RCRA specifically allows EPA to bring an enforcement action in an authorized State for violations of the State's hazardous waste regulations. In re CID-Chemical Waste Management of Illinois, Inc., RCRA (3008) Appeal No. 87-11 (CJO, Aug. 18, 1988) (hereafter Chemical Waste). Section 3008(a)(1) of RCRA provides that EPA may issue a compliance order or assess a civil penalty against anyone who "has violated or is in violation of any requirement of this subchapter." (Emphasis added.) Any doubt as to whether this authority extends to violations occurring in authorized States is removed by section 3008(a)(2), which requires EPA to give notice to the authorized State whenever EPA brings an enforcement action in the State under section 3008.4 Significantly, whenever EPA brings an enforcement action in an authorized State, EPA is enforcing State law because the authorized state program is a "requirement" of RCRA.5 See United States v. T & S Brass and Bronze Works, Inc., 681 F. Supp. 314 (D.S.C. Jan. 27, 1988). If, on the other hand, the State does not have an authorized program, the State regulations are not "requirements" of RCRA and EPA has no authority to enforce those regulations, even if they are identical to the federal regulations. EPA's authority in an unauthorized State is necessarily restricted to enforcing the federal hazardous waste regulations. In this case, the State of Ohio received its interim authorization under RCRA § 3006(c) on July 15, 1983, thus enabling EPA to enforce the requirements of Ohio's hazardous waste program commencing on that date. See 48 Fed. Reg. 32,345 (July 15, 1983). The interim authorization lapsed, however, on January 31, 1986, 51 Fed. Reg. 4,128 (Jan. 31, 1986), and the State did not receive reauthorization 4 Section 3008(a)(2) provides as follows: In the case of a violation of any requirement of this subchapter where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 6926 [RCRA §3006] of this title, the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section. 5 As explained in Chemical Waste, The obvious and natural reading of the phrase "any requirement Id., unpub. op. at 4 (footnote omitted); see also In re Commonwealth Oil Refining until June 28, 1989. See 54 Fed. Reg. 27,173 (June 28, 1989). These dates are highly important to the instant proceeding, because most of the violations alleged in Region V's complaint appear to have occurred during the period when Ohio was an authorized State, yet the complaint clearly charged Hardin County with violations of the federal mixture rule (even though there was a state mixture rule in effect during the same period). During the period of Ohio's interim authorization, when most of the violations allegedly occurred, the only hazardous waste regulations applicable to Hardin County were Ohio's, which were operating in lieu of the federal regulations. Region V filed the complaint after Ohio's interim authorization had expired, alleging that violations occurred between 1983 and 1987. The Region claims that because the complaint was filed when Ohio was not authorized, the complaint need only cite violations of the federal regulations (including the federal mixture rule) and not the state regulations. Tr. at 6-7 (Sept. 30, 1992). This reasoning is faulty and internally inconsistent. The filing date of the complaint has nothing to do with which regulations (State or federal) are applicable to the conduct at issue. Regardless of the filing date, the complaint can only charge Hardin County with violations of laws that apply when the alleged misconduct takes place; it cannot charge Hardin County with violations of regulations that did not apply to the conduct at issue. Thus, to be in accord with RCRA §3006 for violations that allegedly took place when Ohio's interim authorization was in effect, the complaint would have to charge Hardin County with violations of Ohio's regulations. Conversely, violations occurring after the authorization had lapsed would have to be based on federal regulations. In this instance, by improperly focussing on the filing date, the Region failed to make these necessary distinctions even though the violations alleged in the complaint span a period of time (1983 to 1987) when Ohio had at once acquired authorization and then lost it. In our opinion, the fact that some violations may have occurred after January 31, 1986 (the date Ohio lost its authorization) does not negate the fact that for conduct occurring before that date Hardin County is only potentially liable for violations of state regulations, and that the Region, therefore, should have cited the appropriate state regulations for any alleged misconduct occurring during the pre-January 31, 1986 period. This principle is important not only in its own right, but it is also critical to the scope of matters appropriate for the Board to consider on appeal. Shell Oil, which served as the presiding officer's basis for dismissing the complaint against Hardin County, and which is at the core of this proceeding on appeal, is obviously not determinative if the federal mixture rule is not implicated in this case. First, because most of the alleged misconduct occurred prior to January 31, 1986, during Ohio's interim authorization, the federal mixture rule did not apply to that conduct, having been supplanted by the authorized state program.6 Therefore, for this reason alone, dismissal of the entire complaint on the basis of the alleged invalidity of the federal rule was ill-founded. Second, although the Region may properly allege a violation of the federal mixture rule for events occurring after that date, the post-January 31, 1986 violations in the complaint were apparently dismissed by the presiding officer on unrelated grounds.7 The latter ruling calls into question whether Shell Oil would have any bearing on this aspect of the complaint. These two