OSWER99920
SEPA
United SUMS
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9992.0
TITLE: Enforcement Actions Under RCRA and CERCLA at
Federal Facilities
APPROVAL DATE: 1/25/88
EFFECTIVE DATE: 1/25/88
ORIGINATING OFFICE: OWPE/FFHWCO
D FINAL
/ , \
% DRAFT
/ '
DRAFT
Q A — Signed by AA or OAA
OB — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
S WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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United States environmental Protection Agency
Washington, DC 20460
OSWER Directive initiation Request
1. Directive Number
9992.0
2. Originator Information
Name of Contact Person
Jacqueline Thiell
Mail Code
WH527
Offic
»PE
Telepnone Code
475-8727
' Enforcement Actions Under RCRA and CERCLA at Federal facilities.
4. Summary of Directive (include bnef statement of purpose) . _•„-„ «-!,.»*• B-OA ran onrronrlv
Outlines the enforcement and permitting response actions that EPA can currently
implement to formalize compliance and cleanup actions at Federal facilities.
5.Keywords Federai facilities, Federal facility comphanceAgreements, CERCLA Section
O f*
TrTis
6a. Does Tfns Directive supersede previous uirective(S)'.
b. Does It Supplement Previous Directive
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OSWER DIRECTIVE # 9992.0
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 204fO
SOUO V»A*Tf AND CMCHQCNCV
JAN 2 5
MEMORANDUM
SUBJECT: Enforcement Actions Under RCRA and CERCLA at
Federal Facilities
">/^ fSi^^^^** *
FROM: J. Wira€o7r'Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
BACKGROUND
Statutory language maJces it clear that Federal facilities
must comply both procedurally and substantively with RCRA and
CERCLA in the same manner as any non-Federal entity. The purpose
of this memo is to lay out the statutory authorities under RCRA
and CERCLA that EPA may use' at Federal facilities to achieve
compliance and expeditious cleanup.
Over the past year, a great deal of effort has been spent
identifying those enforcement tools that are available to EPA in
the hazardous waste programs to achieve a higher level of
compliance at Federal facilities. Specifically, the successful
negotiation of individual agreements such as the corrective
action order with the Department of Energy (DOE) at the-Idaho
National Engineering Lab and the Interagency agreement with the
Department of Army (DOA) at the Twin Cities Army Ammunition Plant
demonstrated significant progress in efforts to achieve
compliance and cleanup at Federal facilities. Further
clarification of EPA's enforcement capabilities at Federal
facilities has come from the Department of Justice in
Congressional testimony.
To continue the above progress in resolving compliance and
cleanup issues at Federal facilities, I am outlining the
enforcement and permitting response actions that EPA can
currently implement to formalize compliance and cleanup actions
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9992 0
at Federal facilities. A description of the available
enforcement and permitting response actions is given for each of
the following scenarios.
1) A Federal facility with RCRA compliance issues.
2) A Federal facility with RCRA corrective action issues.
3) A Federal facility with CERCLA issues.
4) A Federal facility with RCRA and CERCLA issues.
I. A FEDERAL FACILITY WITH RCRA COMPLIANCE ISSUES
At a Congressional hearing on April 28, 1987 before the
House Oversight and Investigation Sub-Committee, of the Committee
on Energy and commerce, the U.S. Department of Justice testified
that EPA may not issue Administrative Orders at Federal
facilities under Section 3008(a) of RCRA to address compliance
violations of regulatory requirements. (See Attachment 1 for a
copy of DOJ's Congressional testimony). When addressing RCRA
compliance violations, EPA win issue the Federal facility a
Notice of Noncompliance (NON). EPA will then negotiate a Federal(
Facility Compliance Agreement (FFCA) to resolve the compliance
issues outlined in the NON. Detailed below is a description of
the components of a NON and a FFCA.
A. Federal Facility Notice of None amp], iance
EPA will issue a Notice of Noncompliance (NON) as the
initial enforcement action at a Federal facility with RCRA
compliance violations. The notice should be sent to the
responsible Federal official at the facility, or their delegate.
The issuance of a NON at a Federal facility is parallel to the
issuance of a RCRA Section 3008(a) administrative complaint to a
private facility and, therefore, must conform with a RCRA Section
3008(a) complaint in content and format. As outlined in the
model language (Attachment 2), the NON should contain the
following components:
1) A general reference to the Resource Conservation
and Recovery Act as amended.
2) The factual basis for the issuance of the NON
(e.g., acts, omissions and conditions identified during
an inspection).
3) A reference to the waiver of sovereign immunity under
Section 6001 of RCRA.
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4) A reference to the citizen suit provisions of Section
7002 Of RCRA.
5) A reference to administrative, civil, and/or criminal
sanctions under Section 3008 of RCRA that may be
app.lied to an individual who is in charge of hazardous
waste management activities at a facility.
6) A detailed allegation of all RCRA violations with
citations to authorized state or EPA regulations.
7) A detailed compliance schedule (both actions and
timeframes) for the correction of violations.
8) The alternatives to the actions provided for in the NON
(e.g., Presidential exemption or specific legislative
relief from'Congress).
9) A specific date or timeframe by which the Federal
facility must provide a written response to EPA
regarding their plans for addressing the violations
outlined in the document and/or a specific date for a
conference.
• It is essential that the NON specify the violations, remedy,
and timeframes for implementing the remedy in the same manner
that a strong administrative or civil complaint would be drafted.
B. federal Facility Compliance Agreement
After the NON has been issued, the final negotiated document
resolving compliance violations between the Federal facility and
EPA will continue to be called a Federal Facility Compliance
Agreement (FFCA). A very important section in any new FFCA is
the enforceability clause. Model enforceability language is
attached (Attachment 3) for your inclusion in any new FFCA.
Where appropriate, and when you can obtain expeditious agreement
from the affected Federal facility, you should add the
enforeability clause to existing Federal Facility Compliance
Agreements, as veil. This language reflects EPA's view that a
"requirement* in Section 7002 includes statutory and regulatory
requirements and other items which are mandated by these
requirements (e.g., schedules of .compliance, various plans,
recordJceeping and reporting) and that this finai negotiated
document is enforceable under Section 7002. This language also
recognizes that under RCRA Section 6001, Federal agencies are
required to comply with the agreement, subject to available
appropriations.
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All FFCAs should contain the model dispute resolution
clause found at Attachment 4. This dispute resolution language
emphasizes resolution of disputes at a lower level. In cases
where disputes are escalated to higher levels, the EPA
Administrator is the final decision ma Jeer.
C. Issuance of RCRA, Section 3008 (a) Order to a Government-Qwnt;>
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Compliance Monitoring win be working with your staff to identify
those cases which may be good candidates for a GOCO enforcement
action.
II. A FEDERAL FACILITY WITH RCRA CORRECTIVE ACTION ISSUES
A. Corrective Action Qrder^ (3QQ8(h)) at Federal Facilities
with regard to corrective action and the applicability of
administrative orders under RCRA Section 3008(h) at Federal
facilities, DOJ has taJcen the view that corrective action orders
are integral to the permitting process. Since section 6001 of
RCRA expressly requires Federal facilities to comply with
hazardous waste permits, DOJ has concluded that administrative
orders under section 3008(h) can be issued to Federal facilities.
Based on this DOJ determination, Section 3008(h)
administrative orders should be issued whenever possible and
appropriate (e.g., an interim status facility which is not
seeking a RCRA permit or the issuance of the permit is not
expected in the near future). The existing administrative
procedures for issuing RCRA 3008(h) orders, as set forth in the
February 19, 1987 memorandum to the regional offices, will be
applied to Federal agencies. However, Federal agencies win have
the opportunity to elevate disputes to the Administrator for a
final decision in the event a dispute cannot be resolved at the
Regional Administrator level. Consistent with these procedures,
EPA will issue orders as necessary, and provide a reasonable
opportunity for Federal agencies to discuss the order with EPA.
If the Federal agency chooses not to invoke these procedures, the
order becomes final and effective.
AS in the NON and FFCA, a Section 3008(h) order being issued
to a Federal facility should state the waiver of sovereign
immunity found in Section 6001 of RCRA. It should also contain
the model dispute resolution language found in Attachment 4. The
the model enforceaJbility language found in Attachment 3 is not
necessary since the order will explicitly cite the statutory
authority in Section 3008(h), and is, therefore, enforceable
under Section 7002 of RCRA. There should be no difference in
the factual basis for the issuance of a corrective action order
between a private facility and a Federal facility. The initial
order should be sent to the responsible Federal official at the
facility, or their delegate.
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B. Issuance of a 3008(h) Order to a. Government-Owned
Cpntrector-Operated Facility (GQCQ)
As described in Part ill, RCRA Compliance, Section c, DOJ
has determined that EPA has the authority to exercise all of its
Section 3008 enforcement options at GOCOs. This authority is not
limited to RCRA compliance issues under Section 3008(a). it
includes corrective action authorities under Section 3008(h) and
Section 3013 of RCRA. All CERCLA enforcement authorities apply
to GOCOs as well.
III. A FEDERAL FACILITY WITH CERCLA COMPLIANCE ISSUES
A. Section 120 Interaaency Agreements
Under section 120 of the Comprehensive Environmental
Response Compensation and Liability Act as amended by the
Super fund Amendments and Reauthorization Act (hereinafter
referred to as CERCLA) , Federal agencies must enter into an
"interagency1* agreement (IAG) for all necessary remedial actions
at Federal facilities on the NPL.
The Agency is viewing the Section 120 Interagency agreement
as a comprehensive document to address hazardous substance
response activities at a Federal facility from the remedial
investigation/ feasibility study (RI/FS) through the
implementation of the remedial action. All such interagency
agreements must comply with the public participation requirements
of Section 117. The timetables and deadlines associated with the
RI/FS and all terms and conditions associated with the remedial
actions (including operable units or interim actions) are
enforceable by citizens and the States through the citizen suit
provisions of Section 310 of CERCLA. In addition, Section 122(1)
of CERCLA authorizes the imposition of civil penalties against
Federal agencies for failure to comply with interagency
agreements under Section 120. Procedures for imposing these
penalties are provided for in Section 109 of CERCLA.
B. Qthay CERr^A Authorities Avaj jflfr^** at Federal Facilities
EPA has the authority to issue administrative orders to
Federal agencies under Section 104 and Section 106 of CERCLA.
.Section 106 orders should be used where needed to assure
compliance with Federal facility requirements for response
action. Orders under Section l04(e)(5)(A) of CERCLA can be used
to collect information and obtain access to Federal agency sites
where needed.
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Executive Order 12580 clarifies that EPA is authorized to
issue Section 104 and Section 106 administrative orders to other
Federal agencies, with the concurrence of the Department of
Justice. Section 4(e) of the Executive Order provides that:
Notwithstanding any other provision of this Order, the
authority under Section l04(e)(5MA) and Section I06(a) of
the Act to seeJc information, entry, inspection, samples
or response action from Executive Departments and
agencies may be exercised only with -the concurrence of the
Attorney General.
CERCLA enforcement authorities under Section 106, both
administrative and judicial, can be used against government
contractors at Federal facilities. Administrative orders against
contractors do not require concurrence of the Department of
Justice. In addition, Section 120(e)(6) provides that, if the
Administrator determines that the response actions can be done
properly at the Federal facility by another responsible party,
then the Administrator may enter into an agreement with such
party under the settlement provisions of Section 122 of the
statute. Following the approval by the Attorney General of any
such agreement relating to a remedial action, the agreement will
be entered in the appropriate United States district court as a
consent decree under section 106 of CERCLA.
