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               Environmental Protection
               Agency
                Solid Waste and
                Emergencr Response

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                DIRECT.VE NUMBER:
   TITLE: Issuance of Administrative Orders

       of RCRA

   APPROVAL DATE:

   EFFECTIVE DATE: 9/26/94

   ORIGINATING OFFICE: oSE
                D DRAFT

                 STATUS:
                REFERENCE (other docu
                  '••-'--  ••••
                                                   • -?*T
                                                       •7v:

                          *X v:'..H-Vvr*.
  OSWER      OSWER
fE   DIRECTIVE

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  SERA
                                United States Environmental Protection Agency
                                         Washington, DC 2O460
                        OSWER Directive  Initiation Request
                                                Interim Directive Number
                                                    9940.1
                                            Originator Information
Name of Contact Person
Virginia Steiner
                                   Ma
                                   Telephone Number
                                      475-9329
Lead Off tee
   O OERR
   D OSW
                 LJ OUST
                 LJ OWPE
                 D AA-OSWER
                                                              Approved for Review
Signature of Office Director
                               Date
Title
       , Issuance  of Administrative Orders Under §3013 of RCRA.
Summary of Directive
Guidance  onthe issuance and use of  Administrative Order  issued under  §3013 of RCRA.
Information gathering for enforcement cases.
presenceof hazardous waste
sustantial hazard
release of hazardous waste
information gathering
Type of Directive (Manual. Policy Directive. Announcement, etc. I
          Guidance
                                                                     Status
                                                                        D Draft
                                                                        ED Final
                                                                                            New
                                                                                         I	I Revision
Does this Directive Supersede Previous Directive(s)?   | ] Yes   |  1 No   Does It Supplement Previous Directivefs)?   | |  Yes   | \ No
If "Yes" to Either Question. What Directive (number, title)
Review Plan
   D AA-OSWER
   D OERR
   D OSW
                 D OUST
                 D OWPE
                 O Regions
   OECM
D OGC
EH OPPE
LJ Other (Specify)
This Request Meets OSWER Directives System Format
Signature of Lead Off ic« Directives Officer
                                                                                   Date
                                                                                     -- 70- ?(.
Signature of OSWER Directives Officer
                                                                                   Date
EPA Form 1315-17(10-85)

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON, D.C.  20460
                         SEP 26'584
MEMORANDUM
SUBJECT:


FROM:
TO:
Issuance of Administrative Orders Under Section 3013
of the Resource Conservation and Recovery Act

Courtney M. Price (_n cu_/—,  ( ^\ .ysL***-^
Assistant Administra*tor~l:or^Enforcement
  and Compliance MonitoarTUg

Lee M. Thomas, AssisfahxtAdministrator
Office of Solid Waste and Emergency Response

Addressees
     Section 17 of the Solid Waste Disposal Act Amendments of
1980 (P.L. 96-482) added Section 3013 to the Resource
Conservation and Recovery Act of 1976 (RCRA) .   This memorandum
provides guidance on the use of that section and replaces
earlier guidance issued September 11, 1981.

DELEGATION

     Under current delegation authority Section 3013
Administrative Orders (Orders) are issued by Regional Adminis-
trators (RAs) with the advance concurrence of the Director,
Office of Waste Programs Enforcement (OWPE), except in cases
of national significance or in multi-regional cases, when
the Director, OWPE, issues the Orders.  The Assistant Adminis-
trator for Enforcement and Compliance Monitoring (OECM),  consults
as requested on Orders,  refers Section 3013 judicial actions
to the Department of Justice,  and sends notices of such action
to the appropriate RA and to the Director,  OWPE.  Further
redelegation is currently under review.

FINDINGS REQUIRED FOR ISSUANCE

Section 3013 (a).  AUTHORITY OF ADMINISTRATOR.
          "If the Administrator determines,  upon receipt
          of any information,  that -

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                             -  2  -
               (1)  the presence  of any hazardous waste at
          a facility or site at  which hazardous waste is,
          or has  been, stored, treated, or disposed of, or

               (2)  the release of any such waste
          from such facility or  site may present a
          substan t ia1 h azargl.to  human health or the
          environment, he may issue an order requiring
          the owner or operator  of such facility or     . n
          site to conduct such monitoring, testing,   Cxxf-0
          analysis, and reporting with respect to        ^
          such facility or site  as the Administrator
          deems reasonable to ascertain the nature
          and extent of such hazard."

     Under subsection  (a), before an Order may be  issued, the
RA or, in cases of national significance or mjilrJ.-regional
caaas, the Director, OWPE, must find that sufficient  information
has been received to determine that:

           (a)  the  pxeiencja. of hazardous wastej/at a  site may
 resent a  substantial  hazard to human  health  or  the environment,
           (b)  the release of any  such waste  from  the  site may
present a  substantial hazard to  human health  or  the  environment,
     The requirement  for  "information" means  that  some
 information  upon  which a  reasonable person would base a decision
 or  take action has  been gathered  or presented before issuance
 of  the Order.  Such information may include laboratory  analysis
 of  samples,  observations  recorded in the course of an inspection,
 and citizens complaints corroborated by  supporting information.
'Some background  information regarding the type and quantity of
[waste  likely to  be  found  on the site can be located in  EPA and
Istate  agency records, as  well as  by the  use of site_s_pecific
'requests  under Section 3007 of RCRA and/or Section 104  of the
  I/  Note that the exclusion of gasoline from the definition
      of hazardous substances under CERCLA is not applicable
 to the hazardous wastes as defined in RCRA.  Accordingly, S3013
 Orders may be useful enforcement tools in some situations
 involving leaking underground storage tanks (LUSTs).  Note,
 too, that the statutory definition of hazardous waste (RCRA
 S1004(5» is applicable in S3013 Orders, not the Subtitle C
 regulatory definition.

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                             - 3 -
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA).  Section 3013 Orders may be
used in situations where information required under Subtitle C
has not been submitted if other factors support the determina-
tion that a substantial hazard may exist.  In cases where   . —
information required to be submitted under Subtitle C has not
been submitted, and no indication of substantial hazard is
presented, enforcement action under Section 3003 may be.
appropriate. £/                                -

     It should be noted that the mere p££&eoce of  hazardous
w£s_£e  at  a site or facility is  sufficient to cause the ^suance
qf_an_order, provided^that _the J.n£orttation_ln
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                              -  4  -
      (1) That  there  is  a  known  or  potential  release  of  hazardous
waste from  the site.

      (2) That  the release "may  present  a  substantial hazard"
to human health or the  environment.
t

      Number (1) above may be determined in a variety of ways,
including actual observation of escape  from  the  site of a
substance known to be hazardous, by governmental sampling or
analysis, or through information supplied by. the owner/operator.
(See  discussion of "information" above.)  It is  significant
that  Congress  used-, the  words "may _present" rather than  "is
presenting",, such as had  been used in*Section  7003 prior to
the 1980 amendments.  As  in Section 7003, the  effect of the
words "may  present"  is  to require  that  the information
presented to the RA  or  Director, OWPE,  show  only that there is
a possibility  or potential of a substantial  hazard to
human'Health or the  environment, rather than to  show that the
hazard actually exists.

      Whether a "substantial hazard" may exist  involves
consideration  of some of  the same  factors as those used to
determine whether an "endangerment" exists under Section 7003.
.The standard itself, however, is a lesser standard than that
under Section  7003.  Again, actual harm to human health or the
environment need not be shown,  but only that the potential for
harm  may exist through  a  release or threat of  release of
hazardous waste from a  site.  Whether a release  or threat
thereof may present  a "substantial hazard" essentially  depends
upon  a number_of..factors,  such  as  the likelihood, of  a release
of hazardous wastes, the  manner of release of  the hazardous
waste from  the site  (i.e., ground  or surface water,  air, etc.),
the characteristics  and amount  of  the waste  discharged, current
or potential use of  the portion of the  environment affected,
potential for  exposure  to humans and the  environment, and
other" related  factors. "If the  site has been investigated and
prioritized by the Federal government as  to  hazard presented,
as required by Section  105 of CERCLA, that determination will
be useful in assessing  the risk.

TO WHOM THE ORDER MAY BE  ISSUED

      Section 3013(a) authorizes issuance  of  an order against
the present owner or operator.   Under the circumstances set
forth in subsection  (b),  issuance  of an order  may also  be
appropriate against  a prior owner  or_pperator.                 *

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                                 - 5 -
•Jr.
Section 3013 (b).  PREVIOUS OWNERS AND OPERATORS.

         "In the case of any facility or site not in
          operation at the time a determination is made
        .  under subsection (a) with respect to the
          facility or site, if the Administrator finds
          that the owner of such facility or site could
          not reasonably be expected to have.actual   "      '
          knowledge of the presence of hazardous waste      ^
          at such facility or site and of its potential
          for release, he may issue an order requiring
          the most recent previous owner or operator of
          such facility or site who could reasonably be
          expected to have such actual knowledge, to carry
          out the actions referred to in subsection (a)."

     Subsection (b) entitles the Agency -- under certain
circumstances -- to go back in time in the chain of title to a
previous owner or operator of the site.  The conditions which
must be met for issuance of a Section 3013 Order~~to a previous
owner or operator of a site are:                        ~

          (1)  The facility or site must be one" which, is..not
"in_pperatio_n" at the time a determination is made under sub-
section (a) and (2) the present owner of the facility or site
"could not reasonably be expected to have actual knowledge of
the presence of hazardous waste at such facility or site and
of its potential for release."  While in many cases there will
be little question as to whether a facility i.s "in operation"
(e.g.,  a closed landfill),  in other cases that determination
will not be as clear.  We believe that it was the intent of
Congress to place an interpretation on the words "in_ operation"
which would enable EPA. to gather..information concerning potent-
ially "hazardous' sites from those in the best position to provide
that information_f—the previous owners _or_operators.  We there-
fore believe that a facility is not "Tn operation" if it has
been abandoned or is not otherwise being actively operated as
a hazardous waste facility by the current owner or operator.

     It should be noted that if the present owner of the site
could reasonably be expected to have actual knowledge of both
the presence of the waste and its potential for release (even
though the waste had been placed in or on the site by a previous
owner or operator),  this subsection would appear to prohibit
the issuance of an Order to the previous owner or operator.

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                              - 6 -
;< -
      Assuming the two conditions discussed above are met, the
 Order may be issued only to the "most recent previous oyner_or
 operator of such facility or site who could reasonably be
 expected to have such actual knowledge. ..."  Whether an
 owner or a previous owner or operator of a site could "reason-
* ably" be expected to have actual knowledge of the presence of
 the waste or its potential for release can best be determined
 through evidence showing the use_of_the_facility during the   ./
 pjeriod of ownership by the .prexio.us"owners."  For example, if a
 previous owner dumped uncontainerized waste into an unlined
 pit and then covered it with dirt, he can reasonably be expected
 to have the actual knowledge of both the presence and potential
 for release of the waste.  The same determination could be
 made for an owner who stored waste in leaky containers on the
 bare ground without benefit of a pad or base and containment
 walls.

 ELEMENTS OF AN ORDER

 Section 30T3 (c).  PROPOSAL.

