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

-------
                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

-------
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.

-------
                                   -2-

     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

-------
                                   -3-
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.

-------
                                   -4-
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.

-------
                                   -5-
     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.

-------
                                   -6-
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.

-------
                                   -7-
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

-------
                                  -8-
      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.

-------
                                   -9-
 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.

-------
                                   -in-
     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.

-------
                                   -11-'
     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

-------
                                   -12-
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.

-------
                                   -13-
     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.

-------
                                   -14-
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

-------
                                   -15-
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.

-------
                                   -16-
     "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.

-------
                                    -17-
      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.

-------
                                   -18-
     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.

-------
                                   -19-
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.

-------
                                   -20-
     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.

-------
                                   -21-
     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.

-------
                                   -22-
     £.  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.

-------
                                   -23-
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.

-------
                                   -24-
     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.

-------
                                   -25-
     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.

-------
APPENDICES

-------
                                      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

-------
            ',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

-------
                                            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

-------
                                                                  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;

-------
                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*.

-------
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.

-------
                                                                     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

-------
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.

-------
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.

-------
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.

-------
                                     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(

-------
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

-------
                             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.

-------
                  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.«
-------
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*
-------
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,

-------
                                 -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.

-------
                                                            -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 »
-------
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."
                                               \
                                                \

-------
                                                    - 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

-------
                                    - 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
.

-------
                              - 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

-------
                                       - 4 -


                   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

-------
           If
           ""*      t

        7  ?>
                                    - 5  -


                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
                                                  (,

-------
r *•
                                     -    -  6  -


                     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.

-------
          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

-------