States also have a variety of enforcement authorities under
CERCLA, so the exercise of EPA's enforcement authorities should
be closely coordinated with the States. First, Section I2l(e)(2)
of CERCLA authorizes States to enforce any Federal or state
standard, requirement, criteria or limitation to which the
remedial action must conforni under CERCLA. Second, Section 310
authorizes citizen suits to require Federal agencies to comply
with the standards, regulations, conditions, requirements, or
orders which have become effective pursuant to CERCLA including
IAGS under Section 120 of the Act. Third, Section I20(a)(4)
clarifies that State laws concerning removal and remedial action,
including State lavs regarding enforcement, are applicable at
Federal facilities not included on the NPL. In addition, section
120(i) states that nothing in CERCLA Section 120 shall affect or
impair the obligation of the Federal agency to comply with the
requirements of RCRA, including corrective action requirements
(see section IV.C., "Importance of the States as a Party to the
IAG"). EPA enforcement actions against Federal agencies should
therefore be carefully coordinated with States, to avoid
potentially duplicative or conflicting exercises of authority.
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IV. A FEDERAL FACILITY WITH CERCLA AND RCRA ISSUES
In many cases, facilities subject to an IAG win also have
RCRA liabilities. The most common example of the RCRA/CERCLA
overlap is where a unit(s) at the facility has interim status or
a permit under. RCRA and a portion of the facility is undergoing a
CERCLA remedial investigation.
A. Enforcement
When developing a comprehensive strategy for addressing both
RCRA and CERCLA issues at a Federal facility, EPA and the states
should consider the following options, alone or in combination,
as possible mechanisms for getting enforceable requirements in
place:
1. A RCRA permit
All RCRA Subtitle C permits issued after November 8, 1984,
win contain provisions for implementing the corrective
action requirements of 40 CFR Part 264 Subpart F (or
authorized state requirements), and Section 3004(u) and (v) of
RCRA. For facilities that have or are seeJcing a RCRA permit, the^
requirements for a "CERCLA" remedial investigation and cleanup f
could be met by implementing these requirements through RCRA
corrective action. It is important to Keep in mind, however,
that the extent of coverage of the RCRA permit is generally
limited to hazardous wastes/constituents (e.g., some CERCLA
hazardous substances such as radionuclides are not RCRA hazardous
constituents and, therefore, the permit may not be able to
address all of the releases at a facility) .
2. A RCRA corrective Action Order
The corrective action authority under section 3008 (h) of RCRA
can be used at RCRA interim status facilities to address releases
from RCRA regulated units and other solid waste management units.
At a Federal facility that has interim status, a RCRA corrective
action order could address the investigation and clean-up of
releases in lieu of a "CERCLA" response action or as an interim
measure. '.(Again, the extent of coverage in the RCRA corrective
action order is limited to RCRA hazardous wastes/constituents.)
3. Imminent and Substantial Endangerment Orders
CERCLA Section 106 can be used to address releases from RCRA
units or CERCLA sites when an "imminent and substantial
endangerment" is shown.
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4. An Interagency Agreement under Section 120 of CERCLA
A Section 120 IAG could be drafted to incorporate all RCRA
corrective action requirements and CERCLA statutory requirements.
Where some or all of a Federal installation has been listed on
the NPL, the .CERCLA Section 120 IAG is required for remedial
action by statute.
The first agreement under Section 120 of CERCLA (IAG) was
finalized on August 12, 1987. The IAG at Twin cities Army
Ammunition Plant (TCAAP) is a three party agreement between EPA,
the State of Minnesota, and the U.S. Department of the Army.
Several notable provisions that should be incorporated in every
CERCLA Section 120 IAG include a dispute resolution process that
denotes the EPA Administrator as the final decision maJcer, an
enforceability clause which states that provisions of the
agreement are enforceable by citizens and the State through the
citizen suit provision of Section 310 of CERCLA, and a means for
resolving both the RCRA and CERCLA requirements when both
statutes apply. Further guidance on CERCLA Section 120
agreements is being developed and win be made available to the
Regions as soon as possible. In the interim, the Regions should
consult with Headquarters on any IAG issues they encounter.
8. Strategy for Action at RCRA/CERCLA Sites
The decision on which of the above mechanisms to employ at a
Federal facility will be made on a facility specific basis.
However, if the Federal facility is on the NPL or is likely to be
placed on the NPL, I encourage the use of a Section 120 IAG to
incorporate both RCRA and CERCLA activities under one enforceable
agreement and to serve as a, comprehensive plan for investigatory
and remedial activities at the facility, whether RCRA or CERCLA.
EPA, the State, and the Federal facility would agree on a
facility wide strategy, setting priorities and schedules for
action. If properly framed, the agreement would satisfy the
facility's RCRA corrective action requirements,as well as the
public participation requirements of Section 117 of CERCLA and
Part 124 of RCRA. At a later date, if appropriate, corrective/
remedial action requirements found in the IAG could be incor-
porated into the RCRA permit for those facilities seeking an
operating or post-closure permit, in satisfaction of RCRA
Section 3004(u) and (v) requirements. An Interagency agreement
under Section 120 of CERCLA does not serve as the replacement for
a RCRA permit at a unit seeking an operating permit.
C. Importance of the State as a Party to the IAG
CERCLA Section I20(i) states that nothing in CERCLA Section
120 shall affect or impair the obligation of the Federal agency
to comply with the requirements of RCRA, "including the
corrective action requirements." One interpretation of CERCLA
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Section I20(i) is that the provision allows "re-cleanup" of a
release using RCRA corrective action authorities during or after
a cleanup.of that release under CERCLA; this could be a problem
if a State, authorized to implement the RCRA program, contested
the technical standards of an IAG. In order to avoid arguments -
over the interpretation of Section I20(i), as well as to avoid
potentially duplicative exercises of authority, I encourage the
inclusion of the state as a full signatory party for lAG's at
RCRA facilities.
A three party agreement will ensure'the following state
roles in the agreement:
0 appropriate application of state clean-up standards
0 public participation requirements
0 enforceaJbility
0 involvement in setting priorities
0 dispute resolution
0 review and comment on technical documents
This type of agreement would resolve differences between
EPA and state requirements up front.
^
CONCLUSION
This memo is the first step in developing an integrated
RCRA/CERCLA Federal facility compliance and cleanup strategy.
The fundamental principle of the strategy is that there is no
difference between environmental standards for Federal facilities
and private facilities. EPA holds Federal facilities accountable
for environmental cleanup and will proceed with enforcement
actions at Federal facilities in the same way that we would
proceed at private facilities. Although the limitations of
enforcement authorities at Federal facilities have frustrated
EPA's enforcement capabilities in the past, the RCRA corrective
action requirements in combination with CERCLA authorities under
Section 106 and Section 120 provide many options for achieving
cleanup at Federal facilities.
I have recently established a Federal Facilities Compliance
TasX Force within OWPE which is dedicated to achieving compliance
and cleanup at Federal facilities. The Tasfc Force will be
working closely with the CERCLA Enforcement Division and RCRA
Enforcement Division of OWPE, other offices within Headquarters,
and the Regions to develop guidance and policy regarding Federal
facilities, to resolve difficult issues that arise from EPA's
negotiations with Federal facilities, to track ongoing
negotiations between EPA and Federal agencies, to pinpoint areas
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for potential enforcement response, and to relay the Agency's
efforts at resolving compliance, corrective action and permitting
issues at Federal facilities.
I am requesting that you forward any Federal Facility
Compliance Agreements, Interagency Agreements, etc., that you are
negotiating with Federal facilities in your Region to Gene A.
Lucero, Director of the Office of Waste Programs Enforcement
(Mail Code: WH-527).
As I mentioned earlier, the Task Force will be working with
the Regions to pinpoint areas for possible enforcement action.
As DOJ has encouraged EPA to take appropriate enforcement actions
at GOCOs, the Task Force is interested in GOCO candidates for an
enforcement action under RCRA or CERCLA. I am polling the
Regions for suggestions of Federal facilities where the need for
an enforcement action is imminent and there is a clear means of
establishing the contractor as the operator. We win provide
Headquarter's support for the development'of the order and
throughout the negotiation process.
If you have any questions regarding this memorandum or
recommendations of candidates for potential enforcement actions,
please contact Christopher Grundler, Director of the Federal
Facilities Compliance Task Force at FTS 475-9801. Questions can
also be directed to Jacqueline Thiell of the the Task Force at
FTS 475-8727.
Attachments
CC:
Gene Lucero, OWPE
Roger Marzulla, DOJ
Henry Longest, OERR
Tom Adams, OECM
Marcia Williams, OSW
Frank Blake, OGC
Richard Sanderson, OFA
Hazardous Waste Management Division Directors, Regions l-x
Regional Counsels, Regions I-X
CERCLA Branch Chiefs, Regions I-X
RCRA Branch Chiefs, Regions I-X
Federal Facility coordinators
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9992.C
ATTACHMENT 1
STATEMENT
OF
F. HENRY HABZCHT II
ASSISTANT ATTORNEY GENERAL
LAND AND NATURAL RESOURCES DIVISION
BEFORE
THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
CONCERNING
FEDERAL FACILITY COMPLIANCE WITH ENVIRONMENTAL LAWS
ON
APRIL 28, 1987
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Mr. Chairman and Members of the Subcommittee:
On -behalf of the Department of Justice, I am pleased to hav«
this opportunity to present our views on issues related to
federal facility compliance with the environmental laws and
regulations. I am committed to helping the Congress work through
these most important issues and to achieving the desired
compliance in the most effective possible way.
In today's testimony, I will discuss the Justice
Department's views on environmental compliance and enforcement, %
both generally and as they address federal facilities. In order
to be most helpful to the Subcommittee, Z will attempt to Ifey a
foundation, for the Subcommittee's questions by addressing specif
institutional characteristics of federal agencies — their
political accountability and the unique role of Congress in
setting, with the Executive, their missions and budget. To
complete this foundation, my testimony will then turn to the
commitment and work of the Lands Division to ensure environmental
compliance by the entire regulated community, with particular
attention on our efforts to promote compliance by federal
agencies. In this regard, I will outline the numerous ways in
which federal agencies are accountable to the public and the
Congress, including what enforcement tools are available to the
States, citizens and EPA to secure compliance by federal
facilities. I will then proceed to respond to the Subcommittee 'A
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9992.C
2
specific factual and legal questions. It is my earnest hope thai
through this testimony^and in response to your questions today,
we can develop a comaon understanding of the significant issues
in this area, so we can work together — as we must — to achieve
the best possible compliance results in the.most efficient and
effective manner. I hope that you find this testimony helpful.
Because this hearing concerns environmental compliance and
enforcement generally, I think it is important to share with the
Subcommittee my perspective on environmental compliance and
enforcement across the board, with particular emphasis on our %
commitment to ensure that federal facilities set an example of
compliance. As a matter of first principles, this Administra-
tion, and the Lands Division in particular, is strongly committee
to full compliance with the environmental laws by both private
parties and government entities. In the last six years we have
successfully prosecuted more people and corporations for criminal
violations of the environmental laws than ever before, obtaining
over 257 guilty pleas and convictions since 1981 that resulted in
over $3 million in fines and almost 150 years in jail sentences.
we have also filed more civil environmental enforcement suits
than ever before — over 1000 since 1981. Through the Chairman's
lead role in the Superfund reauthorization process you are aware
of our strong stance on Superfund enforcement issues, and in our
hazardous waste cases alone, we have obtained court-ordered
cleanups valued at over $400 million. Federal entities must
abide by the same laws. Mot only do the statutes require it, but
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good public policy dictates that the federal government set an
example for the private sector in proper hazardous waste manage-
ment .
*
For federal facilities, strict compliance with all substan-
•
tive requirements is our goal, just as it is for private facil-
ities. However, important constitutional, statutory, and public
policy considerations all dictate that the means employed to
achieve this goal will in certain respects be different from the
procedures used in securing private compliance — although they
are clearly comparable. This is because federal facilities are •
flfl£ the same as private facilities; they are distinct for several
i
reasons which I will outline briefly. Nonetheless, the end m
result, and the commitment to reach that result, must be — and
is — the same.