          "An order under subsection (a) or (b) shall
           require the person to whom such order is
           issued to submit to the Administrator within
           30 days from the issuance of such order a
           proposal for carrying out the required
           monitoring, testing,  analysis, and reporting.
           The Administrator may, after providing such
           person with an opportunity to confer with
           the Administrator respecting such proposal,
           require such person to carry out such moni-
           toring, testing,  analysis, and reporting in
           accordance with such proposal, and such
           modifications in such proposal as the
           Administrator deems reasonable to ascertain
           the nature and extent of the hazard."

      Unless EPA and the respondent have agreed in advance on a
 work plan to be incorporated in the Order,  the Order must
 require the respondent to prepare and submit a proposal for
 the monitoring, testing, analysis,  and reporting Program for
 the site from which the waste is or may be escaping.  Such
 proposal must be submitted within 30 days from the date of
 issuance of the Order.  The Order should recite (1)  the informa-
 tion and facts upon which it is based; (2)  the threat or
 potential threat to human health and/or the environment; and,
 (3) outline with some degree of specificity the general areas

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                                  - 7 -
     of concern which should be addressed in the proposal to be
     submitted by the respondent.  Attached to this memorandum is'/
     an example of an Order (Appendix A) outlining the general   /
     areas of concern to be addressed in the requested sampling,  ,
     analysis and monitoring program.  3/

          The Order shall direct the respondent to conduct the
     monitoring, testing, analysis, and reporting program and
     should be specific as to details of the program.  For example,
     the Order may require the proposal to set forth the number,
     location and depth of monitoring wells, the number and
    , frequency of samples to be taken,  the parameters of the
    •analysis, reporting requirements and other related details,
    • including dates by which each element should be commenced and
     completed and,  where appropriate,  requirements for submission
     of status reports to EPA as work on the program progresses.

          The Order, if issued unilaterally, must advise the
"Xl  respondent of his right to submit in writing any legal or
     technical defenses,  objections or contentions which he may
     desire to make, and that he is entitled to confer in person
     and/or by attorney with EPA regarding the proposal.  The Order
     must also specify the name,  address and telephone number of
     the appropriate official of EPA whom the respondent may contact
     to arrange a conference.   The Order should be sent to the
     respondent by certified mail, return receipt requested.

          In some instances,  contacts with the owner /opera tor may
     result in issuance of a S3013 Order on a consensual basis.   An
     example of an Order issued after conferring _with_the owner/
     operator. ("Consent Order") is attached (Appendix B).  In such
     cases, the Order should note that the respondent has already
     conferred with EPA and consents to issuance of the Order.

         In addition,  when a plan already has met with the approval
     of the parties, it is advisable to include in the Order a pro-
     vision such as:

            Respondent agrees to implement the requirements
            of the work plan set forth below for carrying out
            investigative activities including monitoring,
     3/   The appendices are attached as examples  only.   They are
          not intended to dictate how Orders should be written.  The
     unique circumstances of each case necessitates some  latitude  in
     the form of such Orders.

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                             - 8 -
       testing, analysis and reporting at  the  facility.
       This work plan has been developed jointly by EPA
       and Respondent.  EPA and Respondent agree that -
       incorporation of this work plan in the  instant
       Order satisfies the requirement under Section
       3013(c) that Respondent submit a proposal and
       that EPA provide an opportunity for Respondent^,
       to confer regarding such proposal.

     An Order is "final" in that it requires the preparation
and submission of a plan.  However, no actual  sampling, analysis
or monitoring should be conducted until after  approval of a
satisfactory plan submitted by the respondent  (except in cases
delineated in subsection (d)(l) of $3013).

REVIEW OF THE PROPOSAL

     The proposal submitted by the respondent  is not required
to be in any particular form.  It must be critically reviewed
by EPA to ensure that it covers the areas addressed by the
Order, both from a legal and technical standpoint.  The proposal
should be as specific as the circumstances and knowledge of
the site will allow, setting forth, for example, the number and
location of monitoring wells, the frequency of samples from
the wells, the location of soil samples, parameters and proto-
cols for analysis, and so forth.  In some cases the extent of
the work required will be such that submission of a detailed
plan may be difficult to accomplish in a 30 day period.  In
such cases, it may be sensible to require submission of a
broader, less detailed plan within the 30 day .period and a
lengthier, detailed plan after the respondent  has had an oppor-
tunity to confer with EPA.  In cases in which  the sampling,
analysis, testing and monitoring program is to be carried out
in stages, or over a significant period of time, the proposal
should include a statement that EPA shall be furnished periodic
status reports from the respondent regarding progress being
made in implementation of the program.  The Order should always
state that EPA has a right to approve any proposed changes or
modifications after initial approval has been  given to the
proposal.

     In reviewing a proposal, EPA personnel should examine two
areas:  first, the adequacy of the proposal to achieve the
goals of the sampling, analysis and monitoring programs;  and
second, the competence of the persons or firms who will be
implementing the proposal to conduct the sampling,  analysis,
monitoring and reporting activities in a technically acceptable
manner, so that the information produced thereby will be

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                             - 9  -
reliable.  The second area  -- the competence of  the contractor
or consultant who will implement the program —  is delicate
because EPA should not place itself in  the position of formally
approving or disapproving the professional qualifications of
particular contractors and  it should be made clear to the
respondent that the respondent, not EPA, is responsible for
the competence of the contractor.  However,,the  design and
implementation of the type  of program which*will be conducted
under a S3013 Order requires engineers  and other persons who
are knowledgable in a variety of areas such'as hydrology,
geology and chemistry, among others.

     While an owner or operator of a site should be at liberty
to hire a contractor of his own choice, EPA should always
require the technical aspects of the proposal to be very
detailed and specific so as to avoid misunderstandings during
the implementation of the program and should also require
frequent status reports while the work  is in progress.

     In the event a conference results in a modified proposal,
the respondent should either resubmit the entire proposal,
as modified, or if the modifications are not extensive, the
respondent may submit a separate amendment to the proposal.
In all cases, the proposal, and any amendments or modifications,
should be signed by the respondent.

PROPOSAL CONFERENCE

     The Order must give the respondent an opportunity to
confer on the proposal submitted for the monitoring plan.
This conference will also afford the respondent the opportunity
to indicate why the respondent should not be subject to the
Order.  A record in the form of a tape recording or steno-
grapher's notes should be made and included in the case file.
In the event of subsequent litigation over the Order,  the
recording or notes can then be transcribed for use, if necessary.

     While the proposal must be submitted to EPA within 30 days
after the date of the Order, we interpret S3013(c) to allow a
conference requested by the respondent to be held either before
or after the proposal is submitted.  However, the holding of a
conference cannot vary or extend the 30 day period for submission
of the proposal, so that if a conference is requested for a
time before the proposal is submitted,  the conference must be
held and the proposal submitted within the 30 day period.
Conferences to be held after submission of the proposal should
be scheduled as soon as possible after submission (i.e.,  not
more than 30 days thereafter),  so as to avoid delay infinalizing
the proposal.

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                               -  10  -
      Under  the  statute,  there  is  no requirement for public
 notice  of the conference or  any requirement  that third parties
 be  admitted to  the  conference.  However,  nothing precludes  the
 admittance  of a non-party to the  conference,  if the Region
 determines  that such  participation  would  be  beneficial or
 desirable.   In  certain cases,  the Department  of Justice, the
 State or local  pollution control  agency and  others  may be
< appropriate attendees or participants.

      Pursuant to  information developed at the conference, EPA
 may modify  the  proposed  sampling, analysis and monitoring
 requirements contained in the  Order as may be reasonably
 required to ascertain the nature  and extent of the  hazard.
 This may include  modifications making the requirements more
 strict  or extensive,  as  well as less extensive.

 APPROVAL OF PROPOSAL

      An acknowledgement  letter must be issued under §3013 after
 review  of the respondent's proposal has been  completed. The
 purpose of  the  letter is to  acknowledge in writing  the decision
 EPA has reached after review of the respondent's proposal.
 It  should be signed,  if  possible, by the  person who signed  the
 Order.  Section 3013(c)  permits EPA to modify the proposal
 submitted by the  respondent  or to develop its own program of
 sampling, analysis  and monitoring in order to determine the
 nature  and  extent of  the hazard.  The letter  should state
 whether the proposal  has been  accepted and should specify what
 modifications,  if any, have  been  made to  the  proposal.  This
 can be  accomplished by attaching  a  copy of the proposal, as
 modified, to the  acknowledgement  letter.  In  the unlikely
 event that  EPA  plans  to  incorporate any major changes  in the
 Order that  were not discussed  at  the conference,  EPA should
 notify  the  respondent of such  changes before  issuing the
 acknowledgement letter and provide  reasonable opportunity to
 the respondent  to comment upon such modifications.

 MONITORING  PROGRAM  BY EPA, STATE. OR OTHER PERSONS

 Section 3013(d).  MONITORING,  ETC., CARRIED OUT BY  ADMINISTRATOR

          "(1) If  the  Administrator  determines  that  no
           owner or  operator  referred to in subsection
           (a) or  (b)  is  able to conduct monitoring,
           testing,  analysis, or reporting satisfactory
           to the  Administrator, if  the Administrator
           deems any such action carried out by an owner

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                            - 11 -
         or operator to be unsatisfactory, or if the
         Administrator cannot initially determine that
         there is an owner or operator referred to in
         subsection (a) or (b) who is able to conduct
         such monitoring, testing, analysis, or reporting,
         he may--

              (A)  conduct monitoring, testing, or
              analysis (or any combination thereof)
              which he deems reasonable to ascertain
              the nature and extent of the hazard
              associated with the site concerned, or

              (B)  authorize a State  or local authority
              or other person to carry out any such
              action,

         'and  require,  by order, the owner or operator
         referred  to  in  subsection  (a) or (b)  to
         ! reimburse the Administrator  or other
         agttioriCy oiTperson^'for  the  costs  of  such
         activity.          ~	x

          (2)  No order may  be  issued  under  this
          subsection requiring reimbursement of
          the  costs of any action  carried  out by  the
         Administrator which confirms the results
          of an  order  issued under subsection  (a)
          or (b).

          (3)   For  purposes  of carrying out  this
          subsection,  the Administrator or any
          authority or other person authorized
          under paragraph (1), may exercise  the
          authorities  set forth in Section 3007."

     The provisions of this subsection provide for three
situations where the Agency may carry out the monitoring
activities or authorize others to do  so:

          (1)   Where no owner or operator is able to conduct
these activities satisfactorily;

          (2)  Where the testing conducted by the owner/operator
is determined to be unsatisfactory; or

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                              -  12  -
          (3)  Where  it cannot be determined  initially whether
there is an owner or  operator able  to  conduct the  required
monitoring and testing.

     Numbers (1) and  (3) are similar;  the distinction is
that in number (3) no owner/operator can be identified or
located initially, whereas in number (1) the  owner/operator is
identified but unable or unwilling  to  conduct the  required
activities.

     In numbers (1),  (2) and (3) the important consideration
is whether the owner/operator will  conduct the required activi-
ties in a manner satisfactory to EPA,  i.e., in a timely manner
and in a manner technically consistent with EPA requirements.
Subsection (d) is intended to allow EPA to conduct the monitoring,
testing, analysis or reporting itself  or to authorize the State
or other third parties to perform the  required activities if
delay or inadequate performance will result from relying on the
owner/operator.

