PB92-963624
                          OWPE92RE001C
                          September 1992
RCRA ENFORCEMENT
POLICY COMPENDIUM
          Volume I
       Office of Waste Programs Enforcement
       U.S. Environmental Protection Agency
          Washington, DC 20460
         RE PRODUCED BY

         U.S. DEPARTMENT OF COMMERCE
         NATIONAL TECHNICAL INFORMATION SERVICE
         SPRINGFIELD, VA 22161

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                                    NOTICE
       The compilation of documents in this Compendium, as well as the policies,
procedures, and interpretations outlined in the documents themselves, is intended solely for
the guidance of employees of the U.S. Environmental Protection Agency. This
compilation may not include all documents discussing Agency views on particular subjects.
In addition, these documents are not intended and cannot be relied upon to create any
rights, substantive or procedural, enforceable by any party in litigation with the United
States. The views expressed in these documents do not necessarily reflect the current
position of the Agency, and EPA reserves the right to act at variance with these views or to
change them at any time without public notice.

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                                                         530R92504
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                           FEB 2 3  1993


MEMORANDUM

SUBJECT:  RCRA Enforcement Policy  Compendium  Distribution

FROM: J&USusan Bromm, Director 4*>
      /   RCRA Enforcement Division

TO :       Addressees
     I am pleased to provide you with the RCRA Enforcement  Policy
Compendium.  The compendium was prepared to ensure that RCRA
enforcement policy memorandum and directives  relating to  the  RCRA
Subtitle C enforcement program are accessible to you and  your
staff.  The Compendium includes 65 documents  issued between 1980
and 1991.

     A "tear-off" sheet is included in Volume I of the
compendium.  Please register your copy of the compendium  by
mailing the form to the address identified on the form.   The
registration forms will be used to supply you with updates  to the
compendium.

     The public can obtain a copy of the compendium through NTIS
at  (703)487-4650; order number PB92-963624.   A hard-copy  of the
compendium will cost $120, and $62 for a copy on microfiche.

     Please contact Tracy Back at (202)260-3122 or Nancy  Browne
at  (202)260-9326 with any questions on the compendium.  In
addition, please share your ideas regarding documents that  should
be added to the compendium with Nancy or Tracy.  We hope  you  find
the document useful.

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                                  UPDATES

To receive updates to this Compendium, please register your copy upon receipt by mailing
the following form to the address listed below. If the Compendium changes holders please
mail the form with previous and new holders' names and addresses.  If there is not a form
left below, send the above requested information to:

       U.S. Environmental Protection Agency
       RCRA Enforcement Division
       RCRA Enforcement Policy Compendium
       Mailcode: OS-520
       401 M Street, SW
       Washington, DC  20460
                RCRA Enforcement Policy Compendium Registration

Previous Holder: 	 Current Holder:  	
Title:	Title:	
Agency:	Agency: 	
Address: 	Address:  	
Mailcode:	  Mailcode:	
City/State/Zip:	  City/State/Zip:
                RCRA Enforcement Policy Compendium Registration

Previous Holder: 	 Current Holder:  	
Title:	Title:	
Agency:	Agency: 	
Address: 	Address:  	
Mailcode:	  Mailcode:	
City/State/Zip:	  City/State/Zip:

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                RCRA Enforcement  Policy  Compendium  Table of Contents



           1.          Administrative Orders/Administrative Authorities

           2.          Civil/Criminal Actions

           3.          Corrective Action

           4.          Federal Facilities

           5.          Federal/State Relations

           6.          Financial Responsibility
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           7.          Ground Water

           8.          Interim Status

           9.          Off-Site Policy

           10.         Permitting

           11.         Referrals

           12.         Settlement

           13.         Violation Classification

           14.         Relevant Documents Not Included in the Compendium

           15.         List of Relevant Federal Register Notices by CFR Part

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                       RCRA  Enforcement Policy Compendium
                            Alphabetical List of Documents
        TITLE      Applicability of Interim Status Standards, 40 CFR Part 265, to Small Quantity Generators Who Have
                   Notified and Filed a Part A Permit Application
        SECTION   Sections- Interim Status
        TITLE      Applicability of Land Disposal Restrictions to RCRA and CERCLA Ground Water Treatment
                   Reinjection -- Superfund Management Review: Recommendation No. 26
        SECTION   Section 7 - Ground Water
        TITLE      Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste Management
                   Facilities
        SECTION   Section 3 - Corrective Action
S fffbf'fV V f                   f  ff f      ''    ff  f    f  f J                                                     S
        TITLE      Criteria for Eliminating Headquarters Concurrence on RCRA Section 3008(h) Orders
        SECTION   Sections- Corrective Action
        TITLE      Effect on EPA Enforcement of Enforcement Action Taken by States With Approved RCRA
                   Programs
        SECTION   Section 5 - Federal/State Relations
        TITLE      Elevation Process for Achieving Federal Facility Compliance Under RCRA
        SECTION   Section 4 - Federal Facilities
        TITLE      Enforcement Actions at Government-Owned Contractor-Operated Facilities
        SECTION   Section 4 - Federal Facilities
        TITLE      Enforcement Actions Under RCRA and CERCLA at Federal Facilities
        SECTION   Section 4 - Federal Facilities
        TITLE      Enforcement of Applicable RCRA Regulations at Facilities With Pending Delisting  Petitions
        SECTION   Section 6 - Financial Responsibility
         TITLE
         SECTION
•^S /v sv«\  .v \   ""s^-X-.  %%-X*
         TITLE
         SECTION
        ....  \V .:• !.*.•
         TITLE
                    Enforcement of Authorized State Laws Pursuant to 40 CFR Section 271 .19 - Formal Comments
                    on State Requirements Applicable to Facility Permits
                    Section 5 - Federal/State Relations
                  •, AV. .>  ft"- / v> sj> "*"* /"•   /  f* •, f w f  fff    f                                 -.  % -X  •.-.%•,'•'••
                    Enforcement of Financial Responsibility Requirements for RCRA Treatment, Storage, and
                    Disposal Facilities That Are Closing
                    Section 6 - Financial Responsibility
                  .••• «.v.vV>^.s .....v V
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                      RCRA Enforcement  Policy Compendium
                            Alphabetical List of  Documents
       TITLE
       SECTION
        •,

       TITLE

       SECTION

       TITLE
       SECTION
  "% ' vr ;
       TITLE
       SECTION
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               RCRA Enforcement Policy Compendium
                     Alphabetical  List of Documents
.... \      \
 TITLE
 SECTION

 TITLE

 SECTION

 TITLE

 SECTION

 TITLE
            Guidance on Determining a Violator's Ability to Pay a Civil Penalty
            Section 2 - Civil/Criminal Actions
            Guidance on Developing Compliance Orders Under Section 3008 of RCRA; Enforcement of
            Ground Water Monitoring Requirements at Interim Status Facilities
            Section 7 - Ground Water
            Guidance on Developing Compliance Orders Under Section 3008 of RCRA; Failure to Submit and
            Submittal of Incomplete Part B Permit Applications
            Section 1 0 - Permitting
           mmmmmsssmi^^    •.   «$',' > "  ,,-\   -  .   ,  --          «-« -'..  -~ -,  ,^™ M x~., ..",::,, - -
            Guidance on Developing Compliance Orders Under Section 3008 of RCRA; Enforcement of
            Financial Responsibility Requirements Under Subpart H of 40 CFR Parts 264 and 265
SECTION   Section 6 - Financial Responsibility
            Guidance on RCRA Overfiling
            Section 5 - Federal/State Relations
 TITLE
 SECTION

 TITLE
 SECTION
 "* "*  V.   •-
 TITLE
 SECTION
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 TITLE
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            Guidance on the Use and Issuance of Administrative Orders under Section 7003 of RCRA
            Section 1 - Administrative Orders/Administrative Authorities
           • -.  "-""^  wXX "• •• v-vJN'-   "•     $.••     •••-     ••••                -.-.••._•.% xX-s  J^\ ^ •.*•
            Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent Decrees
            Section 2 - Civil/Criminal Actions
            Guidance on Use of Alternative Dispute Resolution Techniques in Enforcement Actions
            Section 12 - Settlement
            Implementation of Direct Referrals for Civil Cases Beginning December 1,1983
            Section 11 - Referrals
            Implementation of EPA Criminal Enforcement Strategy for RCRA Interim Status Facilities
            Section 2  - Civil/Criminal Actions
            Inspection Authority Under Section 3007 of RCRA
            Section 1  - Administrative Orders/Administrative Authorities
           mmmm^8^88m8Wtsx^m:vz.s$f *.- ..,        ,        *\ -^
            Interim Status Under Section 3005(e) of RCRA
            Section 8  - Interim Status
            Interim Status Under the Boiler and Industrial Furnace Rule
            Section 8  - Interim Status
            Interpretation of Section 3008(h) of the Solid Waste Disposal Act
            Section 3  - Corrective Action
            Issuance of Administrative Orders Under Section 3013 of RCRA
            Section 1  - Administrative Orders/Administrative Authorities

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                        RCRA  Enforcement Policy Compendium
                             Alphabetical List of Documents
         TITLE

         SECTION
         TITLE

         SECTION
         TITLE
3TV
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
            Issuance of and Administrative Hearings on RCRA §3008(h) Corrective Action Orders for
            Hazardous Waste Management
            Section 3 - Corrective Action
            -.  -x ..
            Issuance of Enforcement Considerations for Drafting and Reviewing Regulations and Guidelines
            for Developing New or Revised Compliance and Enforcement Strategies
            Section 1 - Administrative Orders/Administrative Authorities
            Letter from Jonathan Z. Cannon, Acting Assistant Administrator, to Thomas C. Jorling,
            Commissioner of NY Dept. of Environ. Conservation, Re:  Regulatory Status Under RCRA of
            Environmental Media Contaminated with RCRA-Listed Hazardous Waste
         SECTION   Section 3 - Corrective Action
                    Model 3008(h) Unilateral Order (Interim Final)
                    Section 3 - Corrective Action
                    Model Section 3008(h) Administrative Order on Consent
                    Section 3 - Corrective Action
                    National RCRA Corrective Action Strategy
                    Section 3 - Corrective Action
                    Off-Site Policy Implementation Issues
                    Section 9 - Off-Site Policy
                    Policy on Enforcing Information Requests in Hazardous Waste Cases
                    Section 2 - Civil/Criminal Actions
                    Policy on the Use of Supplemental Enforcement Projects in EPA Settlements
                    Section 12 - Settlement
                    RCRA Civil Penalty Policy
                    Section 1 - Administrative Orders/Administrative Authorities
                      sss •,-. •!•,>. *"  •.•«   -.«.s    ...,  •.*••, SV&
                    RCRA Corrective Action Plan
                    Section 3 - Corrective Action
                    RCRA Ground Water Enforcement Strategy
                    Section 7 - Ground Water
                    RCRA Ground Water Monitoring Compliance Order Guidance
                    Section 7 - Ground Water
         TITLE      RCRA Loss of Interim Status Enforcement Strategy
         SECTION   Section 8 - Interim Status

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                RCRA Enforcement Policy Compendium
                     Alphabetical  List  of Documents
TITLE
SECTION
TITLE

SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
TITLE
SECTION
            RCRA Regulatory Status of Contaminated Ground Water
            Section 7 - Ground Water
            ^  X -vS?                   •.  V.
            RCRA Section 3005(e); Continued Operation of Hazardous Waste Facilities by Owners or
            Operators Who Have Failed to Achieve Interim Status
            Section 8 - Interim Status
            RCRA Section 3008(h) Corrective Action Interim Measures
            Section 3 - Corrective Action
            Region III Issues on §3004(u) Authority
            Section 3 - Corrective Action
            Revised Procedures for Implementing Off-Site Response Actions
            Section 9 - Off-Site Policy
            Status of Contaminated Ground Water and Limitations on Disposal and Reuse
            Section 7 - Ground Water
            Use of RCRA Section 3008(g) Independently of Section 3008(a)
            Section 2 - Civil/Criminal Actions
 TITLE      Use of Section 3008(h) Orders or Post-Closure Permits at Closing Facilities
 SECTION   Section 3 - Corrective Action
^^MB^^^^^^^^^^MW i^,2£X£ •«••>* 
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                  RCRA  Enforcement  Policy Compendium
                      Chronological List  of Documents
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE


DATE  EFFECTIVE/
ISSUED

SECTION
Interim Status Under Section 3005(e) of RCRA

03/14/81

Section 8 - Interim Status
Use of RCRA Section 3008(g) Independently of Section 3008(a)

07/28/81

Section 2 - Civil/Criminal Actions
RCRA Section 3005(e); Continued Operation of Hazardous Waste Facilities by Owners
or Operators Who Have Failed to Achieve Interim Status
07/31/81

Section 8 - Interim Status
TITLE
 DATE  EFFECTIVE/
 ISSUED

 SECTION
TITLE

DATE  EFFECTIVE/
ISSUED

SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
Guidance on Developing Compliance Orders Under Section 3008 of RCRA;
Enforcement of Ground Water Monitoring Requirements at Interim Status Facilities
01/22/82

Section 7 - Ground Water
Ground Water Monitoring Requirements During Interim Status

01/27/82

Section 7 - Ground Water
Applicability of Interim Status Standards, 40 CFR Part 265, to Small Quantity Generators
Who Have Notified and Filed a Part A Permit Application
10/04/82

Section 8 - Interim Status
TITLE
DATE  EFFECTIVE/
ISSUED

SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
Guidance on Developing Compliance Orders Under Section 3008 of RCRA;
Enforcement of the Financial Responsibility Requirements Under Subpart H of 40 CFR
Parts 264 and 265
10/06/82

Section 6 - Financial Responsibility
                                                                f> •:• v.  *•

Guidance on Developing Compliance Orders Under Section 3008 of RCRA; Failure to
Submit and Submittal of Incomplete Part B Permit Applications
09/09/83

Section 10- Permitting

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                  RCRA Enforcement Policy  Compendium
                      Chronological  List of  Documents
TITLE

DATE EFFECTIVE/
ISSUED

SECTION
Guidance for Drafting Judicial Consent Decrees

10/19/83

Section 12 - Settlement
TITLE

DATE  EFFECTIVE/
ISSUED

SECTION
Implementation of Direct Referrals for Civil Cases Beginning December 1, 1983

11/28/83

Section 11 - Referrals
TITLE

DATE EFFECTIVE/
ISSUED
SECTION
TITLE

DATE EFFECTIVE/
ISSUED
SECTION
Enforcing Ground Water Monitoring Requirements in RCRA Part B Permit Applications
08/16/84

Section 7 - Ground Water
Policy on Enforcing Information Requests in Hazardous Waste Cases

09/10/84

Section 2 - Civil/Criminal Actions
TITLE
DATE  EFFECTIVE/
ISSUED

SECTION
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE


DATE EFFECTIVE/
ISSUED

SECTION
TITLE

DATE EFFECTIVE/
ISSUED

SECTION
Guidance on the Use and Issuance of Administrative Orders under Section 7003
of RCRA
09/21/84

Section 1 - Administrative Orders/Administrative Authorities
Issuance of Administrative Orders Under Section 3013 of RCRA

09/26/84

Section 1 - Administrative Orders/ Administrative Authorities
EPA Authority Under RCRA Section 3008 to Assess Penalties for Failure to Submit a
Complete and Adequate Part B Application
11/29/84

Section 1 - Administrative Orders/ Administrative Authorities
RCRA Ground Water Enforcement Strategy
07/22/85

Section 7 - Ground Water

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                  RCRA Enforcement Policy Compendium
                      Chronological  List of Documents
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
 RCRA Ground Water Monitoring Compliance Order Guidance
 08/01/85
 Section 7 - Ground Water
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
TITLE
DATE EFFECTIVE/
ISSUED
SECTION
 Issuance of Enforcement Considerations for Drafting and Reviewing Regulations and
 Guidelines for Developing New or Revised Compliance and Enforcement Strategies
 08/15/85
 Section 1 - Administrative Orders/Administrative Authorities
 RCRA Loss of Interim Status Enforcement Strategy
 10/16/85
 Sections- Interim Status
 Implementation of EPA Criminal Enforcement Strategy for RCRA Interim Status Facilities
 11/15/85
 Section 2 - Civil/Criminal Actions
                                             mmzmmmmmmm
 Interpretation of Section 3008(h) of the Solid Waste Disposal Act
 12/16/85
 Section 3 - Corrective Action
 Guidance Concerning Corrective Action for Prior and Continuing Releases,
 Underground Injection Control Program Guidance #45 (Interim)
 04/09/86
 Section 3 - Corrective Action
 Inspection Authority Under Section 3007 of RCRA
 04/17/86
 Section 1 - Administrative Orders/Administrative Authorities
m8ms8S8smmm8mm8r&fSi!&i ^r"
 Guidance on RCRA Overfiling
 05/19/86
 Section 5 - Federal/State Relations
                              •• ••••••y-'-si -.

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                        RCRA Enforcement Policy Compendium
                            Chronological  List of Documents
      TITLE

      DATE  EFFECTIVE/
      ISSUED
      SECTION
JAVA A VCAJ«-  fStt&\\ •«
Sss-X s "•"••.•> v \ ^ s '.


