mz-^-.-^Li^
Environmental Protection
Agency
Solid Waste and
Emergencr Response
V*
^-.ff^' «^ .
'V^'.-.JXc-"
v.: ..-^"t^fe^S^S^f?^,^**^' -.-'.-;
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
-------
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)
-------
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 -
-------
- 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.
-------
- 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
-------
- 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. *
-------
- 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_fthe 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.
-------
- 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
-------
- 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.
-------
- 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
-------
- 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.
-------
- 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
-------
- 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
-------
- 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
-------
- 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 $5,000 for each day
of noncompliance with the Order. This authority includes
commencement of a civil action to enforce an Order issued under
Section 3013(d)(l) for reimbursement of costs incurred by EPA
or other authorized person who conducts the monitoring, testing,
or analysis in lieu of an owner/operator.
Any referral of a civil action under Section 3013(e)
should follow the format used for other civil actions.
DEVELOPMENT AND PRESERVATION OF THE ADMINISTRATIVE RECORD
We attempt to emphasize throughout this memorandum the
importance of obtaining the information required by the statute
prior to the issuance of the Order. Equally important is the
establishment and preservation of a record where the information
and all documents relevant to the reimbursement or enforcement
proceedings described herein should be kept, since the Order
may eventually be reviewed by a court, and EPA must have a
complete record of the information which formed the basis for
its decisions and documentation of the opportunity afforded
the respondents to confer. The acknowledgement letter is an
important part of the documentation.
The Region should encourage communications with the
respondent and his representatives to be in writing insofar
as possible. Written records of communication should be made
of all telephone conservations with the respondent and a record
should be made of any conference held with respondents in
accordance with this guidance.
In the event EPA should reject any objections, defenses
or contentions of the respondent, or modify the respondent's
proposal for monitoring, testing, analysis and reporting
without the respondent's agreement, EPA should set forth the
reasons for such rejection or modification and furnish those
reasons in writing to the respondent.
Attachments
-------
8
9
10
11
12
13
14
15
16
17
IB
19
20
21
22
23
24
25
2$
27
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
-------
17
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
27
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
. 25
2§
27
28
»
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
-------
1
2
3
4
5
6
7
B
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
21
28
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
-------
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
-------
1
2
3
4
5
6
7
8
*9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
-------
3
4
5
6
7
B
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
29
27
28
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
-------
./>-: 4<- ="
APPENDIX B
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
OKMM
* * *. *
"- .
. " * :"Z
*
... *
\ '
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
-------
1
2
3
4
S
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
m OtCMM
»."»* T\«f
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
-------
1
2
3
4
S
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
arm OSO-1S3
1JI.7K TVM
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CIO-1U
DOI
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
arm OtCMS3
9J|.?« OOJ
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
PAGES of 26
-------
1
2
3
4
S
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
mO«O-1iV
»>7« O03
. 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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
H
15
16
17
18
19
20
21
22
23
24
25
26
27
28
OI0.1S1
* TW\t
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
-------
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
PAGE 8 of 26
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
=ori» OSO-1S3
24-7I DM
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
*-
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
«m OID-1S3
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
-------
1
2
3
4
5
6
^
8
9
10
11
12
13
14.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
010-113
not
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
rm OBO-U3
tm.l* tv»f
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
«rm OSD-113
fjt.tm nnt
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-------
1
2
3
4
S
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sarm OiO -183
24-7* DOJ
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
arm O«0-iM
»<> ru-i
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
-------
1
2
3
4
5
6
7
8
*
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
:«rm OBD-1I3
24-7« DOJ
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
-------
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.
-------
1
2
3
4
S
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Of 0-113
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,
t
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
-------
1
2
3
4
5
6
7
. 8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
wilt O8O-1S3
».»*
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
arm O9D-1S3
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
=orm OSO-113
2«.?t DQJ
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
-------
1
2
3
4
5
6
7
8
9
10
*
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
*orm OSD.1S3
24-76 DOJ
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
arm 010-113
24-7B POJ
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
-------
1
2
3
4
i
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
erm OBD-U3
24-7$ DOJ
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
-------
1
2
3
4
S
6
7
8
9
10
11
12
13'
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
=erm O1D-1U
24-78 XXW
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
arm 080-113
74U>* not
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
-------
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
:orm OBO-1«3
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
arm CBO-113
».«.?* wot
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
-------
m
i>
!f .--;
1
2
3
4
i
6
*
7
8 .
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
-------
1
2
3
4
5
6
' 7
8
9
10
11
12
13
14
IS
16
17
18
19
20
21
22
23
24
25
26
27
28
n OBD-183
76 DO;
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
m OBO-1B3
J-76 DOJ
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i O«O-t83
-7« BQ1
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
n OtO-183
5-76
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
-------
i
2
3
4
5
6
7
8
9
ID
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
n OBD-1S3
-7ft OOJ
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
OBD-1S3
fi X>OJ
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
n OBD-1S3
7* IXW
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i CBO-183
76 DOJ
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
n CBD-183
-76 DOJ
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
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
------- |