   EPA Assessment of Penalties Against Federal Agencies for
  Violation of the Underground Storage Tank Requirements of
          the Resource Conservation and Recovery Act

The R eso u rce C onservation and Recovery A ct authorizes the E nvironm ental Protection A gency to
   assess pen alties against federal agencies fo r violations o f R C R A ’s underground storage tank provi­
   sions. E P A ’s underground storage tank fie ld citation procedures do not violate RCRA or the Con­
   stitution.

                                                                                                   June 14, 2000

                        M   em orandum       O p in io n   fo r t h e    G en era l C o u n sel
                                          De p a r t m e n t     of   D efen se
                                                           and

                                           the    G   eneral      C ou n sel
                                 E n v ir o n m e n t a l P r o t e c t i o n A g e n c y


  The Department of Defense (“ D O D ” ) has asked for our opinion resolving a
dispute between it and the Environmental Protection Agency (“ EPA” ) concerning
whether the Resource Conservation and Recovery Act of 1976, Pub. L. No. 94—
580, §2, 90 Stat. 2795 ( “ RCRA” ) (codified as amended at 42 U.S.C. §§6901-
6992k (2000)), authorizes EPA to assess penalties against federal agencies for
violations of RCRA’s underground storage tank (“ UST” ) provisions, 42 U.S.C.
§§ 6991-6991i. DOD has also asked whether EPA’s procedures for field citation
of UST violations comply with statutory and constitutional requirements.1 We con­
clude that RCRA clearly grants EPA the authority to assess penalties against fed­
eral agencies for UST violations and that EPA’s UST field citation procedures
do not violate RCRA or the Constitution.

                                                            I.

                                                           A.

  A straightforward reading of RCRA’s statutory text and the relevant legislative
history leads us to conclude that it was clearly Congress’s intent to authorize EPA

    1 See M emorandum for Randolph D. Moss, Acting Assistant Attorney General, Office of Legal Counsel, from
Judith A M iller, General Counsel, DOD, Re: Constitutional and Statutory Validity o f Administrative Assessment
o f Fines A gainst Federal Facilities Under Sections 6001, 9001, 9006, and 9007 o f the Solid Waste Disposal Act
fo r A lleged Violations Relating to Underground Storage Tanks (Apr. 16, 1999) (“ DOD M emorandum” ); Memo­
 randum for Randolph Moss from Judith Miller, Re. Constitutional and Statutory Validity o f Administrative Assessment
o f Fines A gainst Federal Facilities Under Sections 6001, 9001, 9006, and 9007 o f the Solid Waste Disposal Act
fo r A lleged Violations Relating to Underground Storage Tanks— ADDITIONAL INFORMATION (June 1, 1999);
 M emorandum for Randolph Moss from Gary S. Guzy, Acting General Counsel, EPA, Re: Constitutional and Statutory
 Validity o f Adm inistrative Assessm ent of Penalties Against Federal Facilities under Subtitle I o f the Resource Con­
servation and Recovery A ct (RCRA) (July 14, 1999) ( “ EPA M emorandum” ).


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          EPA Assessment o f Penalties Against Federal Agencies fo r Violation o f RCRA


to assess penalties against federal agencies for violation of the UST requirements.
Section 9006(a)(1) of Subtitle I of RCRA, the subtitle regulating underground
storage tanks, states that whenever “ any person is in violation of any requirement
of [Subtitle I],” EPA may issue an administrative order requiring compliance.
42 U.S.C. § 6991e(a)(l). Section 9006(c) of Subtitle I provides that the order
“ s h a ll. . . assess a penalty, if any, which the Administrator determines is reason­
able taking into account the seriousness of the violation and any good faith efforts
to comply with the applicable requirements.” 42 U.S.C. §6991e(c).
   Section 9006 of Subtitle I thus authorizes EPA to assess penalties against per­
sons who violate UST requirements. Section 9001, the Subtitle I definitions sec­
tion, provides that “ [t]he term ‘person’ . . . includes . . . the United States
Government,” 42 U.S.C. §6991(6), thus strongly supporting the view that section
9006 applies to the United States. We do not need to decide, however, whether
sections 9001 and 9006 of Subtitle I, standing alone, provide a sufficiently clear
statement of congressional intent with respect to assessments against federal agen­
cies, because that intent is made abundantly clear by section 6001(b) of RCRA,
which applies to all subtitles of RCRA and which expressly addresses EPA
administrative enforcement actions against federal facilities. Section 6001(b) pro­
vides that