      TITLE
      DATE  EFFECTIVE/
      ISSUED
      SECTION
      TITLE

      DATE  EFFECTIVE/
      ISSUED
      SECTION
      TITLE


      DATE  EFFECTIVE/
      ISSUED
      SECTION

      TITLE

      DATE  EFFECTIVE/
      ISSUED

      SECTION

      .v  X* s          v. ••

      TITLE

      DATE  EFFECTIVE/
      ISSUED

      SECTION
      TITLE

      DATE  EFFECTIVE/
      ISSUED
      SECTION
Expanded Civil Judicial Referral Procedures
08/28/86

Section 11 - Referrals
x\ •. •.   •»                                                             •«
Guidance Concerning EPA Involvement in RCRA Section 7002 Citizen Suits

10/01/86

Section 1 - Administrative Orders/Administrative Authorities


National RCRA Corrective Action Strategy

10/03/86

Section 3 - Corrective Action


Enforcement of Liability Requirements for Operating RCRA Treatment, Storage, and
Disposal Facilities
10/29/86

Section 6 - Financial Responsibility


RCRA Regulatory Status of Contaminated Ground Water

11/13/86

Section 7 - Ground Water


Guidance on Determining a Violator's Ability to Pay a Civil Penalty

12/16/86

Section 2 - Civil/Criminal Actions


Region III Issues on §3004(u) Authority

03/31/87

Section 3 - Corrective Action
      TITLE
      DATE  EFFECTIVE/
      ISSUED

      SECTION
Enforcement of Financial Responsibility Requirements for RCRA Treatment, Storage,
and Disposal Facilities That Are Closing
04/20/87

Section 6 - Financial Responsibility

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                  RCRA Enforcement Policy Compendium
                      Chronological  List of Documents
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
 Guidance for Public Involvement in RCRA Section 3008(h) Actions

 05/05/87

 Section 3 - Corrective Action


 Criteria for Eliminating Headquarters Concurrence on RCRA Section 3008(h) Orders

 06/26/87

 Section 3 - Corrective Action
TITLE


DATE  EFFECTIVE/
ISSUED
SECTION
TITLE

DATE  EFFECTIVE/
ISSUED

SECTION
    mm
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE

DATE  EFFECTIVE/
ISSUED
SECTION
TITLE

DATE EFFECTIVE/
ISSUED
SECTION
 Enforcement of Applicable RCRA Regulations at Facilities With Pending Delisting
 Petitions
 07/20/87

 Section 6 - Financial Responsibility
 Guidance on Use of Alternative Dispute Resolution Techniques in Enforcement Actions

 08/14/87

 Section 12 - Settlement


 Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent Decrees

 09/21/87

 Section 2 - Civil/Criminal Actions
" ' "jsr  "'•"  " "• ; ' ^ % ™ V-." % ••                  % !   "      %   % ^  " S"" \?s »*• \ •.-.S" " ^ ;
 Revised Procedures for Implementing Off-Site Response Actions

 11/13/87

 Section 9 - Off-Site Policy


 Expansion of Direct Referral of  Cases to the Department of Justice

 01/14/88

 Section 11 - Referrals
 Model Section 3008(h) Administrative Order on Consent

 01/19/88

 Section 3 - Corrective Action

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                  RCRA Enforcement  Policy Compendium
                      Chronological List of  Documents
 TITLE
 DATE EFFECTIVE/
 ISSUED
 SECTION
 TITLE
 DATE EFFECTIVE/
 ISSUED
 SECTION
ff$\ v- y^    %*•*•  s % s „
 TITLE
 DATE EFFECTIVE/
 ISSUED
 SECTION
                     Enforcement Actions Under RCRA and CERCLA at Federal Facilities
                     01/25/88
                     Section 4 - Federal Facilities
                     Use of Section 3008(h) Orders or Post-Closure Permits at Closing Facilities
                     03/08/88
                     Section 3 - Corrective Action
                     Effect on EPA Enforcement of Enforcement Action Taken by States With Approved
                     RCRA Programs
                     03/09/88
                     Section 5 - Federal/State Relations
 TITLE
 DATE EFFECTIVE/
 ISSUED
 SECTION
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
                      Elevation Process for Achieving Federal Facility Compliance Under RCRA
                      03/24/88
                      Section 4 - Federal Facilities
  \ J!™T ™ i V-5 TV "' ^£Z%2¥!''
 TITLE

 DATE EFFECTIVE/
 ISSUED
 SECTION
  Ground Water Monitoring at Clean Closing Surface Impoundment and Waste Pile Units
  03/31/88

  Section 7 - Ground Water
, vtwnv^w^ •• •• v -.x^1-  •"• ^V '-••Vrt' •»%-•.•.•»% s ^ ••                  -   - -,  f, -.  •.    •,::•.•.•.•.  -. v. S-.SS-.N  v
'.fw AVA X- f: s :   ,v.%\w,  vf vV  ^ Vf. •.::•.                     s       -.-.ssss s-,-,v.s
  Issuance of and Administrative Hearings on RCRA §3008(h) Corrective Action Orders
                     for Hazardous Waste Management
                     04/13/88
                     Section 3 - Corrective Action
 TITLE
 DATE EFFECTIVE/
 ISSUED
 SECTION
 TITLE
 DATE EFFECTIVE/
 ISSUED
 SECTION
                      RCRA Corrective Action Plan
                      06/01/88
                      Section 3 - Corrective Action
                      RCRA Section 3008(h) Corrective Action Interim Measures
                      06/01/88
                      Section 3 - Corrective Action

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RCRA  Enforcement  Policy  Compendium
    Chronological List of  Documents
      TITLE

      DATE  EFFECTIVE/
      ISSUED

      SECTION
    Off-Site Policy Implementation Issues

    08/29/88


    Section 9 - Off-Site Policy
      TITLE

      DATE  EFFECTIVE/
      ISSUED

      SECTION
      TITLE

      DATE  EFFECTIVE/
      ISSUED

      SECTION
    Enforcement Actions at Government-Owned Contractor-Operated Facilities

    09/08/88


    Section 4 - Federal Facilities


    Enforcement Response Policy

    10/01/88


    Section 13 - Violation Classification
      TITLE

      DATE  EFFECTIVE/
      ISSUED
      SECTION
$  v "". fM -.A*. .. < •. •.-.

      TITLE
      DATE  EFFECTIVE/
      ISSUED

      SECTION
      TITLE

      DATE  EFFECTIVE/
      ISSUED

      SECTION
      TITLE
      DATE  EFFECTIVE/
      ISSUED

      SECTION
      TITLE
      DATE  EFFECTIVE/
      ISSUED

      SECTION
    Model 3008(h) Unilateral Order (Interim Final)

    01/23/89


    Section 3 - Corrective Action
     f :   ..  -.         :  v.\                            -,            s

    Enforcement of Authorized State Laws Pursuant to 40 CFR Section 271 .19 - Formal
    Comments on State Requirements Applicable to Facility Permits

    01/24/89


    Section 5 - Federal/State Relations
   •:;"• s s"^;^  *.*. ~\ •"•>•"•.•.   •. \* •\>'-.  \                                •, ••         s   ss  ss ss

    Status of Contaminated Ground Water and Limitations on Disposal and Reuse

    01/24/89


    Section 7 - Ground Water
    Favorable D.C. Circuit Decision Regarding Ability of EPA to Regulate Wastes Disposed
    Prior to Being Listed as Hazardous and Wastes Found in Contaminated Media

    03/22/89

    Section 3 - Corrective Action
    Letter from Jonathan Z. Cannon, Acting Assistant Administrator, to Thomas C. Jorling,
    Commissioner of NY Dept. of Environ. Conservation, Re: Regulatory Status Under RCRA
    of Environmental Media Contaminated with RCRA- Listed Hazardous Waste
    06/19/89

    Section 3 - Corrective Action
    V. •>%    •• >*• -.•>•,'•'•  *» *>
    •.W.-.V.  V.-.\\ -.-A-.  V-X-."-  \s\\

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                        RCRA Enforcement  Policy Compendium
                            Chronological List of Documents
TITLE
DATE  EFFECTIVE/
ISSUED
SECTION
                           Guidance on Administrative Records for RCRA Section 3008(h) Actions
                           07/06/89

                           Section 3 - Corrective Action
ar
TITLE
DATE EFFECTIVE/
ISSUED
SECTION
TITLE
DATE EFFECTIVE/
ISSUED
SECTION
TITLE
DATE EFFECTIVE/
ISSUED
SECTION
      TITLE
      DATE EFFECTIVE/
      ISSUED
      SECTI ON
      TITLE
      DATE EFFECTIVE/
      ISSUED
      SECTION
                           Federal Facilities Negotiations Policy
                           08/10/89

                           Section 4 - Federal Facilities
                           Applicability of Land Disposal Restrictions to RCRA and CERCLA Ground Water
                           Treatment Reinjection -- Superfund Management Review: Recommendation No. 26
                           12/27/89

                           Section 7 - Ground Water
                           Use of Stipulated Penalties in EPA Settlement Agreements
                           01/24/90

                           Section 11 - Referrals
                     Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste
                     Management Facilities
                     07/27/90

                     Section 3 - Corrective Action

                     RCRA Civil Penalty Policy
                     10/29/90

                     Section 1 - Administrative Orders/Administrative Authorities
      TITLE
      DATE EFFECTIVE/
      ISSUED
      SECTION
      TITLE
      DATE EFFECTIVE/
      ISSUED
      SECTION
                     Policy on the Use of Supplemental Enforcement Projects in EPA Settlements
                     02/12/91

                     Section 12 - Settlement
                    ri\^-;- v^.Ov. ^-;- ;"^ ,,"^ /,      ,       ,...,    .\\™,.,,,,,,,,,."t?A;,..,,,x^x •s.^^v.^c^t
                     Furthering the Use of Innovative Treatment Technologies in OSWER Programs
                     06/10/91

                     Section 3 - Corrective Action

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                   RCRA Enforcement Policy Compendium
                       Chronological List of Documents
; :;>;:!!.- ^	i A , vv &®®**&r ,s»c^ *i' ^ - ^y^^i
     TITLE             Interim Status Under the Boiler and Industrial Furnace Rule

     DATE EFFECTIVE/    08/19/91
     ISSUED
     SECTION           Section 8 - Interim Status

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                    INTRODUCTION  -  VOLUME I  OF III
       The RCRA Enforcement Policy Compendium was developed by the RCRA Enforcement
Division. The Compendium was created to serve as a reference tool to ensure that RCRA
enforcement policy memoranda and directives relating to RCRA Subtitle C are accessible to EPA
Headquarters personnel, Regional staff, and State enforcement program personnel.  The
Compendium includes 65 documents issued between 1980 and 1991.

       The primary resources utilized to gather documents for the Compendium were the
Hazardous Waste Collection at the EPA Headquarters Library, the Superfund Docket, the
Enforcement Document Retrieval System, RCRA Enforcement Division staff, other EPA
Headquarters staff, and Booz, Allen staff.  Other resources, such as the National Technical
Information System (NTIS) and the Center for Environmental Research Information (CERI), were
consulted.

       Because the Compendium is intended as a working reference volume and not an historical
record, it includes only the most recent version of documents and neither drafts of documents that
were later finalized nor documents that have been superseded. To facilitate ease of use, the number
of documents included in their entirety in the Compendium has been limited. Two lists of the
documents included in the Compendium, one alphabetical and the other chronological, have been
inserted to allow for easy identification of the contents.

       The Compendium is divided into 15 sections that follow this Introduction. For
convenience sake, these sections have been further divided into  three volumes. Volume I contains
Sections 1 through 3, Volume II includes Sections 4 through 8, and Sections 9 through 15 are in
Volume in. The first  13 sections contain policy memoranda and directives.   Each of these
sections contains a category of document relevant to RCRA Enforcement.  These sections include:

       •     Section 1           Administrative Orders/Administrative Authorities
       •     Section 2           Civil/Criminal Actions
       •     Section3           Corrective Action
       •     Section 4           Federal Facilities
             Section 5           Federal/State Relations
       •     Section 6           Financial Responsibility
       •     Section 7           Ground Water
       •     Section 8           Interim Status
             Section 9           Off-Site Policy
       •     Section 10          Permitting
       •     Section 11          Referrals
       •     Section 12          Settlement
             Section 13          Violation Classification

       The above categories are ordered alphabetically in the Compendium.  Within each of the 13
sections, a table of contents lists, in chronological order, the documents that are included in their
entirety in that section of the Compendium. The table of contents entry includes the title of the
document; its directive number, where applicable; the date it was effective, if it is an official EPA
directive; an issued date, based on the date stamped on the document, if it is not an official EPA
directive; its originating source(s); and other RCRA enforcement categories to which the document
applies. A second list in each  section, immediately following the table of contents, references
documents that appear elsewhere in the Compendium but are relevant to the section.  Several
sections did not require a list of references to other documents.

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       Section 14 of the Compendium lists documents that are relevant to RCRA enforcement but
were not included due to space restriction, or other concerns.

       Section 15 of the Compendium is a list of Federal Register final rules, interim final rules,
and corrections to final rules, that were published between 1980 and December 31,1990 and are
relevant to the enforcement of RCRA Subtitle C. These notices are grouped by relevant Code of
Federal Regulations (CFR) part and, within this grouping, appear in chronological order.  Each
notice is listed under every CFR part for which it is relevant.

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        Section 1
 Administrative Orders /
Administrative Authorities

-------
ADMINISTRATIVE ORDERS/ADMINISTRATIVE AUTHORITIES
                                                                  en
                                                                  M
                                                                  n
                                                                  t-3

-------
     Section  1  - Administrative Orders/Administrative Authorities
                                Table of  Contents
     (Documents that appear in their entirety in this Section of the Compendium)
 TITLE

 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
mmmm
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
W8S8383S88:
 TITLE

 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
Si^SSSSSSSs
 TITLE

 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS

 TITLE
 DIRECTIVE  NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
 Guidance on the Use and Issuance of Administrative Orders under Section 7003 of
 RCRA
 9940.2
 09/21/84
 OECM/OSWER

 Civil/Criminal Actions
 Corrective Action

$!SS33^^S^^S!$9^S$ii^^i
 Issuance of Administrative Orders Under Section 3013 of RCRA
 9940.1
 09/26/84
 OECM/OSWER

 Corrective Action
 EPA Authority Under RCRA Section 3008 to Assess Penalties for Failure to Submit a
 Complete and Adequate Part B Application
 9523.10(84)
 11/29/84
 ORC, Region IV
Issuance of Enforcement Considerations for Drafting and Reviewing Regulations and
Guidelines for Developing New or Revised Compliance and Enforcement Strategies

08/15/85
OECM
Inspection Authority Under Section 3007 of RCRA
9938.0
04/17/86
OWPE

Corrective Action

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    Section  1  - Administrative Orders/Administrative Authorities
                             Table  of Contents
    (Documents that appear in their entirety in this Section of the Compendium)
TITLE
DIRECTIVE  NO.
DATE  EFFECTIVE/
ISSUED
SOURCE

OTHER
RELEVANT
SECTIONS

TITLE
DIRECTIVE  NO.
DATE  EFFECTIVE/
ISSUED
SOURCE

OTHER
RELEVANT
SECTIONS
Guidance Concerning EPA Involvement in RCRA Section 7002 Citizen Suits
9945.1
10/01/86
OSWER
RCRA Civil Penalty Policy
9900.1
10/29/90
OECM
OSWER
Civil/Criminal Actions

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 Section 1 - Administrative  Orders/Administrative Authorities
                             Cross  References
 (Documents that are referenced under Administrative Orders/Administrative Authorities
   but appear in the Primary Section indicated)
  ^s^life*^^! ^4H, *J ^ , ,\  ,     1, * >, ',*m£,. -* T'^x&Z" ," ,v, ^«*-%A
 TITLE           Criteria for Eliminating Headquarters Concurrence on RCRA Section 3008(h) Orders


 DIRECTIVE NO.  9940.3
 SOURCE        OSWER
 PRIMARY        Corrective Action
 SECTION
 TITLE           Enforcement Actions Under RCRA and CERCLA at Federal Facilities


 DIRECTIVE NO.  9992.0
 SOURCE        OSWER
 PRIMARY        Federal Facilities
 SECTION

S5ssSSS^iS:;Ss£JMs

 TITLE           Enforcement Response Policy


 DIRECTIVE NO.  9900.0-1 A
 SOURCE        OWPE
 PRIMARY        Violation Classification
 SECTION
 TITLE            Federal Facilities Negotiations Policy


 DIRECTIVE NO.   9992.3
 SOURCE         OSWER
 PRIMARY         Federal Facilities
 SECTION

-------
 Section  1 - Administrative Orders/Administrative Authorities
                             Cross References
 (Documents that are referenced under Administrative Orders/Administrative Authorities
  but appear in the Primary Section indicated)
  -
TITLE            Guidance on Administrative Records for RCRA Section 3008(h) Actions

DIRECTIVE  NO.  9940.4
SOURCE         OWPE/OECM
PRIMARY        Corrective Action
SECTION
TITLE            Guidance on Developing Compliance Orders Under Section 3008 of RCRA; Failure to
                 Submit and Submittal of Incomplete Part B Permit Applications

DIRECTIVE  NO.  9936.1
SOURCE         OECM
PRIMARY        Permitting
SECTION
TITLE            Guidance on Developing Compliance Orders Under Section 3008 of RCRA;
                 Enforcement of Ground Water Monitoring Requirements at Interim Status Facilities

DIRECTIVE  NO.
SOURCE         OWPE
PRIMARY        Ground Water
SECTION
TITLE            Interpretation of Section 3008(h) of the Solid Waste Disposal Act

DIRECTIVE  NO.  9901.1
SOURCE         OSWER/OECM
PRIMARY        Corrective Action
SECTION

-------
 Section 1  -  Administrative Orders/Administrative  Authorities
                             Cross  References
 (Documents that are referenced under Administrative Orders/Administrative Authorities
   but appear in the Primary Section indicated)
 TITLE            Issuance of and Administrative Hearings on RCRA §3008(h) Corrective Action Orders
                  for Hazardous Waste Management

 DIRECTIVE NO.
 SOURCE
 PRIMARY         Corrective Action
 SECTION
 TITLE            Model 3008(h) Unilateral Order (Interim Final)


 DIRECTIVE NO.
 SOURCE         OWPE
 PRIMARY         Corrective Action
 SECTION

^^gsssssssssss

 TITLE            Model Section 3008(h) Administrative Order On Consent


 DIRECTIVE NO.   9902.5
 SOURCE         OWPE
 PRIMARY         Corrective Action
 SECTION

mmmmmm

 TITLE            Policy on Enforcing Information Requests in Hazardous Waste Cases


 DIRECTIVE NO.   9834.4
 SOURCE         OECM
 PRIMARY         Criminal/Civil Actions
 SECTION

-------
 Section 1 - Administrative Orders/Administrative Authorities
                           Cross References
 (Documents that are referenced under Administrative Orders/Administrative Authorities
  but appear in the Primary Section indicated)

TITLE           RCRA Ground Water Monitoring Compliance Order Guidance


DIRECTIVE  NO.  9931.1
SOURCE        OWPE
PRIMARY        Ground Water
SECTION


TITLE           RCRA Section 3008(n) Corrective Action Interim Measures


DIRECTIVE  NO.  9902.4
SOURCE        OWPE/OSW
PRIMARY        Corrective Action
SECTION

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          UHlTIfi STATIS ENVIRONMENTAL PHOTICT1ON AGIWCY
                      WASHINGTON, O.C. 204CO
                          SEP 21 684
MEMORANDUM

SUBJECT;
          Issuance of Final Revised Guidance  on the  Use  and
          Issuance of Administrative Orders Under Section  7003
          of the Resource Conservation and  Recovery  Act  (RCRA)
FROM:
(  »— ^  ' r\
TO:
          Courtney M.  Price^
          Assistant Administra"torfor Enforcement
            and Compliance MoniTbring
                             — | *s  ^"^^^  ^i
          Lee M. Thomas   ^^^^^^^A    ' *
          Assistant Administrator  for Solid Waste
            and Emergency Response

          See Attached List
     Attached is the Final Revised Guidance on the Use  and
Issuance of Administrative Orders Under Section 7003 of RCRA.

     The responses to the drafts of this guidance were  very
positive.  A considerable effort has been made to incorporace
the comments received where appropriate.  We greatly appreciate
your involvement in the development of this important policy.
     If you have any questions,
OECM-Vaste, at FTS-382-3103.
                                please contact Susan Con::, of
Attachment

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    FINAL REVISED GUIDANCE MEMORANDUM ON THE
    USE AND ISSUANCE OF ADMINISTRATIVE ORDERS
UNDER SECTION 7003 OF THE RESOURCE CONSERVATION
            AND RECOVERY ACT (RCRA)
               September 26,  1984

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                       TABLE OF CONTENTS


I.    INTRODUCTION  	 1

II.   SCOPE OF RCRA S7003  	 2

      A. Evidence 	 2
      B. What Constitutes Handling,  Storage,
           Treatment or Disposal 	 3
      C. Necessity of Existence of Imminent  and
           Substantial Endangerroent	3
      D. Persons to Whom an Order May be  Issued	 5
      E. Notice to Affected States	,.... 6

III.  SELECTING ENFORCEMENT OPTION	 6

      A. Administrative Order or Civil Referral	 7

      B. Use of RCRA or CERCLA	 7

      C. Deciding to Use a S7003 Order	 9

         1. Respondent's Financial Status	».... 9
         2. Number of Respondents Subject to the Order.. 10

             i) Coordination of Response  Action  ........ 10
            ii) Supervision	 11
         3. Specificity of the Necessary  Response
              Action	 11

IV.   ELEMENTS OF AN ORDER	,.	 12

V.    CONFERENCE PROCEDURES	 14

VI.   MODIFICATION, REVOCATION, OR STAY OF THE ORDER.... 15

VII.  NEGOTIATION OF ADMINISTRATIVE ORDERS 	  15
VIII. DELEGATIONS OF AUTHORITY	  16

APPENDIX.  STATE NOTIFICATION LETTER	  17

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I. INTRODUCTION

     RCRA's administrative enforcement authority is an
important component of the Agency's overall hazardous waste
enforcement program.  The effectiveness of EPA's enforcement
program will be demonstrated as respondents implement site
remedies in compliance with administrative orders,  the Agency
pursues enforcement actions vigorously against respondents
who fail to comply with such orders, and the Agency defends
aggressively judicial challenges to orders.