     Once EPA or some other authorized person has performed
monitoring, testing, analysis or reporting pursuant to §3013(d),
an Order may be issued to require reimbursement of the costs.
The Order for Reimbursement should be  issued  to the present
owner or operator or the most recent previous owner or operator
who could reasonably be expected to have actual knowledge of
the hazardous waste.  An example of an Order  for Reimbursement
is attached as Appendix C.

     Note that subsection (d).(2) prohibits an Order for
Reimbursement if the results obtained  confirm  the results of
an Order issued under subsection (a) and (b).  Our interpre-
tation is that this provision prohibits seeking reimbursement
in circumstance (2) above, where the Agency acted because of
information leading to the belief that the results from the
owner/operator tests were inaccurate or unreliable, and our
subsequent tests, in fact, confirm the owner/operator test
results.

ENFORCEMENT OF THE ORDER

Section 3013 (e).  ENFORCEMENT.

         "The Administrator may commence a civil
          action against any person who fails or
          refuses to comply with any order issued
          under this section.  Such action shall be

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                              -  13  -
           brought  in  the  United  States  district
           court  in which  the  defendant  is  located,
           resides, or is  doing business.   Such court
           shall  have  jurisdiction  to  require  compliance
           with such order and to assess a  civil penalty
           not to exceed $5,000 for each day during
           which  such  failure  or  refusal occurs."

     This  subsection  authorizes  bringing a civil  action to
require compliance with any Order  issued under Section 3013 and
to assess  a civil  penalty of  not to exceed $5,000 for each day
of noncompliance with the Order.   This  authority  includes
commencement of  a  civil action to  enforce  an  Order  issued under
Section 3013(d)(l) for reimbursement  of costs incurred by EPA
or other authorized person who conducts the monitoring, testing,
or analysis in lieu of an owner/operator.

     Any referral  of  a civil  action under  Section 3013(e)
should follow the  format  used for  other civil actions.

DEVELOPMENT AND  PRESERVATION  OF THE ADMINISTRATIVE RECORD

     We attempt  to emphasize  throughout this  memorandum the
importance of obtaining the information required by the statute
prior to the issuance of  the  Order.   Equally  important is the
establishment and preservation of  a record where the information
and all documents  relevant to the  reimbursement or enforcement
proceedings described herein  should be  kept,  since the Order
may eventually be  reviewed by a  court,  and EPA must have a
complete record  of the information which formed the basis for
its decisions and  documentation of the  opportunity afforded
the respondents  to confer.  The acknowledgement letter is an
important part of  the documentation.

     The Region  should encourage communications with the
respondent and his representatives to be in writing insofar
as possible.  Written records of communication should be made
of all telephone conservations with the respondent and a record
should be made of any conference held with respondents in
accordance with  this  guidance.

     In the event EPA should  reject any objections, defenses
or contentions of  the respondent,  or modify the respondent's
proposal for monitoring,  testing, analysis and reporting
without the respondent's  agreement, EPA should set forth the
reasons for such rejection or modification and furnish those
reasons in writing to the  respondent.

Attachments

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10

11

12

13

14

15

16

17

IB

19

20

21

22

23

24

25

2$

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28
                                                            APPENDIX A
                    UNITED  STATES  ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF:
Environmental Protection Agency, * )
                   Complainant,    }
v.
                     RCRA Docket '
                                        FINDINGS OF FACT, DETERMINATION,
                                        AND ORDER REQUIRING SUBMISSION
                                        AND IMPLEMENTATION OF PROPOSAL
                                        FOR SAMPLING, ANALYSIS,
                                        MONITORING AND REPORTING
                   Respondent.
Proceedings under 5 3013 of        )
the Resource Conservation and      )
Recovery Act. 42 U.S.C. S 6934.    )
                            PRELIMINARY  STATEMENT

    1.  This 1s an administrative action Instituted pursuant to Section 3013

of the Resource Conservation and Recovery Act [42  U.S.C. Section 6934],

hereinafter referred to as "the Act* or "RCRA".  The Complainant 1s

Region    of the United States Environmental  Protection Agency (EPA).
FINDINGS OF FACT, DETERMINATION AND ORDER PAGE 1  of 8

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        2.  The Regional Administrator of EPA Region   , by and through
    authority duly delegated from the Administrator of EPA. having been
    "presented with Information concerning the presence of hazardous wastes that
    are being stored,  treated or disposed at the facility described below, with
    Information concerning  potential releases of hazardous wastes from this
     facility, and with Information  that  these circumstances may present a
     substantial hazard to  human health or the environment, hereby Issues the
     fol'lowlng Findings of  Fact,  Determination and Order  Requiring Submission,
     pursuant to Section 3013 of  the Act  [42  U.S.C.  Section 6.934J that are  set
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     forth below.
         1.
                                   FINDINGS OF FACT
                                                                ,, submitted a
Notification of Hazardous Waste  Activity  (EPA Form 8700-U)  for  Its  facility
at                . which was received by Complainant on August  15,  1980.
This notification satisfied Section 3010  of  the Act.  This notification
Indicated that                             -, was a  generator, and treater,
storer and/or disposer of hazardous waste.   The facility  is  located

    2.   "   '                        .,  submitted  a Part A application (EPA
Forms 3510-1 and 3510-3}  '                .      , which was  received by
Complainant on  November  18,  1980, as required by  40  CFR Section
                •
270.10(e)(1).   This application stated that '
was • storer,  treater  and disposer of hazardous waste at the facility.
    3.   *                            , has operated a facility at
 since at least                    (from  Respondent's Part A application).
 and including a period of time  November  19, 1980, the effective date of
 regulations promulgated pursuant  to  RCRA.
 FINDINGS OF FACT,  DETERMINATION AND ORDER PAGE Z of  8

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    4.   Respondent's  facility  Included a landfill of approximately 55
acre-feet 1n size consisting of at least 12 trenches, each of which was
approximately 10 feet wide. 20" feet "long,  end 4  feet deep.  Wastes,
Including hazardous waste and hazardous waste constituents, generated by
Respondent's facility were periodically  placed on  and  Into the  landfill
prior to and after November 19, 1980.  Respondent  thus owns and operates a
hazardous waste management facility                for the  treatment,
storage, and/or  disposal of hazardous wastes.
     5.   Respondent,  In  correspondence dated                ;, advised
 Complainant that Respondent was discontinuing the UndfWing of hazardous
 wastes and requested withdrawal of the Part A application.
     6.  Complainant Issued a  letter  to Respondent on             , formally
 requesting the submission of the Part B application.   The letter required
 Respondent to submit the Part B application to  the Complainant within six
 (6) months of receipt of the request.
     7.  Respondent, In correspondence  dated            ,,  advised
 Complainant that 1t would not  submit a Part B  application.   Respondent
 stated that effective  i               . Respondent was storing all  hazardous
 waste 1n  drums  and  storing such waste on-slte for less than ninety  (90)  days.
      8.  Complainant Issued a letter to Respondent on             ...
  requesting Respondent to provide documentation that the landfill units at
  the facility were properly closed and that the units  would be  properly
  maintained after closure, if necessary.  Complainant  specifically requested,
  in part, that Respondent demonstrate closure occurred In a manner  that
  "controls, minimizes or eliminates  to  the extent necessary to protect hu
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    9.   Respondent, In correspondence dated               , and
                                          •
           !    :, stated Its contention that'the landfllllng  activity at
the facility was properly closed.  Said correspondence Included laboratory
analyses of samples of landfllled material  from the  facility.
These laboratory analyses show the presence of  hazardous  constituents, as
defined 1n 40 CFR Part 261. 1n the landfllled material  as summarized below:
                                            Range of levels
Hazardous Constituents
Toluene
Lead
Chromlurn
Other Constituents
Xylene
Methyl Isobutyl Ketone
V
 detected, ppm
3.1 to 68.7  .
2.6 to 22.6
13.5 to 49.5

1.5 to 25.8
1.2 to 9.8
Additionally, all of the samples of landfllled materials exhibited the
hazardous waste characteristic of IgnltablHty by having a flash point less
than 60"F, Indicating the hazardous waste had not been rendered
non-1 gnitable prior to 1andf1ljl1ng.
    10.  Respondent's correspondence dated                 stated that no
analysis of groundwater quality has been performed.   Consequently, no
evidence exists to determine whether hazardous waste or hazardous waste
constituents have migrated to groundwater.
    11.  The continued presence of hazardous waste constituents In the
Respondent's landfllled material could result 1n release of hazardous waste
constituents by leachate production and migration off-site by means of

FINDINGS OF FACT, DETERHINATION AND ORDER PAGE 4 of 8

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    surface run-off or groundwater flow.  Respondent has not submitted! to
    Complainant"documentation that Respondent's facility Is not or may not be
    releasing hazardous waste or hazardous waste constituents to ground or
    surface water.
                                    DETERMINATION
    Based upon the aforementioned data and Information, 1t Is hereby determined
    pursuant to Section 3013 of the Act that:
    1.   The
facility, as described herelnabove,
                             \
owned and operated by Respondent, .Is  a  facility at which hazardous wastes
are present and at which hazardous  wastes have been stored, treated,  and
disposed.
                                                        •             ^
    2.   The methods and practices  employed at the facility for treating and
disposing of hazardous wastes are and were such that  the presence of
hazardous wastes at the facility may  present  a substantial hazard to  human
health or the environment.
    3.   Hazardous wastes and/or hazardous waste constituents  released  at
the facility may have migrated to surface or  ground waters.  The release of
hazardous wastes at and/or from the facility  may present a substantial
hazard to human health or the environment.
          ORDER REQUIRING SUBMISSION  AND IMPLEMENTATION OF PROPOSAL
              FOR SAMPLING. ANALYSIS. MONITORING AMD  REPORTING
Pursuant to Section 3013 of the Act [42 U.S.C. S 6934], and 1n order  to
ascertain the nature and extent of  the  hazard at the
facility as described herelnabove.  Respondent Is hereby ordered to submit a__
written proposal to_EPA for the. sampling, analysis, monitoring and" reporttnj_
of the hazardous wastes and hazardous waste constituents that  are present at
FINDINGS OF FACT, DETERMINATION AND ORDER PAGE 5 of 8

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 or that may have been released from the facility, and Is. hereby ordered to
 ^•"•^^  ~      * ^^^•••^•^•i^^^^™"—                  ^
 Implement such  proposal,  once approved by EPA.  Such written proposal shall
 contain, but 1$ not limited to, the following:     •
     1.    A plan and timetable for the determination of the horizontal and
 vertical permeabilities of the uppermost aquifer and the nature of the
L                                      _                                    *•*
 aquitards. or barriers, including a determination of the direction and
 velocity of groundwater flow in the uppermost water-bearing zones In  the
                                               •
 area likely to  be affected by migration of hazardous wastes from the
 Facility.  The  plan shall consider means to determine areas of discharge  and
 recharge of groundwater In the areas likely to be affected by migration of
 hazardous wastes from the facility.
                                                        •              ^
     2.    -A plan for determining whether hazardous wastes or hazardous waste
 constituents have leaked  or are Waking from the landfill.  This shall
 Include a plan  and timetable for the Installation of a groundwater
 monitoring program, Including proposals as to locations, depth, and
 construction thereof, designed to monitor groundwater elevation and water
 quality.
     3.    A sampling and analysis plan for monitoring groundwater at or near
 the landfill which describes analysis parameters, frequency of sampling,  and
 procedures and  quality assurance measures for sampling and analyzing  for
 hazardous waste and hazardous waste constituents.  The plan shall provide
 that groundwater be sampled and analyzed at least quarterly for one year.
 The plan shall  also provide for analysis of all priority pollutants
 contained in Appendix VII! of 40 CFR Part 261 for at least one of the
 quarterly sampling periods.
 FINDINGS OF FACT, DETERMINATION AND ORDER PAGE 6 of 8

