OOOR84102
KF3775
.5872
1984
c.l
THE ENVIRONMENTAL PROTECTION AGENCY
FEDERAL FACILITIES COMPLIANCE PROGRAM
STRATEGY FOR
RESOLUTION OF COMPLIANCE PROBLEMS
AT FEDERAL FACILITIES
4 JANUARY 1984
US ENVIRONMENTAL PROTECTION
AGENCY
,« REGION 5 LIBRARY (PL-12J)
p 77 WEST JACKSON BLVD 12TH FLOOR
V CHICAGO IL 60604-3590
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THE ENVIRONMENTAL PROTECTION AGENCY
FEDERAL FACILITIES COMPLIANCE PROGRAM
RESOLUTION OF COMPLIANCE PROBLEMS
CONTENTS
Page
I. INTRODUCTION 1
II. LEGAL BASIS 2
•»
III. POLICY 5
IV. PROCEDURES 9
V. RESPONSIBILITIES 19
VI. APPENDICES 21
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I. INTRODUCTION
Federal environmental statutes require that, in most circumstances,
facilities of the United States Government comply with federal, state,
and local pollution control requirements to the same extent as non-federal
entities. Exceptions are provided where it is in the national interest
to waive compliance or where the Congress does not authorize and appropriate
the funds needed to comply.
Executive Order 12088, Federal Compliance With Pollution Control
Standards. (Appendix A) establishes the Executive Branch program for
carrying out this legislative mandate. It is an administrative program
requiring full coordination and cooperation between the federal agencies,
the Environmental Protection Agency (EPA), and the Office of Management
and Budget (OMB). Disputes regarding compliance by federal facilities
are resolved within the Executive Branch through administrative procedures
specified in the Executive Order.
Federal laws also provide that state and local governments and
private citizens may sue any federal facility that fails to comply with
applicable pollution control requirements. Clearly, the Congress intends
that the Executive Branch ensure the compliance o^ its own facilities
and, if it does not, non-federal entities are authorized to initiate
legal actions against the violators.
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Reing a part of the Executive Branch, EPA does not pursue judicial
remedies where federal facilities do not comply with pollution control
requirements.- Rather, it pursues the administrative remedies provided
by Executive Order 12088. This document:
"sets out the legal framework governing federal facilities compliance;
'states Agency policy on implementing its responsibilities:
"describes procedures for conducting the program; and
"defines roles and responsibilities of Agency components.
This program, titled the Federal Facilities Compliance Program, is
directed by the Office of External Affairs (OEA) / Office of Federal Activities
(OFA) in consultation with the Associate and Assistant Administrators.
OEA develops and implements program policies and procedures with the
assistance of the other offices through the Standing Committee on Executive
Order 12088 (see footnote on page 22).
II. LEGAL BASIS
Federal environmental laws require facilities of the Executive Branch
of the Federal Government to comply with federal, state, anH local pollution
control requirements promulgated pursuant to or effective under those
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statutes. The President may, however, exempt any facility from such
requirements if he determines it to be in the interest of national security
l
or in the paramount interest of the United States. . •
The President's constitutional responsibility to oversee that the
laws of the United States are faithfully executed require him to ensure
that federal facilities comply with pollution control requirements as
mandated by the federal environmental statutes. This Presidential
responsibility is discharged through Executive Order 12088, issued
October 13, 197R.
Under the Order, federal agencies have the primary responsibility
for ensuring the compliance of facilities under their jurisdiction. EPA
is directed to assist the federal agencies in carrying out their
responsibilities. Provisions of the Orrler are summarized below by section.
1-1 The head of each federal agency is responsible for prevention,
control and abatement of environmental pollution at Federal
facilities and activities under control of that agency including
compliance with applicable pollution control standards. Applicable
statutes (Appendix D) are cited with the caveat that the list is
not all inclusive. I/
V With regard to CERCLA, Federal facility response activity is subject
to E.O. 12088. Also see E.O. 12316 for additional discussion of
responsibilities.
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1-2 The federal agencies are to cooperate and consult with EPA in meeting
their pollution control responsibilities.
1-3 EPA is to give advice and assistance and to review and inspect for
compliance.
1-4 An annual pollution control plan is to be submitted from each
federal agency to OMB via EPA.
1-5 Adequate funding, to be used for pollution control only, is to be
requested by each Federal agency.
1-6 A federal agency notified of a pollution violation is to consult
with the notifying authority regarding solutions to the problem.
EPA will resolve any dispute it or, if requested by either party,
the state has with that agency. If EPA is not able to do so, OMB
will consider unresolved conflicts with EPA technical advice.
1-7 A federal agency may recommend Presidential exemptions, via
OMB, with EPA submitting advice.
1-8 Federal agencies must meet host country pollution control standards
outside of the USA.
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Executive Order 12088 thus establishes the mechanism by which the
Executive Branch assures that its facilities meet their compliance
responsibilities.]-/ The Order does not preclude a state or citizen, where
authorized by law, from bringing an enforcement action against a federal
facility for violating a federal, state, or local pollution control
requirement. Nevertheless, a state- is afforded the opportunity to pursue
federal facility compliance with the state's requirements through the
mechanism provided in the Order.
III. POLICY
Compliance of federal facilities with pollution control requirements
is a special concern of EPA because o-f its dual responsibilities: first,
as a key participant in the Executive Branch's program for bringing its
own facilities into compliance with the requirements; and second, as the
federal agency responsible for the implementation of the federal environmental
laws. Unless express exemptions exist, regulated federal facilities
have the same compliance obligations as do all other regulated facilities,
because compliance by either group of facilities is equally important
E.O. 12146 may also apply to disputes over Federal facilities compliance
issues, in that it is the dispute resolution mechan-ism for legal disputes
between federal agencies.
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for environmental protection purposes. Accordingly, activities to assure
the compliance of federal facilities are given the same high priority as
that given to the other compliance activities of EPA.
Remedies for compliance problems at federal facilities are, therefore,
pursued as vigorously and with the same objectives in mind (namely,
achieving compliance completely and expeditiously) as are the remedies
for similar compliance problems at non-federal facilities; only the
means for achieving those remedies are different. For federal facilities, .
an administrative approach grounded in cooperative action is used rather
than the enforcement/litigation approach grounded in compelled action
used for non-federal facilities. EPA and OOJ policy is not to take
judicial action against another federal agency over compliance problems.
Ry Presidential directive, those problems are resolved through specific
procedures within the Executive Branch .£/
Executive Order 12088 provides an effective administrative mechanism
conducive to mutually acceptable resolution of federal facilities' compliance
These procedures do not apply to situations where employees of federal
facilities have committed coriminal violations of the environemntal
statutes. Such criminal violations are enforced in accordance with
policies and procedures issued by the Criminal Enforcement Division of
the Office of Enforcement and Compliance Monitoring.
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problems which best promotes the public interest as a whole. That mechanism
for assuring federal facilities compliance provides for EPA and the
federal agencies to negotiate solutions to compliance problems identified
by EPA. Where agreement on a solution cannot be reached, EPA will not
hesitate to escalate the issue within the agency or to OMB. 'There, competing
national interests are weighed and a decision made as to whether the facility
must be brought into compliance or qualifies for exemption.
Executive Order 12146, Management of Federal Legal Resources, is a
second administrative mechanism for resolving compliance problems between
EPA and other Federal agencies. E.O. 12146 would be applied whenever a
legal dispute existed between agencies, e.g. disputes regarding the meaning
and/or applicablity of an environmental statute to the agency's program or a
disagreement as to whether a certain response action is required.
*,
The compliance assurance process parallels the procedures used to
enforce compliance by non-federal facilities to the extent possible.
Basically, the differences area as follows.
°EPA does not address a federal facilities compliance problem through
judicial enforcement action. The normal solution is-through negotiation of
Federal Facilities Compliance Agreement (see Step 3 on Page 14}V
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Problems which I-PA and a sister agency cannot resolve between
themselves must be resolved outside of EPA.
"Terminology is non-legalistic and non-adversarial to be
consistent with this strictly administrative approach founded on
cooperation.
"The arbiter of unresolved problems is the President and not
the courts.
State and local pollution control officials are encouraged to use
the EPA compliance assurance process and to he a party to agreements
between federal agencies and EPA which implement solutions to problems
at federal facilities in their state or locale. The state and local
officials are also encouraged to use the process to remedy problems they
encounter. Their authority to initiate legal action against a federal
facility with a pollution problem is not diminished in any way whether
or not they use the process.
^/Statutory administrative orders may be appropriate to use during dispute
resolution if helpful to emphasize or explain EPA's position. Compliance
with administrative orders will be sought through the E.fl. 12088 or
12146 process.
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IV. PROCEDURES
OEA/OFA has responsibility as national manager for federal facilities
compliance assurance functions assigned to EPA by Executive Order 12088.
This includes directing Regional implementation of Section 1-6 of the Order on
resolving compliance problems in consultation with other Agency components.
Under guidance issued by OEA, the regional offices determine the compliance
status of federal facilities, notify those found to have a compliance
problem, arrange solutions to the problem, and refer to OEA those problems
which cannot be resolved at the field level. Regional offices have initial
lead responsibility for resolving individual compliance problems. (The
Management Accountability System will he used as a means for tracking regional
accomplishments). The regional Federal-Facilities Compliance Coordinator
(see Section VB, page 20) is the regional program manager and the liaison
with OEA for this activity.
OEA works with the parent federal agencies and OMB to resolve the
problems forwarded from the regional offices. If unsuccessful, OEA
submits the problem to OMB for resolution. The Office of Enforcement
and Compliance Monitoring (OECM) and the appropriate Regional Counsel's
Office provides advice and legal counsel on applicability of pollution
control requirements, assessments of compliance with those requirements,
sufficiency of supporting data, and issues arising in the conduct of
negotiations. These activities are coordinated with the program offices'
enforcement staffs for their technical advice and assistance.
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Resolution of compliance problems at federal facilities is a five-
step process. It is designed to remedy the problems at the earliest
stage and lowest level possible. I.f a problem cannot be resolved at a
given level, it is escalated to the next higher step.
Step 1 - Compliance Determination. Pursuant to Executive Order .
12088, EPA monitors the compliance status of each federal facility
through selective on-site inspections and reviews of the self-monitoring
reports submitted by the facilities where required by regulation.^/
EPA conducts this monitoring at a level of detail consistent with the
magnitude of the facility's contribution to the pollution of the media-
and overall program priorities. To the maximum extent practicable,
nn-site inspections are "multi-media" and are coordinated with the
•i
monitoring activities of both the parent federal agency and the state
and local pollution control agencies.
V Federal facilities compliance monitoring and assessments under the
program mandated by Executive Order 12088 are generally more extensive
than those done for non-federal facilities for enforcement purposes.
The additional information is needed to assist the federal agencies
in bringing their facilities into compliance and to assist OMB in
developing annual budgets for pollution controls.