     Section 7003 of the Resource Conservation and  Recovery
Act (RCRA) provides EPA with a broad and powerful enforcement
tool that may be used to abate imminent hazards that are caused
by the handling, storage, treatment, transportation or disposal
of solid waste or hazardous waste.  Under S7003, the Adminis-
trator may seek injunctive relief in the appropriate United
States District Court or, after notice to the affected State,
take appropriate action "including, but not limited to, issuing
such orders as may be necessary to protect public health or the
environment."
     The S7003 administrative order authority provides strong
 incentives for respondents to expeditiously undertake response
 actions deemed necessary by EPA to ensure protection to public
 health or the environment.  Therefore, the Regions are urged to
 consider the use of unilateral RCRA §7003 orders in appropriate
 cases wherever it is necessary to compel response action.  It
 is essential that the RCRA enforcement program combines both
 administrative and judicial enforcement authorities to ensure
 protection of health and the environment from the improper
 handling of hazardous waste.

     The following guidance has been prepared to assist the
 Regional offices in developing and issuing administrative
 orders pursuant to S7003.  It supersedes the earlier Agency
 guidance issued on September 11,  1981, by Douglas MacMillan,
 Acting Director,  Office of Waste Programs Enforcement, entitled
 "Tseuance of Administrative Orders Under S7003 of the Resource
 Conservation and Recovery Act."

     Since S7003 is similar in scope to S106 of the
 Comprehensive Environmental Response,  Compensation, and
Liability Act,  the reader should consult the guidance
 issued on September 8, 1983, entitled "Guidance Memorandum on
Use or Issuance of Administrative Orders Under 1106(a) of

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                             - 2 -


CERCLA."  A fuller treatment of the following areas,  common to
both 7003 and 106, is found in the (1983) 106 Guidance:
Necessity for Determination Based on Evidence; Necessity for
Actual or Threatened Release; Necessity that Release or  Threat
of Release be from a facility (applicable in the case of joint
7003 & 106 orders); and Necessity for Existence of Imminent
and Substantial Endangerment.  Where joint, orders under  S57003
and 106 are issued, the Regions should adhere to the require-
ments set out in both guidance memoranda.  The reader should
also consult the CERCLA §106 guidance, "Issuance of Administra-
tive Orders for Immediate Removal Actions" (Lee Thomas,  OSWER,
February 21, 1984).

     It should be noted that the reauthorization of RCRA by
Congress may affect some aspects of $7003, regarding the
participation of the public in the settlement of administrative
orders and liability for past activities.  If RCRA is amended,
supplemental guidance will be provided as appropriate.

II. SCOPE OF RCRA S7003 */

     In order to issue a S7003 order, the Administrator  must
possess evidence "that the handling, storage, treatment, trans-
portation or disposal of any solid waste or hazardous waste
may present an imminent and substantial endangerment to  health
or the environment" (42 U.S.C. S6973).  Additionally, $7003
requires that the Administrator provide notice to the affected
State prior to issuance of the order.  Each of these require-
ments is discussed in further detail below.

     A. Evidence

     Because the recipient of a $7003 order may seek
administrative or judicial review of the order, the Region
must have all the evidence necessary to demonstrate that the
_/     Note: the terns "hazardous waste" and "solid waste"
""      in RCRA $7003 refer to the statutory definitions,
       $$1004(5) and 1004(27), of RCRA and not to the regulatory
provisions promulgated pursuant to $3001 and codified at 40 CFR
Part 261.  These regulatory provisions are meant for application
only in the Subtitle C regulatory program.  As long as a waste
meets the §1004 definition of solid or hazardous waste, it need
not be listed in Part 261 or satisfy one of the characteristics
specified in Part 261.

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                             - 3 -


statutory criteria have been satisfied at the time the order
is issued.  The evidence must establish that the respondent
has handled, treated, stored, transported or disposed of a
solid or hazardous waste, and that such activity has resulted
in a condition that may present an imminent and substantial
endangerment to health or the environment.  Necessary evidence
may be documentary, testimonial, or physical and may be
obtained from a variety of sources including inspections,
investigations, or requests for production of documents or
other data pursuant to RCRA §§3007, 3013 or CERCLA §104.  The.
evidence must be sufficiently probative and reliable to
enable a reasonable person to conclude that issuance of an
order is appropriate.  For example, an unsubstantiated citizen's
complaint would normally not be sufficient to justify issuance
of an order.  If that complaint were supported by corroborating
evidence, however, such as laboratory analyses, the complaint
and corroboration could normally be considered a sufficient
basis for issuance of the order.

     B.  What Constitutes Handling, Storage. Treatment,
Transportation or Disposal.

     It is undisputed that §7003 may be utilized to enjoin
present conduct.  Thus, persons who are presently handling,
storing, treating, transporting or disposing of solid or
hazardous wastes are potential recipients of a §7003 order.
Whether §7003 may be used to abate present imminent hazards
caused by past disposal practices is an issue that has been
litigated repeatedly.  The Agency has consistently maintained
that §7003 applies to such past disposal.  Although there has
been some disagreement by courts considering this question,
the prevailing view as expressed in U.S. v. Waste Industries.
et al., No. 83-1320 (4th Cir., May 87~T984) clearly supports
the Agency's position.  Thus, Regional Offices should consider
the issuance of §7003 orders at presently inactive facilities,
provided such issuance is consistent with this guidance.

     C.  Necessity for Existence of Imminent and Substantial
         Endan&erment.

     Evidence possessed to support the issuance of a RCRA
§7003 order must show that the "handling, storage, treatment,
transportation or disposal of any solid or hazardous waste may
present an imminent and substantial endangerment to health or
the environment."  The words "may present" indicate that
Congress established a standard of proof that does not require
a certainty.  The evidence need not demonstrate that an  immi-

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                              -  4 -


 nent and substantial endangerment to  public  health  or  the
 environment definitely exists.   Instead,  an  order nay  be issued
 •if there is sound reason to believe that  such  an endangerment
 may exist.

      Evidence of actual harm is not required.  As the  Court
 stated in Ethyl Corp.  v. EPA, construing  an  endangerment
 provision in the Clean Air  Act:

           The meaning  of "endanger" is  not disputed.
           Case law and dictionary definition agree  that
           endanger means something  less than actual harm.
           When one is  endangered,  harm  is threatened;  no
           actual injury need ever occur.  541  F.2d  1 at
           13,  footnotes omitted,  original emphasis, D.C.
           Cir.,  cert,  denied 426  U.S. 941 (1976).

      It should also be noted that while the  risk of harm must
 be imminent in order for the Agency to  act under $7003, the
Harm itself need not be.  (See  the  legislative history to the
 ""imminent and  substantial endangerment" provision of 51431 of
 the Safe Drinking Water Act,  H.  Rpt.  93-1185 at 3536.) For
 example,  EPA could act if there exists  a  likelihood that
 contaminants might be  introduced  into a water  supply which
 could cause damage after a  period of  latency.  One  must judge
 the risk or likelihood of the harm  by examining the factual
 circumstances,  including, but not  limited to:  1) nature and
 amount of the  hazardous substance;  2) the potential for
 exposure of humans or  the environment to  the substance; and
 3) the known or  suspected effect of the substance on humans
 or that part of  the environment subject to exposure to the
 substance.

      Legal  analyses of the  concept  of imminent and  substantial
 endangerment can also  be found  in Reserve Mining Co. v. EPA,
 546  F.2d  492 (8th Cir.  1975); U.S.  v. Vertac Chemical  CoT7~et
 al..  489  F.Supp.  870 (E.D.  Ark7T9"80);  U.S. v. Solvents
 Recovery  Service.  496  F.Supp. 1127  (D.  Conn. 1980); UTS, v.
Midwest Solvent Recovery. 484 F.Supp. 138  (N.D. Ind.~l9TO);
U.S. v. Diamond Shamrock Corp.. 17 E.R. 1329,  (N.D. Ohio
T9~8~T); U.S. v. Price. 688771? 204 (3rd Cir. 1982); and, U.S.
v. Reilly Tar and Chemical Corp.. 546 F.Supp. 1100  (D. Minn.
1982T

     The nature of the endangerment and the basis for the
finding of an imminent and*substantial endangennent must be set
forth in the order.  If sampling and analysis data are being
relied upon, a summary of such data should ordinarily be set

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                             - 5 -


 forth  in  the order.  At any rate, all evidence supporting the
 finding of any  imminent and substantial endangerment in the
 order  must be compiled into a single, concise document consti-
 tuting the endangerment assessment.  [An Endangerment Assessment
 Guidance  is presently being prepared by the Office of Solid
 Waste  and Emergency Response.]

     D.   Persons to Whom an Order May be Issued.

     Section 7003 provides that an order may be issued to "any
 person" who contributed to conduct or lack of conduct that may
 present an imminent hazard.  The term encompasses, if applicable,
 the present owners and operators of a site, including an inactive
 site.  Similarly, the term includes persons whose ongoing
 conduct may result in the risk of an imminent hazard.  Whether
 previous  owners of a site or past non-negligent off-site
 generators are  also covered by S7003 is an issue that has
 received much judicial attention.

     Although the case law is unsettled, two courts have upheld
 EPA's  position  that previous owners of a site may be held
 liable under 57003.  U.S. v. Price. 688 F.2d 204; U.S. v.
 Reilly Tar and  Chemical Co.. 546 F. Supp. 1100.  Thus, if
 otherwise appropriate, Regions should consider issuing 57003
 orders to previous owners of a site, even an inactive one, in
 cases where the previous owner's conduct may have caused or
 contributed to  conditions at the site which may present an
 imminent hazard and substantial endangerment.

     To date, the courts have been unwilling to include past,
 non-negligent,  off-site generators within the scope of 57003.
 See,  U.S. v. Wade. 546 F. Supp. 785 (E.D. Pa., 1982); U.S. v.
 NEPACCOT779 F7~Supp. 823 (W.D. Mo., 1984) [U.S. filed cross-
 appeal June 29, 1984; decision pending].  It is recommended,
 therefore, that the Regional Offices utilize CERCLA 5106 to
 order  such generators to perform necessary cleanup work.  While
 an early decision was unfavorable, the majority and all recent
 decisions have held that 5106 does apply: U.S. v. Wade. 546 F.
 Supp. 785 [held 5106 is not applicable to past, non-negligent
 generators]; U.S. v. Price. 577 F. Supp. 1103 (D. N.J., 1983)
 [held 5106 does apply to past, non-negligent generators]; U.S.
 v. NEPACCO. 579 F. Supp. 823 [held 5106 does apply to past.
 non-negligent generators]; U.S. v. Conservation Chemical Company.
 No. 82-0983-CV-W-5, Order (W.D. Mo., Feb. 3, 1984) [held $106
 does apply to past, non-negligent generators]; and U.S. v.
 A&F Materials, et al.. No. 83-3123 (S.D. 111., Jan.  20", 1984)
 [held §106 does apply to past, non-negligent generators).  The
Agency's position is that 5106 does apply to past, non-negligent,
 off-site generators.

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                             - 6 -


     E.  Notice to Affected States

     Finally, before an Order nay be issued,  the "affected
state" must be given notice of the Agency's intention to  issue
the Order.

     The Agency is not held to a statutory period of time for
notice.  Normally, written notification to the state should
precede federal action by at least one week.   Circumstances
may arise, however, where a more rapid response at a site is
necessary.  In such cases,  issuance of an order may follow an
abbreviated notice period or even a telephone call made by EPA
to the director of the agency responsible for environmental
protection in the affected state.  Written confirmation must
follow such telephone notice.  In some cases,  the draft order
may be subject to a State's Freedom of Information Act prior to
issuance of the order by EPA.  If this situation arises,  the
Agency may delay notice to the affected state(s) until (no
later than) one week before issuance of the final order.
It is unlikely that a state FOIA request would result in  early
disclosure of the draft order during that short period of
time.

     As indicated above,  the notification should be directed to
the director of the state agency having jurisdiction over
hazardous waste matters.   A suggested form for a notification
letter is attached to this memorandum as the Appendix. This
form also provides the format for oral notice.

     An "affected state" is a state in which the conduct or
condition which may present an imminent and substantial
endangerment is occurring or is located, and in which the
response activity required by the proposed order will be  taken.
In some cases,  this may involve more than one state, such as
where a facility is located near the border of a state and  the
hazardous wastes have migrated from the facility into another
state(s).  In those cases,  all of the states in which the
hazardous wastes are found and in which response activity may
be performed pursuant to the order should be notified.  (Note:
Consult the following guidance for more information on the
State/Federal relationship: "Implementing the State/Federal
Relationship in Enforcement:  State/Federal Enforcement
Agreements", OECM, June 6,  198A.)

III.  SELECTING ENFORCEMENT OPTION

     Although $7003 administrative orders are a potent
enforcement tool, there will be instances when it will be more
appropriate for the Agency to use other enforcement options,
including a RCRA S7003 judicial action, a CERCLA §106 adminis-

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                             - 7 -


trative or judicial action,  or a Superfund financed  cleanup of
a hazardous waste site.  The Regions should examine  each of
these options and select the option which will result in  the
most efficient use of limited enforcement resources  and
Superfund monies while still quickly abating the threat.
(See also, the memorandum on "Issuance of Administrative Orders
for Immediate Removal Action", supra,  for additional guidance
on selecting enforcement options.;

     A. Administrative Order or Civil Referral

     Initially, the Agency must determine whether it is more
appropriate to use administrative or judicial enforcement
action; each has definite advantages and drawbacks.   An admin-
istrative order has the benefit of being a relatively speedy
method of enforcement.  The Agency can issue an order that
establishes a timetable for compliance,  unilaterally or on
consent, in a short period of time.  A judicial action, on  the
other hand, is usually a more time-consuming process. The
referral of a case to the Department of Justice and  filing of
a complaint may delay the initiation of remedial activities.
Even though a judicial action can be time-consuming,  any
resulting judicial order or consent decree can be more quickly
enforced in the event of noncompliance since the Court already
has jurisdiction of the matter, and an additional referral
to DOJ generally is not needed.

     Because AO's can be issued quickly, the general rule  is
that an administrative order, whether issued unilaterally or
on consent, is appropriate absent some indication that the
respondent will not comply with its terms.  "jip™> pen compliance
is anticinated, qepjons should prepare a civil referraTT
Should immediate remedial action be necessary, EPA should
consider requesting a preliminary injunction or temporary
restraining order.

      B. Use of RCRA or CERCLA

     Once a decision has been made to proceed administratively,
rho Region must then decide whether an order under RCRA $7003
or CERCLA $106 is more appropriate.  Upon examination, both
statutory provisions appear quite similar.  When faced with
the need to abate an imminent hazard,  the Agency can often use
a joint order if the RCRA "hazardous waste" is also a CERCLA
"hazardous substance."  [Consult the CERCLA $106 (1983)  guidance
for a discussion of the issuance of joint orders.]

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                              - 8 -


      There are three situations where a joint order is  not
 available,  more specifically,  where a RCRA S7003 order  can be
 used but a CERCLA S106 order cannot.

      The first situation would result when the imminent hazard
 is caused by a RCRA "solid waste" h»r "<•>*" fl "hazardgjjs  wasteT"
 RCRA §7003 orders can be used  to abate imminent hazards pre-
 sented by "solid wastes" (RCRA §1004(27)) as well  as "hazardous
 wastes" (RCRA §1004(5)).  By contrast,  CERCLA §106  orders are
 limited to abating imminent hazards presented by "hazardous
 substances" (CERCLA §101(14),  CERCLA §101(14)(c) defines
 "hazardous substances" as including "hazardous wastes"  under
 RCRA §3001, but not RCRA "solid wastes" under §1004(27).
 Therefore,  when an imminent hazard is caused by a  RCRA  "solid
 waste", which is not a RCRA "hazardous wastes" (or CERCLA
 hazardous substance) RCRA §7003 orders can be issued, whereas
 CERCLA §106 orders cannot.

      The second situation would result when a waste meets the
 definition of "hazardous was teg" under 41fifl445jLof RCRA but does
 not qualify as a "hazardous ^wa^te" under 40 CFR Part 261.  The
 term "hazardous waste" in §7003 refers to~tne broad statutory
 definition (§1004 (5)) of RCRA and not to the more narrow
 {regulatory provisions promulgated pursuant to §3001 and codi-
fied at 40 CFR Part 261.  These regulatory provisions are
 /meant to be applied only in the Subtitle C regulatory program.
 Because the CERCLA definition  of "hazardous substances" (§101
 (14)) includes "hazardous wastes" under RCRA §3001 but  not
 under RCRA §1004(5),  a CERCLA  §106 order could not be
      in the above situation.
     The  third  situation  would  result  when  the  waste  involved
 is excluded  from  regulation  under CERCLA  because  it is  a petro-
 leum product.   [See.  CERCLA  §101(14) for  the definition of
 TFiTardous substances"],   gasoline is  not a listed "hazardous
 waste" or commercial  chemical product  under RCRA  regulations
 (40 CFR 261  Subpart D).   Residues of a spill or a release, of   .
 gasoline  are not  automatically  listed  as  hazardous.   Even so,
 gasoline  leaking  from underground storage tanks can be  control-
 led under RCRA  as a "solid waste".  As stated earlier,  §7003
 can be used  to  address wastes that satisfy  the  statutory defin-
 ition of  "hazardous waste" under  RCRA ^iQMt5I_even if  they
 are not listed  or do  not  exhibit  a RCRA hazardous waste charac-
 teristic  under  40 CFR Subpart C.   Orders  have been issued
 under RCRA §7003  to owners of underground storage tanks that
 were leaking gasoline or  other  petroleum  products.

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                             - 9 -


     C.  Deciding to Use a 87003 Order

     This section discusses factors to consider when deciding
whether or not to use a S7003 order.  These factors include:

     - financial status of the respondents
     . number of potential respondents
     - specificity of the necessary response action

     As a general proposition, a §7003 order should be issued
only in those situations in which compliance with the terms of
the order is feasible, i.e.,  where the respondents are in a
position to perform the ordered response actions within speci-
fied time periods.  This does not mean that EPA must make a
pre-issuance determination that respondents will comply with
an order, but rather that compliance is practicable.  If the
Agency anticipates non-compliance with an order it is
considering issuing, the use of the order mechanism may serve
only to delay initiation of an injunctive action under S7003
or, if appropriate,  a Fund-Financed response.  In addition,
it is an inefficient use of resources.

     1) Respondent's Financial Status

     Before an administrative order requiring remedial work
is issued,  the Agency should assess, to the extent possible,
whether the responsible party has sufficient financial resources
to comply with the order.  This assessment is only a factor to
be considered in the decision to issue an order when the neces-
sary information is available.  Financial information may be
available from several sources:

     0  Agency files may contain financial information
        collected as part of the identification of
        parties responsible for the hazards posed
        by sites on the National Priorities List.