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    4.   A plan and timetable to collect and analyze soil  samples of
appropriate size, depth, and location to determine the nature and extent of. •
contamination of the-surface and of'the* soil column above  the groundwater
table at the facility.
  .  5.   A proposal, Including timeframes, for determining the extent of any
hazard presented by hazardous waste or hazardous waste'constituents that may
have been released to drainage ditches, surface waters, or sediments
therein.  This proposal shall specifically Include sampling of water,
sediment, and soils, both on and off-site, sufficient to document the extent
of contamination by hazardous waste or hazardous waste constituents that may
have resulted from past events such as rainfall and resulting run-off.
    6.   A provision for site access-for employees, agents, and contractors
of Complainant at all reasonable times for purposes of Inspecting and
verifying compliance with the provisions of this Order In  accordance with
and pursuant to the authority of 53007 of the Act. 42 U.S.C. $6927.
    7.   A description of the means of Implementation of the Items set forth
above, a proposal for reporting to EPA on the progress of  these Items, and
                                                          *           '•
for reporting the results of the sampling, analysis and monitoring program.
                            OPPORTUNITY TO CONFER
Under the provisions of the Act, Respondent may confer with EPA at any time
prior to subnrtttal of the proposal.  The proposal submitted by Respondent
shall be subject to review, nodiflcation and approval by EPA.  After
submlttal of the proposal, Respondent shall be afforded an opportunity to
confer with EPA on a date specified by EPA to discuss the  terms of the
proposal.  Following this conference and after review, modification  (1f
any), and approval of the proposal by EPA, Respondent shall forthwith

FINDINGS OF FACT, DETERMINATION AND ORDER PAGE 7 of 8

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conduct, carry out and  Implement the sampling, analysis, monitoring and
                                         »
reporting program according to Its approved'terms and schedules.
The written proposal.ordered herein must be submitted by Respondent to the
Contact Person.                        , at the address listed below, with1n
thirty (30) days of  Respondent's receipt of this Order.
                                  LIABILITY
If EPA determines that  Respondent 1s not able to conduct the activities
required by this Order  In  a satisfactory manner, Is not able to conduct the
activities contained In the approved proposal, or 1f actions carried out are
deemed unsatisfactory,  then EPA may conduct such actions deemed reasonable
by EPA to ascertain  the nature and extent of the hazard at the facility*
Respondent may then  be  ordered to reimburse EPA for the costs of such"
activity pursuant to §3013(d) of the Act.   In the event Respondent falls or
refuses to comply with  the terms and provisions of this Order, EPA may
commence a civil action to require compliance with such order and to assess
a civil penalty of not  to  exceed $5.000 for each day during which such
failure or refusal occurs.

WITNESS MY HAND as Regional Administrator pursuant to the authority of the
Administrator of the United States Environmental Protection Agency, on
this   	3ay of   ,	,1984.
                                    By:
                                        Regional Administrator
 Contact Person:
      FINDINGS OF FACT, DETERMINATION AND ORDER PAGE 8 of 3

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OKMM
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• •"- .
. " * :"Z
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... *




\ ' •

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY '
t


IN THE MATTER OF:

Environmental Protection Agency,
Compl a1 nant ,


V.



Respondent.
•
1
Proceedings under §§ 3008 and 3013
of the Resource Conservation and
Recovery Act, 42 U.S.C. §§ 6928
and 6934.



*

* %
RCRA Docket X83-11-08-300P 3013 1
\ J
.
FINDINGS OF FACT, AGREED
COMPLIANCE ORDER, AND AGREED
ORDER REQUIRING SUBMISSION
AND IMPLEMENTATION OF
PROPOSAL FOR SAMPLING,
ANALYSIS, MONITORING AND
REPORTING


.





PRELIMINARY STATEMENT
1. This 1s -an -administrative action Instituted pursuant to Sections
3008 (a) and 3013 of the Resource Conservation and Recovery Act [42 U.S.C
Sections 6928(a) and 6934], hereinafter referred to as "the Act* or
•RCRA". The Complainant 1s Region
Protection Agency (EPA)*


of the United States Environmental
.


FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 1 of 26
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    2.  Complainant has reason to believe  that
           • ("Respondent") has violated Section 3005 of  the Act [42  '     *
              •»
U.S.C §6925] as set forth below.  Additionally, the Regional
Administrator of EPA Region   ,, by and through  authority  duly  delegated
from the Administrator of EPA, having been presented with Information
concerning the presence of hazardous wastes that are being stored. •
treated, and  disposed  at the  facility described below,  with Information
concerning  potential releases of  hazardous wastes  from this facility, and
                              •             •
with  Information that  these circumstances may  present a substantial
hazard to  human health or  the environment, hereby  Issues the following
 Findings of Fact, Determination, Compliance Order, and Order Requiring
   ,          m
 Submission, pursuant to Sections 3008 and 3013 of  the Act  [42 U.S.C.
 Sections 6928 and 6934] that are set forth below.
     3.  Respondent consents to comply with the penalty assessment.
 Compliance Order  and  Order Requiring Submission as described  below.

                              FINDINGS OF  FACT
      1.                     "                  submitted a Notification of
  Hazardous Waste Activity  (EPA Form 8700-12) for Its facility near
                   which was received by Complainant on
  This notification satisfied Section 3010(a) of the Act.   This
   «
  notification Indicated that               was a  generator,  transporter,
  and treater, storer, and/or disposer of hazardous waste.  The  facility 1s
  located at  ;'
                       and was  then  and 1s now known as   .     (hereafter
   "the facility").
         FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
                                                                PAGE 2 of 26

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    2.  Complainant has reason to believe that
           , ("Respondent*) has violated Section 3005 of the Act [42  '
              ••
U.S.C §6925] as set forth below.  Additionally, the Regional
Administrator of EPA Region  ,, by and through authority duly delegated
  *
from the Administrator of EPA, having been presented with Information
concerning the presence of hazardous wastes that are being stored.
treated, and disposed at the facility described below, with Information
concerning potential releases of hazardous wastes from this facility, and
with Information that these circumstances may present a substantial
hazard to human health or the environment, hereby Issues the following
Findings of Fact, Determination, Compliance Order, and Order Requiring
            •
Submission, pursuant to Sections 3008 and 3013 of the Act [42 U.S.C.
Sections 6928 and 6934] that are set forth below.
    3.  Respondent consents to comply with the penalty assessment,
Compliance Order and Order Requiring Submission as described below.

                            FINDINGS OF FACT
    1.                      '                  submitted a Notification of
Hazardous Waste Activity (EPA Form 8700-12) for Us facility near
                 which was received by Complainant on
This notification satisfied Section 3010(a) of the Act.  This
 *
notification Indicated that                was a generator, transporter,
and treater, storer, and/or disposer of hazardous waste.  The facility 1s
located at I'
                    and was then and 1s now known as  -     (hereafter
"the facility").
FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
                                                                         PAGE 2 of 26

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    2.        -          submitted a Part A application (EPA Forms  3510-1
and 3510-3) dated                  , which was received by Complainant  on
November 18, 1980, as required by 40 CFR Part 270.10(e)(l).  This
application stated that             .* was a storer and disposer of
hazardous waste at the facility.                   V
    3.                , had operated a facility at        since .
     , and  Including  a period  of  time prior to and after November 19,
 1980.   At  the facility,               accepted waste  Including hazardous.
 waste for  storage and/or disposal  as  Indicated on Its notification and
 Part A  permit application.  Therefore,  the              -  facility known
 as        qualified for Interim Status  pursuant  to  Section 3005(e) of  the,.
 Act.
     4.   40 CFR Part 265 establishes and sets forth standards, known as
 the Interim  Status Standards  (ISS), which were promulgated pursuant to
 Section 3004 of  the  Act, and  which are applicable to all hazardous waste
 treatment, storage,  and disposal  facilities that qualify for Interim
 Status.   These standards apply  to such facilities until final
 administrative  disposition has  been made of  permit applications submitted
 by owners and operators of such facilities.  No such disposition has  been
 made with respect to the        facility.   Thus,  the standards of 40  CFR
  Parts  270, 124, and. 265 apply to the        facility.
      S.   In correspondence from                            ,  dated
              , Complainant was notified that Respondent Intended  to
  acquire all of  the  capital stock of               and to liquidate the
  assets of              . Into ~                       "                   ,
             The  letter  further  stated that      would continue the

|  FINDINGS OF FACT. DETERMINATION AND AGREED ORDER            ^  PAGE 3 of  26 (flfC

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operations of              at the facility.  The notification was
submitted pursuant to 40 CFR Part 122.23 (now 270.72).
    6.   In correspondence dated            .,, Respondent notified
Complainant that the operating name of Respondent's facility would be
                                                      . , the date that
formal closing of the ownership transaction would occur. .After that
date. Respondent has owned and operated the facility, known as
    7.   Respondent on                                * submitted a
                             •        .s
revised Part A permit application and requested approval to add treatment
as a hazardous waste management process to be conducted at the facility.
Complainant approved the request on .
    8.   Respondent thus owns and operates a hazardous waste management  '
facility (100          } for the treatment, storage,  and/or disposal of
hazardous wastes, which Is subject to the Interim Status provisions of
Section 3005(e) of the Act and regulations promulgated under the Act.
    9.   Complainant Issued a letter to Respondent on
formally requesting the submission of the Part B permit application.  The
letter required Respondent to submit the Part B application to the
Complainant within six (6) months of receipt of the request.
    10.  Respondent requested, 1n correspondence dated                , a
four (4) month extension for submlttal of the  Part B application.
 »                 w
Complainant approved the request and extended the submlttal date to

    11.  Complainant has conducted and/or participated In several
Inspections of Respondent's .      facility to determine compliance wJth
the Interim Status Standards.  An Inspection was conducted by Complainant
on                .  Several violations of the ISS were noted during the
Inspection.  Respondent was advised of these findings, which were