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For a facility which is a major source of pollution, EPA performs
a comprehensive inspection at least once a year and reviews self-monitoring
reports upon receipt. Each significant minor source is monitored through
either a comprehensive or a cursory inspection, whichever is appropriate,
at least once every two years and through the review of self-monitoring
reports as they are received. AIT other sources are monitored through
the review of self-monitoring reports and through cursory inspections
when a compliance problem is suspected. A report of findings is
prepared after each on-site inspection and a copy forwarded to the facility
manager. Copies of the inspection reports and the self-monitoring reports
are made available to the state and local pollution control agencies.
State and local pollution agencies are encouraged to monitor federal
facilities' compliance with pollution control requirements and to share
the data obtained with the EPA regional offices. Whenever possible,
formal agreements are negotiated with the state and local agencies to
establish arrangements for the coordination of inspections and other
compliance monitoring activities and for the exchange of information
gathered.
Pased on information obtained through the on-site inpsections and
reviews of sel'-monitoring reports or from information provided by State
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and local pollution control agencies, EPA makes an assessment of each
facilities' respective compliance status. In those cases where EPA determines
that the facility does not meet applicable pollution control requirements,
the finding of non-compliance is substantiated and documented to the
same extent as EPA documents findings of non-compliance at non-federal
facilities for the purpose of supporting enforcement actions. Mith federal
facilities, the substantiation and documentation is just as important to
assist in demonstrating the extent of the compliance problem to the
facili.ty'-s managers and in negotiating over the problems proper resolution.
• •
Step 2 - Notification of Compliance Problem. When a federal facility is
*
found to be out of compliance with substantive pollution control require-
ments, EpA informs the facility immediately. First, a check is made to
ensure that a state or local enforcement action or citizen's suit has
not been initiated. If not, the facility is notified in writing of the
finding of non-compliance and copies of the notification are forwarded
to the regional office of the parent agency and to the appropriate state
and local pollution control agencies. Each notification defines the
non-compliance situation, requests that the facility acknowledge the
situation, and requests a meeting within 10 days to discuss the problem.
The notification also advises the facility that a remedial plan will
have to be submitted to the EPA regional office for approval within 30
days after the meeting.
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Non-compliance with procedural requirements by a federal facility is
also brought to the attention of the facility immediately by EPA. This
includes failures to perform the required monitoring and testing of
pollutants, to submit the required self-monitoring reports, and to permit
EPA representatives access to the facility. A letter is sent to the
facility identifying the procedural violation and requesting that remedial
action be taken within a specified time frame considered reasonable and
achievable by the regional office. •
All notifications of non-compliance with pollution control requirements,
substanti-ve and procedural, are written in non-legalistic and non-
adversarial language. They contain no threats of judicial action for
failure to take specified corrective measures. Instead, the non-complying
facility is advised that, if corrective measures are not properly taken,
the problem will be reported to the parent agency for appropriate action
or, if necessary, presented to OMB for resolution.
A federal facility must take one of two actions when notified of a
compliance problem. It must either submit the remedial plan as raquested
and step 3 is initiated, or it must dispute EPA's finding of non-compliance •
and the problem is dealt with at step 4.
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Step 3 - Establish Solution. Upon receipt, EPA evaluates the federal
facilities' remedial plan and, if determined to be technically adequate
and timely, no further action is taken and a copy is sent to the state
and local pollution control agencies. If the plan is rejected, a mutually
acceptable solution to the problem is negotiated with the facility and
documented in a Federal Facilities Compliance Agreement.
The Agreement serves a role similar to that of a consent agreement.
It specifies the non-compliance situation, the corrective action to be
taken, the schedule for achieving compliance, and the requirements for
reporting progress. State and local pollution control agencies are
invited to participate in the negotiations and to sign the Agreement if
they concur with its contents. Copies of the Agreement are sent to the
regional program office, Regional Counsel, OECM, OEA, Federal Facilities
Compliance Coordinator, and the state and local pollution control agencies,
Once the remedial plan or the Federal Facility Compliance Agreement
is approved, adherence to the plan or Agreement is closely monitored in
the same way th-at EPA would monitor compliance with a consent agreement.
Failure by the federal facility to meet the final compliance deadline,
or failure to meet an interim deadline which will prevent the facility
from complying with the final deadline, is evaluated and, if justifiable,
a new schedule for compliance is negotiated. Step 4 is initiated when
the EPA regional office determines that federal facility is committing a
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significant violation of the agreed-upon solution and a new schedule is
not justiciable or cannot be agreed upon.
Step 4 - Resolution of Disputes. Basically, there are three points in this
process where disputes may arise:
°EPA determines that a federal facility is out of compliance but the
facility disagrees with that determination;
*A federal facility is found to be out of compliance by EPA and the
facility agrees with the finding but disagrees with EPA as to the
solution; and
"A federal facility agrees with EPA's finding of non-compliance and
solution but fails to properly carry out the solution.
EPA makes every effort to resolve non-compliance disputes at the
regional level. When agreement on a solution to a compliance problem
cannot be reached with the federal facility within a reasonable time frame
comparable to that which EPA uses in negotiating consent agreements with
non-federal facilities, the EPA regional office presents the problem to
the parent agency's regional office (e.g. Naval District Command). A
meeting is held at that level to.negotiate a mutually acceptable solution
to the problem.
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"Regjonal offices (in consultation with Of-A) may issup statutorily
authorized administrative orders to federal facilities after initial
efforts to negotiate have failed, if the Regional office believes the
Order will help induce the facility to achieve compliance. For example,
the Order may bring to the attention of decision -makers the existence of
a problem, its importance to EPA, or the precise terms EPA seeks in a
compliance agreement.
Disputes which cannot be resolved by the Regional office are referred
by the Regional Administrator to OEA, and the RA must expeditiously
refer the matter if it has not been resolved within a reasonable time
after initial notification to the facility."
Disputes which cannot be resolved by the EPA regional .office are
referred to OEA at headquarters with appropriate supporting data.
Documentation of the disputes is similar to a litigation report.
Upon receipt of the documentation of a dispute, OEA works out a solution
to the problem with the official responsible for environmental matters at
the headquarters of the parent agency of the non-complying facility. If
that fails, the Administrator asks the head of the parent agency to take
such action as is necessary to bring the facility into compliance. If
that too fails, the Administrator refers the problem to QMS for final
resolution.
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OMR makes a final decision on the resolution of a dispute based on
what best serves the national interest. That decision would be to mandate
implementation of either the EPA solution, the federal agency solution
*
(which could be a recommendation that the President exempt the non-complying
federal facility from the pollution control requirements) or a compromise
between those two solutions.
At each stage of this process, EPA establishes reasonable timetables
for conducting negotiations and reach-ing agreement, and informs the federal
.facility of these timetables. EPA must expeditiously to elevate problem
to the next stage of dispute, resolution if agreements are not reached
within the established timetables unless a legitimate basis exists to
justify sthe delay.
Step 5 - Exemption. At any time during the process of resolving a compliance
problem, a federal agency may recommend that the President exempt its
facility from applicable pollution control requirements if the exemption
would be in the interest of the United States. Normally, such an exemption
is authorized by federal statute for a one year period of time and may
be renewed if necessary. Executive Order I2fl83 directs EPA to advise
the President, through the Office of Management and Budget, whether it
agrees or disagrees with the recomendation.
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A federal facility which cannot comply with substantive pollution
control requirements as mandated by law is assisted by the EPA regional
office in finding a solution to the problem to avoid the need for an exemption
if at all possible. Every effort is made to find an alternative to an
exemption which is acceptable to the parent federal agency, EPA, and
the state and local pollution control agencies.
If a federal agency recommends an exemption of a federal facility
to the President, the EPA regional office provides OEA with documentation
of the problem and possible solutions for the establishment of an EPA
position on the exemption. The regional office includes with the
documentation its analysis of the pros and cons of granting such an
exemption which takes into account the state's position on the exemption.
OEA then develops a recommended position for the Administrator to submit
to OMB.
If an exemption is granted to a federal facility, EPA provides
assistance to that facility to correct the pollution problem as expeditiously
as possible. The objective is to bring the facility into compliance
prior to the expiration of the exemption to preclude the need for an
•
additional execution. EPA sends a copy of the exemption to the stats
involved.
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V. RESPONSIBILITIES WITHIN EPA
Resolution of compliance problems at. federal facilities is a multi-
media program requiring close coordination and cooperation between the
OEA, the program offices and legal offices in the regional offices and
at headquarters. Because this is a unique program which cuts across
organizational and functional lines, it is important that the responsi-
bilities of the participants be clearly defined. In general, the tasks
involved in assuring the compliance of federal facilities are divided
among EPA offices much the same way that general compliance and enforcement
«
are divided.
A. Regional Office Staff. The Regional Administrator is responsible
for assuring that Federal facilities problems are addressed and, where
possible, resolved. Consistent with policies and procedures issued by
OEA, the regional staff members designated by the Regional Administrator
monitor federal facilities' compliance, assemble and maintain compliance
data, notify federal facilities of findings of compliance problems when
applicable, negotiate solutions to the problems, and monitor adherence
to the agreed upon solutions. If a dispute, arises, they make every
effort to resolve it and, if unable to do so, refer the dispute to the
Regional Administrator. To the maximum extent possible, the staff
coordinates these actions with the states.
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Th e staff perform these tasks in accordance with guidance from
the regional Federal Facilities Compliance Coordinator. The regional
Coordinator is kept informed on all of the staff's activities relating
to federal facilities and OEA is advised of all problems which the
regional Coordinator determines to be of national significance. In those
cases where there is a disagreement with the federal facility, the Regional
Counsel is consulted.
8. Regional Federal Facilities Compliance Coordinator. Each regional
office has a designated Federal Facilities Compliance Coordinator responsible
for implementation of the compliance assurance process. Because this is
a multi-media activity, the Coordinator is generally a member of a staff
office of the Regional Administrator. In those regions where the Coordinator
is located in a media office, he has authority to work directly with the
staffs of the other media offices.
The Coordinator oversees implementation of the federal facilities
compliance activities in the regional office for the Regional Administrator
and is the regional liaison with OEA. Duties of the Coordinator include
ensuring that the regional staff are knowledgeable on guidance issued hy
OEA. monitoring actions being taken by the regional staff to resolve
compliance problems at federal facilities, assisting in resolving those
problems when requested, and providing data to OEA on the compliance
status of federal facilities located in the region.
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C. Regional Counsel. Upon request, the Regional Counsel provides
legal advice to the Regional Administrator, the Federal Facilities Compliance
Coordinator, and the regional staff on:
'determining the compliance status of federal facilities:
8the sufficiency of data supporting compliance determinations:
'negotiations of agreements on solutions to compliance problems; and
"resolving compliance disputes with federal facilities.
The Regional Counsel must consult with OECM headquarters on questions
of national significance.
D. Regional Administrator. The Regional Administrator ensures that
Agency policies and guidance on implementing Executive Order 17083 are
effectively carried-out and is responsible for the level of Federal facility
compliance in the Region. This includes encouraging and supporting the
regional staff in their efforts to resolve compliance problems at federal
facilities. When those problems cannot be resolved by the staff, the
Regional Administrator assumes responsibility for securing a .resolution,
in consultation with the Federal Facilities Compliance Coordinator,
Regional Counsel, and OEA. If unsuccessful, the Regional Administrator
refers the problem to OEA and continues to give support if necessary to
resolve the problem.
