EPA Assessment of Penalties Against Federal Agencies for

Violation of the Underground Storage Tank Requirements of

the Resource Conservation and Recovery Act

The R esource Conservation and Recovery A ct authorizes the Environmental Protection Agency to 

assess penalties against federal agencies for violations o f RC RA ’s underground storage tank provisions. E PA ’s underground storage tank field citation procedures do not violate RCRA or the Constitution.

June 14, 2000

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l

De p a r t m e n t o f D e f e n s e

a n d

t h e G e n e r a l C o u n s e l

E n v ir o n m e n t a l P r o t e c t io n A g e n c y

The Department of Defense (“ DOD” ) 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 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.

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 Miller, General Counsel, DOD, Re: Constitutional and Statutory Validity o f Administrative Assessment

o f Fines Against Federal Facilities Under Sections 6001, 9001, 9006, and 9007 o f the Solid Waste Disposal Act

fo r Alleged Violations Relating to Underground Storage Tanks (Apr. 16, 1999) (“ DOD Memorandum” ); Memorandum for Randolph Moss from Judith Miller, Re. Constitutional and Statutory Validity o f Administrative Assessment

o f Fines Against Federal Facilities Under Sections 6001, 9001, 9006, and 9007 o f the Solid Waste Disposal Act

fo r Alleged Violations Relating to Underground Storage Tanks— ADDITIONAL INFORMATION (June 1, 1999); 

Memorandum for Randolph Moss from Gary S. Guzy, Acting General Counsel, EPA, Re: Constitutional and Statutory

Validity o f Administrative Assessment of Penalties Against Federal Facilities under Subtitle I o f the Resource Conservation and Recovery Act (RCRA) (July 14, 1999) (“ EPA Memorandum” ).

84
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 

“ sh all. . . assess a penalty, if any, which the Administrator determines is reasonable 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 persons who violate UST requirements. Section 9001, the Subtitle I definitions section, 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 agencies, 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) provides that

[t]he [EPA] Administrator may commence an administrative 

enforcement action against any department, agency, or instrumentality 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 circumstances 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

85
Opinions o f the Office o f Legal Counsel in Volume 24

[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 agencies. 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 Congress 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 environmental 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 managers’ attention on the importance of compliance with environmental requirements.’” Id. at 4. The House Report also reflects a legislative intent 

to authorize the EPA to issue administrative penalty orders against federal agencies: “ [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 

Administrator in resolving violations of [RCRA].

Until challenged by the [Department o f Energy] in 1986 at Rocky Rats, Colorado and Hanford, Washington, the EPA program policy for RCRA called for the use of administrative orders to resolve violations 

by federal agencies. Legally, the General Counsel of EPA has maintained that the authonty to issue administrative compliance orders to other federal agencies “ is clearly provided under the Act and that our exercise 

of 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 of 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).

86
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 of 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 immunity 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 storage 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 of waiver of sovereign immunity, see Authority o f USDA

to Award Monetary Relief fo r Discrimination, 18 Op. O.L.C. 52, 54-55 (1994), but where the issue is whether 

Congress has authorized a federal agency to assess penalties against another federal agency, sovereign immunity 

is not implicated. Moreover, to the extent some form of a clear statement is required, see Administrative Assessment

o f Civil Penalties Against Federal Agencies Under the Clean Air 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 of the executive, legislative and judicial branches of the 

Federal Government . . . shall be subject to, and comply with, all Federal, State, interstate, and local 

requirements. respecting control and abatement of solid waste or hazardous waste disposal and management . . . 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 punitive 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 of 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 of 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)

87
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 of 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 Department 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 intraexecutive 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 Immunity” 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 

of the federal government against being sued in court, which includes having penalties 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 of appeal have held that it is ambiguous whether sovereign immunity has been waived with 

respect to the imposition of fines and penalties. It is necessary to clarify this ambiguity to improve the pace of 

clean-up of existing contamination from past practices and to deter future violations ” ).

88
EPA Assessment o f Penalties Against Federal Agencies fo r Violation o f RCRA

may administratively impose penalties against another federal agency.7 The discussion 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 of Energy v. Ohio by waiving sovereign immunity 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 storage 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 objectives for which the appropriation was made. General Accounting 

Office, Principles of 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 appropriation may be used.

7 As discussed above, supra at 86-88, this portion of the Senate Report clearly sets forth the intra-executive branch 

focus of the addition of section 6001(b).

8Compare H.R Rep No 102-111, at 5-6 (general discussion); id at 6 (“ The Committee intends for this legislation 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 facilities ” ).

89
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

4-16 (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 contribution to carrying out either a specific appropriation or an authorized agency function for which more general appropriations are available.” ). In our view, the payment of administrative expenses in the course of implementing a statutory program, such as statutorily-authorized administrative penalties assessed by another 

federal agency, constitutes a cost of 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 conclude that RCRA does authorize EPA to assess penalties against federal agencies, 

we further conclude, under the ‘ ‘necessary expense’ ’ principle, that agency appropriations will, absent a statutory limitation, be available to pay the penalties.9

O f course, appropriations authority will turn on the meaning of particular statutory 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 Department 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 

of 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 provision. We 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 of 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 payment, the appropriations of [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

Employment Taxes, B-161,457, 1978 WL 9910, at *1 (C G May 9, 1978) (emphasis added) The clear implication 

of the Comptroller General’s opinion is that a statutory provision requiring payment would support using agency 

appropriations to make such payment Although the opinions and legal interpretations of the Comptroller General, 

a legislative branch official, are not, of course, binding upon departments, agencies, or offices of 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. We find persuasive the cited Comptroller General opinion, as well as the Principles

o f Federal Appropriations Law discussions cited in the text

90
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 sizeof-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 compliance within a certain time frame, or may refuse to accept the citation. 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 violations 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 of 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)

91
Opinions of the Office o f Legal Counsel in Volume 24

We do not agree that the field citation program violates or is otherwise inconsistent 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 preserved 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 of 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 proceeding 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 President 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.

We 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 

of 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

92
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 mandated and thus potentially gave rise to a separation of powers issue, we believe 

that constitutional concern would be more apparent than real because the procedures 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 President’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 statutory 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 of 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 of receiving a significantly heavier penalty in a formal proceeding. 

Procedures such as plea bargaining in order to avoid the risk of 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 of coercion. C f Brady v. United States, 397 U.S 742, 749- 

55 (1970) (affirming finding of 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

93