When Congress creates a federal agency, it takes a very
significant step reflecting the judgment that the underlying
mission is a special one which cannot be entrusted to the private
sector. Typically, federal agencies have been established by
Congress to fulfill a certain mission: the Defense Department to
protect the national security, the Environmental Protection
Agency to protect against environmental degradation, the Depart-
ment of Energy to promote the production of and the regulation of
energy sources and supply. In contrast, the mission of General
Motors, for instance, is to make cars. But GM is not the only
automaker and if it stopped production tomorrow, Americans would
not stop driving. If the Defense Department stopped defending
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4
the United States tomorrow, we would all agree, I believe, that
the nation would be notably less secure. No substitute enter-
prise could rise to fulfill the mission.
There are other differences. Federal agencies are created
by Congress and are supported solely by Congressional appropria-
tions. They cannot, when faced with a demand for millions or
even billions of dollars for hazardous waste cleanup simply raise
the prices on their products, dip into last year's profits or-.
stockholders equity to cover the tab, or ultimately declare
bankruptcy. The only funds they have available for environmental
compliance are those appropriated by Congress. Thus, congress
plays an important role in assuring that environmental compliance
occurs by working with the Executive Branch to appropriate
sufficient funds to assure these desired results. For example,
the Department of Defense has received in FY87 $377 million for
the DOD installation environmental restoration program. This
money helps ensure that DOD facilities achieve compliance with
the relevant statutory requirements of RCRA and CERCLA. in
addition, the recently enacted Superfund amendments created a
"Defense Environmental Restoration Program' which requires DOD,
in consultation with EPA, to undertake an environmental restor-
ation program at all 00D facilities and to perform appropriate
response actions to releases of hazardous substances. The law
also established a DOD research, development, and demonstration
program for hazardous substances. Finally, it created a special
account within DOD to finance the environmental restoration
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effort. Similarly, the DOE has presented testimony here today or
its environmental compliance programs.
Thus, Congress, by outlining the specific public interest
mission of the federal agency and by appropriating the requisite
funds, is an integral partner in bringing about compliance at
federal facilities. While in some ways it is more cumbersome for
a federal agency to find the money necessary to comply with
environmental lavs than it is for a private company, federal .
agencies have an added incentive to comply: they must be
accountable to Congress, to the President, and above all to the %
American people for any failure to comply. While litigation, or
the threat of some coercive enforcement action, may be the best
means to pressure private companies to comply, we should recog-
nize the unique political accountability of federal facilities.
This ability of Congress and the people to call government
agencies to account for their actions or neglects provides a
compelling enforcement tool. At the same time, this unique
accountability reaffirms the importance of Congress acting as a
partner with the agencies in seeing that established
environmental priorities are being met.
Most importantly, federal agencies report to the President,
who is accountable under the Constitution for their missions and
actions. At times, agency missions, which Congress set forth by
statute, can conflict and the resolution of those conflicts by
the President is one way in which these agencies differ from
private facilities. In light of this, as demonstrated further
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6
below, appeal to higher Executive authority, and ultimately to
the President, is an additional mechanism to ensure federal
facility.compliance — an enforcement tool not reasonably avail-
able against private parties. Often, this intra-Executive Branch
approach will be the most effective and efficient means of ensur-
ing federal facility compliance. Moreover, as Z will discuss
later in this testimony, this process obviates the necessity to
delay compliance in order to resolve complex legal issues or .
interagency differences in a costly adversarial process.
Another difference between public agencies and private*
parties is that the sovereign is immune from suit. This legal
doctrine, going back to the foundation of the Republic, applies
to all public agencies, except to the extent that sovereign
immunity has been specifically waived by Congress. Thus, in each
statute we must carefully analyze the degree to which Congress
i
exposed federal agencies to liability. Congress has made clear
that agencies must comply with the laws, but what differentiates
federal agencies from private parties is the very long-standing
and established rule of statutory construction that courts must
interpret any waivers of sovereign immunity strictly and
narrowly, fiejt, e.g. . Haneeefc v. Train. 426 U.S. 167- (1976).
This rule reflects the proper role of the judiciary in our
federal government and a reluctance on the part of the courts to
infringe on Congress' constitutional authority to decide, for
example, how government funds may be spent. Unless Congress has
made a clear decision that it intends funds to be spent in a
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specific manner, the courts are loathe to make that decision fow
Congress. This protects congressional prerogatives by retaining
for Congress, and only for Congress, the ability to control the
federal treasury. U.S. Const., Art. X, Sect. 9.1
Although practical realities require that we recognize these
inherent distinctions between private entities and federal
agencies, they do not interfere with the Justice Department's
strong commitment to fostering environmental compliance. The-
Attorney General is the chief legal officer of the United States,
and, as such we in the Justice Department have a paramount »
responsibility to see that the laws of the United States are
faithfully executed. It is the law enforcement.elements of ithis
responsibility that I view as the Lands Division's largest
1 Some have criticized the Department for utilizing the
well-settled law of sovereign immunity to protect the public fisc
against civil penalties. To prevent this purely legal issue from
interfering with expeditious compliance, we have proceeded
directly to take steps to conform with-the substantive require-
ments of the law, while at the same time testing in litigation
the narrow issue of whether certain of the federal environmental
statutes have waived sovereign immunity for the payment of civil
penalties. I note that courts have consistently shared our view
of the law and concluded that such immunity has not been waived
under the Clean Water Act or RCRA. Sjge., M.E.S.S. v. Navv. 25
E.R.C. 1480 (E.D. Cal. 1986); Mevers v. Coast Guard. 644 F. Supp.
221 (E.D.N.C. 1986).
I must emphasize, as I have in my communications to
State Attorneys General and others, that our position regarding
civil penalties is not intended to shield federal agencies from
effective compliance with environmental laws. By severing this
issue, through pretrial motions, I am committed to meeting all of
my obligations faithfully to uphold the law. We can litigate the
narrow penalty issue without delaying the development of a
necessary environmental remedial plan to ensure compliance with
the law.
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8
task. Indeed, this can be seen in the resource allocation within
the Division: civil and criminal enforcement activities have the
lion's share of the Division's resources.
•
Although the Land and Natural Resources Division represents
many agencies in a broad spectrum of cases hanging from public
lands and natural resource questions to Indian claims issues, the
client to which we devote most litigation and management atten-
tion is the Environmental Protection Agency (EPA). We not only
represent EPA in enforcement litigation under the environmental
laws, -but also defend the regulations, programs, policies, and ,
decisions of the EPA.
Commensurate with its enforcement duty,.the Lands Division
— in close and effective partnership with EPA •• has regularly
•
argued in the Federal courts for the broadest interpretation of
the environmental statutes consistent with the apparent intent of
Congress. In this respect, the Division has been singularly
successful in its litigation. I point with pride to very favor-
able decisions regarding the liability standard under Superfund,
and a consistent string of victories in Clean Air Act, Clean
Water Act and RCRA cases.
My staff vigorously defends EPA's substantive standards,
embodied in rulemakings. We have successfully defended chal-
lenges to the National Contingency Plan, the National Priorities
List, regulations under RCRA, the Clean Air Act, the Clean Water
Act, all of which establish the substantive standards to be
followed by all parties — federal and private. In prosecuting
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9
cases/ or defending EPA's authority to impose requirements on
privata partias undar $CRA, CERCLA, and othar lavs, wa hava
firmly established tha substantiva standards of anvironaantal
law. I look with prida to tha casas, culminating in tha Supreme
Court's danying cartiorari, which protected'EPA's authority undar
Saction 106 of CZRCIA from praamptiva challangas by rasponsibla
partias. See, a.a.. Lona Pine Steering Committee v. EPA. 600 F.
Supp. 1487 (D.N.J.), aff d. 777 F.2d 882 (3rd Cir. 1985), cert.
daniad. 106 S.Ct. 1970 (1986). Through thasa victorias, tha
Division has sant a signal to tha ragulatad community — both •
privata and fadaral — that tha Oapartmant takes environmental
anforcamant vary seriously. It has also ended uncertainty fever
the contours of liability under the environmental laws, thus
promoting swift compliance as all partias understand what tha law
demands of them.
At this juncture it bears emphasis that these same laws, and
the court rulings secured under them, apply to federal agencies.
Our responsibility to defend Federal facilities has not lad tha
Division to temper its enthusiasm for a legal regime that demands
strict environmental compliance. To the contrary, and allow me
to be very clear on this point, the Justice Department does not
support one meaning of a statute in one action and another in
different lawsuit. The United States government has an obliga-
tion to the public it serves to decide on a view of the law and
adhere to that view in all its dealings with the courts and tha f
public.
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10
Indeed, avoiding harmful inconsistency in this area is a
crucial reason for centralizing litigation authority in on*
Department. The- benefits that this provides the federal govern-
ment are legion. The United States enjoys an enhanced credibil-
ity in litigation because it speaks with a single voice in the
courts. This promotes a uniform understanding of the law, devel-
oped with a government-wide perspective by experienced, full-time
trial attorneys. There can be little question that the impres-
sive string of victories that have established the enforcement
rules under Superfund and other environmental laws were secured «
by exploiting these advantages, in critical partnership with the
expert professionals at EPA. t
The Lands Division is also responsible for providing*legal
advice to our clients, representing the federal agencies in
environmental matters, and advising them on compliance with the
law. The defense of federal agencies consumes considerably less
of the Division's resources and time than does environmental
enforcement efforts.
Cases involving the government's compliance with environ-
mental laws may arise in a number of ways. In each instance,
however, it is my objective to assure that the same exacting
substantive requirements which are met by private parties apply
to the federal government, we do not argue conflicting positions
on the appropriate standards to be met for federal agencies as
compared to private parties. That being said, let me describe
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11
the kinds of cas«s which are handled in my office and give son«
illustrations of how they are handled.
Currently pending are approximately 30 cases or matters
involving federal facility environmental compliance. I note that
this is but a small percentage of the total workload of the
Environmental Defense Section, which has approximately 1300 cases
pending annually. Approximately 20 of those matters involve
situations either where a federal agency has received a notice of
intent to sue pursuant to a citizen suit provision, or wJiere a
federal agency has simply requested our advice independent of any
filed litigation. In those latter instances, my offices may
provide advice to the agency regarding the law relevant to the ^
particular problem. Yet, because there is no lawsuit pending,
our role is purely advisory and is not central to resolution of
the issue, we commonly employ this opportunity to ensure that
the agency takes the notice letter seriously and commences the
steps necessary to achieve compliance with the law or otherwise
resolve the dispute. Because we are closest to the rapidly
developing substantive law under these statutes, we can alert the
agencies to the most recent cases, regulations, or EPA policy
documents addressing their problem. Additionally, we can advance
compliance by placing federal agencies in contact with the appro-
priate staff at EPA. The Division uniformly advises agencies
that they cannot avoid compliance with the law and should be
aware that, in the event a lawsuit is filed, the Department will I
refuse to assert frivolous defenses or make legal arguments that
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12
conflict with positions that v« take in EPA enforcement cases.
This generally has the.salutary effect of helping the agency to
make a realistic assessment of the problem and often results in
discussions between the parties which avoids litigation and
concludes in a more effective, more expeditious resolution of the
problem. In part as a result of «ur efforts, X note that most
notices of intent to sue do not ripen into lawsuits.
There are also approximately 30 cases in which the United
States has filed an action against private parties responsible
for a hazardous waste problem, and these parties, in turn, have %
brought federal agencies into the suit as either third party
defendants or by way of counterclaims against the United States.
In these cases there is rarely an issue of liability — if the
federal agency is a generator, it will pay its appropriate
share. As a result, federal generators have contributed to
4
settlements at major sites like the Conservation Chemical Corpor-
ation site in Kansas City, the Chera Dyne site in Ohio, and many
others. Federal generators have for the most part been relative-
ly snail contributors to a number of our enforcement sites.