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£. Office of External Affairs/ Office of Federal Activities. OEA/OFA
is responsible for the implementation of Section 1-6 of Executive Order
12088 which specifies the administrative procedures to be used in resolving
compliance problems at federal facilities. OEA establishes applicable
Agency policy and guidelines in consultation with OECM, OGC and the
headquarters program offices through the Standing Committee on Executive
Order 12088.£/ Implementing operating guidance for the regional offices
is developed with the assistance of the Standing Committee and issued hy
OEA.
In addition, OEA is the principal point-of-contact with the national
offices of other federal agencies and is the lead office in resolving
federal facilities compliance problems which the regional offices cannot
£/The Standing Committee on Executive Order 12088 is comprised of senior
management representatives of each Associate and Assistant Administrator
and the General Counsel and is chaired by the Director of OFA. Committee
members assist OEA in the development of policies and procedures to
implement implement Executive Order 12088; ensure that regulations,
policies, and procedures issued by their office are consistent with
OEA policies and procedures; and serve as their office's point-of-contact
with OEA in the day-to-day conduct of the Federal Facilities Compliance
Program.
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resolve. If unable to resolve the dispute, QEA asks the Administrator
to seek a solution with the head of the parent agency. If that too
fails, the Administrator refers the problem to OMB. In carrying out
this responsibility, OEA consults with the Regional Counsel and OGC and
OECM for legal and enforcement advice, and with Headquarters and Regional
program offices for advice on technical and program policy matters.
Upon request, assistance is provided to the regional offices in
their work with federal facilities which are not complying with pollution .
control requirements. Such assistance involves working with the parent
agency of the non-complying facility and OMB to ensure that funds are
made available to correct the pollution problem as expeditiously as
possible or to secure the cooperation of a recalcitrant facility manager. •
Periodic reports on the compliance status of federal facilities are
prepared by OEA for administrative purposes. A quarterly report identifying
major federal facilities which are not meeting substantive pollution
control requirements is produced for the Administrator. The federal
agencies are provided, semi-annually, with a listing of all non-complying
facilities under their jurisdiction. A similar report is submitted
annually to the OMB.
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F. Program Off1ces (Headquarter?). Each of the headquarters program
offices provide technical advice and assistance to r>EA upon request. The
program offices also assist OEA, through the Standing Committee on Executive
Order 12088 in developing Federal Facilities Compliance Program policies .
and procedures. They ensure that their own regulations and guidance
documents are consistent wi-th those policies and procedures as well as
with national program objectives.
G. Office of Enforcement and Compliance Monitoring. OECM advises
the Administrator, and OEA, and provides guidance to the Regional Offices
on general enforcement and compliance policy issues relating to federal
facilities including:
"determining the compliance status of federal facilities;
"assessing the sufficiency data supporting compliance determinations:
'conducting negotiations of agreements on solutions to compliance
problems:
"resolving compliance disputes with federal facilities.
"assuring that federal facility compliance efforts support national
compliance and enforcement objectives.
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H. The Administrator. When the regional office and OEA cannot
resolve a compliance problem at a federal facility, the Administrator
contacts the head of the parent agency and requests that action be taken
to correct the problem. If unsuccessful, the Administrator asks OMB to
resolve the issue.
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APPENDICES
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P""ttc«-2in''*'.
U 'C^SW^wi RiNJ
APPENDIX A
[3195-01-M]
f Title 3—The President
•'
ExtcutiYe Order 120S8 » October 13, 197S
f«d8fd Compiionca With Pollution Control Standards
\
By the authority vested In me as President by the Constitution and
statutes of the United Sates of America, including Section 22 of the-Toxic
Substances Control Act (13 U.S.C. 2521). Section 313 of the Federal Water
Pollution Control Ac. as amended (33 U.S.C. 1323). Section 1447 of the
Public Health Service Act. as amended by the Safe Drinking Water Act (42
U.S.C 300J-61, Section 113 of the Gean Air Act. as amended (42 U.S.C.
7413(b)). Section 4 of the Noise Control Act of 1972 (42 U.S.C 4303).
Section 6001 of die Solid Waste Disposal Act. as amended (42 U-S.C G3G1).
and Section 301 of Title 3 of (he United States Code, and to ensure Federal
compliance with applicable pollution control standards, it is hereby ordered as
follows:
l-l. Appiieab&tj afPoUutun Conini Standards.
I-IOL The head of each Executive agency is responsible for ensuring that
ail necessary actions are taken for the prevention, control, and abatement of
environmental pollution with respect to Federal facilities and activities under
the control of the agency.
1-102. The head of each Executive agency is responsible for compliance
win applicable pollution, control standards, including those established pursu-
ant 10, but not limited to. the following:
(a) Toxic Substances Control Act (15 U.S.C 2601 tt xe.}.
(b) Federal Water Pollution Control Act. as amended (33 U.S.C. 1221 tt
(c) Public Health Servics Act. as amended by the Safe Drinking Water Act
(42 U.S.C300frf sea.).
(d) dean A»r Act. as amended (42 U.S.C 7401 et sn.}.
(e> Noise Control Act of 1972 (42 U.S.C. 4901 et ;<•?.).
(f) Solid Waste Disposal Act. as amended (42 U.S.C dSQl et sea.}.
(f) Radiation guidance pursuant to Section 27-((h) of the Atomic Energy
Act of 1954. as amended (42 U.S.C 202 l(h): see also, the Radiation Protec-
tion Guidance to Federal Agencies for Diagnostic X Rays approved bv the
President on January 2G. 1973 and published at page 4277 of the F&D&UU.
Rxctsrrz on February 1. 1973).
(h) Marine Protection. Research, and Sanctuaries Act of 1972. as amended
(33 U.S.C 1401. 1402. 1411-1421. 1441-1444 and 10 U.S.C 1431-1434).
(i) Federal Insecticide. Fungicide, and Rodenticidc Act. -is amended (7
U.S.C 13G et«?.).
1-103. "Applicable pollution control standards" means the jantc >ubsia«-
live, procedural, and other requirements thai would apply 10 a pnvatc person.
1-2. A$cncf Coordination.
1-201. Each Executive agency siiail cooperate wth the Administrator of
ihc Environmental Protection Agency, hereinafter referred 10 as ihc Adminis-
. vou «. NO. :oi—ruHOAT. ocrcm :r,
* v
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',7708 . THE ?*E5!08NT
trator. and State. interstate. 2nd local agencies in ihe prevention. control. 2nd
abatement of environmental pollution.
1-202. Each Executive agency shall consult with the Administrator and
with. Suite, interstate, and local agencies concerning ihe best techniques- and
methods available for the prevention, control, and abatement of environmen-
tal pollution*
1-3. Ttehnieai .idt-iet and Ovtm%ni.
1-301. The Administrator snail provide technical advice and assistance to
• Executive agencies is order ca ensure, their cost eifeciive sad timely compli-
ance with applicable pollution control standards.
1-302. The administrator snail conduct such reviews and inspections as
any be neewssry to. monitor compliance widi applicable pollution control
standards by Federal £»liuc9> and acovities.
1-4. Po&uvia CantnC P'.on.
I-4QT. Each Executive agency shafl submit to- the Director of the Office of
Management and Budget, through the Administrator, an annual plan- for the
control of environmental pollution. The plan shall provide for anv necessary
improvement in ihe design, construction, management, operation, and mainte-
nance- of Federal facilities and activities, and shall indude annual cost esti-
mates. The Administrator shall establish guidelines for developing such plans.
1—402, In preparing its plan, each Executive agency shall ensure chat the
plan provides for compliance with all applicable pollution control standards-.
1-403. The plan. shall be submitted in accordance with anv other instruc-
tions that the Director of ihe Office of Management and Budget may issue.
1-5.
*m*- ^
d
1-301. The head of each Executive agency shall ensure uut sufficient
funds for compliance with applicable 'pollution, control standards are requested
in the agency budget.
1-502. The head of each Executive agency shall ensure Uiai funds appro-
prtated and apportioned for ihc prevention, control and abatement of environ-
mental pollution are not used for ;nv other purpose unless permuted by Uw
and speculcailv annrovcd by ihe Office of .NJanagemcnt and 2uc;c-t.
1-5. Cimptiaiice II7/A Pollution Canirois.
1-oQl. Whenever ihe Administrator or die appropriate State, interstate.
or Iocs! agencv notifies aa Executive agency that it is in violation of an
applicable pollution cantrof standard C'cs Section 1-E02 of this Order), the
Executive agency shall promptly consult with ihe notifying agency and proviu's
for its approval a plan to achieve and maintain compliance "tin the applicable
pollution control standard. Tats plan shall include an implementation sdicu-
uic far coming into compliance as soon 33 practicable.
1-502. The Administrstor shall make every «7ort to rcsohc conflicts
regarding sucii viobuou between Executive agencies atid. on request of auv
party, such conflicts between an Executive agency and a State, interstate, or a
lecsi .igcncy. If the Administrator cannot resolve a conflict, the Au'iuuusirntar
sliall request the Director of the OfHcc of Majiagemctn and BuJjjci to resolve
ihe conflicr.
1-603-. The Director of the OCTTce of Management and Budget shall
consider unresolved conflicts at the rvtnictt of ihc Administrator. The Director
shall scvt tiie Adiuiuistrator's techiiulugtcal judgment and determination wuh
tlte applicability of statutes and regulations.
iseirrot. vot. «. HO. MI— HJIIDAT. ocrcau. '.7. 1779
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THi P*8SI06WT • 47709
1-604. These conflict resoluu'on procedures are in addition iu. nut in lieu
of. other procedures, including sanctions, for the enforcement of applicable
pollution control standards.
S l-c05. Except as expressly provided by a Presidential exemption under
this Order, nothing in this Order, nor any action or inaction under this Order.
snail be construed to revise or modify any applicable pollution control
standard.
1-7. limitation an Esmpttont,
1-701. Exemptions from applicable pollution control standards may only
. be granted under statutes cited in Section I-lQ2(a) through 1-102(0 if the
( President makes the required appropriate statutory determination: that such
exemption is necessary (a) in the interest of national security, or (b) in the •
paramount interest of the United States.
1-702. The head of an Executive agency may, from lime to time, recom-
mend to the President through the Director of the Office of Management and
Budget, that an activity or facility, or uses thereof, be exempt from an applica-
ble pollution control standard.
1-703. The Administrator shall advise the President, through the Director
of the Office of Management and Budget, whether he agrees or disagrees with
a recommendation for exemption and his reasons therefor.
1-704. The Director of the Office of Management and Budget must
advise the President within sixty days of receipt of the Administrator's views.
i-a.
The head of each Executive agency that is responsible for ihe
construction or operation of Federal facilities outside the United States shall
ensure that such construction or operation complies with the env.ramwenul
pollution control standards of general applicability in ihc host country or
jurisdiction. _ ,
1-302. Executive Order No. 11732 of; December 17, 1973. is revoked.