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attached to correspondence dated                  .  Corrective action
was required as a part of the Part B permit application but, In any
             • •*        ,     •
event, within six (6) months of Respondent's receipt of the letter.
    12.  Complainant again Inspected the facility on               .,
1983, to determine compliance with the ISS.  Copies,of several documents
required to be developed and maintained by the facility were collected
and were reviewed 1n detail after on-slte Inspection.  Several violations
of Interim Status Standards were noted and made known to Respondent 1n a
                             •  "                                        *
Notice of Violation and Warning (NOW) dated '             "   .  Among
those noted were violations of requirements for the Waste Analysis Plan
(40 CFR §265.13), General Inspections (40 CFR §265.15), Personnel
Training (40 CFR §265.16), Contingency Plan (40 CFR §265.52), Groundwater
Monitoring (40 CFR Part 265 Subpart F), and Closure and Post-Closure (40
CFR Part 265 Subpart G).  In the NOVW, Respondent was required to submit
                                          •
a plan and schedule for compliance.
    13.  Respondent submitted a plan and schedule dated            .,
1983 for compliance with the Items noted 1* the                  , NOVW,
and requested an extension of the 30 day submlttal requirement for 40 CFR
265 Subpart F violations, until .                .  Complainant granted
the extension,  1n correspondence dated                 , to allow
completion of geotechnlcal work then underway at the  site.  Respondent
subsequently submitted the plan and schedule, 1n correspondence dated
               ,, 1n which Respondent proposed Installation of a
groundwater monitoring program.  Complainant accepted Respondent's plan
and schedule, with some revisions, 1n correspondence  dated       -   ,
1983, and advised Respondent that full compliance with ISS groundwater
monitoring requirements was required to be achieved by           .,
             FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
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     .  A ground water waiver demonstration was developed by Respondent.
Based on an Inspection 1n            and subsequent review of the waiver
demonstration Complainant advised Respondent 1n the NOVW dated
       . that the waiver demonstration was Inadequate.  Respondent
therefore has not Implemented a groundwater monitoring program (or
developed a complete waiver demonstration) capable of determining the
facility's Impact on the quality of groundwater In the uppermost aquifer
underlying the facility as required by 40 CFR Part 265 Subpart F.
     14.  A storm and flash flood occurred at Respondent's      ~ facility
on the night and/or morning of             .    _, which may have
exceeded a 25-year storm event.  Complainant conducted an Inspection of
the  facility on                 during which erosion and other signs of
runoff from the site were noted at two areas of the facility.  The
erosion noted was due to runoff from the storm.  Inspectors noted liquid
1n an active hazardous waste disposal trench (Trench   }.  This liquid
had  flowed Into the disposal trench from surrounding areas during the
                   storm.  After the storm,  facility personnel
constructed a berm at the end of Trench    to deflect future storm
run-off Into that trench.  Failure to prevent flow of surface water Into
an active hazardous waste disposal trench constitutes a violation of 40
CFR §26S.302(a). .   .
 •
    15.  Complainant was advised on or about                " by the
       County Prosecutor that violations of  the Interim Status Standards
had allegedly occurred at Respondent's        facility during the
approximate period of           through '        ...   Respondent was
alleged to have disposed of large quantities  of drums of Improperly
solidified and unso11d1f1ed liquid waste 1n  Respondent's disposal trench
FINDINGS OF FACT,.DETERMINATION AND AGREED ORDER
PAGE 6 of 26

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       used for disposal  of hazardous waste (Trench   ?.
           16.  On or about                 , Respondent  voluntarily began
       excavating and exhuming drums of waste previously disposed 1n Trench
       Complainant has continually observed excavation activities since
         t
                       ,.  Excavation of drums continues to. date by Respondent.
       As drums have been recovered from the disposal trench they have been
       Individually opened and examined by representatives of Respondent and
       Complainant.
                                    •
            17.  During the period  of                     . Respondent removed
       1412 drums from the disposal  trench  (Trench    ).  Of these,  528 drums
       were determined to  contain  liquid  1n  whole  or 1n  part as  follows:
            a.   145 drums  full  or  containing greater than approximately 75X
        liquid
            b.
            c.
           33 drums containing between approximately SOX and 75X liquid
           44 drums containing between approximately 25X and .SOX liquid
      d.    226 drums containing between approximately 5X and 25X liquid
      e.   • 80 drums containing less  than  approximately SX liquid
      18.   At the request of Complainant,  Respondent provided control
  records  that document the dates that some of  the  above-mentioned  528
  drums containing liquids were  placed 1n  the disposal trench.  These
  records disclosed that drums found to contain liquids were placed In
  Trench    on at least the following occasions:
I
         FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                                PAGE 7 of 26

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              Date
              5/27/83
              5/20/83
              6/10 and 8/9/83
              8/3/83
                                                    No.  of Drums
                                                          21
                                                           7
                                                           3
                                                           1
                                                           9
                                                          32
                                                           4   •
                                                         -16
                                                           7
                                                          47
                                                           2
                                                           6
                                                           5
                                                           13
    Such placement of liquids 1n Trench    was 1n violation of  40  CFR
§265.314.  Some of the control documents provided to Complain** fall to
clearly account for all containers In each shipment of hazardous waste
manifested to the facility.
    19>  On            and              -   , Complainant again inspected
Respondent's   .   - facility.  The purpose of the Inspection. 1n part.
was to  determine compliance with RCRA  Interim Status Standards.  More
specifically, the  Inspection was to examine facility operations and
physical conditions  at the facility.   The  Inspection disclosed the
 following:
               6/3/83

               6/10/83
               6/21/83

               6/18/83
   ClO-tM
t • It *u%
            FINDINGS Of FACT, DETERMINATION AND AGREED ORDER
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         t.  Approximately 8,500 drums  were  In  storage  at the facility.
         The number of drums In storage 1s Increasing.
         b.  Several drums containing hazardous waste In storage on-site
         were corroded or badly deteriorated; specifically, drums of
         hazardous waste designated as  D007  were bulging and had not been
         managed In accordance with 40  CFR §265.171.
         c.  Several drums containing hazardous waste In storage on-$1te
         were leaking either from the top seals or Openings or through
                             *   '         .  *
         the drum; specifically, drums  of hazardous waste designated by
         waste codes on the labels as containing F003,  F005, D001, D006,
         and phosphoric add, were leaking,  and had not been managed 1n
         accordance with 40 CFR §265.171.
         d.  Several drums containing hazardous waste were stored with
         open tops; specifically, drums designated by waste codes on the
         labels as containing 0002/D007 and  F003/F005 had open tops. In
         violation of 40 CFR §265.173(a).
         e.  Drums containing hazardous waste were stored 1n a manner
         which may cause them to leak;  specifically, drums were stored
         directly on the ground surface and  1n  areas of poor drainage
         which may cause or accelerate  drum  deterioration or rusting, 1n
         violation.of 40 CFR §265.173(b).
         f.  Run-off from active portions of the facility was not
         collected In a collection system.   Prevailing  grade determines
         the course of run-off and natural ponding.  Ponds formed by
         run-off or run-on were allowed to evaporate or percolate Into
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 9 of 26
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    2.  Complainant has reason to believe that
           , ("Respondent") has violated Section 3005 of the Act [42  '
U.S.C §6925] as set forth below.  Additionally, the Regional
Administrator of EPA Region   ., by and through authority duly delegated
£rom the Administrator of EPA, having been presented with Information
concerning the presence of hazardous wastes that are being stored,
treated, and disposed at the facility described below, with Information
concerning potential releases of hazardous wastes from this facility, and
with Information that these circumstances may present a substantial
hazard to human health or the environment, hereby Issues the following
Findings of Fact, Determination, Compliance Order, and Order Requiring
            *
Submission, pursuant to Sections 3008 and 3013 of the Act [42 U.S.C.
Sections 6928 and 6934] that are set forth below.
    3.  Respondent consents to comply with the penalty assessment.
Compliance Order and Order Requiring Submission as described below.

                            FINDINGS OF FACT
    1.                     '                  submitted a Notification of
Hazardous Waste Activity (EPA Form 8700-12) for Us facility near
                 which was received by Complainant on
This notification satisfied Section 30lO(a) of the Act.   This
 *
notification Indicated that                was a generator, transporter,
and treater, storer, and/or disposer of hazardous waste.   The facility 1s
located at I"
                    and was then and 1s now known as  -      (hereafter
"the facility").
FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
PAGE 2 of 26

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010-113
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           2.
                        submitted a Part A application (EPA Forms  3510-1
and 3510-3) dated                  ., which was received by Complainant  on
November 18, 1980, as required by 40 CFR Part 270.10(e)(1).  This
application stated that             ., was a storer and disposer of
Hazardous waste at the facility.                   V
    3.                . had operated a facility at        since .
     , and  Including  a period of  time prior to and after November 19,
1980.  At  the  facility,               accepted waste Including hazardous.
waste for  storage and/or  disposal  as Indicated on Us notification and
Part A  permit  application.  Therefore,  the              . facility known
as        qualified for Interim Status  pursuant  to  Section 3005(e) of  the^
Act.
     4.    40 CFR Part 265 establishes and sets forth standards,  known as
 the Interim Status Standards (ISS), which were promulgated pursuant  to
                                           *
 Section 3004 of the Act, and which are applicable to all  hazardous waste
 treatment, storage,  and disposal  facilities that qualify for Interim
 Status.  These standards apply  to such facilities until final
 administrative disposition has  been made of permit applications submitted
 by  owners  and operators of such facilities.  No such disposition has been
 made with .respect to the        facility.  Thus, the standards of 40 CFR
 Parts  270, 124,  and. 265  apply  to  the        facility.
     5.    In correspondence from                           ., dated
              , Complainant was  notified that  Respondent Intended to
  acquire all of the capital  stock  of               and to  liquidate  the
  assets of             . Into "                      "                    ,

            The letter further stated that      would continue the
      1  FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                                       PAGE 3 of 26

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       the soil, In violation of 40 CFR §265.302(6).
       9.  The diversion structure (a bern)  which  had been constructed
       to cause run-on Into Trench 11 was still  1n place.  In violation
       of 40 CFR §265.302(a).
       h.  Inspections by Respondent of containers 1n storage had not
       been adequate to detect deterioration and releases of hazardous
       waste constituents to the environment, 1n violation of 40 CFR
       §265.15(a).  Remedial .action had not been Initiated to correct
       such drum management  problems  In violation of 40 CFR §265.171.
       1.  Respondent's facility was  not then currently maintained and
       operated to minimize  the possibility of unplanned sudden or
       non-sudden  releases  of hazardous  waste or  hazardous  waste
       constituents to air,  soil,  or surface water;  specifically, any
        spill  during use of  the stabilization  pad  could result 1n
        hazardous waste flow to surrounding soil,  and failure of  any
        container of hazardous waste 1n storage would result 1n
        discharge to the soil or surface water, In violation of 40 CFR
        §265.31.  Additionally, Respondent's facility Is not equipped
        with a  facility or system to  prevent the release of hazardous
        waste or hazardous waste constituents from trucks or other
         vehicles leaving the site.
 *
    20.  At Respondent's        facility  there are '
                underground  structures '
                                               These structures were
filled with liquid and solid hazardous waste and hazardous waste
constituents prior to November 19, 1980.  The  Integrity of  the
            FINOIHGS OF FACT. DETERMINATION AND AGREED ORDER
                                                             PAGE 10 of 26

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underground structures  1s unknown.  Respondent, 1n correspondence dated
                -, advised Complainant that groundwater had been
encountered beneath the site near a depth of 200 feet.  ..