Occasionally, however, the federal activity generated a larger
amount'of the waste. It appears that the Hardage site is such a
situation, where the federal contribution may be approximately
3%. At a site like Stringfellow, for example, Air Force
generated wastes represent approximately 3.9%. The Air Force
already committed over $4 million toward its contribution for
clean up. Even without litigation, at a site like the Bio-
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13
Ecology site in Texas, Air Force, which may have contributed as
much as 38% of the waste by volume, has agreed with EPA to pay
its share of the RI/FS costs. In these instances, the federal
agencies will try to meet their'obligations through appropriate
funding of remedial activity.
As these examples illustrate, neither X, nor any of ay
colleagues here today/ will tell you that in the past federal
agencies have always attained the standards of environmental .
protection to which they must be held. But as problems and
issues have become apparent we have sought and found ways to get*
results. Over the last five years, using non-litigative strate-
gies, federal agencies have made great strides in developing ^
responsible compliance programs. For example, the Department of
Defense under Superfund has initiated 3,500 preliminary investi-
gations, 3,100 remedial investigations and feasibility studies,
407 remedial actions, and completed 99% of those remedial
actions. The Department of Energy has also taken impressive
steps toward hazardous waste compliance and they are here today
to explain those efforts to you.
In addition to the governmental PRP's, the cases described
above often involve private parties with government contracts,
who perform substantial amounts of work at federal facilities.
Let me assure the Congress that while we have identified inescap-
able legal and institutional distinctions between federal
agencies and private parties, those distinctions do not apply to
government contractors, and the Justice Department does not treat
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14
the government contractor fundan«ntally different than any other
private party for purposes of lav enforcement. In connection
with federal contractors, the Subcommittee has requested that an
outline of the general procedures for enforcement litigation
referrals from EPA, which we have set forth .in detail in Appendix
"A" to this testimony. As you will note, the very same proced-
ures apply to all actions against private parties, including
government contractors (GOCOs).
Of the 30 matters mentioned previously involving federal
facility compliance, we have approximately 20 active cases %
pending which deal with problems arising on federally owned
and/or operated facilities. These include sites like Rockyk
Mountain Arsenal, Twin Cities Army Ammunition Depot, the
Department of Energy facilities at Fernald, Ohio and Savannah
River Plant in South Carolina, as well as other government
property held and managed by various federal agencies. Once
again, in these cases our objective is to obtain effective
compliance with the law in an orderly way, consistent with the
substantive requirements of the relevant statutes. We do this
through fully assessing the cases, encouraging the agencies to
work with their experts and with EPA to determine how a problem
can best be addressed, and by discussing and negotiating with
opposing parties on what steps to take toward compliance. At the
same time, we seek to carve out those extraneous issues that do
not address questions of substantive compliance and on which we
do not agree — such as liability for civil penalties — through
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15
early, focused motions to dismiss or for partial summary
judgment. This approach enables us to separate the areas of
disagreement from those areas where we can agree. Zn most cases
this approach has led rapidly to either consent decrees or
ongoing negotiations in which the parties reach agreement on the
technical requirements necessary to resolve a problem.
Let me give but a few examples.
We take very seriously the lawsuits brought and the concerns
expressed by the Congress and the public regarding the Energy
Department's facilities at Feraald, Ohio and at the Savannah %
River Plant in South Carolina. w« have worked closely with the
Energy Department at each facility to assure that they have*
embarked on schedules for investigating and remedying any 9
environmental problems or non-compliance identified in those
suits. For example, the state of Ohio filed its lawsuit in March
1986. By June 1986, the Energy Department and EPA Region 5 had
entered into a federal facilities compliance agreement to govern
problems under RCRA, CERCLA and the Clean Air Act. We offered
Ohio the opportunity to enter into this agreement, and since June
1986, we have also offered to the State at least three draft
consent judgments in this matter. For the most part-, the parties
have agreed on the technical steps necessary to achieve
compliance, the remaining stumbling blocks are primarily specific
legal questions — such as penalties — which Z firmly believe
should not impede swift compliance with the law. Accordingly, i
the meantime, while there are pending motions on the penalties
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16
and other issues, th« Energy Department, with our encouragement,
is complying with the technical aspects of the agreement that it
has negotiated with EPA and with the promises that it has made to
the State.
Similarly, with regard to the Savannah. River Plant, we have
been negotiating with the plaintiffs, Natural Resources Defense
Council and the State of South Carolina, to achieve a consensual
resolution, without disclosing settlement discussions, I can.
express that there appears to be technical agreement in that case
as well and I am hopeful that resolution will be achieved. •
In fact, we either have entered into consent decrees or are
in the process of both negotiating such decrees and embarking on
steps toward compliance in each of our federally owned facility
lawsuits. You may ask why there are not resolutions in every
instance. Candidly, at large facilities, particularly those
which have been in operation for many years, all environmental
problems are not solved instantaneously. We face exactly this
difficulty in our private litigation, as well as with federal
facilities. While we surely desire immediate compliance, to do
the job right everyone needs to know the full extent of a problem
before-commencing a remedy. Thus in lawsuits, as is- true in the
absence of litigation, the government first fully assesses the
extent of any environmental problem, and then expeditiously moves
to remedy it.
Moreover, as a litigator, I fully recognize that parties to
a lawsuit will not enter into consent decrees if they are
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17
uninformed or less than fully informed. My point in emphasizing
negotiated resolution of federal facility compliance suits is not
to bulldoze parties precipitously into agreements. Rather I want
to be clear that we are ready to enter into consent decrees that
apply the sane substantive standards to government coapliance as
exist for private parties.
Trial of any environmental compliance lawsuit is time-
consuming and costly to all parties, including the courts. Our
objective where federal agencies are sued because of alleged non-
compliance with environmental laws is to utilize all available •
tools — including agreements with EPA, consent decrees, negoti-
ations among interested parties,'pre-trial motions — to avoid M
protracted litigation that might delay effective compliance, or
waste precious resources. We are interested in seeing the agency
quickly address the problem so that neither the parties, the
community nor the courts need to expend resources on such cases.
You have asXed what role the Lands Division played in the
agreement reached between the Department of Energy, the EPA and
the State of Colorado concerning the Rocky Flats facility. Where
there is no pending litigation, my staff is not generally
involved in either administrative or intergovernmental
discussions between federal agencies and either EPA or state
agencies. From time to time, however, we receive requests for
informal advice from agencies regarding environmental issues. We
routinely advise such agencies that they must meet the
substantive requirements of applicable environmental laws.
\
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13
In the Rocfcy Flats circumstance, it is my understanding that
all parties had reached agreement regarding the technical steps
that wer«.necessary, but consummation of that agreement was being
delayed, in part, because of the label to be placed on the
instrument. There were questions raised near the end of negotia-
tions as to whether there was authority under RCRA for EPA to
issue 'orders* to another federal agency, and what the precise
legal consequences would be of issuance of orders to federal .
agencies. Rather than have such a dispute delay prompt consum-
mation of an agreement which all parties seemed to desire, we %
recommended that it be signed as an 'agreement*, rather than an
'order*. *
— We were also consulted with regard to provisions in the
RocJcy Flats agreement concerning citizen enforceability. There
we recommended that the agreement include language parallel to
i
that found in the citizen suit provision of RCRA, providing that
requirements of RCRA embodied in such agreements are subject to
citizen enforcement. We fully support the concept that federal
agencies must be accountable to the public for their compliance
with the law, and recognize that citizen enforcement is an
important tool to achieve this accountability.
It is my understanding that the parties to the Rocky Flats
agreement are pleased with its terms and its implementation. The
agreement enabled the federal government to avoid unnecessary
litigation with the State of Colorado, and established an
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enforceable instrument to govern Energy's compliance. These
the objectives we seek.to achieve in all such cases.
Moving from specific matters to our broad approach to
achieving federal facility compliance, I firmly believe — and
this is also reflected in the Division's successful strategy in
obtaining environmental compliance for private facilities — tha-
litigation, or other types of coercive enforcement, should alway:
be the Iaa£ resort, rather than the firatt resort. For federal
facilities, this is especially apparent — a process involving
consensual agreements, subject to public accountability and the «
discipline of citizen enforcement, is far more likely to produce
quick and efficient compliance than a contested proceedings
x- I believe that agreements reached through the process
provided for in the proposed memorandum of understanding (MOU)
worked out among interested agencies will assist in bringing
federal facilities into environmental compliance in the most
expeditious and efficient manner. To be sure, this process
evolved in part from legal concerns (both constitutional and
statutory) about the use within the Executive Branch of certain
enforcement tools in a manner oblivious to the differences
between federal agencies and private parties outlined above.
However, it became clear that an MOU process was — independent
of the legal concerns — a better and quicker way to secure
compliance than an administrative hearing and judicial review
process which would unnecessarily drain resources. To ensure
that the President has the opportunity to resolve disputes within
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20
the Executive Branch, it is important to establish a process
which can both track the steps applied to private parties, yet
account "for this significant constitutional dimension. Thus,
under the MOU which we have been developing with EPA and other
federal agencies, EPA would be able to send notices to agencies
identifying possible violations or deficiencies. Zf the response
was not sufficient to satisfy EPA, that agency could propose
findings of violation and propose remedies, just as it can for
private parties. At each stage, a set amount of time would be
permitted for negotiation of compliance agreements. If signifi-%
cant policy issues were involved, there would be an opportunity
for elevation of the dispute as provided in Executive Order *
12098. Z am confident that very few issues of environmental
compliance would require this level of review, but prudent,
constitutionally valid management of the government requires that
such an opportunity be provided. Z note that under this process
the resolution of environmental matters would be subject to
public review and the terms of the resulting compliance documents
can be invoiced in citizen suits to enforce the statutory require-
ments of RCHA.
The MOU process outlined above, however, has more to
recommend it than the practical realities of more timely
compliance. Zt also avoids substantial statutory and
constitutional problems associated with intra-Executive Branch
orders. Indeed, an answer to your first question — requesting
the Department's legal opinion as to the authority of the
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21
Environmental Protection Agency ("EPA") to issue administrative
orders to other federal agencies under section 3008 of the
Resource Conservation and Recovery Act ("RCRA") and section 106
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 ("CSRCLA*) — highlights some of these
•
difficult legal problems. The answer to this question is
complex, requiring interpretation of often ambiguous provisions
of complicated statutes in light of certain well-established and
important constitutional principles. Allow me to begin, however,
by outlining some relevant authorities that the EPA clearly can »
exercise consistent with the statutes and the Constitution.
First, EPA's authority to issue administrative orders to
other, federal agencies under CERCLA section 106 is straight- ^
forward. Section 106 of CERCLA provides, in pertinent part, as
follows:
[W]hen the President determines that
there may be an imminent and substantial
endangerment to the public health or welfare
or the environment because of an actual or
threatened release of a hazardous substance
from a facility he may [take] action under
this section including, but not limited to,
issuing such orders as may be necessary to
protect the public health and welfare and the
environment.
.42 tl.s'.C. 9609(a). The statutory tern 'facility* is very broadly
defined and encompasses federal facilities. 42 U.S.C. 9601. All
section 106 authority is, of course, vested in the President, in
Executive Order 12580, however, the President has delegated his
power under CERCLA section 106(a) to 'the Coast Guard with
respect to any release or threatened release involving the
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9992.0
22
coastal zone, Great Lakes waters, ports, and harbors,* and to the
Administrator of the £?A otherwise. Consistent with £0 12146,
the President's delegation recognizes a role for the Attorney
General when orders are to be issued to other executive agencies.
Second, there can be no doubt that RCRA 6001 has waived the
United States' sovereign immunity as to the statutory requirement
of EPA-issued permits. Insofar as EPA, or the States, in their
permitting process establish or modify permit conditions, or -
provide for variances from permit standards, those documents can
be statutorily issued to federal agencies without running afoul •
of the government's sovereign immunity. For example, federal
facilities can be subject to 'corrective action orders* under
f3004 (u) and (v), as part of the permit process.