THZ WHJTE Houss.
Oftoiur 13, 1973.
CPR-Ooe. 73-29406 Filed 10-13-73: 3:40 smJ
Carroiut. Sort: The PraidcnTi xamiwrn at" Oct. 13. 1978. on ligntnK K*cnj«»c Cracr
12388 ind hii memorandum for the hcsds of dcpwamcnii >»d igcncin. n ilie WvcUv Cimpiuimn at
Trmdmiui 3acum«nt> (voi. u. no. HI).
«C!JTK. VOt. 43. NO. Ml—TUISOAT. QCTOSn 17, 147S
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APPENDIX B
Federal Raster / Vol. 44. N'o. 141 / Friday. July 20. 1979 / Presidential Dorumcnts
42*557
Presidential Documents
Executive Order 12146 of July 10. 1975
Management of Federal Legal Resources
By the authority vested in me as President by the Constitution and statutes of
the United States of America, it ia hereby ordered as follows: •
1.1. Establishment of the Federal Legal Council.
1-101. There is hereby established the Federal Legal Council, which shall be
composed of the Attorney General and the representatives of not more than
IS other agencies. The agency representative (hall be designated by the head
of the agency.
1-102. -The initial membership of the Council in addition to the Attorney
General shall consist of representatives designated by the heads of the
following agencies:
(a) The Department of Commerce.
(b) The Department of Defense.
(c) The Department of Energy.
(d) The Environmental Protection Agency.
(e) The Equal Employment Opportunity Commission.
(f) The Federal Trade Commission.
(g) The Department of Health. Education, and Welfare.
(hj The Interstate Commerce Commission.
(0 The Department of Labor.
(j) The National Labor Relations Board.
(k) The Securities and Exchange Commission.
(1) The Department of State.
(m) The Department of the Treasury.
(n) The United Slates Postal Service and
(o) the Veterans Administration.
1-103. The initial members of the Council shall serve for a term of two years.
Thereafter, the agencies which compose the ne.-nfaersh.ip shall be designated
annually by the Council and at least five positions OB the Council other than
that held by the Attorney General, joall rotate annually.
1-104. In addition to the above members, the Directors of the Office of
Management and Budget and the Office of Personnel Management, or their
designees. shall be advisory members of the Council
1-105. The Attorney General shall chair the Council and provide staff for its
operation. Representatives of agencies that are not members sf 'he Council
may serve on or chair subcommittees of the Council
1-2. Functions of the Council.
1-201. The Council shall promote:
(a) coordination and communication among Federal legal offices;
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4=833 Federal Raster / V.:! 44. N'n U1 / Friday, luiv 20. 1979 / Presidential Documents
(iwarch and Infcrmc::'..-r Fvas'.if.
l-60t. Tho Attorney G"n»;rul. in coordination wth ths S«c"e?urj- of Defense
and othrr aaenc)- heuds. shall provide fur 4 cumputeruied L^al research
system that will be available to all Federal law rfl,c-;s oa a reimbursable
basis. The system may include in its data biifi such Federal regulations, case
untts. and legal cpimons. as the Attorney General deena appropriate.
1-602. Tlie Federal Legal Council shall provide leadership for all Federal !eg«!
offices in establishing apprcpna;e word pro.sssing and management ir.fonr.a-
system*.
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Federal Renter / Voi •*•>. No. !4i / Friday, {uiy 20. 1979 / Presid'-niia.' DocunT-rits 42S."&
1-7. RtiSpoKsibiliLies uf tie Agencies.
1-701. Each agency shall (a) review the management and operation of its legal
.M.tivilira nnd report in env year to the Federu! Legal Council all steps being
taken to improve those opc'.:tions. and (b) cooperate with the Federal Legal
Council and tht- Attorney General in the performance of the functions pro-
vided by this Order.
1-702. To the extent permitted by law. each agency shall furnish the Federal
l.'Mj"l Counril nnd the Attorney General with reports, information and assist-
ance us requested to carrj- out the provisions of this Order.
THE WHITE HOUSE.
f'.ily 10. 1973.
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APPENDIX C
Federal gegistar / Vol 46. No. 181 / Thursday. August 20.1381 / Presidential Documents. 42237
Presidential Documents
Executive Order 12318 of August 14, 13S1
Responses to Environmental Damage
By the authority Tested fa s» as, President of the United States of America by
Section 115 of the Gnnpreheasive Environmental Response. Compensation.
and Liability Act of 1980 (94 Slat 2798: 42 U.S.C 9615). it Ts hereby ordered as
follows:
Section "L National Contfnvexcr P!an.J*) The National Contingency Plan.
hereinafter referred to as the NCP and which was originally published pursu-
ant to •Section' 311 of the Federal Water Pollution Control Act as amended (33
U.S.C 1321}. shall be amended to contain the implementing procedures for the
coordination of response actions to releases of hazardous substances into the
environment. " . •
(b) Ths NCP shall eanlafn a. concept of a national response team composed of
representatives of appropriate Executive agencies for the coordination of
response actions. Us. national response team shall, in addition to representa-
tives of other appropriate •g*"**««T include representatives of the following:
Department of State. Department of Defense. Department of Justice. Depart-
•meat of the Interior. Department of Agriculture. Department of Commerce.
Department of Labor. Department of Health and Human Services. Department
of Transportation. Department of Energy. Environmental Protection Agency.
Federal Emergency Management Agency, and United States Coast Guard.
(c) The responsibility for the amendment of the NCP and all of' the other
functions vested in the President by Section 105 of the Comprehensive Envi-
ronmental Response. Compensation, and Liability Act of 1980, hereinafter
referred to as the Act (42 U.S.C. 9605], is delegated to the Administrator of the
~ PjUletitiUU
(d] In accord with Section lll(h)(l) of the Act and Section 311(f)(5J of the
Federal Water Pollution Control Act as amended (33 U.S.C. 1321(0(3)]. the
following shall ba among those designated in the NCP as Federal trustees for
natural resources: — '
(1J Secretary of Defense.
(2) Secretary of the Interior.
(3) Secretary of Agriculture.
(4) Secretary of Commerce.
(e) Amendments to the NCP shall be coordinated with members of the
national response team prior to publication for notice and comment Amend-
ments shall also be coordinated with the Federal Emergency Management
Agency and the Nuclear Regulatory Commission in order to avoid inconsistent
or applicative requirements in the emergency planning responsibilities of
those agencies.
(f) All amendments to the NCP, whether in proposed or final form, shall be
subject to review and approval by the Director of the Office of Management
and Budget
Sec. 2. fissions? Aathorities^ (a) The functions vested in the President by the
first sentence of Section 104(b) of the Act relating to "illness, disease, or
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45338 'Federal Register / VoL 43. No. 161 / Thursday. August 20. 1981 / Presidential Documents
complaints thereof* are delegated to the Secretary of Health and Human
Services who shall in accord with Section 104(i) of the Act perform those
' functions through the Public Health Service.
(b)(l) The functions vested in the President by Section 101(24) of the Act to
the extent they require a determination by the President that "permanent
relocation of residents and businesses and community facilities" is included
within the terms "remedy" or "remedial action" as defined in Section 101(24)
of the Act are delegated to the Director of the Federal Emergency Manage-
ment Agency.
(2) The functions vested in the President by Section 104(a) of the Act to. the
extent they require permanent relocation of residents, businesses, and commu-
nity facilities or temporary evacuation and housing of threatened individuals
not otherwise provided for. are delegated to the Direetor of the Federal
Emergency Management Agency.
(c) The functions vested in the President by Section 104 (a) and (b)' of the Act
are delegated to the Secretary of Defense with respect to releases from
-Department of Defense facilities or vessels, including vessels owned or bare-
boat chartered and operated.
(d) Subject to subsections (a), (b). and (c) of this Section, the functions vested
in the President by Sections 101(24) and 104 (a) and (b) of the Act are
delegated to the Secretary of the Department in which the Coast Guard is
operating, hereinafter referred to.as the Coast Guard, with respect to any
release or threatened release involving the coastal zone. Great Lakes waters.
ports, and harbors. • . .
. (e) Subject to subsections (a), (b), (c). and (d) of this Section, the functions
vested in the President by Sections 101(24] and 104 (a) and (b) of the Act are
delegated to the Administrator of the Environmental Protection Agency, here-
^ " - inafter referred to as the Administrator.
(!) The functions vested in the President by Section 104 (c). (dl. (f). (g). and (h)
of the Act are delegated to the Coast Guard, the Secretary of Health- and
Human Services, the Direetor of the Federal Emergency Management Agency.
and the Administrator in order to carry out the functions delegated to them by
subsections (a), (b). (d). and (e) of this Section. The exercise of authority under
Section 104(h) of the Act shall be subject to the approval of the Administrator
of the Office of Federal Procurement Policy.
(g) The functions vested in the President by Section l04(e)(2)(Q of the Act are
delegated to the Administrator; all other-functions vested in the President by
Section 104(e)-of the Act are delegated to the Secretary of Defense, the
Secretary of Health and Human Services, the Coast Guard, the Director of the
Federal Emergency-Management Agency, and the Administrator of the Envi-
ronmental Protection Agency, in order to carry out the functions delegated to
them by this Section.
Sec. 3. Abatement Action, (a) The functions vested in the President by Section
106{a) ot me Act are delegated to the Coast Guard with respect to any release
or threatened release involving the coastal zone. Great Lakes waters, ports.
and harbors.
(b) Subject to subsection (a) of this Section, the functions vested in the
President by Section 106(a) of the Act are delegated to the Administrator.
Sec 4. Liability^ (a) The function vested in the President by Section
107(c)(l)(C} of the Act Is delegated to the Secretary of Transportation.
(b) The functions vested in the President by Section 107(c)(3) of the Act are
delegated to the Coast Guard with respect to any release or threatened release
involving the coastal zone. Great Lakes waters, ports, and harbors.
(c) Subject to subsection (b) of this Section, the'functions vested in the
President by Section 107(c)(3) of the Act are delegated to .the Administrator.
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Federal Register / VoL 48, No. 181 / Thursday, August 20. 1981 / Presidential Documents 42239
x- (d) The functions vesced in the President by Section lOTff) of the Act are
delegated to each of the Federal trustees for natural resources set forth in
• Section l(d) of this Order for resources under their trusteeship.
Sec. 5. Financial Responsibility, (a) The functions vested in" the President by
Section l07fk)(4J(B) of the Act are delegated to the Secretary of the Treasury.
The Administrator will provide the Secretary with such technical information
and assistance as the Administrator may have available.
(b} The functions vested in the President by Section 10S(a) of the Act are
delegated to the Federal. Maritime Commission. Notwithstanding Section l(d)
. • of Executive Order No, 12291v'the regulations issued pursuant to this authority
snail' be Issued in accordance with that Order. The Commission shall be
responsible, in accord with Section 109 of the Act for the enforcement of civil
penalties for violations of the regulations issued under Section 108(a) of the
Act
(c) The functions vested in the President by Section 108{b) -of the Act are
delegated to the Secretary of Transportation with respect to all transportation
related facilities, including any pipeline, motor vehicle, rolling stock, or air-
craft
(d) Subject to subsection (c) of this Section, the functions vested in the
President by Section 108(b) of the Act are delegated to the Administrator.