       [t]he [EPA] Administrator may commence an administrative
       enforcement action against any department, agency, or instrumen­
       tality of the executive, legislative, or judicial branch of the Federal
       Government pursuant to the enforcement authorities contained in
       this [title]. The Administrator shall initiate an administrative
       enforcement action against such a department, agency, or
       instrumentality in the same manner and under the same cir­
       cumstances as an action would be initiated against another person.

42 U.S.C. § 6961(b)(1). In our view, in light of section 9006’s authorization of
EPA to enforce the UST requirements by assessing penalties, section 6001(b)’s
authorization of EPA to bring enforcement actions against federal agencies
“ pursuant to the enforcement authorities contained in this [title] . . . in the same
manner and under the same circumstances as an action would be initiated against
another person” is unmistakably clear in authorizing assessment of those penalties
against federal agencies.
   This conclusion is confirmed by the legislative history of section 6001(b). That
provision was added to RCRA by the Federal Facility Compliance Act of 1992
( “ FFCA” ), which was enacted to “ clarify provisions concerning the application
of certain requirements and sanctions to Federal facilities.” Preamble to the
FFCA, Pub. L. No. 102-386, 106 Stat. 1505, 1506 (1992). The Senate Report
accompanying the FFCA stated that

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          [t]he clarification of this authority is necessary because, in the past,
          other Federal agencies, including the DOJ, have disputed EPA’s
          authority to issue administrative orders against other Federal agen­
          cies. The Reagan Administration sought to invoke the “ unitary
          executive” theory to prevent the EPA from issuing administrative
          orders against other Federal agencies. . . .


             Accordingly, the language contained in the [FFCA] with respect
          to administrative orders clarifies existing law, so as to provide the
          EPA with clear administrative enforcement authority sufficient to
          ensure Federal facility compliance.

S. Rep. No. 102-67, at 5 -6 (1991). The House Report contains a similar rationale
for the clarification.2
   Moreover, the legislative history of the FFCA clearly demonstrates that Con­
gress intended to authorize EPA to assess penalties against federal agencies. The
Senate Report’s section on “ Background and Need for the Legislation” cited
longstanding “ difficulties with Federal facility compliance” and then stated that
“ [t]he ability to impose fines and penalties for violations of the Nation’s environ­
mental statutes is an important enforcement tool. As the EPA testified before the
Committee, ‘penalties serve as a valuable deterrent to noncompliance and to help
focus facility m anagers’ attention on the importance of compliance with environ­
mental requirements.’” Id. at 4. The House Report also reflects a legislative intent
to authorize the EPA to issue administrative penalty orders against federal agen­
cies: “ [I]n issuing a final order or agreeing to a consent order to resolve any
violations . . . , the Committee intends that provisions for stipulated penalties
be included in the order if that is the normal practice in such orders resolving
violations by other persons.” H.R. Rep. No. 102-111, at 17.
   In sum, we conclude that the plain text of the statute, together with its legislative
history, leaves no question as to Congress’s intent to authorize EPA to assess
  2 The House Report observed that
     [EPA ’s] broad administrative order and penalty authonty was provided by Congress in 1976 to assist the
     A dministrator in resolving violations of [RCRA].
         Until challenged by the [Department o f Energy] in 1986 at Rocky R ats, Colorado and Hanford, W ash­
     ington, the EPA program policy for RCRA called for the use o f administrative orders to resolve violations
     by federal agencies. Legally, the General Counsel of EPA has maintained that the authonty to issue adminis­
     trative compliance orders to other federal agencies “ is clearly provided under the Act and that our exercise
     o f such authonty would not offend any constitutional pnnciples.” Letter dated August 1, 1986 from Francis
     Blake to F. Henry Habicht, Assistant Attorney General. That position is eminently sound.