EPA can also enter into compliance agreements with other
federal agencies under the MOU process outlined above. RCRA
section 6003, entitled "Cooperation with Environmental Protection
Agency," contemplated federal agency cooperation with EPA in
ensuring RCRA compliance. 42 U.S.C. 6963(a). Certainly, the MOU
and the resulting agreements concerning compliance with RCRA
constitute the kind of cooperation between EPA and federal
agencies envisioned by section 6003. Indeed, even absent
*
statutory authorization, this process would be constitutionally
appropriate. Where EPA and the other federal agency have reached
a determination as to the steps that a federal facility must take
to achieve compliance, they can agree -- where appropriate —
that those steps are "requirements" under the statute. Moreover,
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23
the compliance document can reflect an Executive determination
the 'retirements' of the statute and, as such can be invoked by
private citizens in lawsuits brought under section 7002 to vindi-
cate their statutory rights. Under their statutory and constitu-
tional authority, Executive Branch agencies are free to denomin-
ate the document that results from the MOU process as an
'Executive Compliance Order* or 'Executive Compliance Agreement.»
Having outlined important elements of the 'order* authority
that EPA does have under these statutes, I must also emphasize
that Justice Department analysis of RCRA, in response to your »
request, indicates that §6001 has not effectuated a complete
waiver of sovereign immunity that extends to all manner of k
'compliance* orders. For example, as noted earlier, documents
under various labels set forth the requirements that all must
meet under RCRA. These documents include regulations, permits
and related elements of the permit process that establish
requirements for a particular facility. A very important type of
RCRA orders — corrective action orders — delineate requirements
to which facilities are subject and as such clearly seem to be
within the waiver of sovereign immunity. The 'orders* described
in S3008(a), in contrast, primarily concern the imposition of
enforcement sanctions — usually penalties — for 'persons' who
are *in violation of a requirement.* Indeed, this is clear from
the language of §3008(a), 'the Administrator may issue an order
assessing a civil penalty for any past or current violation.*
(emphasis added). As we have noted, however, several courts have
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24
found that penalties arc not within the scope of RCRA's waiver of
sovereign immunity, reasoning in part that sanctions to enforce
requirements are distinct froa the 'requirements' themselves.
See, l^SU, California v. Waltara. 751 F.2d 977 (9th Cir. 1984)
("Criminal sanctions * * * are not a 'requirement* * * * within
the meaning of [section 6001], but rather the means by which the
standards, permits, and reporting duties are enforced'); Mayar v.
Coast Guard. 24 E.R.C. 2013, 2014 (£.0. N.C. 1986); Florida .
Department of Environmental Regulation v. Silvex Corp., 606 F.
Supp. 159 (M.D. Fla. 1985). See generally Appendix B. «
While a formal legal opinion on such a complex question of
statutory interpretation would require additional time, I believe
it important to set forth for the Subcommittee our analysis,
undertaken consistent with the settled rules of construction for
any statutory waiver of sovereign immunity. I have done so in
>
Appendix 'B' of this testimony. I believe, however, that whether
EPA can issue all types of compliance orders to federal agencies
under S3008 is not the real issue. Instead, the true concern is
ensuring that there is an adequate mechanism to get results: to
guarantee that federal facilities meet the underlying statutory
requirements. Unquestionably, the federal agencies must comply
with the statute, EPA regulatory requirements, conditions
contained in permits, and corrective action requirements. Thus,
even absent application of every type of §3008 compliance order
to federal facilities, the above discussion of EPA's authorities
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demonstrates that ample tools and means exist to secure swift
compliance and accountability.
I hasten to add that the Constitution requires a process
that protects the President's ability to taXa care that all laws
are faithfully executed, and hence, to manage the Executive
Branch. The Justice Department has examined this matter, in
response to your request for a legal opinion, and it is our
conclusion that even where statutory order authority exists, the
exercise by EPA of unilateral order authority would be clearly
inconsistent with existing Executive Branch dispute resolution »
mechanisms, and would raise substantial constitutional questions.
This Department has consistently taken the position that under ^
our constitutional scheme, disputes of a legal nature between two
or more Executive Branch agencies whose heads serve at the
pleasure of the President are properly resolved by the President
or by someone with authority delegated from the President. 2
2 Executive Orders 12146 and 12088 provide a mechanism
whereby agencies may submit their disputes concerning compliance
with the environmental lavs to the Attorney General or the
Director of the Office of Management and Budget, respectively.
Executive Order No. 12146 provides that: „
1*401. Whenever two or more Executive
agencies are unable to resolve a legal
dispute between them, including the question
of which has jurisdiction to administer a
particular program or to regulate a
particular activity, each agency is
encouraged to submit the dispute to the .
Attorney General.
1-402. Whenever two or more Executive
agencies whose heads serve at the pleasure of
(continued...)
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26
The President's authority to require Executive Branch agen-
cies to submit their Ifgal disputes to him or his delegate for
resolution derives from his Article IX duty to 'take Care that
the Lavs C*re] faithfully executed," as does his responsibility
to supervise the affairs of the Executive Branch. This obliga-
tion necessarily recognizes the President's authority to exert
"general administrative control over those executing the law.*
Mvara v. United Stataa. 272 U.S. 52, 161-164 (1926). The
President, as head of the Executive Branch, must "supervise and
2(...continued)
the President are unable to resolve such a
legal dispute, the agencies shall submit the *k
dispute to the Attorney General prior to
proceeding in any court, except where there
is specific statutory vesting of responsi-
bility for a resolution elsewhere.
44 Fed. Reg. 42652, reprinted in 28 U.S.C. 509 note.
Executive Order No. 12088 provides that
1-502. The Administrator [of EPA] shall make
every •ffort to resolve conflicts regarding
such violation [of an applicable pollution
control standard] between Executive agencies
... If the Administrator cannot resolve a
conflict the Administrator shall request the
Director of the Office of Management and
Budget to resolve the conflict.
1-603. The Director of the Office of
Management and Budget shall consider
unresolved conflicts at the request of the
Administrator. The Director shall seek the
Administrator's technological judgment and
determination with regard to the applicabil-
ity of statutes and regulations.
43 Fed. Reg. 47707. We acknowledge that the conflict resolution
procedures set forth in Exec. Order No. 12088 "are in addition
to, not in lieu of other procedures, including sanctions, for the
enforcement of applicable pollution control standards."
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27
guide'- executive officers in "their construction of the statute?
under which they act in order to secure that unitary and uniform.'
execution of the- laws which Article II of the Constitution evi- .-
dently contemplated in vesting general executive power in the
President alone.* Id. at 135.3
The President's use of his Article II supervisory powers to
resolve disputes aaong his subordinates also follows from the
Framers' intent that the executive power of the United States.be
exercised in a 'unitary and uniform* way. Mvera. 272 U.S. at
135. The basic principle underlying Article XI of the Constitu-*
tion, is that the Executive power is vested in a single person,
the President, or as Jaaes Madison stated during the Great Debate
of 1798, 'the great principle of unity and responsibility in the'
Executive department.' 1 Ann. Cong. 499 (1798). Simply put, the
executive power under our Constitution is based on this principle
of the unitary executive. The Fraoers deliberately chose this
principle and deliberately rejected the cabinet (or privy
council) alternative, with which they were quite familiar from
British practice and from the constitutions of most of the
original states.
3 The supervisory authority recognized in Mvera is based on
the distinctive constitutional role of the President. The 'take
Care' clause charges the President with the function of coordi-
nating the execution of many statutes simultaneously: 'Unlike an
administrative commission confined to the enforcement of the
statute under which it was created . . . the President is a
constitutional officer charged with taking care that a 'mass of
legislation' be executed,' Younoatown Sheet 6 Tube Co. v. Sawer.
343 U.S. 579, 702 (1952) (Vinson, C.J., dissenting).
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28
On* of the main reasons the Framers chose to create a uni-
tary executive was that they believed that unity in the executive
would promote what today ve call 'accountability.* As Alexander
Hamilton pointed out, the acre that the executive power is
watered down and distributed among various persons, the easier it
is for everyone concerned to avoid blame for failure to comply
with the rule of law. The Federaliat No. 70, at 427-428 (A.
Hamilton) (C. Rossiter ed. 1961). Hamilton stated that 'one of
the weightiest objections to a plurality in the executive . . .
is that it tends to conceal faults and destroy responsibility.* »
I£. at 427. To ensure accountability to the President, the
Constitution, as interpreted by .th« courts, vests him with fche •
powers of appointment and removal, the power to demand written
opinions from executive officers, and the right to invoke execu-
tive privilege to protect consultative privacy.
In our view, if the intentions of the Framers are to be
fulfilled, the President must have an unfettered opportunity to
take action in the event of disagreements or disputes within the
Executive Branch. The President has the responsibility of making
certain that that Branch speaks with one voice. He can do that
by settling the controversy himself, or by establishing proced-
ures, as he has done by Executive Order, for the resolution of
controversies by one of his principal officers. In this way,
conflicts within the Executive Branch are resolved internally,
under the supervision of the President or his delegate, and not
in the courts.
V
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The President is accountable to the American people for the
activities of all Executive agencies. Thus, the President has
the ultimate duty to ensure that federal facilities comply with'
the environmental laws as part of his constitutional responsi-
bility under Article II, even though Executive Branch agencies
are subject to EPA's regulatory oversight. Accordingly, Execu-
tive Branch agencies may not sue one another/ nor may one agency
be ordered by another to comply with an administrative order •
without the prior opportunity to contest the order within the
Executive Branch. Thus, coercive unilateral order authority is *
inconsistent with the constitutional principles of unity and
unitary responsibility within the Executive Branch.
Indeed, the question of the constitutionality of adminis-
trative order authority is a variation on the question of the
constitutionality of EPA's authority to bring an enforcement
action against a federal agency in court. Unilateral administra-
tive orders, like lawsuits, are enforcement tools that interfere
with the management of the Executive Branch by the President. We
have previously advised you, in the context of EPA judicial
enforcement of environmental legislation against federal
facilities, that
Zf a decision or action by one of [the President's]
subordinates is presented to him for review, it seems
to us that if Article ZZ means anything at all, it
means that the President has a duty to consider the
legality of the decision or action and to request the
subordinate to revise the decision or action if it
not accord with law.
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30
Memorandum for the Associate Attorney General, "EPA Litigation
Against Government Agexjcies* at 2-3 (June 23, 1978). We think
that this 'analysis applies with equal forca to coercive EPA
administrative ordars.
This is not to suggest that the Constitution shields federal
facilities from compliance with the environmental lavs. The
constitutional infirmity in unilateral orders is their inter-
ference with the President's power to manage the Executive
Branch. Insofar as RCRA allows citizens to sue to enforce
unilatarally-issued, contested administrative orders as soon as •
they are violated, such a regime would lead to the judiciary
resolving an intra-Exacutive Branch dispute before the President
had a full opportunity to exevcise his constitutional authority.
In light of this, the challenge to those of us in the Executive
Branch charged with the responsibility of ensuring federal
facility compliance with the environmental laws became to fashion
a system that could pass constitutional muster and still provide
an effective enforcement sanction against federal agency non-
compliance. For the reasons explained above, I believe that the
proposed HOU process that the EPA, Department of Justice and
other federal agencies have developed meets this difficult
challenge. Under this procedure, the Executive Branch speaks
with a single voice. At the time of the consummation of the
agreement, the Executive has one view of the requirements of the
law. During the negotiation process, if the agencies disagree,
they are free to appeal to the President to settle the dispute.