• • Sac. & Employee Protection and Notice to Injured, fa) The functions vested in
the President by Section 110(e} of the Act-are delegated to the Secretary of
Labor. •
(b) The functions vested in the President by Section lll(£] of the Act are
delegated to the Secretary of Defense with respect to releases from Depart-
ment of Defense facilities or vessels, including vessels owned or bare-boat
chartered and operated.
(c) Subject to subsection (b) of this Section, the functions vested in the
President by Section lll(gj of the Act are delegated to the Administrator.
Sec. 7. Management of the Hazardous Substance Response Trust Fund and
Claims, (a) The functions vested in.the President by Section lll(a) of the Act
are delegated to the Administrator, subject to the provisions of this Section
and applicable provisions of this. Order.
(b) The Administrator shall transfer, to transfer appropriation accounts*for
other agencies, from the Hazardous Substance Response Trust Fund, out of.
sums appropriated, such amounts as the Administrator may determine neces-
sary to carry out the purposes of the'Act These allocations shall be consistent
with the President's Budget within the amounts approved by the Congress.
unless a revised allocation is approved by the Director of the Office of
Management and Budget
(c) The Administrator shall chair a budget task force composed of representa-
tives of agencies having responsibilities under this Order or the Act The
Administrator shall also, as part of the budget request for the Environmental
Protection Agency, submit a budget for the Hazardous Substance Response
Trust Fund which is based on recommended allocations developed by the
budget task force. The Administrator may prescribe reporting and other foras.
procedures, and guidelines to be used by the agencies of the Task Fores in
•preparing the budget request
[d] The Administrator and each agency head to whom fends are allocated
pursuant to this Section, with respect to funds allocated to them, are author-
ized in accordance with Section lll(f) of the Act to designate Federal officials
who may obligate such funds.
(e) The functions vested in the President by Section 112 of the Act are
delegated to the Administrator for all claims "presented pursuant to Section
111.
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42240 Federal Register / Vol. 46. No. 161 / Thursday. August- 20. 1981 / Presidential Documents
in DOC. n-;*m
ra«rf «
auua«
8. General Pruraiaas* (a) Notwithstanding any other provision- of this
Order, any representation pursuant to or under this Order in any judicial or
'qna«-judicial proceedings -shaft be by or through the Attorney General. The
conduct and control of all litigation arising under the Act shall be the
responsibility of the .Attorney General.
(b) Notwithstanding any other provision of this Order, the President's authori-
ty under tixe Act to require the Attorney General to commence litigation is
retained by tfa* President.
{e} The functions rested in the President by Section 301 of the Act are
delegated aa follows:
CU With respect to subsection (a), to the Administrator in consultation with
ofeSecsetiry of the Trssanry. .
* 4*
(2} With respect to subsection (b), to the Secretary of the Treasury.
(3) With jeapect to subsection (c). to the Secretary of the Interior. '
(4) With respect to /subsection {!), to the Administrator.
(d) The Attorney General shall manage and coordinate the study provided for
hi Section 30I(eJ of the Act
(a) The performance of any function under this Order shall be done in
eniuultation with interested agencies represented on the national response
team, a* we]] as with any other interested agency.
* •
(f) Certain functions vested in the President by the Act which have been
delegated or assigned *by -this-Order-may be redeiegated to the head of any
agency with his consent those fractions -which may be redeiegated are those
set form in Section* 2.3,4(b). 4{cJ. and 8(c) of this Order.
(3) Executive Order No. 12286 of January IS. 1381. is revoked.
THE WHITE HOUSE.
August 14. 1981.
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APPENDIX 0
SECTION'S OF
ENVIRONMENTAL LAWS
PERTAINING TO
FEDERAL FACILITIES
-------
TOXIC SUBSTANCES CONTROL ACT
r
SEC a. NATIONAL DEFENSE WAIVER.
Tlio Administrator shall waive romplianni with itny provision of
this Act upon a rw^icrt nml determinntirm \>y the Prrsident Hint ilio
trnivrr is nwfKMrv in the inlprert of nnJional on
whicli such waiver imu (jrnnletl nml make such rrrnnl nvnilnMc for in
rnmrra rsaminilinn wiu>n relernnt in A jmiiriai pnvrrtling iincii-r
tli is Art. Upon the ixmnnrf of siirh a irnivcr, the Ailininistmior . tlirrwif
to th« Armed Sfrrirw Conunittevs of the Semite ami the I!'«iw o(
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rr.
r
PUBLIC HEALTH SERVICE ACT, as amended by
the SAFE DRINKING WATER ACT
f fa) i.ic .
any federally otrce-t or mamr r.s>iu 3'ioiic ~.x:sr -y^tam >?r -'> 't-rr.C'M
in aay activity rssuuiar. ar Tsica may result in. •inusr.rrr.ieu :n;«!c::on.
which eadangers drinking water (within, the meaaiac of section 1421 (d)
(2)) shall ba subj«« to. and comply with. aJl /eai-nii. itaia. and local
requirements, administraure iutiionr.es, inu procws an-i
rcsaectias: tha provisioa of sofa dnnJca? ^atcr &ad. rcsrsc'-iag
oader^rouad injecuoa pros-Trim in the iama oiuaner. aau co :aa i
estcnt, as any aoas^^crsjiicatai entity. Tho precsuiai; soatcsca sotiii
ippiy (±} to aay reqmrcrneat waether substacnve or sreceuursi
(laciudin^ aay recordkeepia? or repomnc rsaturcmcnt. aay rcquirc-
taeat respectm? penzicsl aad iuiy ocaer requiremeat wuatsoe^cr) .
(3) to tha exercsa of nay Federal, state, or local aiicurustratira
authority, ind vO to any process or sanction, whether eaiorccd ia
Feder&U'St&te. or local courts or in iay other muoiner. Pois =uusec:ioa
shall apply, aotTrithsundias my immunity of iuch a::eac:«s. uaaer
any law or rala of law. No bmcer. *csot. or employe* of :iio United
States shall ba personally liable for aay cini penalty umicr :hjs atls
•with, respect to any act or omission withis, th«. uaiess.
upon tha request of ~:he 5 ecrecary of Defea^e. tha Atlm^zistra'.pr
determines to emit such publication because the pubik:inoa itstiif
•would be contrary to the interests of aauonal secunty. vc woich
aveafi tha Administrator shall submit aot;ca to tha Armuu se
Committee of tho 5eao,:e sad Housa of Heore««a:atiTi>s.
(c)(l) Nothitt? in the Safa Driaicns ^Vater imeaumer.a of I07T
shall be construed to alter or acect taa status of Amer.uaa Inui-a
laads or ^atar rights sor to waive any sover«i?aty over Indian laaas
guaraateed by treaty or statute.
(2) For tha purposes of this Act. tho tars. "Federal ac?acy" shall
not be construed 'to refer to or rnciuua any American latiiaa tr.be.
aor to tha Secretary of tha Interior in his- capacity ±3 trustee of
Indian
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FEDERAL WATER POLLUTION CONTROL ACT
TAGU.TXS roticnow coxrnot.
Set 013. («) Each department, .teener, or instrumentality of (he
executive, legislative, ami judicial branclic? of the 1-Vdcral Govern-
ment (1) liarin* jurisdiction over any probity or facility, or (2)
aigsp?d in anr activity result ing. or which may result, in t he »li.«charjp»
or runoff of pollutants Csh.nl! comply with Federal. State, interstate. •
nnd local requirements respecting control ami abatement of pollution
to the same extent thnt any person^is subject to such requirements, in-
cluding the payment of reasonable sen-ice charsesj. ami >a»'h afiicrr,
aarnt. or employee thereof in the pcriamumrr of his official ditties.
shaft be tvhieet to. and comply with. all I'edewl. Slate, interstate, ami
local requirements, administratirc. authority, and procrxx and sanctions
respecting tht control and abatement of rearer pollution in the.
tame manner, and to the same, extent a* any nonaarernmtnial
entity tndvdlnn the pnirmtnt of reasonable ncrriec. eharnes. The
preceding sentence shall apply'(A) to any rejniremcnt' irhcth*r
substantive or procedural (ineivdiny any recurdJfeepin^r or reporting
requirement^ any rcfit-ireinfnt respecting permits and antr other re-
quirement, vftatsocvcr), (li) to the crrrcifc. of any Federal. State, or
local administrative, authority, and (0} to any process and .tant!ti,'.t trr'rion,
and any sitcei •profffiilntr ma,y be mnovcd'in accordance trifh -S L'^S.C.
llt^l ei *ej. i\"o ojfiecr. aarnt. or employer of Hie. U-nitnt tftatc* thirll b*
personally liable for any riril penalty arixinv from the perfarmanet of
his official ilntiey. for rcAiWi. he is not othrnrisf li-t!>le. and the United
States shall be iiabl* only for those ciril petialtn-s arixit«r under Frd-
f.ral lav or imposed by tennincs
it to be in the paramount interest of the Viwc'l State* in <\n «o; except
that no exemption mar lie granted from (he remnrenients of section 300
or 30T of this Act. No such exemptions siinll he granted due to Lick of
appropriation unless the President shall have specifically re*pie«tetl
sueii appropriation as a part of the bmlcrtary procvas tiii«l the C«n-
frress shall have failed to makn arajlabli* sudi reqnc?trd appropria--
tion. Any exemption 5l»:til !«r-.otl not ir c\cr»s of one year.
but additional exemptions may be sre.nn.tl for p'-n"«ls of not t« r\:h cxcmpfion. /it J,fnt
majji if he determines >i to b< in ihc pn.-um-ou.it interest of f.i*; United
States to do to. issue reiuiatio-na crcniptiny from com-pHa**;: will the.
rciruirenmnts of th.ii ••teclio'n any 'certptmr>r. aquiiwumti aircrrrit, 1
- -v venicleSf or othe.r cia.w* or categories «/• profKrt't.pnil ace, ,,-j f> tnch.
r property, vh-ich. art o^iv.d or operated by the Armtd, Forces or the
ffnitcd States (inaiudina the Cotiat (Jumii) or 6y the .\'ati
-------
-2-
c
r
(5) (1) The- Administrator shall eocninatt: with, tie /\ia3tctcnfcr trfntinfnt at rich, property
or facility ittilisinv mnovatiee treatment prncrssc* and tffhnitrwt. i/i-
dudiiu} but not limited to mitkons vtilisinT rcryrle >t"d row.- tick-
nupies and land treatment are net vtilisrrf. v*ltm. The. Adminis-
trator may toaivf the application of ihii paragraph in, any c-«u? "cfifre
the Adminutrator determines it to be in th* ptt&h'e intfr>'xt. or that
compliance teith tA/'.t paragraph tcoiud interfere icith the or>frrhf cum*
pliitnet with conditions of a, permit istited pursuant to section 402 of
this Act.