      By adding subsection (b) to Section 6001, this bill reaffirms the onginal intent o f the act authonzing
    administrative enforcement actions against federal facilities. It further provides that when the Administrator
    exercises his discretion to initiate an administrative action against a federal facility, the administrative
    enforcement action shall be initiated in the same manner and under the same circumstances as an action
    would be initiated against another person.
H.R. Rep No 102-111, at 16 (1991).


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              EPA Assessment o f Penalties Against Federal Agencies fo r Violation o f RCRA


penalties against federal agencies for violation of the UST requirements of
RCRA.3

                                                         B.

   DOD argues against the foregoing conclusion by focusing on the differences
in wording between sections 6001(a) and 9007(a) of RCRA. See generally DOD
Memorandum at 4-9. DOD relies on the fact that section 6001(a), which applies
to solid and hazardous wastes but not to the underground storage tanks at issue
in this opinion, contains an express statement that penalties may be assessed
against federal agencies,4 while section 9007(a), which applies to underground
storage tanks, does not contain such a statement.5
   DOD observes that the last two sentences of the relevant portion of section
6001(a), see supra note 4, which expressly state that federal agencies may be
subject to penalties and fines, were added by Congress in 1992 in the FFCA,
after the Supreme Court had held in Department o f Energy v. Ohio, 503 U.S.
607 (1992), that the first sentence, which contains more general language stating
only that federal agencies “ shall be subject to, and comply with, all Federal, State,
interstate, and local requirements,” was insufficient to waive the sovereign immu­
nity of the United States against liability to the State of Ohio for penalties and
fines. Stressing that section 9007(a), the provision applicable to underground stor­
age tanks, contains only the more general language of the first sentence of section
6001(a) and was not amended by Congress after DOE v. Ohio, DOD concludes

   3 We do not agree with DOD’s position, see DOD Memorandum at 3, 17-21, that we must find “ an unequivocal
expression” of a congressional intent to authorize EPA to assess penalties against federal agencies This Office
applies the “ unequivocal expression” standard to issues o f waiver o f sovereign immunity, see Authority o f USDA
to Award Monetary R elief fo r Discrimination, 18 Op. O.L.C. 52, 54-55 (1994), but where the issue is w hether
Congress has authorized a federal agency to assess penalties against another federal agency, sovereign immunity
is not implicated. Moreover, to the extent some form o f a clear statement is required, see Administrative Assessment
o f Civil Penalties Against Federal Agencies Under the Clean A ir Act, 21 Op O.L.C. 109, 111-13 (1997) ( “ Clean
Air Act Opinion” ), the evidence of congressional intent here is abundantly clear
   4Section 6001(a) provides, in the part relied upon by DOD, as follows1
      Each department, agency, and instrumentality o f the executive, legislative and judicial branches of the
      Federal Government . . . shall be subject to, and comply with, all Federal, State, interstate, and local
      requirem ents.       respecting control and abatement of solid waste or hazardous waste disposal and manage­
      ment . . . The Federal, State, interstate, and local . . requirements referred to in this subsection include
            all civil and administrative penalties and fines, regardless of whether such penalties or fines are puni­
      tive or coercive in nature . . . . The United States hereby expressly waives any immunity otherwise
      applicable to the United States with respect to any such substantive or procedural requirement (including
      . . any         civil or administrative penalty or fine referred to in the preceding sentence . . .).
42 U S C § 6961 (a). See DOD Memorandum at 7.
   5 Section 9007(a) provides as follows:
      Each department, agency, and instrumentality o f the executive, legislative and judicial branches of the
      Federal Government having jurisdiction over any underground storage tank shall be subject to and comply
      with all Federal, State, interstate, and local requirements, applicable to such lank, both substantive and
      procedural, m the same manner, and to the same extent, as any other person is subject to such requirements,
      including payment o f reasonable service charges Neither the United Slates, nor any agent, employee, or
      officer thereof, shall be immune or exempt from any process or sanction of any State or Federal court
      with respect to the enforcement of any such injunctive relief.
42 U.S.C § 6991 f(a)