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31
In this manner, the President's constitutional prerogatives are
protected, but at the same time, there exists an adequate
enforcement mechanism. In a practical sense, these agreements
constitute determinations by the executive branch as to the
precis* meaning of the statutory requirements. Within the
Executive Branch, the President would have ultimate enforcement
responsibility. At the same time, the agreements may be viewed
as tantamount to an admission or a determination by the Executive
as to the requirements of the statute and as such will Qften be
virtually dispositive of a claim in a citizen judicial enforce- %
rnent action that deviation from the statement constitutes a
statutory violation. ^ So long as the statutory requirements hi
been properly articulated within the Executive Branch process and
remain effective, the citizen may sue and may invoke the 'Execu-
tive Compliance Agreement* or 'Executive compliance Order* to
enforce compliance with the statute. While it is well estab-
lished in constitutional jurisprudence that executive agreements
are not in and of themselves enforceable,4 this is not a
* See In re Surface Minipg Regulation Litigation^ 627 F.2d
1346, 1357 (O.C. Cir. 1980); Independent Meat Packers Aaa'n v.
Butz. 526 F.2d 223, 236 n.21 (8th Cir. 1975), cert, denied. 424
U.S. 966 (1976); Weise v. Syracuse University. 522 F.2d 397, 411
n.23 (2d Cir. 1975); Acevedo v. Nassau County. 500 F.2d 1078,
1084 & n.7 (2d Cir. 1974); Stevens v. Carev. 483 F.2d 188, 190
(7th Cir. 1983); Kuhl v. Hampton. 451 F.2d 340, 342 (8th Cir.
1971); Place v. Weinberger. 497 F.2d 412, 415 (6th Cir. 1974);
Gnotta v. United States. 415 F.2d 1271, 1275 (8th Cir. 1969),
eert. denied. 397 U.S. 934 (1970); Manhattan-Bronx Postal Union
v. Gronowski. 350 F.2d 451, 456 (D.C. Cir. 1965), eegt. denied.
382 U.S. 978 (1966); Farkas v. Texas Instrument. Inc.. 375 F.2d
629, 632-33 (5th Cir.), cert, denied. 389 U.S. 977 (1967); Farmer
v. Philadelphia Electric Co.. 329 F.2d 3, 8-10 (3rd Cir. 1964).
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32
practical problem here, however, as the citizen is suing to
enforce the requirements of the statute and not the executive
agreement .per se — the ultimate enforcement of which constitu-
tionally resides with the President. For these reasons, the
Department of Justice believes that the process established by
this Memorandum of Understanding is fully consistent with both
RCRA and the constitutional principles just discussed, yet
produces a document that demonstrates Executive accountability.
Let me assure you that this resolution of the constitutional
difficulties presented by unilateral order authority in no way •
limits the effect of the statute's requirements on federal
agencies. Those agencies are required by the statute to comply
with stringent requirements and standards. The heads of the
agencies, as well as the President, are obligated to see that
such agencies faithfully comply with the requirements. But when
there is legitimate dispute as to the meaning or application of
such requirements, the ultimate responsibility for resolution
lies.with the President.
You have also asked specifically about the role of the
Justice Department in the development of Executive Order 12580,
implementing the Superfund Amendments and Reauthorization Act.
In particular, you asked about section 4(e) of that Executive
Order. The Executive Order was. developed through the efforts of
all interested units in the Executive Branch, under the coordin-
ation of the President's OMB. Accordingly, the Justice Depart-
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33
ment participated in that effort, including commenting on various
drafts of, and attending meetings about, the Executive Order. .
SARA creates new remedies, including citizen suits. In
order to assure that the President can manage the government and
resolve disputes within the Executive Branch* before such
conflicts might be presented to the judiciary for resolution,
Section 4(e) of the Executive Order provides for consultation
with the Justice Department in the event EPA believes an 'order"
should be issued to a federal facility. This provision .of the
Executive Order is certainly not designed to obstruct federal .
facility compliance with CERCLA, but rather to assist it. It has
k
been our experience that in most instances, differences between
federal agencies regarding environmental compliance have not bee!
over the technical steps necessary to remedy a problem. Rather,
disagreements usually involve legal or policy matters, which are
appropriately resolved at a policy level within the government.
By providing for consultation with the Justice Department, the
President's Executive Order is intended to facilitate rapid
isolation and resolution of such issues, so that they do not
result in delayed compliance by the federal government. Let me
emphasize this point again: The Justice Department will ns£
delay the necessary clean up action because of some policy or
legal disagreement that is not central to the action — whether
it is §3008(a) order authority or the availability of civil
penalties under §6001. fP
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34
Your letter expressed concern that this was an unwarranted
change from Executive Qrder 12316, implementing CERCLA. it is
our understanding that in the past EPA has routinely sent PRP
letters and other notices to federal agencies, but has never sent
•
orders under Section 106 of CERCLA. Where federal agencies have
received notices from EPA, they have often, on an ad hoc basis,
consulted with this Department or other units of the Executive
Branch to ascertain how certain legal or policy matters are
handled. Section 4(e) of Executive Order 12580 simply flakes
clear that such consultation should be a normal part of this »
process, rather than haphazard.
• i
Finally, you also asked specifically about the Department of
Energy and Department of Defense contractual provisions concern-
ing indemnity of contractors at government owned facilities. Let
me say frankly that these aspects of government practice are not
of direct concern to my priorities in enforcing the environmental
laws. As I stated, we have filed several actions against govern-
ment contractors. When a federal agency is sued, or the con-
tractor of any agency is sued, the contractual and/or indemnity
relationship is not a major factor in assessing the environmental
case. The prime concern is whether there is a violation and how
it can be remedied. For this reason, I have not had the occasion
to consider in detail government contracting practices, including
how such practices generally might be related to indemnity for
noncompliance with environmental laws.
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35
In conclusion, federal agencies have gone a long way toward
achieving compliance with environmental requirements -- we still,
have a distance to go to achieve full compliance and there exist
many vehicles for ensuring results. W« are now in a position to
•
move forward with EPA regulations, permits and compliance agree-
ments. Moreover, as we informed the Subcommittee in our October
11, 1983 letter, the Justice Department stands ready to utilize
the full panoply of its judicial enforcement tools against GQCO-
violators that are operating on federal facilities. At .the same
time, I fully expect that State and citizen enforcement will •
continue to be active in this area. Finally, the proposed MOU
' i
will provide an open process that enhances agency accountability^)
to the public and to the Congress. As I noted earlier, Congress
has also set in motion, through the amendments to CERCLA, and
through the appropriation of funds, a process to ensure that
cleanup activities continue. A continued working relationship
with members of Congress and a common understanding of mission
and budget issues is essential, for without it, the agencies will
be unable to achieve results.
We all share the same goals — quick and effective federal
.facility compliance — the only question is the best means to
reach them. Many federal agencies that are subject to RCRA or
CERCLA are already coordinating their compliance with EPA to
avoid the need for administrative orders. To this end, EPA has M
been negotiating compliance agreements with other federal
agencies covering response actions at federal facilities. I
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9992 0
36
firmly believe the new MOU that this Department has developed, in
coordination vith EPA,.will further facilitate the process of
dispute resolution between EPA and other executive agencies under
RCRA, without doing violence to our constitutional structure.
The proposed MOU would establish procedures'quickly to resolve
disputes at the agency level and that would include a generous
opportunity for public comment. The key goal is to achieve
results, and if these negotiated compliance commitments can go
forward at each major facility, those results will surely come.
The Department of Justice looks forward to working closely «
with Members of this Subcommittee and the various federal
' |
agencies in this most important area. X would be pleased to
answer any questions you might have.
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APPENDIX "A" — Answer.to Question 4.
Civil judicial EPA enforcement cases are referred to the
*
Lands Division with litigation reports prepared by the EPA
Regional Office. Incoming referrals are received in the
Environmental Enforcement Section (EES) and routed to an
Assistant Section Chief who, in turn, assigns the matter to a.
trial attorney to handle.
The trial attorney performs the basic case evaluation to
analyze factual and legal issues. (In some cases, an Assistant
U.S. Attorney may be the lead DOJ lawyer, so the Lands trial
attorney will work jointly with the Assistant U.S. Attorney to
conduct the case evaluation.) If additional information is
needed to determine whether to file the case, the trial attorney,
with the approval of an Assistant Chief or Senior Lawyer, makes a
supplementary request to the EPA attorney assigned to the case.
If supplemental information is not timely provided by EPA to the
Division, then the case may be returned to EPA until further
necessary information is available. Referrals returned for this
reason must be approved in writing, by the Chief of the Section.
When sufficient information has been obtained to evaluate
the EPA referral on the merits, a decision is made whether or not
to file the case, unless EPA has decided to withdraw the matter.
If EES staff recommend filing the case, then the EES trial
attorney prepares a draft complaint which is reviewed by EPA
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9992 0
2
staff. The draft complaint is directed to m«, as the Assistant
Attorney General, under cover of a memorandum analyzing the cas«.
This package is reviewed by the trial attorney's Assistant Chief,
the EES Section Chief or Deputy Chief, and the Deputy Assistant
Attorney General before it reaches my desk. ' The Assistant
Attorney General signs both the cover memorandum and the
complaint. The complaint is then forwarded to the U.S.
Attorney's Office, where it is signed by an Assistant United •
States Attorney prior to filing.
If EES staff believes the case should not be brought, the »
Chief of the Enforcement Section, writes to the Senior
' t
Enforcement Counsel, OECM, (EPA) and the relevant EPA Regional
Counsel explaining, in detail, the reasons supporting this
decision. This letter is reviewed by the Deputy Assistant
Attorney General before it is sent. Zf EPA staff disagree with
the EES declination, they may request that the matter be reviewed
by me or the Deputy Assistant Attorney General, Lands Division.
Over the last 5 years the Division has declined to file fewer
than 3% of the cases referred by EPA, in part because of
effective communication throughout the process.
Where the EPA litigation report or the evaluation by the
Division suggests that a potential counterclaim may be filed by
the proposed defendant(s) against the United States, including
those by a government contractor against the United States, the
EES may request assistance in analyzing the risks posed by such
potential counterclaims from the Environmental Defense Section
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3
(EOS). Requests for such assistance by EES to EDS arc mad*
through a supervisor in EES (Chief/Deputy Chief or Assistant
Chief) to'the Chief or Assistant Chief, EOS. Environmental
Defense Section lawyers are responsible for defending the United
•
States on counterclaims brought by defendants in civil enforce-
ment cases and report to a different Deputy Assistant Attorney
General from the one who supervises enforcement. Accordingly,
these assistance requests allow EOS staff to obtain factual
information from non-EPA client agencies regarding the potential
counterclaim, to advise EES staff on the merits of the potential*
counterclaim, and to prepare responses to counterclaims where
necessary. EOS staff ordinarily will obtain necessary factual
information from the relevant client agency and communicate that
to the EES staff, who in turn, arranges for review of this
information by EPA staff working on the case. Assessing
counterclaims is an essential part of evaluating the overall
merits and exposure of the United States' affirmative claims.
However, let me emphasize that the risk, or presence, of a
counterclaim generally does not affect filing of an enforcement
case.
It there are concerns between EES and EDS staff involving a
case where there is a counterclaim risk, the Chiefs of the
respective sections attempt to resolve the matter informally.
Continued concerns are elevated to the Deputy Assistant Attorneys
General who supervise the two sections, and then to me, if
necessary.
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9992 0
4
The ESS trial attorney (or an Assistant United States
Attorney under E£S supervision in some cases) prosecutes the
complaint after filing to final resolution by settlement or final
judgment. Zf the defendant files a claia back against the United
States, by way of answer or other responsive pleading, the EES
will forward those matters to the EOS for primary handling. If
the claims are based on matters within the jurisdiction of other
sections in the Lands Division or other Divisions of DOJ, EDS.
will refer the matters to the relevant offices for assistance.
EPA is advised by the EES or EDS staff of any such referral.
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APPENDIX 1, ia partial .aasvar to Question l.
The Department has approached the Subcommittee's quesiton
•
coneming RCRA complianca order authority against federal
facilities by utilizing the same analysis applied to any questior
concerning the scope of a statutory waiver of sovereign immunity.