4    21.  A well reaching a deep  artesian aquifer was constructed as part
of the original facility.  An Integral part of that well 1s Its steel
casing.  The water produced by this well contains natural chemical
compounds which may be  destructive to metals such as the steel well
                             •
casing.  The well and construction materials are approximately ZS years
old.  The condition and Integrity of the casing and well head are
unknown.  The well head 1s situated In an underground structure (the
power house) which 1s connected  by a series of tunnels, structures, and
access doors to .                 '            .> underground structures
containing hazardous waste.  The potential of a well casing failure
exists.  Such a failure could result 1n the release of a large volume of
water to the soil and to hazardous waste disposal  units, which might
result 1n the release of hazardous waste by leachate production and
migration off-site by means of surface run-off or groundwater flow.  The
well presents a potential risk of unplanned sudden and non-sudden release
of hazardous waste or hazardous waste constituents.
               **                         i
                              CIVIU PENALTY
    In view of the violations noted 1n the Findings  of Fact above.
Complainant hereby assesses a civil  penalty of ONE HUNDRED FIFTY THOUSAND
DOLLARS [$150,000].
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 11 of 26

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         a.  to Immediately cease shipping any containerized hazardous
             •
         waste or bulk hazardous waste which contains free liquids to the
                facility until further notice; and
         b.  to allow shipments of hazardous waste already 1n transit to
 *        the        facility to continue to the facility; and
         c.  that any shipments of containerized hazardous waste or bulk
         hazardous waste which contain free liquids will not be accepted
         at the facility 1f shipped after the telephone notice- •
                             •        ^
    The telephone notifications shall be completed as soon as possible
but 1n any event all such generators and transporters must be so notified
within three (3) working days of Respondent's receipt of this Order.
    2.   Respondent shall follow the above telephone notification with
written confirmation to each such generator and transporter -and shall
provide a written summary to Complainant within five (5) working days of
Respondent's receipt of this Order, which Includes:
         a.  a copy of each written notification (a single copy of the
         notification will suffice 1f the text of all such notifications
         is Identical).
         b.  a list of the companies to which the notification 1s sent,
         Including company name, company EPA ID number, mailing address
         of the company, company contact, and company telephone number.
         c.  a' record of the dates the telephone contacts were made.
    3.  Respondent shall, upon Us receipt of this Order, immediately
cease and thereafter desist from accepting at the facility any
containerized hazardous waste or bulk hazardous waste which contains free
liquid and which was shipped from any generator after the aforementioned
telephone notification to that generator.  In no event shall Respondent
             FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                             PAGE 13 Of 26

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accept at tht-facility any containerized hazardous waste or bulk
hazardous waste which contains free liquids shipped later than three (3)
working days after Respondent's receipt of this Order; with respect to
hazardous waste containing free liquid that 1s unknowingly accepted at
tne facility, such waste shall not remain on the facility for a period
longer  than  24 hours.  This  prohibition shall remain 1n effect until
Respondent has complied with Paragraph 4 below and further, until
Complainant  by Us Contact designated herelnbelow has notified the
Respondent,  orally or  1n writing,  that this prohibition has teen removed.
     4.    Respondent  shall  Immediately upon Us receipt  of  this Order
 Implement procedures which  assure  that no  container  containing  free
 liquids Is placed in a landfill.   These  and/or alternative procedures
 shall be documented 1n writing and submitted  to  Complainant for review  •
 and approval.  Until Complainant has advised  the Respondent, orally or in
 writing, that the procedures are approved, Respondent shall open and
 Inspect all containers of' hazardous waste prior to placement In a
 landfill and shall verify that no free liquids exist in any such
 container.  Following Complainant's approval, orally or 1n writing.
 Respondent  shall Immediately Implement the approved procedures.
      5.  Respondent  shall remove from Trench     all  liquids disposed
  therein in  violation  of 40  CFR §265.314.   In order  to  accomplish this,
   k
  Respondent  shall continue  to excavate, exhume,  and  examine  for  liquids,
  drums and/or containers  disposed  in Trench   at the         facility.
  This activity shall continue until  Complainant  notifies Respondent  in
  writing that such activity may cease.   Respondent shall  remove for
  solidification drums containing free liquid  in  accordance with EPA
  guidance and Complainant's on-slte representative when such Is present.
            FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
                                                               PAGE 14 of 26

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    6.   Respondent shall within fifteen (15) working days of Its receipt
              *
of this Order create and maintain a current written record of the total
Inventory of containers of hazardous waste 1n storage on-slte.  This
Inventory'shall Include all containers which are or have been exhumed
from the landfill and which contained free liquids when exhumed.
Respondent shall not allow the storage Inventory of containers to exceed
the design capacity of the facility which Is currently defined by the
Part A application on file with Complainant.                   . •
                             •                                          *
    7.   Respondent shall develop, Install, and put Into operation
equipment and/or procedures to remove hazardous waste or hazardous waste
constituents from exterior surfaces of vehicles which leave the site.
                                .                                        •*
Respondent shall, WUMn fifteen (15) working days of Us receipt of this
Order, submit to Complainant for approval a written plan and proposal for
this purpose. Including a proposed schedule for Installation and
Implementation.  This plan and proposal must assure that no vehicle
leaving the facility 1s visibly contaminated with hazardous waste and
must assure that any dirt, soil, or other material which has become
adhered to the exterior of the vehicle, 1s removed prior to leaving the
site.  The plan and proposal shall provide that all such materials
removed, Including any washing solutions or wastewater, shall be treated
as hazardous waste unless 1t can be demonstrated otherwise.  Upon
approval of the plan by Complainant, Respondent shall Immediately
Implement the plan.
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 15 Of 26

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     8.    Respondent shall, within  fifteen  (15) working days of Us
 receipt of  this Order, develop  a written plan and schedule to divert
 run-on away from  active  portions of  the facility and to collect and
 manage, as  hazardous waste, run-off  from active portions of the facility
     t
 In accordance with  40 CFR §265.302.  The plan and schedule shall be
 submitted to Complainant for review  and approval.  The plan and schedule
 as approved by Complainant shall be  Implemented by Respondent Immediately
 upon receipt of written approval by  Complainant.
                             t             .                 "
     9.    To the extent Respondent  has not  already done so, Respondent
 shall, by   -              , attempt to enter Into arrangements or
 agreements  with local authorities  such as  police and fire departments,
 emergency response  teams, contractors and equipment suppliers, and local
 hospitals,  1n compliance with 40 CFR §265.37(a).  Where such arrangements
 or  agreements have  not been reached by                 ., Respondent
 shall document the  refusal of such State, County, or other local
 authorities  to enter Into such arrangements, 1n compliance with 40 CFR
 §265.37(b).
     10.  To  the extent Respondent has not already done so, Respondent
 shall, within fifteen (15) working days of Us receipt of this Order,
maintain  a written operating record at the .       facility, Including
 records of the dates of disposal and location and quantities of hazardous
waste, 1n compliance with 40 CFR §265*73(b).
     11.  Respondent shall, within fifteen (15)  working days of Us
receipt of this Order, cease and thereafter desist  from the storage  of
drums of hazardous waste 1n a manner which  may cause  them to deteriorate
and/or leak, Including the closing  of all  drums In  storage and removal of
drums from storage on the ground surface  and/or 1n  areas  of poor
drainage,  In compliance with  40  CFR §265.173.

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    12.  Respondent shall upon Us receipt of this Order Implement
procedures to Inspect dally all containers of hazardous waste on-site.
Respondent shall further, within fifteen (15) working days of Us receipt
of this Order, transfer any hazardous waste contained 1n corroded,
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deteriorated, leaking, or bulging drums, or drums not 1n good condition,
Into sound drums In good condition or shall otherwise comply with 40 CFR
§265.171.  Thereafter, Respondent shall comply w-Uh 40 CFR §265.171.
    13.  To the extent Respondent has not already done so, Respondent  .
shall, within thirty (30) days of Us receipt of this Order, equip Us
       facility with a continuously operable and operating Internal
communications or alarm system 1n compliance with 40 CFR §265.32{a)  and
(b).
    14.  Respondent shall, within thirty (30) working days of Us receipt
of this Order, prepare and submit to Complainant a written plan  and
schedule to maintain and operate Respondent's -:.._   facility so as  to
minimize the possibility of unplanned sudden or non-sudden releases  of
hazardous waste to soil or surface water.   The plan shall  provide for at
least the following specific measures:
         a.   such measures as are necessary to eliminate  the threat  of
         failure of the well casing 1n  the on-site artesian well.  The
         plan shall contain provisions  to  permanently plug the well.  The
         plan,'as approved by Complainant, shall be Implemented
         Immediately upon approval.
         b.   such measures as are necessary to minimize,  contain, or
         prevent the release of hazardous  waste to the soil  or surface
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 17 of 26

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         water, upon the failure of  any container or tank.
         c.    such measures  as are  necessary to minimize, contain, or
         prevent:
               (1)  any release due  to spillage during off-loading of
               hazardous waste Into  the stabilization pond, and
               (2)  any release due  to failure of the berm surrounding the
               stabilization  pond during use and/or treatment of hazardous
 *             waste for stabilization or solidification.        •
                             •             .
    15.  Respondent shall Implement and comply with the groundwater
monitoring proposal and schedule submitted to Complainant 1n
correspondence dated                    Respondent shall also, within
seven (7) working days of Us receipt of this Order, provide a written
response to Complainant's letter of .                 which provided
comments on the Respondent's proposal.  The written response shall
document the actions Respondent has taken or Intends to take with respect
to the fourteen (14) comments 1n Complainant's letter, except for Item
                    •-
twelve (12), which 1s covered under the Section 3013 Order, Infra.
Additionally, Respondent shall Include 1n the Part 8 application for the
       facility (due  •..             ) a plan and proposal, Including
tlmeframes, for Installation and Implementation of a groundwater
monitoring system and program that fully complies with 40 CFR Parts 264
 •
and 265, Subparts F.
    16.  Respondent shall Immediately upon Us receipt of this Order
provide access to  ••     to employees, agents, and contractors of
Complainant at all reasonable times, for the purposes  of Inspecting and
verifying the status of Respondent's compliance with this Order, .In
FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
PAGE 18 of 26

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accordance with and pursuant to the authority of §3007 of the Act, 42
             *
U.S.C. §6927.