     0  The Securities and Exchange Commission (SEC)
        requires publicly traded companies to submit
        detailed financial statements.  This information
        is publicly available.  (Consult NEIC's manual
        entitled "Identifying Responsible Parties" for
        additional information on obtaining SEC
        files.)

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                             - 10 -


     *  Responsible parties may submit financial
        information to the Agency during discussions
        or negotiations held prior to the issuance  of
        an Order.

     "  The Agency collects financial data as part  of
        the RCRA permitting process.

     In addition, NEIC can ^rovide further financial  information
on respondents who are publicly held  companies or companies
previously the subject of EPA action(s).

     2) Number of Respondents Subject to the Order

     The Agency's position that S7003 provides for  joint and
several liability has been challenged by U.S. v. Stringfellow,
No. 83-2501 - MML (C.D. Cal., April 5,  19S57T  That decision
held that neither RCRA S7003 nor CERCLA 8106 provides for joint
and several 1 iabiIitjr.  in trie case of a multiple party adminis-
trative order, the Stringfellow Court stated that "...such
would have to state with specificity the steps to be  taken and
the party to take them.  If steps were ordered taken  jointly,
the Court would have to prescribe the "participation of each
defendant".  (Slip. op. at 12.)

     At present,  the Agency has not changed its position on
S7003 and joint and several liability.   Even so, the  Stringfellow
decision may affect future S7003 orders issued to multiple
respondents without an allocation of  individual responsibilities.

    - Some factors to consider before  issuing a RCRA S7003 order
to multiple parties are as follows:

          i)  Coordination of Response Action

          An order issued to multiple respondents who are
jointly and severally liable generally will not allocate
individual clean up responsibilities. _/  Instead,  the order
will require the same response action to be conducted by each
responsible party.  Multiple parties  must organize  and coordi-
nate their response to ensure compliance with the order's
requirements.  Thus, compliance with orders may depend upon
group agreement on each member's share of the response cost.
In a large group of responsible parties, it may be difficult
for the group to develop a consensus  on individual liability
and perform response activities as quickly as necessary to
   */ However,  the Agency may issue an order to a respondent
     requiring a response to a discrete, separable aspect of the
hazard at a site, notwithstanding the existence of other
responsible parties or other less divisible problem, areas.

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                             - 11 -


abate imminent hazard conditions at a site.  Accordingly,
issuing Orders to all responsible parties may not be appro-
priate where there are a large number of parties who are
unlikely  to agree on a concerted response.  Instead, the Agency
will pursue judicial remedies or consider issuing Orders to a
selected  subset of responsible parties.

     Even in situations where Orders are issued to a large
number of parties, Agency policy, which should be reflected in
the terms of the Order, is that each Respondent is individually
liable for compliance with the Order's requirements.

          ii) Supervision

          After an order is issued, the Agency conducts
compliance monitoring at the site to ensure that responsible
parties comply with the terms of the order.  Although no
specific  number of responsible parties can be considered ideal,
it is clear that the Agency's oversight responsibility is most
effective when there are a limited number of responsible parties
or a single contractor (hired by the responsible parties) doing
the work  at the site.

     3) Specificity of the Necessary Response Action

          In order to minimize the potential for confusion
between Respondents and the Agency concerning the required
response  action,  orders should be used in situations where the
nature of the required response action is relatively precise.
Orders are particularly useful to require that respondents
cease any ongoing activity that is causing the imminent hazard.
When remedial work ie required, an order nay best be used to
mandate discrete tasks such as the erecting of fences to secure
the site  and the removal of drummed wastes.  Orders can be
inappropriate in cases where the abatement will be very complex,
cost more than several million dollars, or take more than a few
years to  complete.  These are offered as factors to consider
and not criteria to be rigidly followed.

     A RCRA S7003 order, or succession of orders, may be used
to require response action throughout the entire cleanup pro-
cess.   It is entirely appropriate to use S7003 to order
immediate sampling or testing programs as part of a broader
set of proposed response activities.  For example, where it
is important to respond immediately to an imminent hazard, a
$7003 order may be used to determine the full extent of site
contamination and to require immediate security and clean up
action in response to hazards that have already been established.

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                             - 12 -


Monitoring, sampling, analysis and reporting can,  of course,
also be required through use of a RCRA $3013 order.   A S3013
order may be issued absent a finding of an imminent  hazard
although it does require a finding that the presence of, or
release from a site of,  hazardous waste "may present a substan-
tial hazard to human health or the environment."   RCRA $3013(a)
(1)&(2).  [See, Issuance of Administrative Orders  Under Section
3013 of RCRA,  issued September 1984.]

IV.  ELEMENTS OF AN ORDER

     All S7003 orders should contain the following elements:

     0 a statement of the statutory basis for the  order.

     0 a statement of the agency's authority to  issue
       the order and the liability that may be incurred
       if the respondent fails to comply.

     0 a specific determination supported by findings
       or reference to a separate endangerment assessment
       that states that the Agency has determined  that an
       imminent and substantial endangerment may exist.
       Such an explicit finding is necessary even  if the
       Respondent is willing to consent to the issuance
       of the order.  Should EPA need to seek judicial
       enforcement of the order,  even one issued on
       consent, it should be able to demonstrate  that it
       acted within its statutory authority in issuing the
       order.

     0 the company is a facility as defined under  CERCLA
       §101(9).  (Note:  required only when the A.O.  is also
       based on CERCLA 5106).

     0 a finding that the substances are solid or
       hazardous wastes.

     0 statements as to the liability of the
       respondents,  i.e., that the responsible party
       is or has been engaged in the activities
       described in $7003.

     0 a compliance schedule that clearly sets forth
       the tasks to be performed, the time frames  for
       performance,  and quality and performance  stan-
       dards for tasks.   Such specificity enhances the

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                        - 13 -
  operator's ability to comply and the Agency's
.  ability to enforce the order judicially should
  the respondent violate its terns.  A specific
  order provides the court with Agency articulated
  standards by which to judge the respondent's
  noncorapliance.

* EPA authority to be on site during work, obtain
  split samples and other information generated,
  and stop work if an emergency arises.

0 sampling and analytical procedures.

0 health and safety procedures.

0 notice to affected States.  A statement should
  be included, where possible, that notice to the
  affected state(s) has been given.

0 an opportunity to confer if the order is
  unilateral.  Agency policy is to offer
  recipients of §7003 orders an opportunity to
  confer with the Agency concerning the appro-
  priateness of its terms and its applicability
  to the recipient.  (Note; The administrative record
  containing EPA's evidence should be available for the
  recipient to examine.) The conference will help EPA
  ensure that it has based its order on complete
  and accurate information and ensure that both
  sides have a common understanding of the work
  to be performed.  Another benefit to such a
  conference is that it may reveal the unwilling-
  ness of the respondents to take necessary action.
  In this case, EPA can be better prepared to
  take necessary remedial action itself or seek
  judicial remedies. (See also. Conference Procedures,
  infra p. 14).

0  an effective date of the order.  Each order
  should specify the date on which it becomes
  effective.   Because a S7003 order by definition
  addresses  an imminent hazard, it should ordinarily
  become effective within 10-14 days of receipt by
  the respondent.   In emergency situations the
  effective  date may be shortened to as little as
  48 hours.   Any situation that requires an

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                             - 14 -


       affirmative response in less than 48 hours should
       be addressed under 5104 of CERCLA as a fund-
       financed emergency removal.  [Se_e_: Issuance of
       Administrative Orders for Immediate Removal Actions,
       supra, p. 2 (discussion of the timing of A.O.'s).]

     0 indemnification of EPA.  The order should exempt the
       Agency from liability for damages, even if the damages
       occurred pursuant to an EPA enforced order.

     0 a public comment period for consent orders.

     0 a civil penalties section for unilateral orders
       and a stipulated penalties section for consent
       orders.

     e EPA authority to take additional enforcement
       action if the respondent does not comply with
       the terms of this order.

V. CONFERENCE PROCEDURES

     The conference will normally be held at the appropriate
EPA Regional office and will be presided ovfer by the Regional
Administrator's designee.  However, other arrangements nay be
agreed to for the sake of convenience to the parties.  At any
time after the issuance of the order and particularly at the
conference, EPA should be prepared to provide the Respondent
with information sufficient to explain the basis for the
Order and to promote constructive discussions.  (NOTE; The
administrative record containing EPA's evidence must be avail-
able for the recipient to examine.)  The Respondent will have
the opportunity to ask questions and present its views through
legal counsel or technical advisors.  The schedule and agenda
for the conference will be left to the discretion of the EPA
official leading the conference, as long as the Respondent
receives a reasonable opportunity to address relevant issues.

     Following the conference, a written summary of the
proceeding must be prepared and signed by the Agency official
who presided over the conference.  The written statement should
contain:

     0 A statement of the date(s) and attendees of any
       conference(s) held; and

     0 A description of the major inquiries made and
       views offered by the Respondent contesting  the
       terms of the order.

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                             - 15 -
     The presiding official must prepare a statement  which
addresses the significant arguments raised by the  respondent,
recommends how the order should be modified,  if at all,
and contains the reasons for the changes or revisions.

VI. MODI FT CATIONS, REVOCATION.  OR STAY OF THE ORDER

     Based on a review of the file (on which the order  was
based) any probative information or argument made  by  the
respondent (following receipt of the order) or by  recommen-
dation of the presiding official, the issuing official  may
modify or revoke the order.  Any modification to the  order
must be communicated to the respondent as part of  a copy  of  a
written statement containing the elements listed in Section  V
above.  The original should be kept in the Agency  files along
with the evidence supporting the order,  copies of  written
documents offered in rebuttal by the respondent during  the
conference,  and a copy of the request for a conference.

     The issuing official may also stay the effective date of
the order if the conference process could not be completed
within the specified time period.

VII. NEGOTIATION OF ADMINISTRATIVE ORDERS

     Although EPA recognizes that recipients of unilateral
S7003 orders should be given an opportunity to confer,  the
Agency will not engage in lengthy negotiations with recipients
after an order is issued.  Limited negotiations, before or
after issuance of an order, are useful in that they give  EPA
an opportunity to assess the likelihood that the respondents
will perform the tasks set forth in the order.  If negotiations
look unpromising EPA must decide whether to issue  an  order
unilaterally, refer a S7003 civil action or initiate  a  Fund-
Financed response (if this option exists).  EPA should  not
compromise its authority to secure necessary action simply  to
obtain an order on consent.

     Should negotiations result in an agreement, the  resulting
order must contain all of the requirements set forth  above;
these requirements are necessary to ensure that the order is
enforceable should the respondent decide not to comply.  The
same requirements apply even if the respondent has voluntarily
begun cleanup efforts.   In general, the negotiated order
should set out specifically what each respondent must do  to
comply.

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                             - 16 -
VIII.  DELEGATIONS OF AUTHORITY

     At  the present time, the authority to issue RCRA $7003
administrative orders is delegated to the Assistant Adminis-
trator for Solid Waste and Emergency Response and the Regional
Administrators.  The Regional Administrator must consult with
the Assistant Administrator for Enforcement and Compliance
Monitoring or the designee and must obtain the advance
concurrence of the Assistant Administrator for Solid Waste
and Emergency Response or delegatee.  The Assistant Adminis-
trator for the Office of Solid Waste and Emergency Response's
authority to issue §7003 orders and to give advance concurrence
has been redelegated to the Director,  Office of Waste Programs
Enforcement.

     The RCRA Delegations of Authority are being revised and
should be issued in the near future.  The draft S7003 delegations
which are found in Chapter 8,  Section 22 of the draft delegations
manual are divided into three parts:  determination of imminent
and substantial endangerment;  abatement through a unilateral
order; and,  abatement through an order on consent.

     According to the draft delegations,  the Regional
Administrator (RA) must consult with the Office of Regional
Counsel before issuance of either a RCRA S7003 unilateral
order or order on consent.  Regarding Headquarters,  the RA
must consult with the Office of Solid Waste and Emergency
Response (OSWER) prior to issuing RCRA S7003 orders to deter-
mine an imminent and substantial endangerment and to abate
such an endangerment through a unilateral order.  The RA is
not required to consult with the Offices of Enforcement and
Compliance Monitoring (OECM) or the Office of General Counsel
(OGC) to issue the above.  For orders on consent under S7003,
the RA must obtain advance concurrence of OSWER or a waiver of
such concurrence by advance memorandum,  before issuance of
such an order.  The RA does not have to consult with or procure
concurrence from OECM or OGC prior to issuance of S7003 Orders
on consent.   Consultation with OECM and OGC is recommended in
relatively new areas such as the use of a RCRA S7003 order for
underground gas tanks and where there are other novel legal
issues involved.

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                             - 17 -


                            Appendix

                   STATE NOTinCATION LETTER

 CERTIFIED MAIL
 RETURN RECEIPT REQUESTED

 Mr. R. Jones
 State Agency
 Division of Environmental Control

 Dear Mr. Jones:

     Enclosed for your information is a copy of an order
 [stamped "DRAFT" and "CONFIDENTIAL" ] that the Agency intends
 to issue on or after    [date]    . to the XYZ Company,  pur-
 suant to Section 7003 of the Resource Conservation and Recovery
 Act (42 U.S.C.  S6973).  The order requires certain activities
 to be taken at the company's site located at [location]__.
 Please refer to the enclosed copy of the proposed order for
 the specific actions required of the company and the time
 within which such actions must be taken.  If you have any
 comments or questions concerning the order,  please contact
 [EPA official] at  [office] .

                          Sincerely yours,
                          Assistant Administrator for
                            Solid Waste and Emergency Response

                                     [or]

                          Regional Administrator

                               [or their designees]


Enclosure

cc:  Honorable J. Smith, Governor

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                                                       9940.1

MEMORANDUM                                        Sept.  26,  1984

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

FROM:     Courtney M. Price
          Assistant Administrator for Enforcement
            and Compliance Monitoring

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

TO:       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 t>y Regional
Administrators  (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 fa).  AUTHORITY OF ADMINISTRATOR.

        "If the Administrator determines, upon receipt
        of any information, that -

           (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 substantial hazard to human health
        or the environment, he may issue an order requiring the
        owner or operator of such facility or site to conduct
        such monitoring, testing, analysis, and reporting with
        respect to such facility or site as the Administrator
        deems reasonable to ascertain the nature and extent of
        such hazard."
                   -RETYPED FROM THE ORIGINAL-

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                               -2-                     9940.1

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

     (a)  the presence of hazardous wastei7 at a site may
present a substantial hazard to human health or the environment,
or;

     (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 reliable
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
State agency records, as  well as by the use of site-specific
requests under Section 3007 of RCRA and/or Section 104 of the
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 determination 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 3008 may be appropriate.-7
-' 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, §3013 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 §1004(5)) is
applicable in §3013 Orders, not the Subtitle C regulatory
definition.

- Section 106 of CERCLA also may be used to issue an order to
prior owners/operators under circumstances where the "imminent
and substantial endangerment" standard can be met.  In such
situations, it may be advantageous to issue a §3013 Order in
conjunction with a §106 Order under CERCLA.  In deciding whether
to issue a §106 Order under CERCLA or a §3013 Order under RCRA,
the main consideration should be whether available information
can support a finding that there may be an "imminent and
substantial endangerment."  If such a finding can be supported,
then a §106 Order or a §106 Order in conjunction with a §3013
Order is appropriate.  The RI/FS policy regarding circumstances
under which a potentially responsible party may be required to
perform an RI/FS should be consulted. Section 3013 Orders should

                   -RETYPED FROM THE ORIGINAL-

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                               -3-                     9940.1

     It should be noted that the mere presence of hazardous waste
at a site or facility is sufficient to cause the issuance of an
Order, provided that the information indicates that the presence
of the waste may present a substantial hazard.  This is true even
in the absence of definite evidence of an actual release of
waste, and covers the cases where there is a threat of release,
or where it is difficult, if not impossible, to ascertain,
without extensive sampling, analysis and monitoring whether a
release has actually occurred or will occur.

     Finally, a determination as to whether known and detectable
or potential releases from the site may present a substantial
hazard requires gathering of sufficient information to make a
determination of two essential prerequisites:

     (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.

     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,
-'(continued)
not be used to evade the RI/FS policy.  Remedial investigations
may be performed pursuant to a §3013 Order, but feasibility
studies are beyond the jurisdictional scope of §3013.

                   -RETYPED FROM THE ORIGINAL-

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                               -4-                     9940.1

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 operator.

Section 3013  fb).  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
operation" at the time a determination is made under subsection
(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 is "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 potentially hazardous sites from
those in the best position to provide that information — the
previous owners or operations.  We therefore believe that a
facility is not "in 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

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                               -5-                     9940.1

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.

     Assuming the two conditions discussed above are met, the
Order may be issued only to the "most recent previous owner 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 "reasonably" 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 period of ownership by
the previous 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 3013 (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
        monitoring, 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 information 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 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
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                               -6-                      9940.1

A)  outlining  the  general  areas of concern to be addressed  in the
requested  sampling,  analysis  and monitoring program.-7

      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
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/operator may
result in  issuance of a §3013 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
provision  such  as:

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

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                               -7-                     9940.1

monitoring should be conducted until after approval of a
satisfactory plan submitted by the respondent  (except in cases
delineated in subsection  (d)(1) 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 protocols 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 opportunity 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 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 §3013 Order requires engineers
and other persons who are knowledgeable 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.
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                               -8-                     9940.1

     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 stenographer'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 §3013(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 in finalizing the proposal.

     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

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                               -9-                     9940.1

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 3013fd).  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 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 authority or person for the costs of such
        activity.

        (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:

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                               -10-                    9940.1

         (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

         (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 activities
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 interpretation 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 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

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                               -11-                    9940.1

        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)(1) 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 conversations with the respondent and a record should
be made of any conference held with respondents in accordance
with this guidance.

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

Attachments
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                                                             APPENDIX A
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF:

Environmental Protection Agency,
                 Complainant,
)    RCRA Docket
                v.
    FINDINGS OF FACT,  DETERMINATION,
    AND ORDER REQUIRING SUBMISSION
    AND IMPLEMENTATION OF PROPOSAL -
    FOR SAMPLING,  ANALYSIS,
    MONITORING AND REPORTING
                Respondent.
Proceedings under § 3013 of
the Resource Conservation and
Recovery Act, 42 U.S.C. § 6934,
                         PRELIMINARY STATEMENT

      1.  This  is  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
FINDINGS OF FACT, DETERMINATION AND ORDER  PAGE 1 of 9

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Complainant is Region    of the United States Environmental Protection
Agency  (EPA).
      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 following Findings of Fact,
Determination and Order Requiring Submission, pursuant to Section 3013
of the  Act  [42 U.S.C. Section 6934] that are set forth below.
                            FINDINGS OF  FACT
      1.                                             ,  submitted  a
Notification of Hazardous Waste Activity (EPA Form 8700-12) 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)(i),   This application stated that
was a storer,  treater and disposer of hazardous waste at the facility.
      3.                                   ,  has  operated  a  facility at
     since at least               (from Respondent's Part A

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application), and  including  a period  of time November  19,  1980, the



effective date of  regulations promulgated pursuant to  RCRA.