This analysis must begin with Section 3008(a). That section •
provides, in pertinent part, as follows:
fW]henever on the basis of any information the •
Administrator determines that any person has violated
or is in violation of any requirement of this *
subchapter, the Administrator may issue an order ^
assessing a civil penalty for any past or current ^
violation, requiring compliance immediately or within a
specified time period, or both
42 U.S.C. 6923(a)(l) (emphasis added). By its terms, section
2008(a) applies only to "persons* found to have violated a
requirement. In turn, section 1004 of RCRA contains definitions
applicable throughout the chapter, and provides that
The term "person" means any individual, trust, firm,
joint stock company, corporation (including a government
corporation), a partnership, association, State, munici-
pality, commission, political subdivision of a State, or any
interstate body.
42 U.S.C. 6903(15). Federal agencies are not included in this
definition. This very strongly suggests that federal agencies
are not "persons* under RCRA. Further support for this
interpretation is found in the fact that not only does the
definition of "person" make no mention of federal agencies, but
also section 1004(4) contains a distinct definition of "federal
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9992
2
agency,* as that term is used in the chapter. That section 1004
contains independent definitions of both 'person* and "federal
agency* indicates clearly that the omission of the latter from
the former was not inadvertent.
Given that federal agencies and departments are not
defined as "persons" for purposes of RCRA, it would be reasonable
to inquire as to the source of the obligation of federal
facilities to coaply with RCRA's requirements, including the
requirement to obtain permits. That obligation is derived
exclusively from RCRA section 6001. That section, entitled
"Application of Federal, State, and local law to Federal
Facilities," provides as follows: *
__ Each department, agency, and instrumentality of the
executive, legislative, and judicial branches of the Federal
Government (l) having jurisdiction over any solid waste
management facility or disposal site, or (2) engaged in any
activity resulting, or which may result, in the disposal or
management of solid waste or hazardous waste shall be
subject to, and comply with, all Federal, State, interstate,
and local requirements, both substantive and procedural
(including any requirement for permits or reporting or any
provisions for injunctive relief and such sanctions as may
be imposed by a court to enforce such relief), respecting
control and abatement of solid wastes or hazardous waste
disposal in the same manner, and to the same extent, as any
person is subject to such requirements, including the
payment of reasonable service charges. Neither the United
States, 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. 6961. It is noteworthy that section 6001, on its face,
draws a very explicit distinction between "federal agencies" and
"persons," stating that federal agencies "shall be subject to,
and comply with, all Federal, State, interstate, and local
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3
requirements , both substantive and procedural . . . in th« same
manner, and to the aame^ extent. aa anv perajon.' Ifl . (emphasis
added) . ' • :
In light of the language of section 6001, the question
of EPA' a statutory authority to issue a specific compliance orde
to other federal agencies, then, turns not on whether a federal
agency is a person under section 3008 — because clearly, it is
not — but rather on whether section 6001 subjects federal
agencies to the compliance order authority of the EPA in. the
particular circumstance in question. The answer to this ,
question, in turn, depends on whether the compliance order under
*
consideration constitutes a substantive or procedural requirement
within the meaning of section 6001. There is much in the
lative history and the relevant case law that suggests that
3008 (a) compliance orders themselves are not 'requirements* of
RCRA.
In June 1976, the Supreme Court held that section 313 of the
Federal Water Pollution Control Act Amendments of 1972 ('Water
Pollution Amendments') did not obligate federal agencies to
obtain state permits, but required only that 'federal installat-
ions . . . comply with applicable state requirements.' ££& v.
California ex rel. State Water Resources, Control, Board. 426 U.S.
200, 212 (1976). Section 313 then provided as follows:
Each department, agency, or instrumentality of the
executive, legislative, and judicial branches of the Federa^
Government (1) having jurisdiction over any property or W
facility, or (2) engaged in any activity resulting, or which
may result, in the discharge or runoff of pollutants shall
comply with Federal, State, interstate, and local
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9992
requirements respecting control and abatement of pollution
to the sane extent that any person is subject to such
requirements, including the payment of reasonable service
charges.
86 Stat. 875, 33 U.S.C. 1323 (1970 ed. Supp. IV). You will note
that, with the omission of one clause, this, language is identical
to that found in RCRA section 6001. Thus, in the context of the
waiver of sovereign immunity found in an environmental statute,
the Supreme Court drew a distinction between permits and the
underlying statutory *requirements.* The Court ended its opinion
by stating that if Congress desires federal installations to be
subject to state permit requirements, *it may legislate to mafce
that'intention manifest.* 42 U.S. at 227-28. • -|
Within a month, of this decision, the Senate Committee
on Public Works reported its version of the bill that was enacted
ultimately as RCRA. S. 3622, 94th Cong., 2d Sess. (1976). The
section of the bill that became section 6001 of RCRA was pattern-
ed after section 313 of the Water Pollution Amendments, with one
significant addition. Whereas section 313 merely obligated
federal installations to comply with 'Federal, State, interstate,
and local requirements,* the bill then under consideration would
have subjected such installations to *all Federal, State, inter-
state, and local requirements, both substantive and procedural
(including any requirements for permits and reporting or any
provisions for injunctive relief and such sanctions as may be
imposed by a court to enforce such relief).* While the committee
report did not reference the Supreme Court's recent decision
pertaining to the Water Pollution Amendments, it seems plain that
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5
the chang« was an attempt by Congress to make "manifest" its -.
intent to subject federal agencies to requirements, such as thos
for permits, that the Supreme Court had so recently held
inapplicable under the parallel provision of the Hater Pollution
•
Amendments. The Senate bill, however, was silent as to the
availability of enforcement measures such as compliance orders
and civil penalties.
Meanwhile, in the House, the Committee on Interstate
and Foreign Commerce drafted a bill that would have expressly
subjected federal agencies to administrative enforcement mechan-*
isms and civil penalties. H.R. 14496, 94th Cong., 2d Sess.
(1976). Section 601 (b) of the House, bil provided that
agencies were subject to 'all Federal Requirements under title
ZZZ and for purposes of such title (including actions taken by
the Administrator under sections 307 and 308) the term 'person'
includes any department, agency, or instrumentality of the United
States." Section 308 of the House bill — authorizing EPA to
issue compliance orders to any 'person" in violation of hazardous
waste requirements, to impose civil penalties, and to commence
civil actions in court against such persons — was virtually
identical to the provision enacted as RCRA section 3008 (a).
Desiring to avoid the necessity of a conference to
resolve differences between the House and Senate bills, the
House, by a voice vote, agreed to strike the entire text of its
bill and substitute a compromise closer to the bill passed by the
Senate. 122 Cong. Rec. 32832 (1976). The House substitute, it
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9992 0
6
should be noted, now contained RCRA section 6001 as finally en-
acted, thus including no provision purporting to subject federal
agencies' to EPA compliance order authority or civil penalties.
Three days later, the Senate, by a voice vote, passed the House
substitute without amendment. 122 Cong. Rec. 33818 (1976). That
Congress considered, but failed to enact, a bill that expressly
would have granted EPA the precise authority now contended for
under RCRA supports the conclusion that EPA lacks statutory
authority to issue compliance orders generally to other .federal
agencies. %
Judicial decisions under RCRA section 6001 provide
t
additional support for this construction of the statute. Zn
California v. Walters. 751 F.2d 977 (9th Cir. 1984), California
sought to recover criminal penalties against the Veterans
Administration for disposing of hazardous waste in violation of
state requirements. The only question presented was whether the
VA was subject to such penalties under RCRA section 6001.
California contended that its criminal penalties for violation of
state disposal requirements constitute a substantive or
procedural requirement with which the VA must comply under
section 6001. The United States Court of Appeals for the Ninth
Circuit, the only Circuit which has considered the meaning of
RCRA section 6001, squarely rejected this claim. According to
the court:
State waste disposal standards, permits, and
reporting duties clearly are "requirements"
for the purpose of [section 6001]. Criminal
sanctions, however, are not a "requirement"
-------
of the state law within the meaning of
[section 6001], but rather the means by which
the standards,, permits, and reporting duties
are enforced. Section [6001] plainly waives
immunity to sanctions imposed to enforce
injunctive relief, but this only makes more
conspicuous its failure to waive immunity to
criminal sanctions.
Id. at 978; accord HlilT. V. Coast Guard. 24 E.R.C. 2013, 2014
(£.0. N.C. 1986) (RCRA section 6001 does not subject Coast Guard
to civil penalties recoverable by the state for violations of
state requirements because such penalties 'appear to be a means
by which retirements are enforced and not requirements them-
selves') ; Florida Department of Environmental Regulation v.
Silve* Core. . 606 F. Supp. 159 (M.O. Fla. 1985) (state stattte
imposing strict liability for negligent release of hazardous
waste material does not constitute a 'requirement* under RCRA
section 6001) . The reasoning of the Walters opinion ia instruct-
ive. Like state criminal penalties, a compliance order can be
more readily viewed as a 'means by which . . . standards,
permits, and reporting duties are enforced,' rather than an
independent, substantive requirement.
One additional district court decision under RCRA
section 6001 is directly relevant to the discussion.- In
MeClallan Ecological Seepage Situation v. Weinberger. 25 E.R.C.
1480 (E.O. Calif. 1986), a citizens group brought suit against
the Defense Department for alleged violations of RCRA, seeking
injunctive and declaratory relief as well as civil penalties
under RCRA section 7002, the citizen suit provision. We moved to
dismiss the claim for civil penalties on the ground that the
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9992 0
8
statute did not subject the United States to such penalties.
Section 7002 permits citizens to commence civil actions against
"any person (including . . . the United States . . .)* and
authorizes the district court to order appropriate injunctive
relief 'and to apply any appropriate civil penalties under [RCRA
section 3008(a) and (g)]." The court first concluded that
section 3008 applies only to 'persons,* and that 'person," as
defined by RCRA section 1004(15), does not include the United.
States. The Court thus looked to RCRA section 6001 to determine
whether the United States had been subjected to section 3008's ,
civil penalty provisions. As stated by the court:
*
The plain face, common-sense .reading of
[section 6001] convinces this Court .that
there has not been a waiver of sovereign
immunity regarding the imposition of civil
penalties against federal facilities under
RCRA. The plain face reading of this
legislation demonstrates that Congress
intended to waive sovereign immunity on
behalf of the United States, insofar as
process or sanctions is concerned, only as
required for enforcement of injunctive
relief.
%d. at 1481. Accordingly, the court granted the motion to
dismiss.
Taken together, these decisions illustrate the courts'
continued application of the time-honored rule that waivers of
sovereign immunity must be narrowly construed. See, e.g..
California v. Walters. 751 F.2d 977, 978 (1984) feitina United
States v. Mitchell. 445 U.S. 535, 538 (1980)); Haneoefc v. Train.
426 U.S. 167, 179 (1976). In the specific context of section
6001, this rule of construction suggests that the obligation of
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9
all federal agencies is to comply with all federal, state, and
local hazardous and solid wast* disposal requirements, including
permit and reporting requirements, but that the means of enforc-
ing compliance with such requirements is through state, local, or
citizen-initiated actions for injunetive relief. Under this
interpretation, administrative compliance orders — like criminal
and civil penalties — are not 'requirements* and hence, are not
within the waiver of sovereign immunity. This argument draws.its
strength from the self-evident proposition that compliance orders
issued by the EPA under Section 3008(a) are most appropriately %
considered a means of enforcing RCRA requirements, rather than as
»
"requirements" themselves under section 6001. This is especially
clear when it is recalled that section 3008(a) not only
authorizes compliance orders to assess civil penalties, but also
subjects the person to whom they are issued to independent civil
penalties upon failure to comply with such orders. As discussed,
several courts have determined that Congress did not intend the
United States to be liable for civil penalties under the statute.
Moreover, while section 3008 provides that compliance orders may
include a "revocation of any permit," such revocation is inde-
pendently authorized by RCRA section 3005(d), and certainly falls
within section 6001's command that federal agencies comply with
"requirements for permits."