 ORDER REQUIRING SUBMISSION AND IMPLEMENTATION OF PROPOSAL FOR SAMPLING.
                   ANALYSIS. MONITORING  AND REPORTING
    Pursuant to Section 3013 of the Act [42 U.S.C. §6934], and 1n order
to ascertain the nature and extent of the hazard at the      facility as
described herelnabove, Respondent Is hereby ordered to submit a written
proposal to EPA for the sampling, analysis, monitoring and reporting of
the hazardous wastes and hazardous waste constituents that are present at
or that may have been released from the facility, and Is hereby ordered
            •                                                            ^
to Implement, such proposal, once approved by EPA.  Such written proposal
shall contain, but 1s not limited to, the following:
    1.  A determination of whether hazardous waste or hazardous waste
constituents have leaked or are leaking from the
underground structures.  This shall Include a plan and timetable for the
Installation of a groundwater monitoring program. Including
recommendations as to locations, depth, and construction thereof,
designed to monitor groundwater elevation and water quality.
    2.  A sampling and analysis plan for groundwater at or near, the
          underground structures containing waste which describes
frequency of sampling, and procedures and quality assurance measures for
sampling and analyzing for hazardous waste and hazardous waste
constituents.  The plan shall provide that groundwater be sampled and
analyzed at least quarterly for one year.  The plan shall also provlJe
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 19 of 26

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for analysis of all priority pollutants contained In Appendix VIII of 40
CFR Part 261 for at least two of the sampling periods.
    3.  A proposal. Including tlmeframes, for determining the chemical
composition of the contents of any container which has been exhumed from
V «•   and which contained free liquid at the time of exhumation.  Such
determination shall Include* as a minimum, sampling and analysis of a
representative number of such containers.  Such proposal shall be
sufficient  to determine whether Respondent's records  and record-keeping
                             »
procedures  accurately reflect drum contents and the chemical composition
of liquid hazardous wastes disposed by Respondent.  Nothing  1n this
paragraph shall  limit the exhumation, processing,  and disposal activities
                                                                         •^
required by this Order  prior to  approval  and  Implementation  of this
proposal.
     4.  A  proposal,  Including  tlmeframes, for determining  the  extent of
any  hazard presented  by hazardous waste  or hazardous  waste constituents
 that have  leaked or otherwise  been released to the environment from
 tanks, containers, vehicles, or other containment devices, or that have
 otherwise orginated from active treatment, storage, or disposal  units at
 the site.   This proposal shall specifically Include sampling of soils,
 both on and off-site (assuming access can be obtained), sufficient to
 document the extent of contamination by hazardous waste or hazardous
  •              *
 waste constituents that may have resulted from past events, Including:
          a.  rainfall and resulting run-on and run-off;
          b.  liquid waste solidification activities;
          c.  waste transfer between process units at the  facility;
  FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 20 of 26

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         d.  vehicle entry, vehicle unloading, and vehicle exit from the
             •
         facility;
         e.  other on-s1te waste management practices Including,
         Inter alia, container storage, tank storage, treatment, and
i        disposal of hazardous waste.              \
    5.  A provision for site access for employees, agents, and
contractors of Complainant at all reasonable times for purposes of
Inspecting and verifying compliance with the approved proposal 1n
                             •
accordance with and pursuant to the authority of §3007 of the Act, 42
U.S.C. §6927.
    6.  A description of the means of implementation of the Items set
forth above, a proposal for reporting to EPA on the progress of these
items, and for reporting the results of the sampling, analysis and
monitoring program.
                                         *
                          OPPORTUNITY TO CONFER
    Under the provisions of the Act, Respondent may confer with EPA at
any time prior to submittal of the §3013 proposal.  The proposal
submitted by Respondent shall be subject to review, modification and
approval by EPA.  After submittal of the proposal, Respondent shall be
afforded an opportunity to confer with EPA on a date specified by EPA to
discuss the terms of the proposal.  Following this conference and after
review, modification (1f any), and approval of the proposal by EPA,
Respondent shall forthwith conduct, carry out and implement the sampling,
analysis, monitoring and reporting program according to Us approved
terms and schedules.
             FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                             PAGE 21 of 26

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                                 CONTACT
    The written proposal ordered herein must be submitted by Respondent
to                        at the address listed above, within thirty (30)
days of Respondent's receipt of this Order.  Submlttals required by the
 4
Section 3008 Compliance Order, supra, as well as any questions, shall
likewise be addressed to

                                LIABILITY
                             •        ^*""^™ .
    If EPA determines that Respondent 1s not able to conduct the
activities required by this §3013 Order in a satisfactory manner, is not
able to conduct the activities contained 1n the approved proposal, or 1f ^
actions carried out are deemed unsatisfactory, then EPA may conduct such
actions deemed reasonable by EPA to ascertain the nature and extent of
the hazard at the facility.  Respondent may then be ordered to reimburse
EPA for the costs of such activity pursuant to §3013(d) of the Act.  In
the event Respondent falls to comply with the terms and provisions of
this §3013 Order, EPA may commence a civil action to require compliance
with such order and to assess a civil penalty of not to exceed 55000 tor
each day during which such failure or refusal occurs.

                                 CONSENT
 »
    1.  In connection with this matter, the Respondent consents to the
following:
         a.  To pay the assessed civil penalty of 5150,000, on the terms
         described below.
            FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
                                                             PAGE 22 of 26

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         b.   To  comply In  full  with  the  Compliance Order  Issued pursuant
         to  Section 3008 of the Act.
         c.   To  comply 1n  full  with  the  Order Requiring Submission and
         Implementation of Proposal  for  Sampling, Analysis,  Monitoring
*        and Reporting.        .                  v.
    2.  The consent of both Respondent and Complainant to settle  this
matter on the terms and conditions set forth 1n the penalty assessment
and order provisions of this docgment (hereafter collectively referred to
as the "Order") 1s based  upon  the following:

         a.   Respondent  neither admits nor  denies any factual or  legal
            •                                                            ^
         allegations  contained 1n this  Order.  Nevertheless,  1n full and
         complete  settlement of this  matter, Respondent  agrees to  be
         bound  by  the terms of this Order,  consents  to the  assessment  of
         the civil penalty set forth  herein, and explicitly waives Its
         right  to  request a hearing regarding any  provision of  this Order.
         b.  The  provisions of this Order Imposing duties (other than the
          payment  of penalties) upon Respondent shall apply to and be
          binding  upon not only Respondent, but also Its  officers, agents,
          servants and employees, and upon all those in active concert or
  FINDINGS  OF  FACT,  DETERMINATION  AND AGREED ORDER
PAGE 23 of 26

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         participation with them who receive actual notice of this Order
         by personal service or otherwise.
         c.  It 1s the Intention of this Order to bring Respondent and
           V                                               *
         all operations at the facility 1n compliance with the provisions
         of RCRA and applicable RCRA regulations.  It Is not
         Complainant's Intention by this Order to Impose standards or
         conditions more stringent than those specified 1n. the
         aforementioned provisions except to the extent that 1t may be
         necessary to remedy existing alleged violations at the facility.
         d.  This Order shall 1n no way relieve the Respondent of Us
         obligation to comply with any other local, State or Federal law^
         in any way related to the substance of this Order.
         e.  This Order is not and shall not be Interpreted to be a
         permit for treatment, storage or disposal  of hazardous waste
         under Section 3005 of RCRA (or under the terms of a State
         program operating in lieu of the Federal program under Section
         3006 of RCRA), nor shall this Order 1n any way affect the
         Respondent's obligation, if any, to secure such a permit, nor
         shall this Order be Interpreted in any way to affect or waive
         any of the conditions or requirements that may be validly
         Imposed as conditions for the Issuance of  such permit nor of
         Respondent's right to appeal any conditions of such permit.
         f.  This Order is being entered into between Complainant and
         Respondent in full settlement of all civil penalties for the
                                                                   •
         alleged violations Identified herein.  Nothing In this Order
FINDINGS OF FACT. DETERMINATION AND AGREED ORDER
PAGE
24 of 26 (p

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         shall restrict  the  right  of  Complainant to  Initiate further
         enforcement action  for  penalties or otherwise only 1n the event
         additional facts are uncovered which  are unknown to Complainant
         at the time this Order  1s entered and which justify such action.
         g.  Notwithstanding compliance with the terms of this Order,
         Respondent 1s not released from liability* If any, for abatement
         of any Imminent and substantial endangerment to the. public
         health, welfare or  the  environment posed by this facility.
         h.  Within 60 days  of the date hereof, Respondent shall pay by
         cashier's or certified  check, a civil penalty in the amount of
         $150.000.00 1n full and complete settlement of all violations
         alleged herein.  Such check  shall be payable to the Treasurer,
         United States of America, and shall be remitted to
                          ,  Regional  Administrator.
         1.  Complainant shall.expeditiously review all plans and
         proposals submitted pursuant hereto and shall not unreasonably
         withhold Its approval.
         j.  The terms of the Order may be modified by written mutual
         agreement of the parties.
         k.  This Order shall terminate two years from the date 1t 1s
         entered^or.on the date of Issuance of the Part 8 permit,
         whichever 1s earlier.
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 25 of 26

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    3.  By the*following signatures, the Complainant and Respondent

hereby consent to the entry of the Order on the terms and conditions

herein stated:
 4

DATED-
                                       Respondent
                                       Secretary
DATED:
                                                     , Regional Counsel
                                       EPA, Region
                                       Attorney for Complainant
                                       Assistant Regional Counsel
                                       EPA, Region
                                       Attorney for Complainant
                        ENTRY OF FINAL CONSENT ORDER

It 1s so Ordered as set forth above.  This ORDER, Including each and every
portion hereof', shall become effective Immediately.
                                            Regional Administrator
                                            EPA, Region 10
DATED this

FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 26 of 26

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           MODIFICATION OF AGREED ORDER ...

           EHTERED INTO I.           '    . BETWEEN ENVIRONMENTAL

           PROTECTION AGENCY REGION    AND
         Upon the mutual agreement of the parties to the above-referenced



Agreed Order as evidenced by the signatures below, and pursuant to Paragraph
  ;                                V


2.4. of the -CONSENT" section thereof (p. 25 of 26)^ the Agreed Order  1s



hereby modified as follows:



         1.   Page 13 of the Agreed Order shall be amended as follows:



              a.   On line 11 thereof, omit "three (3)", and Insert "ten (10)"



              1n place thereof;



              b.   On line 14 thereof, omit "five (5)", and Insert "twelve



              (12)" 1n place thereof.        .   .
                                                    •                     -*


         2.   Page 14 of the Agreed Order sha'll be amended as follows:  On

                                                i,

line 2 thereof, omit "three (3)", and Insert "ten (10)" 1n place thereof.



         3.   Noncompllance with Paragraph .4 on Page l;^of the Agreed  Order

                                                      • .4

prior to                 ' shall, in the sole discretion of the Complainant by



Us Contact designated on Page 22 of the Agreed Order, and without further



notice or opportunity for a hearing, effect a further unilateral modification



of any of the three provisions modified above, but such modification shall



maintain the existing date relationship of Paragraphs 1, 2 and 3 on Pages



12-14'of the Agreed Orde^-cf .
   DATE
   DATT
IT IS SO ORDERED.
for Environjrjfental Protection Agency Region
                     ENTRY OF ORDER AMENDING AGREED ORDER
                                            Regional Administrator
            MODIFICATION OF  AGREED  ORDER  -  Page  1  of .1

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OflD-183
• JDOJ
APPENDIX C




*

BEFORE THE UNITED STATES I , '
ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF: )
) RCRA Docket
) ORDER
}
Respondents. )
J * '
Proceedings under $3013 of the )
Resource Conservation and )
Recovery Act, 42 U.S.C. 6934 )
ORDER FOR REIMBURSEMENT OF
MONITORING, TESTING, AND ANALYSIS COSTS
This Order is issued pursuant to Section 3013(d) of the Resource
Conservation and Recovery Act [42 U.S.C. 6934 (d), hereinafter
referred to as "the Act"], by the undersigned, the Assistant
Administrator for the Office of Solid Waste and Emergency Response,
a duly authorized designee of the Administrator of the United States
Environmental Protection Agency (EPA), to
Respondents.