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CLEAN AIR ACT
eojrntot, or ivu.CTiojr mow rn>eiu
SRC. 118. (.1) Each department, agency, and in.*»ru-
mmtniity of executive, legislutm'. and judicial
branches of the Federal rTOverniwnt (I) having jurisdic-
tion over any property or facility, or (•!) engaged in any
activity resulting, or which niav re-tdt. in the di-x'hargi;
of air pollutant.*, ami each olliree, agt'ut. or employed
thereof, shall be subject tn. ami comply with, all Federal.
State, interstate, anil li*iil re«|iiiretiii»ttr». ndmiuUfnUive
authority, ami prmt1** and .-sanctions re>| noting1 the I'-m-
trol and abatement if air pollution in the sniiur iiia.-.ni-r.
and to tlii* ;-aine vxfi«nt :«.< any iwincovprn:n«M;fal entity.
The preenliiiiT .-tonlenef shail apply 'A) tn-any nMpuro-
*ment whether -tiiMtuntirc nr pro«-iitl;iral (ineiii«liiitf any
recorclkrepitt!; or reporfjnc n^jniremont. any trt|iiirtfTii««TU
respecting {^'rniii-i and :tij\* other rfituii'nu.-'nt what.«n«
ercr). (B) to tin* exi'tri^e of any F>'ta«#. "r io«-al
administnttiri! authority, and (C) ,to any prncw* ind
sanction, whether cnforrwl in Federal. Stale. T lornl
eoiin? nr in any other manner. TJii» «ii~(riiiiiciiia]ity in tin-
excrutivp brnnrlt from vompihuu'e witli «m-h ;: iTfiiiire-
iwr.t if lie ile(eniiine« it to be in the paraindiint
interest of the Tniied St.-.te« to do MI. cx<-ept tliat no
exemption may U« sranti.'d fnmi MI-IIOH 111. ami an
exempt ion from sevtion 11^ may be jrrnnietl unly in av-
conlancr with ;ortmn II^(ot. S"«> «nHi o.Xfm(Minn *hall
be granted due to lack of appropriarion unless the I'res-
ident shall have .-specifically requested '•'"'h :ipprupfi:iiion
m ;t part of the budgetary procv»» and (In- Cuncn-s- -iiall
liare failed to make available Mich retpi«-Med apjiropnn-
tioiu Any est-mption shall l>e for a permd not in excess of
one year. hut. additional exemption* may In- granted for
[XTiiids of not to excewl nne year upon the 1're^itlent's
making a, new . iv»m> n'siiLitiou" csemptin^
from comjjliance witU the retniiivmrnt.o nf ihis section
any weaponry, eipupmcnl. .urcnitt. \eliicic". nr oilier
c!a^M••^ or mtesr«»rie< of pn>jn*rt_i which arr mviu-tl or-ooer-
atctl liy ihe Armed Fnrre«> of the. I'mied Stales (inclmi-
insr the C'o:i--t (tiiard) or hy the X.ixeinpiiun« from ihe ift]uire-
ments of this srtiou ^nulled during ihe pn-t-eding calen-
dar year, together with his rea.«
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C-
NOISE CONTROL ACT
r
Sf. 4. (a) The Congress aittliorirrs .ind •iireefs that Federal
nri«*iii*ie» «hall, tn the fullest extent consistent with thi-ir authority
under Federal law* .idimni*lemi by them, carry out the program*
within their control in snch a manner us to further the policy
nWlar.fi in section 2(b).
U>) Kaeh dejiartment, aceney. or instrnmejttalitv of the executive,
legw'.ative. and jmlioi.il branches of the Federal Government—
(U having jurisdiction over any property or facility, or
(-) engaged in .iny activity resulting, or which may remit, in
tin* nnissJon of noise..
shall fiimjily with Federal. ?tate. interstate, and local requirements
re-ijtectmg omitrnl and abatement of environmental noise to the same
extent that any pers-m i* *ulijrct to «nich reonirenicnt?. Tl>e Pniiident
may e(H> of this Ai-t. may \^ granted
from tne requirement* of sections i». IT. ami IS t»f this Act. No snch
exeui'iiinn shall U* ffrnnteil due to lack nf appropriation unless the
I're^ident shall have sjirrilieally miiiested ."nch appropriation as a
[•art of the Imdgvtary pmee?r« a;id the rmign**« «hall have failed to
make available »«eh req«e«teil! a»(»roprialurn. Anv exemption shall
tic for it jvriod nof in exct*«liaU rtmriiinalv the prpgrnm;) nf nil
(•"etieral agencicn relating to iH*i»e n~""nrrh iiml m««*' rnnlrol. K.acli
r"erminr «tu-li
infnnnatiou an he may rensonaldy reipnre to lU-termim* the n.itui-e.
KO{>e. antl reaulla of UMJ noiwrvM*urrU .itul m>tsc«<:oH( rol pmgranu of
tlus agency.
(i) Kaeh Federal agrncy »p«ttr-
iny nt>\ff iiiic«t not protlit tin* public lienllh and wi-lt:in« to flu- .•\tent.
he l»*licve?i to In* rctpnred ami feiimliU-, tic mav rrt]ni-«t •'iii-h agi*ii<-y to
review itnd re-mrf tn him mi the adviy.il>iiily nf ii-vi>mg •«rli -;:niil;inl
or regnlatiim to provide surh protcermo. Any «ii(-|i I-ITJIU—I muv In*
pnliliylifi in the Federal U«-gi*ti*r ami «h:iU IM* .»iimi(i-tiiiiil liy :l
dciailetl Mtatcment of the infnrniatMm on >»-lm-h it IH l>:i««-il. >IB-U .igt-m-v
shall complete the. reiptrrled review and re*Hirt to tin- \.lniitii-iru..r
within such time as the AdmmMratnr s(»-*'iti«. m the i'ii«ii-.-t. i»it ~m li
time !«poeinVd may nut l«* ley* than nim"tv ii:t\« trmn tln> date tht-
request was matlo. Tim report n nf m >i;:i:tUiil
op regulation. \Vith re»|»*i't to tin* 1'V'lersl .V\i:ituni AilmmiMi.itn-n,
section fill nf the Feiieral Avinnoii A'-' «l" I!1'" ia» .»inemli*«l li\ •«<•< I nut
7 of thin Art) ^ni|i!i.
aeenc.ics. the Adminiytratiir shall i-nnipde and pn)>ii.-h. I mot tinu- t»
time. « report on the status am! jirogrt-* of Ffleral :«•• ivtfi.-i n*l:iting
to itois* re-onrrh anil nnix>ennirnl. Tin* rejtnrt «liiill di-erili*' the rmio-
cnntrol program!* "f rach Fe'leral agency mil .is*es* the ••itninlntitniM
of those program* to the Folvral fiovi-nnnem's o«>«rail clf'irts tn o*
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r
SOLID WASTE DISPOSAL ACT
"Subtitle i"— Federal Responsibilities
"\micxnos or FTHKILXL. KTATR. ,\.vu LOCAL LAW TO
"Sice. 6001.' Each department. agenry. and instrumentality of iho
executive, legislative, and judicial bcanche* of the Fi>ili>n>rUiiv«rn-
ment (1) having jumdirtiou uvi»r any xtitii ua.-ii: inann^-inent
facility or di*pw>ttl site, or U) msao-d in any ariuuy rr»uliiii>*. or
which may result, in Ilia dL«poral of solid waste ur liuiardou* \V;IM«
shall be subjwt to, and comply with, all Federal, .'Male. internal!-. and
local rertuirejnenta. both substantive and procedural (ntrlmiin^ any
requirement for pennies ur report ins or any proviMoita for injnnrtive
relief ami such sinctinn* a» may l-c import by 3 itmrt in ciu'orve
Midi relief), rvatwvnn;; ci>ntr»l and abatrtncnt o( r tlin romr cMi-nf.
as-tity por>oh is subjrvt to :«iich n^tuiremoat.x. inclnditi^ tlir pu\ mriit
of reawnaWc sprvirx- charse>. NVitlier the L"nitc«( S«att~«. ti»V any
agent,' emoioyee. or oJfitTr thereof, shall lie inunune ur i>\rtnfn fniiit
any procpr-* (at« lo ijo so. No Mich (•xi'mpnon «t«U U-
f*ranteti due to lack of appruiiriaiinn nnlm* tlw» Piv-iiii-ni -l\::ll iiave
spr«rifi«%aily tr«niC!it?u ?«n-ii api«r"i'natn»n as a p»rt uf (l«* Im-i^tnp'
proce** and the Consn^** >hal[ h.u<* I'ailoii to nmkr *vaii:ii>i» MHVJ
reipiNt«d appropriatnm. Any exi-nipcion >liall Iw f«»r a tvrmi not ;n
«cr<3 of one yi-ar. hut sdiuri'ma! i»xi>mnf:nti!t amv !><• •.•rsr.fi'M f«r
Ci'nod.i noc "> exi^^1*! "««.* ynr noon !!«•• l'n**ni«*fic * in:«!»:n\; i m«w
aetenr.inatwo. Tlic Pn—iui-nt »h:nl rrnnn wn .i.i:in;:r\ t.> (;••• i'uft.
H ••XffTnptiiins fnnn rh<« r»t(iiins«nesr.- uf rlu.- .-4t-tu»n ^mnfi'd
tlie prwifiiins '-ai>-nil:»r y«^tr. to«vth«rr with his rvn-on fur
ch such
rwn.-vMaiv.s~r
"Ssc. fti"s. (») Arrtj«. ATIOX or ?r.m".N.— E.wpt a.- jiruvidf\u!i tin- rc^juirv
xt it.rtli.;u lliia x-cnoii and nnv irpiiniu>ii» i>^>n-\l uniJiT iu:>
MTtion. wiin res«|KTt i« any pun-haw ur :ii-i|iii.-n M-M uf ^ [Tin uiinirnt
hrni wjjcn- i!u- |niri'haw |U'i«-»' of llir item rx«fvu.» >Ui.""«' ur W!UT<- :lie
i|ii:iu(tty ui siu-ii tu-in? or u{ fuurtin'ia!i\ ii|iin.;ii'ni it«'iu> iiiiic'ha>od
or at-'jum-d lit Ihv coitrec gf tkn> pm-etiiitg lineal \ear wa> ?H"JHX> or
more.
"(Ul PRIWBKMKJCI ^rnjtt-r T«I UTIIKIS Iw*w.— Any pnn-urmneiK,
by any j»nnnir»ijr airier, which i? suliirt-t lo n-fulajimw of thv
Adniininnior iindrr x-rtion C?WU (3.- i>r»inid^;jcd I»'f»'re the date of
man tticiil nf t)ii5 Hftioi! uiulrr cutiiimrslili* |>rovi>ioi>a of prior law)
sitall not !«• ftiliiivt in (he nt|mmni'iti> of iln» wnlitm 10 tin. extent
thai virli rif|UinMiu>n(5 trf iiuimsiMivit witli «u«-!i regulations.