      4.   Respondent's facility included a landfill of approximately 55



acre-feet in  size  consisting of at  least 12 trenches,  each of which



was approximately  10  feet wide, 20  feet long, and 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 landfilling 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 it would not submit  a Part B application.  Respondent



stated that effective                 , Respondent was  storing all



hazardous waste in drums and storing  such waste on-site 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







FINDINGS OF FACT, DETERMINATION AND ORDER  PAGE 3 of 9



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specifically requested, in part,  that Respondent demonstrate closure
occurred in a manner that "controls,  minimizes or eliminates to the
extent necessary to protect human health and the environment,  any post
closure escape of hazardous waste constituents to the ground,
groundwater, surface waters, or to the atmosphere."
      9.  Respondent, in  correspondence dated                     and
          ,  stated its contention that the landfilling activity at the
facility was properly closed.  Said correspondence included laboratory
analyses of samples of landfilled material from the facility.   These
laboratory analyses show the presence of hazardous constituents, as
defined in 40 CFR Part 261, in the landfilled material as summarized
below:
                                   Range of levels
Hazardous Constituents             detected,  ppm
Toluene                            3.1 to 68.7
Lead                               2.6 to 22.6
Chromium                           13.5 to 49.6
Other Constituents
Xylene                             1.5 to 25.8
Methyl Isobutyl Ketone             1.2 to 9.8

Additionally, all of the samples of landfilled materials exhibited the
hazardous waste characteristic of ignitability by having a flash point
less than 60°F, indicating the hazardous waste had not been rendered
non-ignitable prior to landfilling.
      10.  Respondent's correspondence dated                 stated
that no analysis of groundwater quality has been performed.

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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 landfilled material could result in release of
hazardous waste constituents by leachate production and migration off-
site by means of 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, it is hereby
determined pursuant to Section 3013 of the Act that:
      1.   The                      facility,  as described hereinabove,
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.
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       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 in order
 to ascertain the nature and extent of the hazard  at the
 facility  as described hereinabove, 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 is 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 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 leaking 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

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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 VIII of 40



CFR Part 261 for at least one of the quarterly sampling periods.



      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 §3007 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.







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                         OPPORTUNITY TO CONFER



Under the provisions of the Act, Respondent may confer with EPA at any



time prior to submittal of the 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 (if 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 its



approved terms and schedules.   The written proposal ordered herein



must be submitted by Respondent to the Contact Person,               ,



at the address listed below, within thirty (30) days of Respondent's



receipt of this Order.



                               LIABILITY



If EPA determines that Respondent is 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



if 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 fails 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.







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WITNESS MY HAND as Regional Administrator pursuant to the authority of



the Administrator of the United States Environmental Protection



Agency, on this 	 day of 	,  1984.
                                   By:
                                        Regional Administrator



Contact Person:
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                                                             APPENDIX B
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF:

Environmental Protection Agency,
                 Complainant,
                 v.
                 Respondent.
Proceedings under §§ 3008 and      )
3013 of the Resource Conservation  )
and Recovery Act, 42 U.S.C. §§ 6928)
and 6934.                          )
)    RCRA Docket X83-11-08-3008 3013
    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  is  an administrative action instituted pursuant  to

Sections 3008(a) and 3013 of the Resource Conservation and Recovery


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Act [42 U.S.C. Sections 6928(a) and 6934], hereinafter referred to as
"the Act" or  "RCRA".   The Complainant is Region    of the United
States Environmental Protection Agency  (EPA).
      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 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 is

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located at                                     and was then and is now
known as                   (hereafter "the facility").
      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.
      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.
      5.   In correspondence from                         ,  dated
           , Complainant was notified that Respondent intended to
acquire all of the capital stock, of                 and to liquidate

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the assets of                  into
The letter further stated that                 would continue the
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  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  (IDD               )  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,  in correspondence dated            , a
four  (4) month extension for submittal of the Part B application.
Complainant approved the request and extended the submittal date

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to
      11.   Complainant has conducted and/or participated in several
inspections of Respondent's            facility to determine compliance
with 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 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 in detail  after on-site inspection.
Several violations of Interim Status Standards were noted and made
known to  Respondent in a  Notice of Violation and Warning (NOVW) 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 in the               , NOVW,
and requested an  extension of the 30 day submittal requirement for 40
CFR 265 Subpart F violations,  until                .  Complainant
granted the extension, in correspondence dated               ,  to

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allow completion of geotechnical work then underway at the site.
Respondent subsequently submitted the plan and schedule,  in
correspondence dated                  ,  in which Respondent proposed
installation of a groundwater monitoring program.   Complainant
accepted Respondent's plan and schedule, with some revisions,  in
correspondence dated             ,  1983, and advised Respondent that
full compliance with ISS groundwater monitoring requirements was
required to be achieved by           ,      .   A ground water waiver
demonstration was developed by Respondent.  Based on an inspection in
            and subsequent review of the waiver demonstration
Complainant advised Respondent in 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 in 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

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flow of surface water into an active hazardous waste disposal trench
constitutes a violation of 40 CFR §265.302(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 unsolidified liquid waste in Respondent's disposal
trench used for disposal of hazardous waste (Trench    ).
      16.   On  or  about                   , Respondent voluntarily  began
excavating and exhuming drums of waste previously disposed in Trench
        Complainant has continually observed excavation activities
since               .  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 in whole or in part as follows:
      a.    145 drums full or containing greater than approximately 75%
liquid
      b.    33 drums containing between approximately 50% and 75% liquid
      c.    44 drums containing between approximately 25% and 50% liquid
      d.    226 drums containing between approximately 5% and 25% liquid
      e.    80 drums containing less than approximately 5% liquid
      18.   At  the request  of Complainant, Respondent provided control
records that document the dates that some of the above-mentioned 528

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drums containing liquids were placed in the disposal trench.  These



records disclosed that drums found to contain liquids were placed in



Trench    on at least the following occasions:



Date                          Control No.            No. of Drums



5/27/82                     ,     2352                    21



                                 2358                    7



                                 2281                    3



5/20/83                          2323                    1



6/10 and 8/9/83                  2330                    9



8/3/83                           2343                    32



                                 2361                    4



                                 2392                    16



6/3/83                           2370                    7



                                 2374                    47



6/10/83                          2381                    2



6/21/83                          2386                    6



                                 2384                    5



6/18/83                          2443                    13



     Such placement  of  liquids  in Trench   was  in violation  of  40 CFR



§265.314.  Some of the control documents provided to Complainant fail



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,



in part, was to determine compliance with RCRA Interim Status



Standards.   More specifically,  the inspection was to examine facility
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operations and physical conditions at the facility.  The inspection
disclosed the following:
           a.    Approximately 8,500  drums were in storage  at  the
           facility.  The number of drums in storage is 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-site 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 acid, were leaking, and had
           not been managed in 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 D002/D007 and F003/F005
           had open tops,  in violation of 40 CFR §265.173(a).
           e.    Drums containing hazardous waste  were  stored  in a
           manner which may cause them to leak; specifically,  drums
           were stored directly on the ground surface and in areas of
           poor drainage which may cause or accelerate drum
           deterioration or rusting,  in 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

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           formed by run-off or run-on were allowed to evaporate or
           percolate into the soil,  in violation of 40 CFR §265.302(b).
           g.    The diversion structure  (a berm) which had been
           constructed to cause run-on into Trench 11 was still in
           place,  in violation of 40 CFR §265.302 (a).
           h.    Inspections by Respondent of containers in storage had
           not been adequate to detect deterioration and releases of
           hazardous waste constituents to the environment,  in
           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.
           i.    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 in hazardous waste flow to
           surrounding soil, and failure of any container of hazardous
           waste in storage would result in 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
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                                                    These structures
were filled with liquid and solid hazardous waste and hazardous waste
constituents prior to November 19,  1980.   The integrity of the
underground structures is unknown.   Respondent,  in correspondence
dated              ,  advised Complainant  that groundwater had been
encountered beneath the site near a depth of 200 feet.
     21.  A well reaching  a deep artesian  aquifer was  constructed as
part of the original facility.  An integral part of that well is 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 25 years old.  The condition and integrity of the casing
and well head are unknown.   The well head is situated in an
underground structure (the power house) which is 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 in the
release of a large volume of water to the soil and to hazardous waste "
disposal units, which might result in 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.
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                             CIVIL PENALTY
      In view of the violations noted in the Findings of Fact above,
Complainant hereby  assesses a  civil penalty of ONE HUNDRED FIFTY
THOUSAND DOLLARS  [$150,000].

                             DETERMINATION
      Based upon the above information,  it is  hereby  determined
pursuant to Section 3013  of the Act that:
      1.   The            facility as  described hereinabove,  owned and
operated by the Respondent, is a facility at which hazardous wastes
are present and at  which  hazardous wastes have been treated, stored,
and disposed.
    .  2.   The methods  and practices employed at the facility for
treating, storing,  and disposing of hazardous wastes are such that the
presence of the hazardous wastes at the facility may present a
substantial hazard  to human health or the environment.
      3.   The releases of hazardous wastes and/or  hazardous  waste
constituents at the facility may have migrated to surface or
groundwater.  Several off-site wells on adjacent or nearby property
exist which could be or could become contaminated as a result of such
releases.  Therefore, the release of hazardous wastes at the facility
may present a substantial hazard to human health or the environment.

                           COMPLIANCE ORDER
      Based upon the foregoing  and pursuant  to  Section  3008  of  the Act,
it is hereby ordered that the Respondent take the following corrective
actions within the  time periods specified:

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      1.   Respondent shall upon its receipt of this Order initiate
telephone contact with all known generators and transporters of
hazardous waste who ship  or transport hazardous waste to Respondent's
facility and advise each:
           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  in
         .  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  if shipped after the telephone
           notice.
      The  telephone  notifications  shall  be  completed as  soon as
possible but in 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 if the text of all such
           notifications is identical).
           b.   a list of the companies to which the notification is
           sent,  including company name,  company EPA ID number, mailing

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           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 its 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 accept at the 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 is
unknowingly accepted at the facility,  such waste shall not remain on
the facility for a period longer than 24 hours.  This prohibition
shall remain in effect until Respondent has complied with Paragraph 4
below and further, until Complainant by its Contact designated
hereinbelow has notified the Respondent, orally or in writing, that
this prohibition has been removed.
      4.  Respondent  shall  immediately upon  its 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 in 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

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container.  Following Complainant's approval, orally or in 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,



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-site representative when such



is present.



      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 in storage on-



site.  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, within fifteen (15) working days of its



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 is visibly contaminated with







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hazardous waste and must  assure that any dirt,  soil, or other material
which has become  adhered  to  the exterior of the vehicle,  is 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 it can be
demonstrated otherwise.   Upon approval of the plan by Complainant,
Respondent  shall  immediately implement the plan.
      8.   Respondent  shall,  within fifteen  (15)  working days of  its
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 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.
      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,  in 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,  in 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 its receipt of this Order,

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maintain a written operating  record at the            facility,
including records of  the dates of disposal and  location and quantities
of hazardous waste, in  compliance with 40 CFR §265.73(b).
      11.   Respondent  shall,  within fifteen (15) working days  of its
receipt of this Order,  cease  and thereafter desist  from the storage of
drums of hazardous waste in 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  in
areas of poor drainage, in compliance with 40 CFR §265.173.
      12.   Respondent  shall upon its  receipt  of  this Order  implement
procedures to inspect daily all containers of hazardous waste on-site.
Respondent shall further,  within fifteen  (15) working days of its
receipt of this Order,  transfer any hazardous waste contained in
corroded, deteriorated, leaking, or bulging drums, or drums not in
good condition, into  sound drums in good condition or shall otherwise
comply with 40 CFR §265.171.  Thereafter, Respondent  shall comply with
40 CFR §265.171.
      13.   To  the  extent Respondent has not already  done so, Respondent
shall, within thirty  (30)  days of its receipt of this Order, equip its
          facility with a  continuously operable and operating internal
communications or alarm system in compliance with 40 CFR §265.32(a)
and (b).
      14.   Respondent  shall, within thirty  (30)  working  days of  its
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
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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 in 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 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 in
correspondence dated                      .  Respondent shall also,
within seven  (7)  working days of its 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 in Complainant's letter,
except for item twelve  (12), which is covered under the Section 3013

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Order, infra.  Additionally, Respondent shall include in the Part B



application for the           facility (due             )  a plan and



proposal, including timeframes,  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  its 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 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 or  the Act  [42 "U.S.C.  §6934],  and  in



order to ascertain the nature and extent of the hazard at the



            facility as described hereinabove, 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 is 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







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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 provide 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  timeframes,  for  determining  the
chemical  composition of the contents of any container which has been
exhumed from            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 in 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  timeframes,  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 originated from active treatment,
storage,   or disposal units at the site.  This proposal shall

FINDINGS OF FACT,  DETERMINATION AND AGREED ORDER  PAGE 20  of 26
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 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;



           d.    vehicle entry,  vehicle unloading,  and vehicle exit



         .  from the facility;



           e.    other on-site waste management practices including,



           inter alia, container  storage, tank storage,  treatment, and



           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 in



 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



 times, 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







FINDINGS OF FACT, DETERMINATION AND AGREED ORDER  PAGE 21 of 26



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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 (if 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 its



approved terms and schedules.







                                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.   Submittals



required by the Section 3008 Compliance Order, supra, as well as any



questions,  shall likewise be addressed to







                               LIABILITY



     If  EPA  determines that' Respondent  is not able  to conduct  the



activities required by this §3013 Order in a satisfactory manner, is



not able to conduct the activities contained in the approved proposal;



or if 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 fails 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 $5000 for each day during which such failure



or refusal occurs.







FINDINGS OF FACT,  DETERMINATION AND AGREED ORDER  PAGE 22 of 26



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                                CONSENT
      1.   In connection with this matter, the Respondent consents to
the following:
           a.   To pay the assessed civil penalty of $150,000,  on the
           terms described below.
           b.   To comply in full with the Compliance Order issued
           pursuant to Section 3008 of the Act.
           c.   To comply in full with the Order  Requiring Submission
           and Implementation of Proposal for Sampling,  Analysis,
           Monitoring and Reporting.
      2.   The  consent  of  both  Respondent  and Complainant to settle this
matter on the terms and conditions set forth in  the penalty assessment
and order provisions of this document  (hereafter collectively referred
to as the "Order") is based upon the following:
           a.   Respondent neither admits nor denies any factual or
           legal allegations contained in this Order.  Nevertheless,  in
           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 participation with them who receive actual notice
           of this Order by personal service or  otherwise.

FINDINGS OF FACT, DETERMINATION AND AGREED ORDER  PAGE 23 of 26
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           c.  It is the intention of this Order to bring Respondent
           and all operations at the facility in 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
           in the aforementioned provisions except to the extent that
           it may be necessary to remedy existing alleged violations at
           the facility.
           d.  This Order shall in on way relieve the Respondent of its
           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 in 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
           shall restrict the right of Complainant to initiate further
           enforcement action for penalties or otherwise only in the

FINDINGS OF FACT, DETERMINATION AND AGREED ORDER  PAGE 24 of 26
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           event additional facts are uncovered which are unknown to
           Complainant at the time this Order is entered and which
           justify such action.
           g.  Notwithstanding compliance with the terms of this Order,
           Respondent is 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 in 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.
           i.  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 it is
           entered or on the date of issuance of the Part B permit,
           whichever is earlier.
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER  PAGE 25 of 26
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      3.  By  the  following  signatures, the Complainant and Respondent

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

herein stated:
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 is so Ordered as set forth above.   This ORDER, including each and
every portion hereof, shall become effective immediately.
                                   Regional Administrator
                                   EPA, Region 10
DATED this
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER  PAGE 26 of 26

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      MODIFICATION OF AGREED  ORDER
      ENTERED  INTO                 , 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 2.j. of the "CONSENT" section thereof (p. 25 of 26), the

Agreed Order is 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)"  in place thereof;

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

           (12)"  in place thereof.

      2.   Page 14 of  the Agreed Order  shall be amended as  follows:   On

line 2 thereof, omit "three  (3)", and insert "ten  (10)" in place

thereof.

      3.   Noncompliance  with  Paragraph 4 on Page 14 of the Agreed  Order

prior to                   shall, in the sole discretion of the

Complainant by its 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

Order of
    DATE
    DATE                     for Environmental Protection Agency Region

                  ENTRY OF ORDER AMENDING AGREED ORDER
IT IS SO ORDERED.
         DATE                           Regional Administrator


MODIFICATION OF AGREED ORDER - Page 1 of 1
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                                                             APPENDIX C
                        BEFORE THE UNITED STATES
                    ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF:
RCRA Docket
                                                      ORDER
                 Respondents.       )
                                   )
                                   )
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.

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                  DETERMINATIONS AND FINDINGS OF FACT
     The undersigned makes the  following determinations and findings
of fact:

     1.  The                          Facility  [hereinafter referred
to as,  "the Facility"]  is located at                         ,  near
the junction of                 Road and                    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
ORDER - Page 2 of 7
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on August    ,  198  ,  pursuant to the authority of Section 3013 of the
Act.
      6.  The §3013 Order was  served on the Respondents on August  17,
1982.
      7.  The §3013 Order required the Respondents to submit to EPA a
proposal for monitoring, testing, analysis,  and reporting of hazardous
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,
testing, 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
§3013(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

ORDER - Page 3 of 7
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                                      1,958 hrs @ $35.00
                                        395 hrs @  35.00
                                                $1467.98
                                                 2729.27
                                                  518.82
                                                  209.34
                                                  468.77
                                                  332.28
                                                 2400..00
                                                 1542.30
                                                  339.99
                                                20444.50
                                                  360.00
                                                   45.00
$68,530.00
 13.825.00
$82,355.00
of the hazard associated with the site.  Such activity was initiated
on September   ,  198 .
      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 Investigation Team
    Technical Assistance Team
        Prime Contractor Total
Sub-Contractor Costs
    South Seattle Asphalt
    RJB wholesale
    RJB Wholesale
    Sanikan
    National Barricade
    Rental Mart -  submersible pump
    Analytical Services Center  (Buffalo)
    Burns Security
    Brooks Truck Line - forklift,  flatbed
    Story and Dodge (well driller)
    Crosby and Overton - barrel storage
    City of Kent  - Water
ORDER - Page 4 of 7
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         Sub-Contractor Total
 Equipment  and  Supplies
     Sears  -  fencing  gate                        $ 324.39
     Sears  -  come-along hand wrench                 85.18
     Burdic Feed and  Hardware  - wire  stretcher      56.90
     N.W. Stationers  -  stencil and paint  for drums  68.05
     Cascade  Bag -  sample bags                     79.82
     Seattle  Barrel Company                       1427.10
     Lone Star  Industries                          223.66
     Glacier  Sand and Gravel                       275.84
     J.C. Penny's - lantern                         45.78
     MSA -  supplies,  cartridges, respirator        896.53
        supplies
     check  valve, hydrant wrench                    35.52
     pipe without gasket                           152.61
     drive  caps                                     46.86
     disposable  gloves                             114.60
     diesel,  gas, ice,  small equipment             156.69
     personal mileage,  supplies, maintenance       172.85
     film development and purchase                  54.00
     Seattle  Skin Diving - refill air bottles       38.07
     Andrews Machinery  - pressure release valve     17.34
     Sears paint  for drums                          28.46
     Label Master Labels                            27.96
        Equipment  and  Supplies Total
$30,858.25
  $4328.11
ORDER - Page 5 of 7
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Car Rental
    3 vehicles @ $6.10 per day (157 days;
    1 vehicle @ 6.50 per day  (5 days)
    Mileage
    Gasoline
        Car Rental Total
            $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
        Filter samples
        % moisture
           Analytical Support total
    Sample Transportation and Packaging
        Grand Total to November 29, 1982
 122 samples @  $93
124 samples @ $ 305
  25 samples @   93
   25 samples @ 305

           1 @ $398
             35 8 8
            124 @ 5
           3,968.69
  $11,346.00
   37,820.00
    2,325.00
    7,625.00

      398.00
      280.00
      620.00
  $60,414.00

$ 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
ORDER - Page 6 of 7
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THOUSAND FOUR HUNDRED FIFTY dollars ($184,450)  to reimburse the United
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 Agency.
Dated this 	 day of 	,  198 .
ORDER - Page 7 of 7
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                                                  9523.10(84)

MEMORANDUM                                        Dec. 13,1984

SUBJECT:  Recent Clarifications of RCRA Authorities

FROM:     Peter Guerrero
          Branch Chief
          Permits Branch  (WH-563)

TO:       Section Chiefs
          Regions I-X


The attached documents clarify your authority in two important
aspects of the RCRA permit program.  First, you will find a
decision issued by the Chief Judicial Officer in the case of City
Industries. Inc.  That decision reversed the ALJ's holding that
EPA lacks the authority to assess penalties under Section 3008 of
RCRA for failure to submit a complete RCRA permit application.