ORDER - Page 1 of 7



























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•n OBD-183
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                    DETERMINATIONS  AND FINDINGS OF FACT

     The  undersigned makes the following  determinations and findings

 of  fact:


     1.    The                      Facility thereinafter referred to

 as,  "the  Facility"]  is  located at                         ,  near the

 junction  of              Road                  Street in         . The

 Facility  is  owned  and operated by

     2.                         is  managing owner,  operator  and
                                       •
 Chairman  of  the Board of Directors of               -     Company, inc.

     3.                         was,  until           , the President of

                                •

     4.                         and                      each  have

 personally participated  in each and  every  operation conducted at

 the Facility.  Together  they exercise  or have  exercised  control

 over all  activities  occurring  at the  Facility.



 hereinafter  referred to  as "Respondents".

     5.    The EPA  Administrator determined, on or  before August   ,

 198  , that the presence  of hazardous  waste at  the  Western Processing

 facility  and the release of hazardous  waste from the facility may be

 presenting "a substantial hazard to human health or the environment

 and that determination  required monitoring, sampling, analysis and

 reporting.  The basis for  that determination  is documented  in an

Order issued to Respondents signed by        Administrator

        -  on August   ,  198,,  pursuant to  the  authority  of



ORDER - Page 2 of  7

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Section 3013 of  the Act.
     6.   The $3013 Order was served on the Respondents on
August 17, 1982.
     7.   The 53013 Order required the Respondents to  submit  to EPA a
proposal for monitoring, testing, analysis, and reporting of  hazardous
  t
waste and hazardous waste constituents that are present at or that
have been released from the  facility, and to implement such proposal,
once approved by EPA.  The Respondents were required to submit the
proposal to EPA within thirty (30) days of receipt of  the Order.
     8.   Notwithstanding such Order, Respondents failed to submit any
proposal and on September    , 198 , notified EPA that  the Respondents
were unable to develop the proposal and to implement monitoring, test-
ing, analysis, and reporting.
     9.   Based upon  the Respondents' failure to submit the required
proposal and the notification by the Respondents of their inability to
develop the proposal  and implement the required investigation, the
Assistant Administrator for  the Office of Solid Waste  and Emergency
Response determined that no  owner or operator was able to conduct the
required monitoring,  testing, analysis, and reporting  .
    10.  Accordingly, and pursuant to the authority contained  in
S3013(d) of the Act,  the Assistant Administrator for the Office of
Solid Waste and Emergency Response, acting through the Regional
Administrator of Region 10 EPA, undertook to conduct monitoring,
sampling, and analysis of the site to ascertain the nature and
extent of the hazard  associated with the site.  Such activity was
initiated on September   , 1982.

ORDER - Page 3 of 7

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             11.    Monitoring,  testing,  and  analysis conducted through
       November    ,  198  ,  have resulted in  expenditures of funds in the
       sum of  $184,450.  This  sum has  been  expended for conducting monitoring,
       testing,  and  analysis on or in  the vicinity of the Western Processing
       site deemed necessary and reasonable to  ascertain the extent of the
       hazard  associated with  the site.
             12.   The $184,450  has been  expended as follows:
       Prime Contractor Personnel Costs.
             Field Invesigation Team    1,958  hrs  f $35.00
                                            395  hrs     35.00
      Technical.Assistance Team
          Prime Contractor Total
Sub-Contractor Costs
      South Seattle Asphalt                    $1467.98
      RJB Wholesale                             2729.27
      TUB Wholesale                              518.82
      Sanikan                                    209.34
      National Barricade        .                 468.77
      Rental Mart-submersible pump               332.28
      Analytical Services Center (Buffalo)      2400.00
      Burns Security                            1542.30
      Brooks Truck Line-forklift, flatbed        339.99
      Story and Dodge (well driller)           20444.50
      Crosby and Overton- barrel storage         360.00
      City of Kent - Water                        45.00
           Sub-Contractor Total
$68,530.00
 13,825.00
 $82,355.00
                                                                   $30,858.25
       ORDER -  page 4  of 7

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Car Rental
      3  vehicles @  $6.10 per day (  157 days)
      1  vehicle   @   6.50 per day (  5 days)
      Mileage
      Gasoline
   i
            Car  Rental  Total
                5 957.70
                   32.50
                  891.00
                  645.00
                        $ 2526.20
Analytical  Support  (Laboratory)  (includes  10%  Mgmt.  overhead)
     Soil samples -  inorganics
                  -  organics
     Water  samples - inorganics
                  -  organics
     Special services
                high hazard samples 1 i $398
                Filter samples     35 §    8
                % moisture        124 §    5
                   Analytical Support total
      Sample Transportation and Packaging
             Grand Total to November 29, 1982
122 samples @$ 93  . $11,346.00
124 samples 8$ 305   37,820.00
 25 samples §   93    2,325.00
 25 samples 3  305    7,625.00
                   398.00
                   280.00
                   620.00
                        $ 60,414.00
                 3,968.68
                        $ 184,450.24
The above sum covers only activities which were carried out under
contract to EPA.  Activities carried out by EPA personnel are not
included in the above sum.
                            ORDER

      Based upon the determinations and findings of fact above, the
Respondents are hereby ordered to pay a sum of ONE HUNDRED EIGHTY FOUR
THOUSAND FOUR HUNDRED FIFTY dollars ($184,450) to reimburse the United

ORDER - Page 6 Of 7

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States for incurred costs of the monitoring, testing and analysis
conducted through November   , 198 .  This sum shall be paid within
15 days of the date of this Order by a certified check payable  to
•Treasurer, United States of America.'  This payment must be remitted
to the contact person at the address below.
      Failure to comply with the terms of this Order may subject
Respondents to a civil action by EPA for assessment of a penalty of
an amount not to exceed $ 5,000.00 for each day of such failure to
comply.
             The contact person shall be:
Witness my  hand  as Assistant  Administrator for the Office of Solid
Waste  and Emergency  Response  pursuant  to the  Authority of the
Administrator of the United States  Environmental  Protection Agecy.
 Dated this
day of ,.
                                                ,  198.
 ORDER - Page 7 of 7
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Car Rental
      3  vehicles @  $6.10 per day (  157 days)
      1  vehicle   @   6.50 per day (  5 days)
      Mileage
      Gasoline
   *
            Car  Rental  Total
                S 957.70
                   32.50
                  891.00
                  645.00
                        $ 2526.20
Analytical  Support  (Laboratory)  (includes  10%  Mgmt.  overhead)
     Soil samples -  inorganics
                  -  organics
     Water  samples - inorganics
                  -  organics
     Special services
                high hazard samples 1 £ $398
                Filter samples     35 §    8
                % moisture        124 9    5
                   Analytical Support total
      Sample Transportation and Packaging
             Grand Total to November 29, 1982
122 samples 8$ 93 -  $11,346.00
124 samples @$ 305   37,820.00
 25 samples 8   93    2,325.00
 25 samples @  305    7,625.00
                   398.00
                   280.00
                   620.00
                        $ 60,414.00
                 3,968.68
                        $ 184,450.24
The above sum covers only activities which were carried out under
contract to EPA.  Activities carried out by EPA personnel are not
included in the above sum.
                            ORDER

      Based upon the determinations and findings of fact above, the
Respondents are hereby ordered to pay a sum of ONE HUNDRED EIGHTY FOUR
THOUSAND FOUR HUNDRED FIFTY dollars ($184,450) to reimburse the United

3RDER - Page 6 Of 7

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   States  for  incurred  costs of the monitoring, testing and analysis
   conducted through November   , 198 .   This sum shall be paid within
   15 days of the date of this Order by a certified check payable  to
    "Treasurer, United States of America."  This payment must  be  remitted
    to the contact person at  the  address below.
          Failure  to  comply  with  the terms  of  this  Order may subject
    Respondents  to a  civil  action by EPA  for assessment of a penalty of
    an amount not to  exceed $ 5,000.00 for each day of such failure to

    comply.
                  The contact person shall be:
       Dated  this
                                  day of ,.
                                                      , 198.
        ORDER - PaQe ^ of 7
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Equipment and Supplies
     Sears- fencing  gate
     Sears- come-along hand  wrench
     Burdic Feed and Hardware - wire stretcher
     N.W. Stationers - stencil and paint for drums
     Cascade Bag - sample  bags
     Seattle Barrel Company
     Lone Star Industries
     Glacier Sand and Gravel
     J.C. Penny's - lantern
     MSA - supplies,  cartridges,  respirator
     supplies
     check valve,  hydrant wrench
     pipe without gasket
     drive  caps
     disposable  gloves
     diesel, gas,  ice, small   equipment
     personal mileage, supplies, maintenance
     film  development and  purchase
     Seattle Skin  Diving  -  refill air bottles
    Andrews Machinery -  pressure release valve
    Sears paint  for drums
    Label Master  Labels
            Equipment and Supplies Total
$ 324.39
   85.18
   56.90
   68.05
   79.82
 1427.10
  223.66
  275.84
   45.78
  896.53

   35.52
  152.61
  46.86
  114.60
  156.59
  172.85
  54.00
  38.07
  17.34
  28.46
  27.96
       54328.11
        RDER - Page 5 of 7

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 Car Rental

      3 vehicles @ $6.10 per day (  157 days)

      1 vehicle  @  6.50 per day {  5 days)

      Mileage

      Gasoline

            Car Rental Total
                5  957.70

                   32.50

                   891 .00

                   645.00
                        $ 2526.20
Analytical  Support (Laboratory)  (includes 10%  Mgmt. overhead)
      Soil  samples  -  inorganics

                   -  organics

      Water samples - inorganics

                   -  organics

      Special  services

                 high hazard samples  1  6  $398

                 Filter  samples     35  §     8

                 %  moisture         124  €     5

                   Analytical Support  total

      Sample  Transportation and  Packaging

              Grand Total  to November 29,  1982
122 samples @$ 93.   $11,346.00

124 samples i$ 305   37,820.00

 25 samples @   93    2,325.00

 25 samples @  305    7,625.00
                   398.00

                   280.00

                   620.00

                        $ 60,414.00

                 3,968.68
                        $ 184,450.24
The above sum covers  only  activities  which  were  carried  out unde'r

contract to  EPA.  Activities  carried  out  by EPA  personnel are not

included in  the above  sum.

                            ORDER


      Based  upon  the  determinations and findings  of  fact above,  the

Respondents  are hereby ordered to pay a sum of ONE HUNDRED EIGHTY FOUR

THOUSAND FOUR HUNDRED  FIFTY dollars ($184,450) to reimburse the  United


ORDER - Page 6 Of 7

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•n OBD-183
-76 DOS
States for incurred costs of the monitoring, testing and  analysis
conducted through November   , 198 .  This sum shall be paid  within
15 days of the date of this Order by a certified check payable  to
"Treasurer, United States of America."  This payment must be  remitted
to the contact person at the address below.
      Failure to comply with the terms of this Order may  subject
Respondents to a civil action by EPA for assessment of a  penalty  of
an amount not to exceed $ 5,000.00 for each day of such failure to
comply.
             The contact person shall be:
Witness my hand as Assistant Administrator  for the Office  of Solid
Waste and Emergency Response pursuant to the Authority  of  the
Administrator of the United States Environmental Protection Agecy.
Dated this
day of ,
                                                ,  198.'
ORDER - Page 7 of 7

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