"trj J»Kyri«Kitn.NT>.— <1) (A) Afit-r twc» year* aftt-r tlti» dale of
(•narfiiirnl uf this M-rtion. i-nrlj |irui'uriiig n^'-nrv -.lialt pr<»-nir itetns
onni|"»*'d of ihc luj:iie¥l )•<• rtvntacr of rvro»-eird maicnal> practiralilr
roiiMMral wjih tnaintainiii^ a sal i.«fai lory level uf coniiH-iitinn. Tlie
d»i-i>ion not to jmirun: Midi ;tPiu« shall lie bax-d on a drd't initiation
thai such procurcineniitfruj—
"(i) are not reasonably available within i reasonable period
of time; \
"(ij) fail to meet the performance standard* «•« forth in the
uppii<-al'lc >)>rc]|iranon5 or fail n» nwvt, ihe iv«$on:iblc I'vrform-
aim- >!umlaniso( the prm-ttriiitf ajr'iicii-s: or
"(iiii arv only avaiialilp at an iinrvnr-onaliie price. Any deter-
mination under cla».<«> (it) «liall lx> made on Uie IKIMS of the
guidelines <»f (lie Huirau of >«andartis in any case in which such
material iscovirnl liv nich jsuidi-lines,
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-2-
"(B) Agencies that Derate heat, mechanical, or electrical energy
from tosiii fuel in ^viicni? thai hu\<« (he technical cnpalitlity of using
revo»iTi-U material and rccovwti-niatenaMiTm-d fuel as i primary
or supplementary fuel shall use bitch capabiliiy to lite maximum
extent practicable.
"((.') Contracting i.'tficerj ihalJ require that vendor* certify the
percviuagv of the (uial iiiutcriai utilized fur the performance of the
con tract which is recovered materials.
~(il) .SrKuriCATioxa.—(1) All Federal ngmcies that have tlie
re»t«»iiMbility for drafting or reviewing *pevilii-:itions for procure-
ment in-ill proeurni by Federal aprnvin- >liall. in reviewing those
»pvruicutioiti<, ascertain whether Mifh s|>«>viln."itinii> riulate tlip pro-
hibitions contained in nubparagraplui ^A) through (C) of pura-traph
Vo of
procuring agencii-!* in complying with the n«(uirr!iicnii< <»f tin* .^t-tion.
iudi gtudclim-s stiall wt f«irth rfroiiiim-ndcvl praciww* wjth ropevt
to the |iruciirenieiit of rrwivcrcil materials und iti'ius (.-ontuuiing MICU
materials and sliali providtt infonualiim as tu iliu avmlnbilily. Mjiirwa
of supply, and [Mlential UHSI of >«<•!« material :«n«l items.
u( f) l'«x;ujiK3H3«T »r ^Knvtcw.—A procuring agency shall, to the
maximum extent practical)!*:, man.igi* or arrange for the i»ry«-unMiwnt
of solid waste management services in a manner which maximizes
energy and resource recovery.
"(g) KXKCUTUK OKftcs.—The Ollw-e of ProruiTinent Policy in
the Executive Ullice of the President, in ^operation with tin; Admin-
istrator, shall impk-nu-nt the policy espn-ix-d in this section. It >liall
b« the responsibility of tlie Oliice of Pn>cnn-iiietit 1'olit-y to .-i»irtiinate
this policy with other policies for Federal procurement, in «uch «
wny as to maximize the use of reeovcretl resources, ami to annually
report to tiie Congress on m-tiona taken by Federal ageiu-te* ;tn«i the
proffrem made in the implementation of such policy.
"coonouTiOM wm« «*vraoHMr.xTAi. najTEiTios AISKM-V
"Sec. 600.1. All Federal agencies having fnncti«nn> relating to solid
waste or hazardous waste shall cooperate to tlu! maximum extent
permitted by luw witli the AdininiMrator in carrying out his func-
tions uader this Act and shall make all appropriate information.
facilities, personnel, »nd other resource* ivmlable, on a reimbursable
basis, to Urn Administrator upon hut reiniest.
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-3-
AOEMC1Z8
"Sec. S004. (a) COMM.U.NCJC.— < 1 ) If—
U(A) an Kxrcutivi* agency (as Jp(in«i in section 10."* of title
5, United States Code) has jun.-[>i'!-.il activities. f>r
"(IJ) such an iiyviiiiy pntar* into » .-"titi-acf with any person
for the operation by such person at any FVderal property or
facility, and the performance »t' -uch contract involve such
person in M>li«l wa^tu ilisjxjsal nciivitirr1.
then jtu-h agency shall iuxint cunipliancc with the ciiiiU-iinfS rwuin-
inendeii under section 100S nnd th« purpo*M of ciii.t Act in cite opera*
lion or administration of .*uHi property or facility, or th» performance
ot .«t«-h ecu trad, us the ca.v n«ay bv.
"(i) Eiicli Rxiirufive a^i-ncy which conducts any activity—
"(A) which p;m*rnie» v»H«i wa5te, »nn« Micii ,ij;cnry in «iii#r to
dvpiwe wf such roli'i w.t^tp.
shall imiiin* itMiipliamt- with >nch ^uniciine* ami the piirpw* a( this
'Act in cmitiuctin:r «»ch sirtirity.
"(3) Each Esrrmitv a-r^icy •R-hich j>prn>ic? th«« ii**1 at I-'-dcral
property Cur p«rp«H'?» •»•' tii"|>«>»:ti .»i' .••••iiti »a-(p .iivill m^•^n• •••KII-
plianr* •wirh -«u-h tf-iiiii-iini~» ami rhi« purp»i>« ol fiiH A--< in th»
Prwident shall pn^n-riW rr^ilationj' m i-nrry otir this
« ASH I*l.n.MIT».— K.T'll K.V-rtltivi- ;|W»-fM-
'IITMHP T jTrnm fiif ii;«p«»»il nf v«iiiit \\a-ir •li:il|. jinur in liir
i;««ii2nw>- nt »
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r
ATOMIC ENERGY ACT
Section 274
"h. Them is herci>y i»«tal>lishpil a Federal 11.iili.ition
Council-, cttiwisling <>C the. Srrretnrv nf Ilenllh, Kiliira-
linn, and Welfare, the (,'hnirm.in if the Atomic KtirrsT
Cnininiwinn. the Svrretnry nf I)«»fe»«u». the Secretary of
C'Hiimerre, thn SwrHary »f r«ilM«r. or ilirir iii'«i>*iirv*.
niul wicii otlicr iiH'inU%r» :«>» sitall l»c appiinlcil l»y tho
I'rcsulrnt. The ('onncil sliall coiif.iill (|n:ililir«l ^'ipnli^s
ami Rxpcri^ in radiation matter.-*, inoliiilin^ lh«» I'lrsiiU-ni
nf the Natiniial Amilrnty "( S^uMin**. thr Clinirmaii cf
tUc Nationnl ComniiMw on n.iilintinn Vrnl«ftioM sml
Mcnauronciit, ami- qtialifinl R.\iicrt« in the (ip!»l of biol-
n«ty ami nviHcini* ami in th« (U-Ul of ln~iltli pliysicsi. Tlio
Spcrial AmiiManl. tn the President fur S-ii-nci* .iiul Twh-
noloj^r, or his Uesismt*, is niitliorir.fiI in aitfml mi-ctiujss,
pnrt.ieipntc in the iloliiK-ntlions of. anil to :irlvisn the
Omncil. The. Cliainnan »f I lie Cntinfjl s«hn!l IK« (lv>\y-
nnt.ptl !iy Muj I*rrsi(l«tU.. from time In lime, from murm;;
tho members nf the Council. Th« Onmril shall nil vise the
1'rvsiili'nt wilh n'spi-rt. to railinlion matters, ilirvMly or
indirect ly alfn'tins limit h. ii'Hmliiijj jjniilamt* fur :»li
I'Vileral avncii*s in ihr ruriunlaliiMi mr nnii:ilinn xtaii'l-
nnis and in Llin ili>-limrnl ami cM-fiiliim of pn«*roins
of cooperation \villi plates. The (''»iin-il shall alsm |
-------
MARINE PROTECTION, RESEARCH, AND
SANCTUARIES ACT
S?«ion 101
"(a) Esctpt u mar be authorised by a permit issued pursuant to
section 102 or section 103 of thts title, and subject to regulations i«»ied
pursuant to section 10S of this title.
•*[ I) no person shall transport from th« United States, and
"(2) in the case of a feasel or aircraft registered in the United
States or flying the United State 3a? or in the rase of a fatted
States department, agency, or LnstruaeatalitT, no person shall
transport from any location
any material for the purpose of dumping it into ocean waters.
*(b) Except as mav be> tuehonzcd by » p*rrait issued pursuant to
section 102 or this title, and subject to resuiacions issued pursuant to
section 108 of this title, no person shall dump any material transported
from a location outside the.Outed States (I) into the territorial'sea of
the United States, or (2) into a zone contiguous to the territorial 5*n
of the Cnited States, extendias to a line tveire nautical miles seaward
from the has* lise from which the breadth of the territorial sea is
measured, to the extent that it may atfect the territorial sea or the
territory of the United States.**.
r
-------
FEDERAL INSECTICIDE, FUNGICIDE,
AND RODENTICIDE ACT
"M;C. 18. i:XKMIMH» OK FKm.KM. A<;i!M II-S.
"Pie AjminiMralif mav, 31 liu discretion. c.\cin"t any lnlcr.il «i M.IIC
accno I rum jny prim\iun nl ihn Avt il lie Ucitrniuur- thai vmcrwiKv Ci "mil-
lion* CTIM vkliKh requite such c\vniplum.
"1 in* Avlmiimiroior. in •Ivicrminiiii: uhcthcr '" mil Muli cnivrccucN vnnji-
lion«.'
anv Siaic canvurncU if they renucM suvli Ucti»iniiuii«iu."
\
\
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- APPENDIX £
Bcpartnunt of Justice
ASSISTANT ATTORNEY GENERAL ". '
LEGISLATIVE AFFAIRS l v ^ ~~
WASHINGTON. O.C. 20530 ,
OCT1H983 ^'" ' '' 4J
Honorable John D. Dingell —
Chairman
Subcommittee on Oversight
and Investigations
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your letter of August 17, 1983,
to Acting Assistant Attorney General Habicht, requesting clarifi-
cation of the Justice Department's position regarding enforcement
actions and the cleanup of federal facilities under RCRA and
CERCLA. We will respond separately below to each of the questions
posed in your letter. However, I would like to state at the out-
set that it is this Administration's firm policy that federal
facilities have a strong obligation to set an example in
meeting the standards which both RCRA and CZRCLA impose upon
private facilities and that the Administration will continue to
make every effort to see that federal facilities set such an
example. In fact this Department and EPA have been quite success-
ful in receiving contributions from federal agencies toward the
clean up of several hazardous waste sites where multiple generators
were involved. In general, federal agencies have demonstrated a
positive, cooperative attitude toward the problems presented
by their generation and disposal of hazardous wastes. An example
here is the Memorandum of Understanding between EPA and the
Department of Defense which has recently been finalized. Some
agencies have begun clean up of sites owned by them where hazardous
wastes have been deposited but for which the agencies were not the
responsible generators of the wastes. The Department of Justice
may be asked to recover those funds from responsible parties in
the future. In short, Executive Branch clean-up efforts are
showing concrete results.
