United States Department of Commerce
Office of the General Counsel
Washington, D.C. 20230
September 30, 1992

MEMORANDUM FOR:                         See Attached Distribution List

FROM:                                                               Russell W. Craig, Chief
                                                                            Commercial Litigation Division

SUBJECT:                                                         Federal Facility Compliance Act

Congress recently passed H.R. 2194, the Federal Facility Compliance Act ("FFCA"), which makes several significant changes to the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. 6901 et seq.)* The enrolled bill is presently before the President for his signiture. The FFCA broadens the waiver of the Government's sovereign immunity in regards to compliance with the treatment, storage and disposal of hazardous wastes at federal facilities. Specifically, Section 102(a) (3) provides:

The Federal, State, interstate, and local substantive and procedural requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines, regardless of whether such penalties of fines are punitive or coercive in nature or are imposed for isolated, intermittent, or continuing violations. The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement (including, but not limited to, any injunctive relief, administrative order, or civil or adiminstrative penalty or fine referred to in the preceding sentence, or reasonable service charge.)

In addition to subjecting federal departments and agencies to fines and penaltiew, the FFCA addresses the potential exposure of federal officers and employees for violations of RCRA.

No agent, employee, or officer of the United States shall be personally liable for any civil penalty under any Federal, State, interstate, or local solid or hazardous waste law with respect to any act or omission within the scope of the official duties of the agent, employee or officer. An agent, employee, or officer of the United States shall be subject to any criminal sanction (including, but not limited to, any fine or imprisonment) under any Federal or State solid or hazardous waste law, but no department, agency, or instrumentality of the executive, legislative or judicila branch of the Federal Government shall be subject to any such sanction.

Section 102 (a) (4) of the FFCA.

In addition, provisions are made for U.S. EPA to bring administrative enforcement actions against other Federal departments and agencies which are not in compliance with RCRA in the same manner as an action would be initiated against another person. See Section 102 (b). And provisions authorize U.S. EPA and state environmental agencise to inspect federal facilities. See Section 104. i am advised that U.S. EPA expects to conduct approzimately 50 such inspections during FY 1993 and 1994, without substantial prior notice to the agencies or facilities. Such inspections by U.S. EPA will include not only federal agencies with numerous and significant contaminated facilities, like the Departments of Energy and Defense, but also second tier agencies with less notoriety for environmental problems, such as the Commerce Department.

Finally, you will note that an exception is made for mixed waste facilities (that is hazardous and nuclear wastes) and for munitions. Generally, the waiver of sovereign is postponed for a period of three years. During this period there are a number of reporting requirements. While the Department may have some small quantities for mixed wastes, e.g., NOAA and NIST laboratories, these exceptions will not greatly affect the Department. We are continuing to review the FFCA and its potential impact upon the Department.

Attachment: Federal Facility Compliance Act

* RCRA is also known as the Solid Waste Disposal Act.