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                          Opinions o f the Office o f Legal Counsel in Volume 24


that “ the specific federal facility language of §9007 does not permit inclusion
of punitive fines in administrative orders for alleged UST violations by federal
agencies.” DOD Memorandum at 3.
   DOD’s reliance on the difference between sections 6001(a) (waiving sovereign
immunity as to solid and hazardous waste claims by non-federal claimants) and
9007(a) (apparently not waiving sovereign immunity as to underground storage
tanks claims by non-federal claimants) is misplaced. The federal facility provision
of RCRA that governs this opinion is not section 9007(a), but rather section
6001(b). The FFCA’s amendment to section 6001(a) and its addition of section
6001(b) served fundamentally different purposes. The former amendment was
enacted to provide, in response to Department o f Energy v. Ohio, an unequivocal
expression of congressional intent to waive sovereign immunity against imposition
of penalties and fines against federal facilities in response to claims by non-federal
claimants. In contrast, the addition of the latter provision was to provide a clear
statement, in response to ‘‘unitary executive’’ arguments advanced by the Depart­
ment of Justice, that the federal government enforcement agency (EPA) was
authorized to bring administrative actions, which include imposition of penalties,
against federal facilities. The doctrine of sovereign immunity does not apply to
enforcement actions by one federal government entity against another, and thus
the pointed language included in section 6001(a) to waive sovereign immunity
is inapposite to and was not included in section 6001(b).
   The FFCA’s legislative history states quite clearly this distinction between the
sovereign immunity focus of the amendment to section 6001(a) and the intra­
executive branch focus of the addition of section 6001(b). The Senate Report states
in the first paragraph of its “ Purpose and Summary” section that “ [t]he purpose
of the [FFCA] is to make the waiver of sovereign immunity contained in section
6001 . . . clear and unambiguous with regard to the imposition of civil and
administrative fines and penalties.” S. Rep. No. 102-67, at 1. The final paragraph
of that introductory section states that “ [t]he FFCA also provides that the
Administrator of the EPA may commence an administrative enforcement action
against any Federal department, agency, or instrumentality.” Id. at 2 (emphasis
added). The Senate Report goes on to discuss sections 6001(a) and 6001(b) under
separate headings. The former is discussed under the “ Waiver of Sovereign Immu­
nity” heading, while the latter is discussed under the “ EPA Administrative Order
Authority” heading. The section 6001(a) discussion, as the heading indicates, is
clearly about waiver of sovereign immunity, a doctrine that concerns the immunity
o f the federal government against being sued in court, which includes having pen­
alties enforced against it in court,6 while the section 6001(b) discussion concerns
whether, in the non-judicial, intra-executive branch context, one federal agency

   6 See S Rep. No 102-67, at 4 (“ At present, RCRA is the only major Federal environmental statute for which
several federal courts o f appeal have held that it is ambiguous whether sovereign immunity has been waived with
respect to the imposition o f fines and penalties. It is necessary to clarify this ambiguity to improve the pace of
clean-up o f existing contamination from past practices and to deter future violations ” ).


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               EPA Assessment o f Penalties Against Federal Agencies fo r Violation o f RCRA


may administratively impose penalties against another federal agency.7 The discus­
sion in the House Report is similar in this regard.8
   In sum, section 6001(b), not section 9007(a), is controlling here. The fact that
Congress responded to Department o f Energy v. Ohio by waiving sovereign immu­
nity for solid and hazardous wastes in section 6001(a), but did not at the same
time similarly amend section 9007(a) regarding underground storage tanks, is
immaterial to the issue before us. As discussed above, section 6001(b) is the
RCRA provision addressing EPA enforcement actions against federal agencies.
Section 6001(b) applies to all subtitles of RCRA, including the underground stor­
age tank subtitle, and it clearly incorporates EPA’s penalty authority under the
UST enforcement provisions in section 9006.

                                                         C.