The second attachment is a technical change, announced in the
Federal Register, which clarifies our authority to apply Part 265
standards until closure and post closure responsibilities are
fulfilled.  Previously, the wording of §265.1 implied that once a
facility's interim status was terminated the facility would no
longer have to meet §265 interim status standards, i.e. closure,
post closure, and financial responsibility.  However, EPA has the
statutory authority under Section 3004 to enforce the Part 265
standards at facilities which no longer have interim status.  The
revisions to §265.1 makes it clear that Part 265 requirements
apply to RCRA facilities until either a permit is issued or until
all applicable Part 265 closure and post closure responsibilities
are fulfilled.

Attachments
                   -RETYPED FROM THE ORIGINAL-

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                                                  9523.10(84)

MEMORANDUM

DATE:     November 29, 1984

SUBJECT:  Administrator's Decision Regarding Authority Under RCRA
          Section 3008 to Assess Penalties for Failure to Submit
          a Complete and Adequate Part B Application

FROM:     James H. Sargent
          Regional Counsel, Region IV

TO:       Lee Thomas  (WH-562A)
          Courtney Price (LE—133)
          Lisa Friedman (LE-132S)
          Regional Counsels
            Regions I-III and V-X


     Attached is a copy of the decision issued by the Chief

Judicial Officer on November 21, 1984 in the case of City

Industries. Inc.,. Docket No. 83-160-R-KMC.  That decision

reversed the ALJ's holding that EPA lacks the authority to assess

penalties under Section 3008 of RCRA for failure to submit a

complete and adequate Part B RCRA permit application.  This

affects many pending enforcement cases in the regions and

reaffirms our authority to seek penalties for deficiencies in

Part B RCRA permit applications.



Attachment

cc:  RCRA/CERCLA Team Leaders
                   -RETYPED FROM THE ORIGINAL-

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                                                  9523.10(84)
                     BEFORE  THE ADMINISTRATOR
              U.S.  ENVIRONMENTAL  PROTECTION AGENCY
                        WASHINGTON, D.C.
In the Matter of:        )
                         )
City Industries, Inc.,   )                         RCRA (3008)
                         )                         Appeal No. 83-4
  Respondent             )
                         )
RCRA 83-160-R-KMC        )
                              ORDER

     This appeal is from an order of an Administrative Law Judge

(presiding officer) dismissing an administrative complaint

brought against City Industries, Inc. (respondent) .-'  In that

order the presiding officer held that it was inappropriate to

assess a civil penalty against respondent for its alleged failure

to submit "Part B" of its RCRA permit application.-7  For the

reasons stated below, the initial decision is reversed and this

proceeding is remanded to the presiding officer for further

proceedings consistent with this order.

Background
-' 40 CFR §22.20(b) provides that such an order constitutes an
initial decision.  An initial decision is appealable to the
Administrator or his delegatee pursuant to 40 CFR §22.30.

-' The Resource Conservation and Recovery Act of 1976  (RCRA), as
amended, 42 U.S.C. §6928(a)(l) et seq., requires any person who
owns or operates a hazardous waste management (HWM) facility to
obtain a RCRA permit from the Agency.  Pursuant to Agency
regulations, owners or operators of facilities in existence on
November 19, 1980, are allowed to continue in operation, pending
the Agency's final permit determination, if, among other things,
they submitted Part A, and subsequently, Part B of the RCRA
permit application.  See notes 4 and 5, infra, for descriptions
of "Part A" and "Part B" of the RCRA permit application.

                   -RETYPED FROM THE ORIGINAL-

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                               -2-                9523.10(84)

      Respondent owns  and operates  a  hazardous waste  storage

 facility  which was  doing business  in Orlando, Florida  on  November

 19,  1980.-'  RCRA regulations provide for a bifurcated  permit

 application  procedure for facilities in  existence  on that date,

 i.e.,  so  called "existing facilities."   An owner of  an existing

 facility  is  required  to  submit Part  A of its permit  application

 first.-'   Subsequently, at the Agency's request, the  owner of

 such a facility is  required  to submit Part B of its  permit

 application.-'

      Respondent timely submitted Part A  of its permit  application

 and,  accordingly, attained "interim  status."-7  However, when
-'  Although  respondent is  no longer receiving  hazardous  waste at
this facility,  it continued to store hazardous waste  for some
period of time  thereafter and accordingly was required  to have  a
permit.  See 40 CFR  §270.1  (1983).  See EOF v. Lamphier, 714 F.2d
331, 335 (4th Cir. 1983).   The record does not show whether
respondent  is currently storing hazardous waste.

-'  Part A must contain the information listed  in  40 CFR  §270.13
(1983).  This includes a  description of the hazardous waste
activities  which are  conducted at  the facility, the name and
location of the facility, certain  information identifying the
facility's  operator and owner, a scale drawing of the facility, a
description of  what processes will take place at the  facility,
e.g., treatment, storage, disposal, the design capacity of these
items, identification of  the hazardous waste to be handled at the
facility, the quantity of hazardous waste to be handled at the
facility, and a topographic map.

-'  Part B must set forth information relating  to  a facility's
operational procedures, such as security arrangements,  closure
plan, flood plan, detailed plans for ground water monitoring,
etc. 40 CFR §§270.14-29 (1983).  The information required to be
submitted as Part B of the permit  application is more extensive
and detailed than that required for Part A.
c /
-   When a Part A application for a  facility is submitted to the
Agency (together with preliminary notification of hazardous waste
activity required by RCRA §3010), the facility is authorized to
operate on an interim status basis, i.e., pending the Agency's
final decision  on the facility's permit application.

                   -RETYPED FROM THE ORIGINAL-

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                               -3-                9523.10(84)

EPA Region IV subsequently requested Part B of the application,

the materials which respondent submitted were unacceptable to the

Region.-7  Consequently,  the  Region  filed an administrative

complaint against respondent charging that it violated 40 CFR

§270.10(e) which requires an existing facility to submit Part B

of its permit application when so requested by the Agency.  A

civil penalty of $5,000  was  sought  in the complaint for this

alleged violation.

     In its answer to the complaint, respondent contended that

its Part B application was adequate and the Region should have

accepted it.  Alternatively, respondent contended that "failure

to submit [an adequate]  Part B application is not an action

cognizable under the Resource Conservation and Recovery Act for

purposes of assessments  of civil penalties."  (Emphasis added.)

The presiding officer agreed with this latter contention and

dismissed the administrative complaint with prejudice.  This

appeal followed.

Discussion

     The sole issue on appeal is whether a civil penalty can be

assessed against an owner of an existing HWM facility who,

despite the Agency's request to do so, fails to submit an

adequate Part B RCRA permit  application.  Central to the
-; The Region gave respondent a number of opportunities to
correct deficiencies which it had identified in respondent's Part
B application.  Although respondent made attempts at correcting
them, it failed to submit a Part B application which was
acceptable to the Region.  Whether respondent's Part B
application was in fact adequate (and therefore was erroneously
found unacceptable by the Region) is an issue to be determined on
remand.

                   -RETYPED FROM THE ORIGINAL-

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                               -4-                9523.10(84)

resolution of this issue is RCRA §3008(g)  which states that the

Agency is authorized to assess civil penalties only for

violations of RCRA requirements:

          Civil Penalties - Any person who violates any
          requirement of this subchapter [Subchapter III -
          Hazardous Waste Management] shall be liable to the
          United States for a civil penalty in an amount not to
          exceed $25,000 for each such violation.  Each day of
          such violation shall, for purposes of this subsection,
          constitute a separate violation.-7   (Emphasis added.)

     The presiding officer held that RCRA contains no requirement

that an owner or operator of an HWM facility apply for a RCRA

permit or submit an adequate permit application.  Accordingly,

the presiding officer held that respondent's failure to submit an

adequate Part B application is not a violation of any requirement

contained in RCRA.  I disagree.

     40 CFR §270.10(e)(4)(1983) clearly requires submission of a

Part B permit application after the Agency requests it:~7
a/ See also RCRA §§3008(a) (1) and  (a) (3) .

-' Implicit in §270.10(e)(4)'s requirement to submit a Part B
permit application is the requirement to submit an adequate (or
complete) Part B application.  Of course, no regulatory
requirement is violated where an owner or operator initially
submits an inadequate or incomplete Part B application but
subsequently corrects it before expiration of the six month
deadline referenced in §270.10(e)(4).  However, if the owner or
operator fails or refuses to correct such deficiencies within the
six month period; §124.3(d) allows the Agency to deny the permit
and assess an appropriate civil penalty:

     (d)  If an applicant fails or refuses to correct
          deficiencies in the application, the permit may be
          denied and appropriate enforcement actions may be taken
          under the applicable statutory provision including RCRA
          section 3008, SDWA sections 1423 and 1424, CAA section
          167, and CWA sections 308, 309, 402(h), and 402(k).
          (40 CFR §124.3(d).)

(The presiding officer interprets §124.3(d) as allowing
assessment of a civil penalty if, and only if, a facility

                   -RETYPED FROM THE ORIGINAL-

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                               -5-                9523.10(84)

          At any time after promulgation of Phase II [operating
          standards] the owner and operator of an existing HWM
          facility may be required to submit Part B of their
          permit application.  The State Director may require
          submission of Part B ... if the State .  .  .  has
          received interim authorization for Phase II or final
          authorization; if not,  the Regional Administrator may
          require submission of Part B.  Any owner or operator
          shall be allowed at least six months from the date of
          request to submit Part B of the application.  (Emphasis
          added.)

40 CFR §270.10(e)(4) was promulgated pursuant to the statutory

authority found in RCRA §3005 which directs the Agency to

promulgate regulations requiring RCRA permits for owners and

operators of HWM facilities.—7  Accordingly,  violating any

requirement contained in 40 CFR §270.10(e)(4) is tantamount to
continues to operate after notification by the Agency that its
interim status has been terminated for failure (or refusal) to

-' (continued)
correct deficiencies in its Part B permit application. However,
there is no support for the view that §124.3(d) was meant to
envision such a sequential approach, and it is hereby rejected.)
107
   The text of RCRA §3005 reads in relevant part as follows:

           (a)  Permit requirements. — Not later than eighteen
               months after October 21, 1976, the Administrator
               shall promulgate regulations requiring each person
               owning or operating a facility for the treatment,
               storage, or disposal of hazardous waste identified
               or listed under this subchapter to have a permit
               issued pursuant to this section.

                   -RETYPED FROM THE ORIGINAL-

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                               -6-                 9523.10(84)

violating  a  requirement  contained in RCRA  itself.—'  Therefore,

it  is clear  that  failing to  submit an adequate Part B application

tis a violation of  a RCRA requirement, and the presiding

officer's  holding to the contrary is reversed.—7

     This  case is remanded to the presiding officer for further

proceedings  consistent with  this order.—7

     So ordered.
                                        Ronald L. McCallum
                                        Chief Judicial Officer
Dated:
—7 Agency regulations promulgated pursuant to statutory authority
have the force and effect of law.  Service v. Dulles, 354 U.S.
363  (1959); Rodrigues v. Dunn, 128 F. Supp. 604  (1955), aff'd 249
F.2d 958 (1957), See also Farmer v. Philadelphia Elec. Co., 329
F.2d 3  (1964); Atwood's Transport Liner, Inc. v. U.S., 211 F.
Supp. 168  (1962), aff'd 373 U.S. 377  (1963); 3 Mezines, Stein &
Gruff, Administrative Law. §13.03 (1977).

     It should be noted that interpretive rules, i.e., rules
promulgated by an Agency which interpret a statutory provision
may not, in certain circumstances, have the force and effect of
law.  40 CFR §270.10 is not an interpretive rule; rather it falls
into the category of a legislative rule, i.e., a rule which
Congress has specifically authorized the Agency to promulgate and
as such has the force and effect of law.

—' It is not necessary for purposes of this decision to consider
whether the failure of an existing facility to submit a Part A
application is also a violation of a RCRA requirement.
Therefore,  that issue is neither addressed nor resolved here.

13 /
— See note 7,  supra.

                   -RETYPED FROM THE ORIGINAL-

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                                                  9523.10(84)
                      CERTIFICATE OF SERVICE
     I certify that copies of the foregoing Order In the Matter
of City Industries, Inc., RCRA  (3008) Appeal No. 83-4 were
delivered to each of the following persons, in the manner
indicated:
By 1st Class Mail,
postage prepaid:
By Hand Delivery:
Arthur Greer
President,
City Industries, Inc.
3920 Forsythe Road
Orlando, FL  32807

Keith M. Casto
Assistant Regional Counsel
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA  30365

Sandra A. Beck
Regional Hearing Clerk,
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA  30365

Thomas B. Yost
Administrative Law Judge
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA  30365

Bessie Hammiel
Hearing Clerk
U.S. EPA Headquarters
401 M Street, S.W.
Washington, DC  20460
Dated:
                                        M. Gail Wingo
                                        Secretary to the Chief
                                         Judicial Officer
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                                         OSWER Directive # 9900.0-02
                         August 15, 1985
MEMORANDUM
SUBJECT:  Issuance of Enforcement Considerations for Drafting and
          Reviewing Regulations and Guidelines for Developing New
          or Revised Compliance and Enforcement Strategies

FROM:     Courtney M. Price
          Assistant Administrator for Enforcement and
            Compliance Monitoring

TO:       Assistant Administrators
          Office of General Counsel

     Attached is a guidance package containing: 1) enforcement
considerations for drafting and reviewing regulations; and 2)
guidelines for developing new or revised compliance and
enforcement strategies.

     Staff members from both the compliance program offices and
the Associate Enforcement Counsel offices assisted with
developing the checklist.  My staff interviewed legal and
technical enforcement personnel and incorporated their comments
into the guidance package as well as comments from the review of
draft checklists.

     The guidance should encourage consistent consideration of
minimal enforcement requirements during regulation development.
In addition, the guidance may assist with initial enforcement of
a new or revised regulation by providing minimal considerations
for developing compliance and enforcement strategies appropriate
to the regulations.

     To implement this guidance, I have requested all Associate
Enforcement Counsels to distribute copies of this guidance to all
enforcement attorneys responsible for the enforcement aspects of
regulation development.  I encourage you to distribute copies of
this guidance to your national program managers and Associate
General Counsels and any staff who are responsible for regulation
development.

Attachment
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                                         OSWER Directive # 9900.0-02

            ENFORCEMENT  CONSIDERATIONS FOR DRAFTING AND
        REVIEWING REGULATIONS;  IDENTIFYING THE NEED FOR AND
 DEVELOPING NEW OR REVISED COMPLIANCE AND ENFORCEMENT STRATEGIES
                              PART I
             Enforcement Considerations for Drafting
                     and Reviewing Regulations
PURPOSE
     As part of the  initiative to establish a compliance and
enforcement strategy process, this guidance amplifies the
discussion of the options selection process in the Deputy
Administrator's January 31,  1984, "Criteria and Guidelines for
Review of Agency Actions".

     The guidance is in the  form of a checklist of minimum
considerations for work group members to use during the process
of developing a major or significant rule.  The checklist is a
tool for work groups to use  before and during the options
selection process as the work group develops the regulation.
This guidance does not attempt to list the full range of
rulemaking options.

APPLICABILITY

     Work groups should use  this guidance during the development
of "major rules" and "significant rules" that have enforcement
ramifications as well as any other rule with enforcement
implications.  These classifications of regulations are defined
in the Deputy Administrator's February 21, 1984, "Procedures for
Regulation Development and Review."


        CHECKLIST FOR DEVELOPING ENFORCEABLE REGULATIONS
          AND  REVIEWING REGULATIONS  FOR  ENFORCEABILITY
I.   PREAMBLE

     A.   For the regulation under development, would it be
helpful for the preamble to reference the existence of a
compliance and enforcement strategy?

     B.   If the preamble references the existence of a
compliance and enforcement strategy, does the preamble need to
include an abstract of the strategy?  If the preamble sets forth


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                               -2-       OSWER Directive # 9900.0-02

the strategy in too much detail, EPA may have to use a rulemaking
procedure to modify the strategy.

     C.   If the preamble summarizes policy issues raised during
regulation development, does it give the Agency's rationale for
all major regulatory policy choices when needed to support future
enforcement efforts?

     D.   Does the preamble impose substantive requirements that
should be included in the body of the regulations?

II.  DEFINITIONS

     A.   Are all necessary terms to identify the regulated
community, the regulated activities, or the regulated substances
defined?

     B.   Are exceptions to defined terms included and narrow
enough to avoid having the exceptions swallow the definition?

     C.   Are definitions and exceptions precise enough so that
enforcement personnel can identify instances of noncompliance?

     D.   Once a term has been defined, has the term been used
consistently in the defined form, throughout the text of the
regulation?

III. SCOPE AND APPLICABILITY OF REGULATION

     A.   Is the statutory authority underlying the regulation
clearly articulated?

     B.   Are exemptions to the regulation limited in scope and
specific enough to avoid confusion about the regulated entities
to which they apply?

     C.   If necessary, is the relationship of the regulation to
criminal enforcement in the same program explained?
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                               -3-       OSWER Directive # 9900.0-02

IV.  PERFORMANCE STANDARDS

     A.  Are performance standards or other end-results
quantified or expressed in measurable ways?  Are the
methodologies for measuring performance linked to the basis for
the standard?  If applicable, is the averaging time for
determining compliance clearly stated?

     B.  Are more enforceable standards available; i.e., easier
to measure, less resource intensive, etc.?

     C.  Are exceptions or exemptions clearly described?  Are
these exceptions/exemptions permissible?

V.   MONITORING AND INSPECTION

     A.  What does the regulated community self-monitor, report,
or maintain in records?

     B.  Are the self-monitoring, reporting, or record keeping
requirements related to the statutory compliance requirements and
desired results?  Are EPA/authorized state inspection procedures
related to the compliance requirements and results contemplated
under the statute?  Do the sampling or emission monitoring
procedures provide for adequate chain of custody for evidence of
violations?

     C.  Does the regulation provide procedures for entering a
regulated facility, inspecting documents, and collecting samples
as authorized by statute?

     D.  What test methodologies are available to determine if a
tactility is in compliance?  Are the methodologies clearly
described?  Will standardization and quality assurance support a
credible compliance monitoring program?