Although we realize that RCRA section 6001 is not without
ambiguity, the Department believes that the construction of the ^
statute outlined above is compelled from the statutory language,
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10
history, and relevant judicial decisions, of course,
in the event that RCRA.were amended to remove any ambiguity
concerning EPA order authority generally vis-a-vis other federal
agencies, the Constitution would continue to restrain EPA's
unilateral use of 'orders* that might trigger citizen suit
enforcement. Accordingly, these 'orders* would still have to be
the result of an Executive Branch process that preserved the
President's constitutional prerogatives.
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ATTACHMENT 2
NOTICE OF NCNCCMPLIANCE
FOR FEDERAL FACILITIES
This NOTICE OF NCNCCMPLIANCE, COMPLIANCE SCHEDULE and NOTICE OF
NECESSITY FOR CONFERENCE (Notice), is issued under the Resource Conservation
and Recovery Act, (RCRA) and further amended by the Hazardous and Solid
Waste Amendments, This Notice is issued consistent with Executive Order
12088, Federal Compliance With Pollution Control Standards. The authority
to issue this Notice has been delegated by the Administrator of the U.S.
Environmental Protection Agency to the Regional Administrator of EPA
Region ^_ and further delegated to the Director, Waste Management Division,
EPA Region (Complainant).
Complainant is issuing this Notice to the U.S.
(Respondent) as a result of (an inspection on (date)/the
review of relevant documents or other information/a referral for action
from the State of. ) which provides evidence that Respondent
has violated or is in violation of one or more requirements of Subtitle C
of RCRA and the regulations promulgated thereunder concerning the management
of hazardous waste.
Pursuant to Section 6001 of RCRA, the Respondent as a (department/agency)
of the executive branch of the Federal government and (generator of
hazardous waste/owner or operator of a hazardous waste management facility)
is subject to and must comply with both Federal and the State of
's requirements, including regulations and permit conditions
pertaining to the management of hazardous waste in the same manner and to
the same extent as any person (as defined in Section 1004(15) of RCRA) is
subject to such requirements.
Section 7002 of RCRA provides for citizens suits against any person
(including the United States) who is alleged to be in violation of any
permit, standard, regulations, condition, requirements, prohibition or
final order of RCRA. In addition, any person as defined in Section
§1004(15) of RCRA, including any individual that may be responsible for
the hazardous waste management activities at the facility, who has violated
or is violating any requirement of Subtitle C of RCRA or who knowingly
violates any material condition or requirement of a RCRA permit or interim
status regulations or standards maybe subject to administrative, civil
and/or criminal sanctions under Section 3008.
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In order to return to compliance, Respondent trust implement the
actions prescribed in Section (Title of Section) of this
Notice within the timeframes stipulated (subject of negotiation). Two
possible alternatives to implementing the prescribed actions are (1) the
seeking of a Presidental exemption pursuant to Section 6001 of RQRA or
(2) the petitioning of Congress for specific legislative relief. [Note:
Noncompliance with certain statutory or regulatory requirements of
RCRA (e.g., Section 3005(e)(2)/40 C.F.R. 270.73(c) may require that the
Respondent immediately cease the addition of hazardous waste to or the
management of hazardous waste in the affected unit(s) or at the entire
facility and that there is no action which the facility can take to
return to compliance].
Within 15 days of the receipt of this Notice of Noncomplianee/
Violation, the Respondent must submit to EPA a written response describing
the Respondent's efforts to comply with the violations outlined in this
Notice. The Respondent must also identify a date for a settlement con-
ference between the Respondent and the U.S. EPA. This response should
be sent to (identify person to receive response).
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ATTACHMENT 3
MODEL ENFORCEABILITY CLAUSE
FOR FEDERAL FACILITY COMPLIANCE AGREEMENTS
The [Department/Agency] recognizes its obligations to comply
with RCRA as set forth in Section 6001 of RCRA. •
The provisions of this Agreement including those related to
statutory requirements, regulations, permits, closure plans, or
corrective action, including recordkeeping, reporting and
schedules of compliance, shall be enforceable under citizen suits
pursuant to 42 U.S.C. 6972(a)(1)(A), including actions or suits
by the State and its agencies. The [Department/Agency] agrees
that the State and its agencies are a "person" within the meaning
of Section 7002(a) of RCRA.
In the event of any action filed under Section 7002(a) of
RCRA alleging any violation of any such requirement of this
Agreement, it shall be presumed that the provisions of this
Agreement including those provisions which address recordkeeping,,
reporting, and schedules of compliance are related to statutory
requirements, regulations, permits, closure plans, or corrective
action, and are thus enforceable under Section 7002(a) of RCRA.
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ATTACHMENT 4
MODEL LANGUAGE FOR
DISPUTE RESOLUTION
Except as specifically set forth elsewhere in this
Agreement, if a dispute arises under this Agreement the
procedures of this Part shall apply. In addition, during the
pendency of any dispute, the [Department/Agency] agrees that it
shall continue to implement those portions of this Agreement
which are not in dispute and which U.S. EPA and [State] determine
can be reasonably implemented pending final resolution of the
issue(s) in dispute. If U.S. EPA and [State] determine that ail
or part of those portions of work which are affected by, the *
dispute should stop during the pendency of the dispute, the
[Department/Agency] shall discontinue implementing those portions
of the work.
All Parties L j this Agreement shall maJce reasonable efforts
to informally resolve disputes at the Project Manager or
immediate supervisor level. If resolution cannot be achieved
informally, the procedures of this Part shall be implemented to
resolve a dispute.
A. -Within thirty (30) days of the date of any action by
U.S. EPA or [State] which leads to or generates a dispute, the
[Department/Agency] shall submit to U.S. EPA and [State] a
written statement of dispute setting forth the nature of the
dispute, the [Department/Agency's] position with respect to the
dispute and the information the [Department/Agency] is relying
upon to support its position. If the [Department/Agency] does
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9992,0
not provide such written statement to U.S. EPA and estate] within
this thirty (30) day period, the [Department/Agency] shall be
deemed to have^greed with the action taken by U.S. EPA or
[State] which led to or generated the dispute.
B. Where U.S. EPA or [state] issue a written Notice of
•
Position, any other Party which disagrees with the Written Notice
of Position may provide the issuing Party with a written
statement of dispute setting forth the nature of the dispute,
its position with respect to the dispute and the information it
is relying upon to support its position. If no other Party
provides such a written statement of dispute within thirty (30)
v
days of receipt of the Written Notice of Position, the Parties\
*
shall.be deemed to have agreed with the Written Notice of
Position.
C. Upon receipt of the written statement of dispute, the
Parties shall engage in dispute resolution among the Project
Managers and/or their immediate supervisors. The Parties shall
have fourteen (14) days from the receipt by the U.S. EPA and
[State] of the written statement of dispute to resolve the
dispute. During this period the Project Managers shall meet as
many times as are necessary to discuss and attempt resolution of
the dispute. If agreement cannot be reached on any issue within
this fourteen (14) day period any Party may, within ten (10) days
of the conclusion of the fourteen (14) day dispute resolution
period, submit a written notice to the Parties escalating the
dispute to the Dispute Resolution Committee (DRC) for resolution.
If no Party elevates the dispute to the DRC within this ten (10)
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escalation period, the Parties shall be deemed to have agreed
with U.S. EPA'a position with respect to the dispute.
0. Th« J&C will serve as a forum for resolution of disputes
for which agreement has not been reached pursuant to Subparts A,
B or c of this Part. The Parties shall each designate one
individual and an alternate to serve on the DRC. The individuals
designated to serve on the ORC shall be employed at the policy
level (SES or equivalent) or be delegated the authority to
participate on the ORC for the purposes of dispute resolution
under this Agreement. Following escalation of a dispute to the
DRC as set forth in Subpart C, the ORC shall have thirty (30) y
days to unanimously resolve the dispute. If the DRC is unable tk>
unanimously resolve the dispute within this thirty (30) day
period any Party may, within ten (10) days of the conclusion of
the thirty (30) day dispute resolution period, submit a written
notice of dispute to the Administrator of U.S. EPA for final
resolution of the dispute. In the event that the dispute is not
escalated to the Administrator of U.S. EPA within the designated
ten (10) day escalation period, the Parties shall be deemed to
have agreed with the U.S. EPA ORC representative's position with
respect to the dispute.
E. Upon escalation of a dispute to the Administrator of
U.S. EPA pursuant to Subpart D, the Administrator will review and
resolve such dispute as expeditiously as possible. Upon
resolution, the Administrator shall provide the
[Department/Agency] and [State] with a written final decision
setting forth resolution of the dispute.
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F. The U.S. EPA representative on the ORC is the Waste
Management Division Director of U.S. EPA's Region . [state's]
designated aeg^er is the [state's equivalent position]. The
[Department/Agency's] designated member is the
[Department/Agency's equivalent position]. Notice of any
delegation of authority from a Party's designated representative
on the DRC shall be provided to all other Parties pursuant to the
procedures of Part XX.
G. The pendency of any dispute under this Part shall not
affect the [Department/Agency's] responsibility for timely
performance of the work required by this Agreement, except that
the time period for completion of worlc affected by such dispute
shall be extended for a period of time not to exceed the actual
time taxen to resolve any good faith dispute in accordance with
the procedures specified herein. All elements of the work
required by this Agreement which are not affected by the dispute
shall continue and be completed in accordance with the applicable
schedule. The determination of elements of work, Submittals or
actions affected by the dispute shall be determined by U.S. EPA
and shall not subject to dispute under this Part.
H. Within fourteen (14) days of resolution of a dispute
pursuant to the procedures specified in this Part, the -
[Department/Agency] shall incorporate the resolution and final
determination into the appropriate plan, schedule or procedures
and proceed to implement this Agreement according to the amended
plan, schedule or procedures.
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I. Resolution of a dispute pursuant to this Part of the
Agreement constitutes a final resolution of any dispute arising
under tni» XgM«ment. The [Department/Agency] shall abide by all
terms and conditions of any final resolution of dispute obtained
pursuant to this Part of this Agreement.
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ATTACHMENT 5
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 204(0
JUN 241987 ...
SOUO WASTE ANQ EMCMOtMCr
MEMORANDUM
SUBJECT: Determination of Operator at Government-Owned
Contjptfepor-epecated (GOCO) Facilities
y ^«_ ^ CAT A?
»rte A .
FROM: Gene A. Lucero,/Director
Office of Wasted Programs Enforcement
Ma re i a E. wS-ilLamifVtli>ector
Office of
TO: Waste Management Division Directors
Regions I - X
The purpose of this memorandum is to clarify who should
si-jn as the operator on permit applications for Government-
Owned Contractor-Operated (GOCO) facilities. Earlier guidance
(see attached memo) had recommended that the Regional office
consider the role of the contractor in the operation of the
facility before determining who should sign the permit appli-
cation. We also noted that in some cases where tne contractor's
role is less precis!, y defined the Region should exercise
jud^nent given the factual situation.
It appears that there is still some confusion regarding
signatories for permit applications. Whenever a contractor or
contractors at a government -owned facility/ are responsible or
oartially responsible for the operation, management or oversight
of hazardous waste activities at the facility; they should sign
t.*.e permit as the operator(s). In some instances both the
Federal agency and the contractor ( s) are the operators and
multiple signatures to that effect would be appropriate. A
review of the facility's operating records* contingency plans,
oersonnel training records, and other documents relating to waste
management should indicate who the operator(s) are. As a general
rule, contractors will meet this test and therefore in most
situations should be required to sigh the permit application.
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If you have any questions please contact Jim Michael, Office of
Solid Wast, at FTS 382-2231 or Anna Duncan, Office of Waste ProaraSs
Enforcement at FTS 382-4829. programs
•*
Attachment
c=: Bruce Weddle, OSW
Elaine Stanley, OWPE
Chris Grundler, OSWER
Matt Hale, PSPD.
Federal Facility Coordinators, Region I-x
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