considerations make clear that the complaint should not have been dismissed in reliance on Shell Oil without further analysis. Nevertheless, as noted earlier, because the record is silent as to the facts necessary to determine all of these matters conclusively, a remand for further proceedings is warranted. Although the complaint and the record provide the date of the Occidental Chemical Corporation spills that created the hazardous waste sludges, they are silent as to when Hardin County accepted these wastes. These dates are important for the reasons previously indicated. Therefore, the date(s) of the alleged violations must be established before determining whether the federal or the Ohio mixture rule governs Hardin County's actions, and therefore before reaching any decision on the applicability of Shell Oil to the complaint. The presiding officer's dismissal of the complaint without this information solely on the basis of Shell Oil was erroneous. We hereby vacate the order dismissing the complaint, and remand this case to the presiding officer to reopen the record for the purpose of determining the specific dates of the alleged violations. When these dates are established, the presiding officer must then determine whether 6The mixture rule invalidated by Shell Oil was a federal regulation not a state regulation, and the basis for the invalidation was procedural not substantive. Therefore, the validity of state mixture rules is not at issue by reason of the Court's ruling, since they would have been promulgated under procedures different from those used for the federal mixture rule. Questions as to the federal enforceability of state mixture rules are not addressed in this remand order. "It appears that these violations were dismissed because they were based on spills of formaldehyde that the presiding officer determined were encompassed within the de minimis exception to the hazardous waste definition. The merits of that ruling are not before the Board, and therefore we express no opinion on the correctness of the ruling. the federal or Ohio regulations govern each alleged violation. If the Ohio regulations are controlling, in whole or in part, the presiding officer may proceed with this case as if no dismissal order had been entered, because there has already been a full hearing on the merits, and Hardin County conceded at oral argument that its defense would have been no different under the Ohio regulations.8 We recognize that some of the alleged violations may ultimately be shown to be governed by the federal mixture rule. In that event, the Shell Oil issue will eventually need to be resolved. Nevertheless, the case as presently formulated does not squarely present the issue on the record, and therefore a decision on the issue will have to be postponed until such a case is presented to the Board. So ordered. 8 There is no need to retry factual issues previously decided. The Ohio mixture rule is identical to the federal mixture rule, see Ohio Administrative Code §374551-03(A)(2)(f), and the Region relied extensively in the presentation of its case on Ohio EPA's determination that the wastes are hazardous. See Complainant United States Environmental Protection Agency's Proposed Conclusions of Law, dated July 19, 1991. Accordingly, the Region's failure to cite the Ohio regulations in the complaint is harmless error in so far as the evidentiary phase of the proceeding is concerned. Hardin County has conceded that its evidentiary defense would be no different under the Ohio rule. Tr. at 30 (Sept. 30, 1992). IN THE MATTER OF HAWAIIAN INDEPENDENT RCRA (3008) Appeal No. 92-2 ORDER ON INTERLOCUTORY APPEAL Decided November 6, 1992 Syllabus Region IX filed an administrative complaint against Respondent Hawaiian Independent Refinery, Inc. under Section 3008(a) of the Resource Conservation and Recovery Act, 42 U.S.C. §6938(a). The penalty proposed in the complaint is based on penalty calculations performed by a former EPA employee. Respondent wants to crossexamine the employee about the Agency's penalty calculations, and has requested in discovery the former employee's last known address so that it may subpoena the former employee to testify at the hearing. The Agency has refused to disclose the address from its records, arguing inter alia that such disclosure would violate the Privacy Protection Act, 5 U.S.C. §552a. Administrative Law Judge Frank W. Vanderheyden ("the Presiding Officer") rejected this argument, concluding that disclosure of the former employee's address would fall within an exception to the Privacy Act. The exception covers disclosures that would be required under the Freedom of Information Act. The Presiding Officer, therefore, issued an order directing the Agency to comply with Respondent's discovery request. The Region then filed a motion asking the Presiding Officer to certify his ruling on the issue for interlocutory appeal under 40 CFR § 22.28, and the Presiding Officer did so. Held: Disclosure of a former EPA employee's last known address would not, under the circumstances of this case, violate the Privacy Act, provided EPA received a FOIA request for the address. The Privacy Act exception for disclosures that would be required under the Freedom of Information Act only applies to a particular disclosure if the Agency has received an actual FOIA request for the desired information. In this case, there is nothing in the record to suggest that the Agency has received a FOIA request for the former employee's address. Accordingly, the Presiding Officer's order, to the extent it requires disclosure of the address, is vacated. Before Environmental Appeals Judges Nancy B. Firestone, Ronald L. McCallum, and Edward E. Reich. Opinion of the Board by Judge Firestone: On May 24, 1991, EPA Region IX filed an administrative complaint against Respondent Hawaiian Independent Refinery, Inc. |