  DOD presents, as a separate argument, the appropriations law position that “ in
the absence of specific legislative authority, neither appropriated funds of the
Department of Defense, nor those of any other Federal agency may lawfully be
used for the payment of administrative penalties.” DOD Memorandum at 15. See
generally id. at 15-17. We disagree with this broad statement, but recognize that
particular appropriations provisions might limit or preclude payment of an
administrative fine. Because the issue of particular appropriations provisions has
not been briefed to us, however, we do not reach this more specific inquiry.
  In general, there does not need to be specific legislative authority authorizing
an agency to pay these penalties other than the specific legislative authority that
we have already concluded exists for EPA to assess the penalties. An agency
would typically have authority to pay the penalties that have been lawfully
assessed against it in the course of its conduct of agency business, pursuant to
the “ necessary expense” principle of appropriations law. Under that principle,

          a general appropriation may be used to pay any expense that is
          necessary or incident to the achievement of the underlying objec­
          tives for which the appropriation was made. General Accounting
          Office, Principles o f Federal Appropriations Law 3-12 to 3-15
          (1982). If the agency believes that the expenditure bears a logical
          relationship to the objectives of the general appropriation, and will
          make a direct contribution to the agency’s mission, the appropria­
          tion may be used.

   7 As discussed above, supra at 86-88, this portion o f the Senate Report clearly sets forth the intra-executive branch
focus o f the addition o f section 6001(b).
   8 Compare H.R Rep No 102-111, at 5 -6 (general discussion); id at 6 ( “ The Committee intends for this legisla­
tion to overturn any court decisions which have restricted in any fashion the waiver of sovereign immunity provided
in Section 6001.” ), with id at 16-17 (general discussion); id. at 16 (“ By adding subsection (b) to Section 6001,
this bill reaffirms the original intent of the act authorizing administrative enforcement actions against federal facili­
ties ” ).


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                            Opinions o f the Office o f Legal Counsel in Volume 24


Indemnification o f Department of Justice Employees, 10 Op. O.L.C. 6, 8 (1986).
See also General Accounting Office, Principles o f Federal Appropriations Law
4 -1 6 (2d ed. 1991) (“ The expenditure must bear a logical relationship to the
appropriation sought to be charged. In other words, it must make a direct contribu­
tion to carrying out either a specific appropriation or an authorized agency func­
tion for which more general appropriations are available.” ). In our view, the pay­
ment of administrative expenses in the course of implementing a statutory pro­
gram, such as statutorily-authorized administrative penalties assessed by another
federal agency, constitutes a cost o f doing business and therefore “ bears a logical
relationship to the objectives of [the assessed agency’s] general appropriation, and
will make a direct contribution to the agency’s mission.” 10 Op. O.L.C. at 8.
   The bases for our conclusion that RCRA grants EPA the authority to assess
penalties against federal agencies for UST violations also support the corollary
conclusion that as a general matter statutory authority exists for the penalized
federal agencies to use appropriated funds to pay the penalties. Because we con­
clude that RCRA does authorize EPA to assess penalties against federal agencies,
we further conclude, under the ‘‘necessary expense’’ principle, that agency appro­
priations will, absent a statutory limitation, be available to pay the penalties.9
   O f course, appropriations authority will turn on the meaning of particular statu­
tory provisions, and in a particular circumstance an appropriations act or other
statute might include terms that explicitly or implicitly preclude payment. We do
not address in this opinion the possible application of section 8149 of the Depart­
ment of Defense Appropriations Act for Fiscal Year 2000, which prohibits DOD’s
use of appropriated funds “ for the payment of a fine or penalty that is imposed
against the Department of Defense or a military department arising from an
environmental violation at a military installation or facility unless the payment
o f the fine or penalty has been specifically authorized by law.” Pub. L. No. 106—
79, §8149, 113 Stat. 1212, 1271 (1999). This provision was enacted into law
after DOD and EPA had completed their submissions to us for this opinion, and
we have not heard from DOD or EPA regarding their interpretation of this provi­
sion. W e have also very recently become aware that legislation currently pending
in the Senate would add a provision to the U.S. Code that would supersede section
8149 and prohibit such a payment by DOD without specific authorization only
if the amount of the fine or penalty is $1.5 million dollars or more or if the