     E.  Can EPA/authorized state inspectors readily identify
conduct in violation of a regulation from the language of the
regulation?

     F.  Are the requirements for reports, records, or
inspection/monitoring techniques designed to reduce enforcement
costs and increase the effectiveness of inspections?

VI.  RECORD KEEPING/REPORTING REQUIREMENTS

     A.  What kind of records or reports does the regulated
community maintain on site or submit periodically to an
authorized state or EPA to document compliance or periods of


                     "Retyped From The Original"

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                               -4-       OSWER Directive # 9900.0-02

noncompliance?

     B.  What is the content of required records in terms of
evidentiary use to show compliance or failure to comply?

     C.  Are exceptions to the record keeping requirements
spelled out?

     D.  What kind of records does the regulated community
maintain to document self-monitoring and related activities
required by the regulation?

     E.  If the record keeping/reporting requirement may be the
basis of an enforcement action, will the information maintained
to meet the requirements provide sufficient evidence to document
a violation?  If not, what else is required?

     F.  Are the reporting requirements frequent enough for a
timely response to a violation?  Is the regulated community
required to retain information long enough for enforcement
purposes?

     G.  Are exceptions to the reporting requirements spelled
out?

VII. DEMONSTRATING COMPLIANCE WITH PERFORMANCE STANDARDS

     A.  Does the regulation describe what constitutes
compliance?  Is compliance determined on the basis of field
inspections, desk reviews of regularly submitted reports, or is
the regulation self-enforcing?

     B.  Do the regulations set definite time limits within which
a member of the regulated community must reach compliance?  Do
the time periods have specified beginning and end points?  If
compliance is defined by occurrence of an event, rather than by a
date, is the event discrete enough for an inspector to make a
compliance determination?

     C.  Are the regulations clear about who has the burden of
proving compliance or noncompliance?

     D.  Is the proof of violation clearly described?  Can EPA
carry the burden of proof?  Does the regulation describe the
latitude of an inspector's exercise of professional judgment in
determining whether a facility is in compliance?

     E.  Is the response to a civil violation consistent with
criminal enforcement authority under the statute?  Does the


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                               -5-       OSWER Directive # 9900.0-02

regulation provide for coordination with criminal  enforcement
actions?

     F.  Are specific penalties described  for  each instance of
noncompliance?

     G.  If compliance and enforcement is  delegated to a state,
does the regulation clearly describe the responsibilities of the
delegated state?
                     "Retyped From The Original"

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                               -6-       OSWER Directive # 9900.0-02

                             PART II

     Guidelines  for  Identifying the Need for and Developing
       New or Revised Compliance and Enforcement Strategies
PURPOSE

     This guidance provides a checklist for OECM and Program
Offices to evaluate the need for new or revised compliance and
enforcement strategies, assess the appropriate timing for
completing those strategies, and determine the scope of
strategies that need to be developed.

     Work group members may use this checklist during the options
selection process of regulation development to ensure that new or
revised compliance and enforcement strategies are developed
concurrent with the regulation and that pertinent issues are
considered in developing the regulation.  Because each Agency
program office or enforcement office identified in a compliance
and enforcement strategy has had a representative on the work
group developing the regulation, a new or revised strategy should
include a discussion of which office is responsible for each part
of the strategy.

     This guidance amplifies the May 1984, "Strategy Framework
for EPA Compliance Program" and October 1984 memorandum from the
Deputy Administrator on the Strategic planning process for
compliance and enforcement within EPA.

APPLICABILITY

     This guidance is limited to developing new or revised
compliance and enforcement strategies for:

     1.   New program initiatives within the Agency;

     2.   New statutory responsibilities delegated to the Agency;

     3.   Revisions to existing regulations that a program office
          determines will have a significant effect on an ongoing
          program; and

     4.   Programs with existing strategies that are not
          producing adequate environmental results.

     A compliance and enforcement strategy or revisions in
selected components of an existing strategy would not be


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                               -7-       OSWER Directive # 9900.0-02

necessary for every revision of an existing regulatory program.
For example, a compliance and enforcement strategy would not be
needed for each new or revised effluent guideline.


      CHECKLIST FOR IDENTIFYING THE NEED FOR AND DEVELOPING
      A  NEW OR REVISED COMPLIANCE AND  ENFORCEMENT STRATEGY

I.    Assessing the Need for New or Revised Strategies;

      A.   Does the new regulation significantly change any of the
          components of existing compliance and enforcement
          strategies?  Does the new regulation require a
          clarification of any of the elements of the existing
          compliance and enforcement strategy?

      B.   Will the new regulation cause a readjustment in program
          goals and priorities to achieve the environmental
          benefits of the program?

      C.   Is the regulated community covered by the new
          regulations sufficiently different from the existing
          regulated community that a new strategy is needed to
          identify the specific sources that are required to come
          into compliance and to maintain data on the compliance
          status of those sources?

      D.   Is the regulated community or the nature of the
          requirements sufficiently different from the existing
          program to require a new or revised strategy for
          promoting compliance within the regulated community
          through effective communication of the new
          requirements?  Is special technical assistance/guidance
          required to assist facilities that wish to come into
          compliance?

      E.   Is the existing strategy producing adequate
          environmental improvement as measured by reduced levels
          of pollution, reduced threats to public health, or
          improved environmental quality?

      F.   What methodologies has the program chosen to monitor
          compliance?

          1.   Will these require a new or amended strategy for
               implementation?

          2.   Are there new requirements for self-monitoring,
               reporting and record keeping?


                     "Retyped From The Original"

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                         -8-       OSWER Directive # 9900.0-02

    3.   Will inspectors need new or different training to
         assess compliance under the new regulations?

    4.   Will the program need to develop a new or revised
         compliance assurance program for assessing
         performance data on compliance?

    5.   Is the program office clear about what type of
         inspections it expects and whether the existing
         levels and types of commitments for inspections in
         the existing strategy will include or accommodate
         the new requirements?

G.  Will the new regulations require a different
    enforcement response than that specified in the
    existing compliance and enforcement strategy?

    1.   Are there new statutory authorities or Agency
         policies that are sufficiently different to
         require an amendment to the current compliance and
         enforcement strategy?

    2.   Has the program anticipated the need for a
         concerted compliance and enforcement initiative
         timed with the effective date of the regulation to
         establish the credibility and integrity of the new
         requirement?

    3.   Is the role of the criminal enforcement office
         clear?

H.  Has the program office considered coordination between
    state and federal compliance and enforcement
    activities?  Will the states be prepared to pick up
    responsibility for this program?  Is the program
    adequately funded and is its priority identified for
    purposes of grant negotiations?

I.  Do the agency management and evaluation systems have
    adequate statistics to assess whether compliance is
    being achieved with the new requirements?  Do
    inspection targets, definitions of significant
    noncompliance, and other agency tracking systems need
    revision?
               "Retyped From The Original"

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                               -9-       OSWER Directive #  9900.0-02

II.  Assessing the Timing and Resources Requirements of any
     Needed Compliance and Enforcement Strategy

     Timing of any new or revised compliance and enforcement
strategy may be critical for implementing the regulation.  The
questions below are formulated to help a work group assess
whether all or parts of the strategies need to be developed
concurrently with a regulation or shortly thereafter to develop a
schedule for completing the compliance and enforcement strategy.


A.   Has the program office considered the implementation and
     resource requirements of the compliance monitoring
     strategies to assess whether the regulation will support the
     compliance and enforcement strategy?   Considerations should
     include:

          1.   Ease of determining compliance;

          2.   Need for any special training for EPA or State
               personnel;

          3.   Availability of instrumentation for monitoring or
               performance;

          4.   Availability of extramural contract funds or
               equipment for on-site monitoring or test sampling
               during inspections; and

          5.   Cost and time required for analyzing samples.

      B.  When does the regulated community need to know what it
          is required to do?  Based on the potential for
          confusion and the timing of the requirements/ when
          would a communications strategy be available for
          implementation?  Must a communications strategy and
          technical assistance be available when the regulation
          is issued?

      C.  What specific implementation steps for the compliance
          and enforcement strategy need to be taken at the time
          the regulation is promulgated?

          1.   Should the strategy include a number of
               inspections EPA or authorized states need to
               perform within a certain time frame after the
               effective date of the regulation?
                     "Retyped From The Original"

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                     -10-      OSWER Directive # 9900.0-02

2.   Should the strategy target initial  enforcement
     actions to make maximum use of available resources
     and to establish the program?

3.   Are there resource constraints that need to be
     addressed through the next budget cycle?
           "Retyped From The Original"

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                                        OSWER Directive # 9938.0


                         April 25,  1986


MEMORANDUM

SUBJECT:  RCRA Section 3007 Inspection Authority

FROM:     Lloyd S. Guerci

TO:       RCRA Enforcement Division Staff

     Attached is an opinion of the General Counsel on EPA's

inspection authority under RCRA section 3007.  This has been sent

to the Regions.

cc: Gene Lucero
    Peter Cook
    Jack Stanton
    Frank Biros
    John Cross
    Mike Kilpatrick
                   "Retyped From the Original"

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. 20460
                                                         of nee or
                                                       &CNCMAL COUNSCU
                            APR 11  1986.


 MEMORANDUM

 SUBJECT:   Inspection  Authority Under  Section  3007  of  RCRA
 FROM:      Francis  S.
           General  Counsel

 TO:        J.  Winston  Porter
           Assistant Administrator  for  Solid Waste  and
            Emergency Response


     A  number of questions have arisen concerning  the scope
 of the  Agency's  inspection authority under Section 3007  of
 RCRA.   As  discussed below in more  detail, I believe  that our
 inspection authority  (including the authority  to sample)
 extends to any establishment, place, or facility that either
 presently  or  in the past has handled solid wastes  that EPA
 reasonably believes may meet the statutory definition of a
 hazardous  waste.   This authority is limited by the fact  that
 it must be used to gather information  concerning hazardous
 wastes and must be exercised for the purposes  of RCRA rule-
making or  enforcement.  Within these limits, section 3007
 authorizes  inspections in connection with a number of RCRA
provisions  including  the Agency's  section 7003 imminent
 hazard authority,  its present Subtitle C regulations, its
 corrective action  authority under  sections 3004(u) and 3008(h),
 and its Subtitle D authority under sections 4005 and 4010.

     Section  3007 (a) provides that "If lor purposes of developing
or assisting  in the development of any regulation  or enforcing
the provisions of  this title," EPA is  authorized

     (1) to enter  at reasonable times  any establishment
         or other  place where hazardous wastes are or
         have been generated, stored,  treated,  disposed
         of or transported from;

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                            - 2 -


       (2)  to  inspect and obtain samples  from any person of
           any such wastes and samples of any containers or
           labeling for such wastes.

      A plain  reading of this language unambiguously suggests
 a  broad grant of  inspection authority.  As noted above, the
 exercise of this  authority is expressly limited by only two
 conditions.   First, the specific information gathered must
 relate to  hazardous wastes.  Second, it must be used for the
 purposes of RCRA  rulemaking or enforcement.  Each of these
 conditions, while providing clear limits on the use of the
 Agency's inspection authority, is nonetheless stated in
 expansive  terms.  I/

      a.  Hazardous Wastes

      The first condition is stated in general unrestrictive
 language.  By providing authority to enter "any establishment
 or other place where hazardous wastes are or have been gener-
 ated, stored, treated, disposed of or transported from"
 (emphasis  added), Congress unequivocally provided for a broad
 application of the Agency's inspection authority.  There is
 no limiting reference in this language to Subtitle C facilities
 or units.  Nor is there any requirement that the hazardous
 waste management activity be currently ongoing or even that
 the site of the activity be a disposal area.  For example,
 under the  language noted above, EPA's inspection authority
 extends to generator sites, storage areas, treatment opera-
 tions and  transfer points.  Thus, the emphasis is on any
 geographical  location where hazardous wastes presently may be
 or in the  past have been handled - whether or not in compliance
 with  Subtitle C.  Quite clearly, this may include solid waste
 management units otherwise subject to Subtitle D.

      Use of the phrase "hazardous wastes" is itself a further
 indication that the scope of section 3007(a) is not limited
 to Subtitle C facilities and units.  Unlike sections 3002
 through 3004  and section 3010, Congress did not confine the
 operation of  3007(a)  to "hazardous wastes identified or listed
 under this subtitle"  (emphasis added).  As explained in the
 preamble of the Nay 19, 1980 hazardous waste identification
I/   The inspection provisions of section 3007(a) are similar
     to those under section 104(e) of CERCLA.  Although not
addressed in this discussion, it is important to note that
section 104(e) as well as other provisions of CERCLA may
provide additional and independent grounds for entry and
inspections at solid waste facilities.

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                            - 3 -
and listing rules 2/ and more recently articulated in the
Agency's amendments to the definition of solid waste J3/,  EPA
believes Congress' unrestricted use of this phrase confirms
that the scope of section 3007(a) extends to any solid waste
that the Agency reasonably believes may meet the statutory
definition of a hazardous waste under section 1004(5). 4/

     As defined by Congress, the term hazardous waste means
any solid waste that EPA reasonably believes

        because of its quantity, concentration, or
        physical, chemical, or infectious charac-
        teristics may

        (A) cause or significantly contribute to an
            increase in mortality or any increase in
            serious irreversible, or incapacitating
            reversible, illness; or

        (B) pose a substantial present or potential
            hazard to human health or the environ-
            ment when improperly treated, stored,
            transported, or disposed of, or otherwise
            managed,  (emphasis added)  •

Clearly a waste which is "classified" as hazardous pursuant
to regulations under section 3001 (i.e., is listed or meets
one of the characteristics) would automatically fall within
the scope of the section 1004(5) definition.  But just as
clearly, any other solid waste that "may pose a...hazard...
when improperly...managed"  (emphasis added) also meets the
statutory definition even though no formal action identifying
it as a hazardous waste has been taken.  This second group
includes, for example, solid wastes containing any of the
hazardous constituents listed in Appendix VIII to Part 261
2/   45 Fed. Reg. 33084, 33090 (May 19, 1980).

3/   50 Fed. Reg. 614, 627  (January 4,  1985); 40 CFR S
4/   This view was expressly affirmed by Congress  in  its
     consideration of the 1984 Hazardous and Solid Waste
Amendments: "EPA's authority under these provisions  [sections
3007 and 7003] is not limited to wastes that are  'identified
or listed* as hazardous, but rather  includes all wastes that
meet the statutory definition of hazardous waste." H.R. Rep.
No. 198, 98th Cong., 1st Sess. 47  (1983).

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                             - 4 -
 which may form the  basis for listing actions under 40 CFR
 S 261.11.  As explained at length in the Agency's May 19,
 1980 rule, "the presence of any of these constituents in the
 waste is presumed to be sufficient to list the waste unless
 after consideration of  the designated multiple factors
 [specified at 40 CFR S  261.11]  EPA concludes the waste is not
 hazardous." S/

      There is little question that materials meeting the
 definition of hazardous waste may be improperly disposed of
 at Subtitle D solid waste management sites.   We,therefore,
 believe  the scope of section 3007(a) may extend to such
 locations.  As Congress recognized in enacting amendments to
 Subtitle D as part  of the 1984 Hazardous and Solid Waste
 Amendments,

         Subtitle D  facilities are the recipients of
         unknown quantities of hazardous  waste and other
         dangerous materials resulting from the disposal
         of household waste, small quantity generator
         wastes and  illegal dumping.  6/ (emphasis added)

      To  interpret EPA's inspection authority as applying only
 to wastes managed at Subtitle C facilities or units leads to
 the incongruous result  of EPA's inspecting a self-defined
 class of facilities  that  have already acknowledged their
 hazardous waste management responsibilities.   This narrow
 interpretation essentially precludes the Agency from identi-
 fying other situations  where the  improper and unacknowledged
 storage  or disposal  of  hazardous  wastes  may  pose a threat to
 the environment.  We do not believe  that this is either what
 Congress intended or what the plain  language of section
 3007(a)  suggests.

      b.   Rulemaking  and Enforcement

      The second condition of section 3007(a)  explicitly provides
 hazardous waste inspection authority "Iflor  the purposes of
 developing or assisting in the  development of any regulation or
 enforcing the provisions  of this  title*  (emphasis added).  In
 passing  the 1980 amendments to  the Solid Waste Disposal Act,
 Congress substituted the  term "title"  in place of "subtitle"
 specifically  to extend  the scope  of  section  3007(a)  beyond
 Subtitle  C.   As  explained in the  accompanying Senate report,
 this  change
j>/   45 Fed. Reg. 33084, 33107.

6/   H.R. Rep. No. 1133, 98th Cong., 2d Sess. 117  (1984).

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                             - 5 -
         . . . expands the Administrator's authority
         to request information or examine the records
         of a person handling solid waste.  At present,
         this authority applies only to actions under
         Subtitle C dealing with hazardous wastes.
         The amendments would allow such access for
         purposes of the entire Act. T/

      Thus it is clear that the Agency's inspection authority
 extends not only simply to Subtitle C actions but also to
 activities under other RCRA Subtitles, as well.  Within the
 general constraint that it be related to hazardous waste, the
 scope of section 3007(a)  authority is determined primarily by
 the specific rulemaking or enforcement purposes for which it
 is used.  In this context, we believe there are a number of
 legal bases under which the authority to enter and inspect is
 broadly available to the  Agency.

      1.  Rulemaking

      With regard to rulemaking, section 3007(a) by its terms
 is available to assist "in the development of any regulation"
 under RCRA.   Under this provision, we believe that the Agency
 has the authority to gather preliminary data both to determine
 the need for regulation and, where the need is established,
 to develop an appropriate regulatory strategy adequate to
 carry out the requirements of RCRA.  Depending on the criteria
 and relevant requirements of the  provisions or section under
 which a particular rulemaking is  developed, this may include
 detailed scientific,  technical, or financial questionnaires
 and surveys,  as well  as on-site inspections and sampling.

      This  authority extends not only to rulemakings under
 Subtitle C but,  as noted  above, to rulemakings under other
 provisions of  RCRA.   With respect to Subtitle C, this authority
 would extend,  for example, to gathering information to assist
 in developing  corrective  action standards under section
 3004(u).   Because the provisions  of section 3004(u) apply to
 both  solid waste and  hazardous waste units at any facility
 seeking  a  section 3005(c)  permit, the inspection and sampling
 authority  of  section  3007 would also extend to such units to
 assist  in  gathering data  relevant to the rulemaking process.

      With  respect to  non  Subtitle C provisions, section 4010
 provides an example of  section 3007's applicability under
 Subtitle D.   Enacted  as part of the 1984 HSWA amendments,
 section  4010  requires the Administrator to conduct a study on
2/   S. Rep. No. 172,  96th Cong.,  2d  Sess.  3  (1979);  see  also
     H.R. Rep. No. 1444, 96th Cong.,  2d  Sess.  35  (1980).

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                            - 6 -
the adequacy of existing Subtitle D guidelines and criteria
and to promulgate revised criteria for Subtitle D facilities
that "may receive hazardous household wastes or hazardous
wastes from small quantity generators under section 3001(d)".
Because one of the purposes of the study and the central
purpose of the revisions is to address hazardous wastes at
Subtitle D facilities, we believe the Agency's entry and
inspection authority under section 3007(a) extends to gather-
ing information at Subtitle D facilities both for the purpose
of conducting the study as it relates to hazardous wastes and
to assist in developing revisions to existing Subtitle D
criteria.

