by a pretreatment standard must be subject to (and in compliance with) an EPA-promulgated pretreatment standard that would be applicable before October 6, 1999 (provided EPA has promulgated a schedule for establishing such a standard).
- Materials not covered under either of the above criteria must be treated in accordance with the applicable RCRA Land Disposal Restriction (LDR) treatment standards.
- The generator source is a household or a conditionally exempt small quantity generator generating less than 100 kilograms of hazardous waste, or less than one kilogram of acutely hazardous waste per month.
The purpose of this new section was to ensure similar treatment for both municipal Publically Owned Treatment Works (POTWs) and FOTWs.
On March 18, 1996 (61 FR 11089 ), EPA issued a technical revision to 40 CFR 22.37 to amend the administrative rules of practice to provide a federal department, agency, or instrumentality which is the subject of an administrative enforcement order, with the opportunity to confer with the EPA Administrator, as provided under the FFCAct.