Questions 1 and 2. What is the Department of
Justice's policy on suing or bringing enforce-
ment actions under CERCLA and RCRA against
federal facilities?
It is generally the policy of the Department of Justice,
under this Administration as well as prior administrations, that
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- 2 -
serve at the pleasure of the President should be resolved
internally. If the dispute is legal in nature, it is the policy
to proceed as required by Executive Order No. 12146. If the
dispute is a matter of conflicting policies or priorities, the
practice is to resolve the dispute through existing mechanisms,
including the cabinet councils, if necessary. The Department
believes that to involve the Judicial Branch in disputes between
components of the Executive Branch would constitute a waste of
judicial resources and taxpayers' money, as well as result in
substantial delays in reaching appropriate and workable resolu-
tions to such disputes. In addition, it is within the authority
of the Executive to resolve such disputes internally as a part
of its Article II duty to "take care that the laws [are] faith-
fully executed." Finally, there is a serious question whether
such disputes would, in any event, satisfy Article Ill's justi-
ciability requirements.
• This policy applies to disputes under CERCLA and RCRA,
as well as to those raised under other statutes.
Question 3. Please provide a detailed explana-
tion of the legal or other basis behind the
policy described in (1) and (2) above.
In addition to the considerations outlined in the
response to Questions (1) and (2), there are several sound consti-
tutional and other legal and practical bases for this policy, all
of which generally relate to the Executive's constitutional
authority and responsibility to see that the lavs are faithfully
executed. That responsibility is not furthered by the needless
resort to the Judicial Branch for resolution of disputes between
his subordinates.
As the Supreme Court noted in Myers v. United States,
272 U.S. 52, 161-64 (1926), the whole of the Executive power,
created by Article II, is vested exclusively in the President.
Included within the Executive power, indeed at its very center,
is the obligation to "take care that che laws be faithfully exe-
cuted," Art. II, §3, which necessarily recognizes the President's
authority to exert "general administrative control of those
executing the law," i.e.. subordinate Executive officers.
Differences concerning whether a federal agency is in
compliance with RCRA or CERCLA are appropriately resolved vithin
the*Executive Branch, by.the President or his delegee, consistent
with the Framers' intention that the Executive power of the
United States be exercised in a "unitary and uniform" way.
Myers v. United States, supra. 272 U.S. at 135. To implement
the President's task of coordinating the affairs of the Executive
Branch and resolving disputes within it, President Carter issued
an Executive Order in 1979 requiring all disputes of a legal
.
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- 3 -
nature to be submitted to the Attorney General, to whom he has
delegated the responsibility of resolving such disputes, "prior
to proceeding in any court:. 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 pro-
gram or to regulate a particular activity,
each agency is encouraged to submit the dis-
pute to the Attorney General.
1-402. Whenever two or more Executive agencies .
whose heads serve at the pleasure of the
President are unable to resolve such a legal -
dispute, the agencies shall submit the dispute
to the Attorney General prior to proceeding in
any court, except where there is specific
statutory vesting of responsibility for a
resolution elsewhere.
44 Fed. Reg. 42652 (1979), reprinted in 28 U.S.C. § 509 note
(Supp. V 1981) (emphasis added).Section 1-402 mandates that
all unresolved legal disputes between agencies "whose heads
serve at the pleasure of the President" shall be submitted to
the Attorney General for resolution prior to proceeding in court.
This delegation is consistent with 28 U.S.C. H 511 and 512,
pursuant to which Congress vested responsibility in the Attorney
General to render legal advice to the President and to the heads
of Executive Departments.
Although the Constitution does not expressly declare
that the President must use his supervisory powers to resolve
all disputes among his subordinates prior to their resort to
litigation, such a resolution by the Executive follows from the
cramers1 intent that the Executive power of the United States
be exercised in a "unitary and uniform" way. See Myers v.
United States, supra. 272 U.S. at 135. In considering the
question of EPA enforcement of environmental legislation against
federal facilities, former Assistant Attorney General Harmon of
the Office of Legal Counsel of the Department of Justice opined:
The executive power of the United States,
which is created by Article II, finds one
of its most important applications in the
prosecution and defense of court cases on
behalf of the United States and the agencies
thereof. The question is this: Is it
permissible, under Article II, for executive
power to be used both to prosecute and to
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defend the same case? Whatever the power
of the courts may be, is it within the power
of the Executive Branch to sue itself?
* * *
If a decision or action by one of the
[President's] subordinates is presented to
him for review, it seems to us that if Article
II 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 does not accord with law.
Memorandum for the Associate Attorney General, "EPA Litigation
Against Government Agencies" at 2-4 (June 23, 1978).
There is, in addition, a very real question whether the
Judicial Branch has the power, under Article III, to hear cases
brought by one agency subordinate to the President against another
subordinate agency. The question is one of justiciability. Such
cases, having only one "real party in interest," i.e.. the
Executive,- lack "concrete adverseness" and thereby fail to meet
the controversy requirement under Art. Ill, § 2. See "EPA
.Litigation Against Government Agencies," supra at 5-8. Moreover,
the Judicial Branch may not be granted jurisdiction to decide
matters that remain open to revision by the Executive, or are
otherwise subject to the President's administrative control.
Haybum's case. 2 U.S. 409 (1792).
Many federal agencies which may need to comply with
RCRA or CERCLA are already coordinating their compliance with the
EPA. To this end, EPA has been negotiating Memoranda of
Understanding with other federal agencies covering response
actions at federal facilities. The MOU with the Department of
Defense has recently been finalized. The National Response
Team, which meets at least monthly to coordinate response programs,
provides another forum within which hazardous waste management
issues are being addressed. The EPA has' announced that it intends
to begin integrating any appropriate federal facilities into the
National Priority List, promulgated pursuant to Section 105 of
CERCLA. We would anticipate that federal agencies involved
with sites appearing on the list will continue to cooperate with
the EPA to ensure that they comply with their legal responsibili-
ties.
I
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Question 4. Does the Department of Justice
concur that Sections 107 and 111 of CERCLA
provide statutory authority for EPA to take
enforcement and abatenant actions against
federal facilities?
While it is not clear precisely what is nesnt by the
question, the Justice Departaent does believe that Sections 107
and 111 of CERCLA provide statutory authority for EPA to take
steps to enforce CERCLA and to cause the abatement: o'f practices
that are inconsistent with the lav. Lee Thomas, EPA1 s Assistant
Administrator for Solid Waste, stated in his August 10, 1953
testimony before the Congress that EPA ha (si enforcement
authority over federal facilities" and we concur with that state-
ment. We do not, however, believe that this statement included
filing actions against other Executive Branch agencies in court.
The issue, it seems, is what enforcement tools are necessary or
appropriate for one unit of government to use against another.
It is*the Department of Justice's position that those tools,
which include the resolution of interagency disputes according
to Executive Order No. 12088 and Executive Order No. 12146, do
not include suing an agency of the United States.
Question 5. What is the Departaent of Justice's
position on the applicability of Executive Order
12088, Federal Compliance With Pollution Control
Standards, to CERCLA and RCRAZ
Executive Order No. 12088 is applicable by definition
to RCRA. |1-102(f). While the order was promulgated prior tc the
enactment of CERCLA, we believe it does apply to that statute as
well. The order was intended to be inclusive and not limited to
the statutes individually named; such intent is specifically
stated in the order. See §1-102 of Executive Order No. 12088.
The fact that CERCLA vas not passed when the order was issued dees
not exclude it from coverage since the President has authority
under the Constitution to see that the laws are faithfully exa-
cuted and may delegate that authority. However, EPA's responsi-
bility under Executive Order No. 12088 must be read in conjunction
with CERCLA and Executive Order No. 12316.
.
US ENVIRONMENTAL PROTECTION
AGENCY
REGION 5 LIBRARY (PL-12J)
77 WEST JACKSON BLVD 12TH FLOOR
CHIC AGO IL 60604-3 590
(,
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Question 6. What is the Department of Justice's
policy on suing or bringing enforcement actions
against government-owned, contractor-operated
facilities, such as the Hughes Aircraft Company
facility in Tucson, Arizona, and the General
Dynamics Company facility in Ft. Worth, Texas?
The Department is prepared to sue government-owned,
contractor-operated facilities when the contractor is the respon-
sible party and it is otherwise appropriate to do so. The
Department of Justice received a referral from the EPA regarding
enforcement of an information request against one company and
was prepared to file suit; however, the request was complied
with before this became necessary.
Question 7. Does the Department of Justice
believe that Executive Order 12146, Management
of Federal Legal Resources, is applicable to
CERCLA? If so, please describe the circum-
stances under which it would be applied and
describe every instance since January 1981
where it has been applied regarding enforce-
ment, abatement or other response actions
against releases of hazardous waste at federal
facilities.
As stated in the answer to .Questions (1), (2), (3) and
(4) above, the Department of Justice believes that both Executive
Order'Nos. 12088 and 12146 are applicable to CERCLA. Executive
Order No. 12146 would be applied whenever a legal dispute existed
between agencies, e.g., disputes regarding the meaning and/or
applicability of the statute to the agency's program, a disagree-
ment on whether removal was necessary, or whether a certain
response action was necessary. To our knowledge, EPA has not
requested that the mechanism established under Executive Order
No. 12146 be used.
Question 8. In multi-generator cases involving
CERCLA or RCRA when a federal agency is one of
the largest waste generators at a private dis-
posal site, is there any legal or policy reason
for not naming the federal agency as a party
defendant along with the non-federal waste
generators? If so, please explain the legal or
policy reasons.
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The legal and policy reasons for not naming a federal
agency subordinate to the President as a party defendant in a
suit brought by the Department of Justice are the same as those
described in the answers to Questions (1), (2) and (3). Even if
a federal agency vera to be brought into the suit as a
co-defendant, the constitutional and other legal issues implicated
in such a suit would nevertheless be similar to those raised by a
direct suit by a component of one Branch of government suing
another component of the same Branch. Recourse to the courts in
such circumstances would present the additional disadvantage of
wasting taxpayers' resources. Funds appropriated by Congress
would be used by the Executive to finance both the effort to con-
vince a court to compel an agency to comply with a disputed legal
requirement as well as the effort to defend against such a suit.
Citizens would legitimately question such a diversion of resources,
when such a dispute could be resolved by the Executive. .Finally,
it makes little sense to name a Federal agency as a party defendant
if the agency is prepared to pay its share of the costs attribut-
able to the cleanup of the site. Voluntary action of this sort
is perhaps the most compelling common sense reason for not
involving the judiciary in disputes within the Executive Branch.
We hope these answers are responsive to your concerns.
Sincerely,
•{Signed] Hc^srt i. lIcCo-^'
Robert A. McCcnnell
Assistant Attorney General
Office of Legislative Affairs
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