   9 In the analogous context o f Internal Revenue Service ( “ IRS” ) assessments of penalties against federal agencies,
the Comptroller General has concluded that, l*[i]n the absence o f a statutory provision requiring paym ent, the appro­
priations o f [federal] agencies are not available for payment of interest and penalties” to the IRS for the agencies’
failure to pay employment taxes for their employees. Federal Agency Payment o f Penalties and Interest on Federal
Em ploym ent Taxes, B -161,457, 1978 WL 9910, at *1 (C G May 9, 1978) (emphasis added) The clear implication
o f the C om ptroller G eneral’s opinion is that a statutory provision requiring payment would support using agency
appropriations to make such payment A lthough the opinions and legal interpretations of the Comptroller General,
a legislative branch official, are not, of course, binding upon departments, agencies, or offices o f the executive
branch, see Bowsher v. Synar, 478 U.S 714, 727-32 (1986), they often provide helpful guidance on appropriations
matters and related issues. W e find persuasive the cited Comptroller General opinion, as well as the Principles
o f Federal Appropriations Law discussions cited in the text


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               EPA Assessment o f Penalties Against Federal Agencies fo r Violation o f RCRA


fine or penalty is based on “ the application of economic benefit criteria or size-
of-business criteria.” National Defense Authorization Act for Fiscal Year 2001,
S. 2549, 106th Cong., § 342 (as reported by the Senate Armed Services Committee
on May 12, 2000). If DOD or EPA would like us to address questions relating
to these or similar provisions, we would be happy to do so after receiving further
submissions from DOD and EPA.

                                                          II.

   The second question that DOD raises is whether EPA’s procedures for field
citation of UST violations comply with statutory and constitutional requirements.
Under EPA’s procedures, an EPA inspector, functioning much like a police officer
handing out a traffic ticket, issues field citations directly to violators.10 As
described by EPA:

          EPA uses the field citation program to address many prevalent,
          clear-cut violations that are relatively easy to correct. Typically, an
          UST field citation is a one-page document which includes an order
          pursuant to RCRA §9006 to address violations listed in RCRA
          § 9006(d), coupled with an abbreviated settlement agreement. . . .
          The recipient of the field citation may either settle by accepting
          the field citation, paying a small penalty and returning to compli­
          ance within a certain time frame, or may refuse to accept the cita­
          tion. EPA automatically withdraws the field citation if the recipient
          refuses to accept it. EPA would then consider anew whether to issue
          an administrative order. These orders are governed by the more
          formal 40 C.F.R. Part 22 hearing procedures. Field citations offer
          a less resource-intensive approach to bring facilities with minor vio­
          lations back into compliance than more formal methods of UST
          enforcement.

EPA Memorandum at 14.
   DOD argues that EPA’s field citation program does not comply with section
6001(b)(2) of RCRA, which provides that “ [n]o administrative order issued to
[a federal] department, agency, or instrumentality shall become final until such
department, agency, or instrumentality has had the opportunity to confer with the
Administrator.” 42 U.S.C. § 6961(b)(2). DOD asserts that the statute is violated
because the field citation program does not give federal agencies an opportunity
to confer with the Administrator.

   l0The “ traffic ticket” analogy is EPA ’s own program characterization. EPA’s guidance for the UST field citation
program states that “ [o]ne enforcement option is the use o f field citations, ‘traffic ticket'-styled citations issued
on-site by inspectors, generally carrying a penalty ” Office of Solid Waste and Emergency Response Directive
9610 16, Guidance fo r Federal Field Citation Enforcement at 1 (Oct. 1993)


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                    Opinions of the Office o f Legal Counsel in Volume 24


   We do not agree that the field citation program violates or is otherwise incon­
sistent with section 6001(b)(2). The statute requires only that an enforcement order
not become final unless there is an opportunity for a recipient federal agency
to confer with the Administrator. The program complies with that requirement.
A field citation becomes final only if the recipient does not contest the citation
and instead consents by signing the citation and agreeing to pay a small penalty.
By consenting, the recipient agency, in effect, waives the opportunity to confer
with the Administrator. Non-consent, in contrast, results in immediate withdrawal
of the citation. In that circumstance, there remains no order at all, much less a
final order. EPA then considers whether to bring another enforcement action, and
recipient agencies may contest any such action and request a conference with the
Administrator. Thus, the statutory right to confer with the Administrator is pre­
served for any situation where there is an actual dispute between EPA and a
recipient agency.
   DOD also argues that the field citation procedure precludes the President from
exercising his supervisory authority under Article II of the Constitution. As DOD
sees it:

       [Presented with a UST field citation, a federal agency must either
       pay the amount imposed by EPA without debate (and thereby
       deprive the Attorney General and the President of any supervisory
       role in the resolution o f interagency disputes) or allow the field
       citation to lapse and face the consequences [of] EPA’s other
       [enforcement] options. . . . In DoD’s experience, the formal pro­
       ceeding can be ‘more stringent’ than the field citation by a factor
       in excess of 10 times. . . . Thus, an installation commander with
       a meritorious defense (but a shortage of discretionary funds with
       which to pay administrative penalties) might be hard pressed to
       elect the formal route simply to preserve the principle that the Presi­
       dent has a Constitutional right to supervise the executive branch.
       That being the case, the UST field citation process has effectively
       thwarted the Constitutional principle on which the OLC rested its
       [Clean Air Act Opinion].

DOD Memorandum at 13-14.
   W e do not believe that the field citation procedures raise a separation of powers
issue. The issue discussed in our Clean Air Act Opinion concerned the separation
o f powers implications of a possible interpretation of an Act of Congress that
might infringe upon the President’s supervisory authority over the executive
branch. No separation of powers issue is raised, however, by the application within
the executive branch of an administrative procedure established by EPA, an
agency of the executive branch. There is no question that the President retains

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               EPA Assessment o f Penalties Against Federal Agencies fo r Violation o f RCRA


the authority to supervise the field citation program for UST violations, including
the authority to direct the EPA to change the program if he believes doing so
would facilitate his supervision.
   Moreover, even if EPA’s field citation procedures were congressionally man­
dated and thus potentially gave rise to a separation of powers issue, we believe
that constitutional concern would be more apparent than real because the proce­
dures do not interfere with or limit the President’s exercise of his constitutional
authority to supervise the executive branch. The program affects in a binding way
only those cases in which a citation recipient consents; if the recipient contests
a citation, it is automatically withdrawn and no dispute remains for the President
to resolve. If EPA subsequently brings an enforcement action, all of the normal
dispute resolution procedures will be available at that time, including the statutory
right to confer with the Administrator. The absence of any restriction on the Presi­
dent’s authority to review such a dispute is dispositive of any separation of powers
question. Id .1*
   DOD’s section 6001(b)(2) and Article II arguments boil down to the position
that a federal agency recipient of a UST field citation from an EPA inspector
is entitled to contest the citation before the Administrator of EPA (under the statu­
tory argument) or the President (under the constitutional argument). Although it
is no doubt within the power of the Administrator or the President to adopt such
a process for these “ traffic tickets,” neither the statute nor the Constitution
requires the process.

                                                         ni.

   In summary, we conclude that RCRA clearly grants EPA the authority to assess
penalties against federal agencies for UST violations and that EPA’s UST field
citation procedures do not violate RCRA or the Constitution.

                                                                         RANDOLPH D. MOSS
                                                                  Acting Assistant Attorney General
                                                                       Office o f Legal Counsel




   11 Nor do we see a constitutional question presented by the hypothetical scenano where an installation commander
agrees to a field citation rather than run the risk o f receiving a significantly heavier penalty in a formal proceeding.
Procedures such as plea bargaining in order to avoid the risk o f a substantially higher penalty, or settling civil
claims in order to avoid a potentially much costlier judgment, are quite common and not problematic so long as
the plea or settlement is voluntary and not the result o f coercion. C f Brady v. United States, 397 U.S 742, 74 9 -
55 (1970) (affirming finding o f voluntariness where defendant pleaded guilty rather than risk death penalty). We
do not perceive any lack of voluntariness or any coercion inherent in the EPA field citation program


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