     2.  Enforcement

     With regard to enforcement, the scope of section 3007(a)
is equally broad and, again, extends not simply to Subtitle C
actions but also, for example, to enforcing the broad imminent
hazard provisions of section 7003(a).  By its terms, this
section applies to any situation under RCRA (whether or not
it is regulated under Subtitle C) in which "the past or pre-
sent handling, storage, treatment, transportation or disposal
of any solid waste or hazardous waste may present an imminent
and substantial endangerment to health or the environment".

     In addition to enforcing section 7003, the Agency's
inspection authority is available to gather information in
support of actions under the general Subtitle C enforcement
authority of section 3008, as well as under the Subtitle D
enforcement authority of section 4005(c).  With respect to
both sections, EPA interprets its "enforcement" inspection
authority to extend not only to information gathering in
connection with a particular judicial or administrative
proceeding but also to assist in the preliminary day-to-day
information gathering and data analysis associated with
permitting and compliance assessments that ultimately may
lead to specific enforcement actions.  Section 3008 applies to
a "violation of any requirement" of Subtitle C and thus, for
purposes of enforcement, the inspection and sampling authority
of section 3007 is available for determining and assuring
compliance with any Subtitle C requirement.  Under section
4005(c), EPA's inspection authority is also available but in
a somewhat more limited context for purposes of enforcing
Subtitle D open dumping criteria that have been revised under
section 4010.  This open dumping enforcement authority and,
by extension, EPA's inspection authority  is available only  in
those circumstances where a state has failed to adopt an
adequate program assuring compliance with the revised criteria.

     In the case of inspections at a Subtitle C facility to
determine compliance with applicable hazardous waste regulations
the scope of section 3007(a) authority is determined, again,

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                            - 7 -
by the two constraints that the information gathered relate
to hazardous wastes and be used to enforce a RCRA provision.
The clearest example of an authorized inspection at such a
facility under section 3007(a) is, of course, sampling at
solid waste units that are expressly managed as Subtitle C
hazardous waste units.  The information obtained unquestion-
ably will relate to hazardous wastes and can be used to
enforce applicable regulatory requirements.  However, it
should be emphasized, as noted above, that section 3007(a)
inspection authority just as clearly extends to other non-
Subtitle C units at a Subtitle C facility where there is some
basis for concluding that they may also provide information
relating to hazardous wastes.  Samples from the non-Subtitle
C unit may provide information concerning hazardous wastes
that have been disposed of in the unit itself, and, in certain
circumstances, the samples may provide information regarding
the management of hazardous wastes that have been placed in
nearby Subtitle C units.  An example of the second case would
be a situation in which both the solid waste and hazardous
waste units were located near one another over the same
aquifer.  Depending on the hydrogeology at the site and the
placement of wells at each unit, samples from the solid waste
unit may well provide information regarding leachate from the
hazardous waste unit.

     The corrective action requirements in sections 3004(u)
and 3008(h) provide additional grounds for the broad applica-
tion of section 3007's enforcement inspection authority.
Section 3004(u) requires corrective action "for all releases
of hazardous waste or constituents from any solid waste
management unit at a...facility seeking a permit under this
Subtitle[C]n (emphasis added). 8/  Congress made clear that
the phrase "solid waste management unit" was specifically
8/   Congress specifically provided that the corrective action
     requirement is to be implemented through standards promul-
gated under section 3004 and permits issued after November  8,
1984.  EPA's inspection authority for rulemaking purposes is
discussed above.  The Agency has incorporated the general
requirement for corrective action in its regulations at 40
CFR S 264.101.  See 50 Fed. Reg. 28747  (1985).  Thus,  the
requirement is presently in effect and  applies to any  "facility
seeking a permit for the treatment, storage or disposal of
hazardous waste...".  40 CFR $ 264.101(a).  EPA intends to
issue more detailed national standards  addressing appropriate
corrective action for releases of hazardous waste or consti-
tuents from solid waste management units at such facilities,
but until such standards are established the Agency will
implement the corrective action requirement of section 3004(u)
on a case-by-case basis.  See 50 Fed. Reg. 28713  (1985).

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                             - 8  -
 added to the language  of  section 3004(u)  "to reaffirm the
 Administrator's responsibility to examine all units  at the
 facility from which hazardous  constituents might  migrate,
 irrespective of whether the  units were  intended for  the
 management of solid or hazardous wastes." 9/

      By explicitly requiring that the provisions  of  section
 3004(u) apply to any solid waste manage'ment unit  at  a hazardous
 waste facility, Congress  has made the cleanup of  such units
 an  element of hazardous waste  management  under section 3004.
 Congress1  specific reference to releases  of hazardous consti-
 tuents  from solid waste management units  confirms the broad
 scope of section 3004(u)  and is consistent with the  Agency's
 interpretation of hazardous  waste discussed above, which
 includes not only "identified"  hazardous  wastes but  also
 those wastes that may  contain  hazardous constituents listed
 in  Appendix VIII of 40 CFR Part 261.  These factors  when
 considered in conjunction with the explicit legislative
 history noted above reaffirming "the Administrator's respon-
 sibility to examine all units"  at a Subtitle C facility
 confirm that Congress  considered the regulation of these
 units to be an integral part of the hazardous waste  program
 under Subtitle C and thus clearly within  the scope of section
 3007(a)  inspection authority.

      With  respect co interim status corrective action authority,
 section 3008(h)  provides  that  "whenever on the basis of any
 information the Administrator  determines  there is or has  been
 a release  of  hazardous waste into the environment from a  facil-
 ity authorized to operate under section 3005(e) of this
 subtitle,  the  Administrator  may issue an  order requiring
 corrective  action."  Congress  viewed this  provision  as  "a
 supplement  to  EPA's  power to impose corrective action through
 permits"  10/,  that  EPA would use  "to achieve the environmental
 standards promulgated  under  section 3004."  11/ Because section
 3004  has been  amended  to  extend corrective  action requirements
 to all  solid waste management units at facilities seeking a
 RCRA  permit,  the  Agency has  interpreted this mandate to
 authorize the  issuance of corrective action  orders to any
 interim  status  facility containing  solid  waste management
units (regardless  of whether they are Subtitle C or  Subtitle
 D units) from  which  there has been  a release of hazardous
waste to the environment. 12/
9/   H.R. Rep. No. 198, 98th Cong., 1st Sess. 60 (1983).

10/  H.R. Rep. No. 1133, 98th Cong., 2d Sess. Ill (1984).

ny  id_.

12/  See 50 Fed. Reg. 28716 (1985).

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     Because section 3008(h) extends corrective action
authority to releases from any solid waste management unit at
an interim status facility* we believe that section 3007(a)
inspection authority also extends to such units for the
purpose of determining whether there has been a hazardous
constituent release and what corrective action would be
appropriate.

cc:  Richard H. Mays (LE-133)
     Regional Counsels

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                                                 05WER 39*5.1
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON, D.C. 20460
                                  (986
MEMORANDUM

SUBJECT:  Guidance Concerning EPA Involvement in RCRA Section
          7002 Citizen Suits
FROM:
TO:
                                            Waste
Thomas L. Adams, Jr.
Assistant Administrator
  for Enforcement aVid -Com

J. Winston Porter /^W(l\
Assistant Admini stir/a tor for
  and Emergency Rejsponse

Regional Counsel, Regions I-X
Director, Waste Management Division,
  Regions I and IV-VIII
Director, Air and Waste Management Division,
  Region II
Director, Hazardous Waste Management Division,
  Region III and X
Director, Toxics and Waste Management Division,
  Region IX
INTRODUCTION

     This guidance is written to establish a systematic review
of RCRA citizen suit notices and to provide guidance for EPA
enforcement staff to use in deciding what involvement,  if any,
by EPA is appropriate when a notice of intent to file suit  is
received or when an action is filed under RCRA §7002.   This
guidance supplements and is not in lieu of other guidance
concerning procedures for filing judicial enforcement actions
under RCRA.

STATUTORY AUTHORITY

     The Hazardous and Solid Waste Amendments of 1984 (HSWA)
substantially expanded Section 7002 of the Resource Conservation
and Recovery Act (RCRA), the citizen suit provision.  Prior  to
the enactment of HSWA, the only actions allowed under Section
7002 were suits brought by any person on his own behalf

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                                                OSWER  9945.1
                             - 2 -
      against any person (including (a) the United
      States, and (b) any other governmental instru-
      mentality or agency, to the extent permitted by
      the eleventh amendment to the Constitution) who
      is alleged to be in violation of any permit,
      standard, regulation, condition, requirement,
      prohibition, or order which has become effective
      pursuant to this Act; [Section 7002(a)(1)(A)]
or
      against the Administrator where there is alleged
      a failure of the Administrator to perform any act
      or duty under this Act which is not discretionary
      with the Administrator.  [Section 7002(a)(2)].

     Since the enactment of HSWA, any person also may file suit
on his own behalf

      against any person, including the United States
      and any other governmental instrumentality or
      agency, to the extent permitted by the
      eleventh amendment to the Constitution,  and
      including any past or present generator, past
      or present transporter, or past or present owner
      or operator of a treatment, storage, or  disposal
      facility, who has contributed or who is  con-
      tributing to the past or present handling,
      storage, treatment, transportation, or disposal
      of any solid or hazardous waste which may
      present an imminent and substantial
      endangerment to health or the environment....
      [Section 7002(a)(1)(B)].

     Subsection (g),  added by HSWA, provides a narrow exemption
from liability for transporters which provides that

      A transporter shall not be deemed to have
      contributed or to be contributing to the
      handling, storage,  treatment, or disposal,
      referred to in subsection (a)(l)(B) taking place
      after such solid waste or hazardous waste has
      left the possession or control of such
      transporter, if the transportation of such waste
      was  under a sole contractual arrangement arising
      from a published tariff and acceptance for
      carriage by common  carrier by rail and such
      transporter has exercised due care in the past
      or present handling,  storage, treatment,
      transportation  and  disposal of such waste.

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                                                OSWER  9945.1
     HSWA  also provides  that  in actions brought pursuant to
 Section  7002(a)(1)(A)  (for  "violation of any permit, standard,
 regulation, condition, requirement, prohibition, or order"),
 the court  shall  have  jurisdiction  "to apply any appropriate
 civil penalties  under  Section  3008(a) and  (g)."  (Section
 7002(a)(2)).  Thus, in citizen suits which allege violations
 of RCRA  Subtitle C, plaintiffs may ask the court to assess
 penalties  for such violations.

 RESTRICTIONS

 1.)  Violation of any  Permit, Standard, etc.

     Actions under Section  7002(a)(1)(A) (violation of any per-
 mit, standard, regulation,  etc.) are barred when either
 the State  or EPA

      has  commenced and  is  diligently prosecuting a
      civil or criminal  action in a court of the United
      States or  a State  to  require compliance with such
      permit, standard,  regulation, condition, requirement,
      prohibition, or  order.   [Section 7002(b)(1)(B)].

 Note that  the section  does  not appear to bar such actions if an
 administrative order  (AO) has been issued.   Almost identical
 provisions in the Clean  Air Act and Clean Water Act have been
 interpreted by two Federal  courts of appeals.  The Second
 Circuit  found that enforcement actions brought by a
 State agency which culminated in consent orders did not bar
 subsequent citizen suits brought under the Clean Water Act.
 Friends of the Earth v.  Consolidated Rail Corporation, 768
 F.2d 57  (2d Cir.  1985).  The Third Circuit has suggested that
 State administrative proceedings which are "substantially
 equivalent" to a Federal court proceeding might bar filing of
 a citizen suit under Section 304 of the Clean Air Act.  Baughman
v. Bradford Coal Co.,   592 F.2d 215 (3rd Cir. 1979), cert.
den.,  441 U.S.  961 (1979).   A more recent district court
opinion in the Third Circuit, however,  held that only a State
or EPA judicial proceeding  to enforce the same emission limita-
tions precludes citizen  action under Section 304 of the Clean
Air Act.   Maryland Waste Coalition v.  SCM Corp., 23 Env't
Rep.  Cases 1256  (D. Md.  1985) (order granting in part and
denying in part a motion to dismiss the complaint).

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                                                OSWER   9945.1
                             - 4 -
2.)  Imminent Hazard Actions

     Imminent hazard actions pursuant to Section 7002(a)(1) ( B)
are barred if EPA

      in order to restrain or abate acts or
      conditions which may have contributed or
      are contributing to the activities which
      may present the alleged endangerment-

               (i) has commenced and is diligently
          prosecuting an action under section 7003
          of [RCRA]  or under section 106 of [CERCLA];

               (ii)  is actually engaging in a
          removal action under section 104 of [CERCLA];

               (iii) has incurred costs to initiate a
          Remedial Investigation and Feasibility Study
          [RI/FS] under section 104 of [CERCLA]  and is
          diligently proceeding with a remedial action
          under that Act; or

               (iv)  has obtained a court order
          (including a consent decree) or issued an
          administrative order under section 106 of
          [CERCLA] or section 7003 of [RCRA]  pursuant
          to which a responsible party is diligently
          conducting a removal'action, [RI/FS],  or
          proceeding with a remedial action.

      In the case of an administrative order referred to
      in clause (iv),  actions under subsection (a)(l)(B)
      are prohibited only as to the scope and duration of
      the administrative order referred to in clause  (iv).
      [Section 7002(b)(2)(B)].

Note that imminent hazard actions brought under Section
7002(a)(1)(B) are not barred if EPA is prosecuting an action
or has issued an administrative order under RCRA Sections 3008
or 3013.

     Imminent hazard actions brought pursuant to Section 7002
(a)(l)(B) are also barred if the State

       in order to restrain or abate acts or conditions
       which may have contributed or are contributing to
       the  activities which may present the alleged
       endangerment-

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                                                OSWER 9945.1
                             - 5 -
              (i) has commenced and is diligently
          prosecuting an action under subsection (a)(l)(B);

              (ii) is actually engaging in a removal
          action under section 104 of [CERCLA];  or

              (iii) has incurred costs to initiate a
          [RI/FS] under section 104 of (CERCLA]  and is
          diligently proceeding with a remedial action
          under that Act.  [Section 7002 (b)(2)(C)l.

Citizen suits brought under Section 7002(a)(1)(B) are not
barred if the State has issued an administrative order or has
brought an enforcement action under authority other than Sec-
tion 7002(a)(1)(B), such as a State RCRA statute.

3.)  "Diligently Proceeding" and "Diligently Prosecuting" Defined

     The phrases "diligently proceeding" and "diligently prose-
cuting" are discussed in some detail in the legislative history
to HSWA.  The legislative history notes that, in general, the
phrases must be applied on a case by case basis.  The Conference
Report states that "diligently proceeding" with a removal action
applies only "while removal activities are in progress."^/  A
citizen action alleging that an imminent hazard existed after a
removal action had been completed would not be barred, if no
remedial action was planned for the site.  "Diligently proceed-
ing" with a remedial action is intended to apply only to situa-
tions where "the RIFS, design,' and construction activities a-t a
site occur in a continuous, uninterrupted sequence."£/  The term
"has commenced and is diligently prosecuting an action", as it
is used in subsection (b)(2)(B)(i), means that a judicial case
has been filed or an administrative order under CERCLA §106 or
RCRA §7003 has been issued.£/

4.)  Miscellaneous (Notice, Service, etc.)

     Only a State or local government may commence an imminent
hazard action under Section 7002(a)(1)(B) concerning the siting
of a hazardous waste treatment, storage, or disposal facility
(TSDF) or to enjoin the issuance of a permit for a TSDF.   (Sec-
tion 7002(b)(2)(D)).
£/   H.R. 2867, Conf. Rep., 98th Cong., 1st Sess. 118  (1984).

2/   ibid.

V   Rep.98-284, 98th Cong., 1st Sess. 55 (1983).

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                                                OSWER  9945.1
                             - 6 -
     Sixty  (60) days notice must be given  to the Administrator,
 the State in which the alleged violation occurs, and to any
 potential defendant before an action may be brought under
 Section 7002(a)(1)(A)(violation of any permit, standard, etc.),
 except that such  an action may be brought  immediately after
 notification in cases concerning a violation of Subtitle C.
 (Section 7002(b)(1)(A)).  Only violations  of other subtitles
 (Subtitle D or I, for example) trigger the 60 days notice
 requirement.

     Ninety  (90)  days notice must be given to the Administrator,
 the State in which the alleged violation occurs, and to any
 potential defendant before an action may be brought under
 Section 7002(a)(1)(B)(imminent hazard), except that such an
 action may be brought immediately after notification in actions
 concerning violations of Subtitle C.  (Section 7002(b)(2)(A)).

     Section 7002(b)(2)(F) requires that a copy of the
 complaint in any  imminent hazard action filed pursuant to
 Section 7002(a)(1)(B) be served on the Attorney General of
 the United States and on the Administrator.  There is no
 corresponding requirement for service of complaints in actions
 brought pursuant  to Section 7002(a)(1)(A).

 INTERVENTION AND COSTS

     In citizen suits filed under Section  7002(a)(1)(A) any
 person may intervene as a matter of right.   (Section 7002(b)(l))
 in citizen'suits filed under Section 7002(a)(1)(B)

        any person may intervene as a matter of right.
        when the applicant claims an interest relating
        to the subject of the action and he is so
        situated that the disposition of the action
        may, as a practical matter, impair or impede
        his ability to protect that interest,  unless
        the Administrator or the State shows that the
        applicant's interest is adequately represented
        by existing parties.  [Section 7002(b)(2)(E)].

Although this is similar to Federal Rule of Civil Procedure 24
 (Intervention As Of Right), a critical modification has been
made by the amendment in shifting the burden from the applicant
 for intervention to the Government, requiring  the Government  to
show that the applicant's interest is adequately represented  by
the Government.  This change only encompasses  private interven-
tion into Section 70-02(a) (1) (B) ( imminent hazard)  actions; it
does not apply to private intervention into any EPA enforcement
actions,  although legislative history indicates that the change

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                                                OSWER  9945.1
                              -  7  -


 was  intended  to  apply  to  private  intervention  in  enforcement
 actions  as  well.   As discussed  in the  following section,  Section
 7002  is  silent with respect  to  intervention  in EPA  enforcement
 actions.

      The  court is  empowered  to  award the  costs of litigation,
 including reasonable attorney and expert  witness  fees  to  the
 prevailing  or substantially  prevailing party, whenever the
 court determines such  an  award  to be appropriate.   (Section
 7002(e)).

 PARTICIPATION BY EPA

      EPA  may  intervene as a  matter of  right  in any  citizen suit
 brought  under Section  7002.   (Section  7002(d)).V   EPA and the
 Department  of Justice  may also  choose  to  file a separate  suit and
 then  move to  consolidate  the actions.  Language in  Section 7002
 which previously allowed  any person to intervene  as a  matter of
 right in  any  EPA enforcement action brought  to require compliance
 with  a permit, standard,  regulation, condition, requirement, or
 order issued  under RCRA was  deleted in HSWA.  Intervention in
 such  enforcement actions  is  no  longer  expressly permitted by
 statute,  although  permissive intervention remains available
 under the Federal  Rules.

      When a notice or  a complaint in a RCRA  §7002 action  is
 served on the Administrator, copies are sent to the Office of
 General Counsel, the Office of-  Enforcement and Compliance
 Monitoring -  Waste, the Office  of Waste Programs  Enforcement,
 the appropriate Regional Administrator, and  the Department of
 Justice.  A Headquarters enforcement attorney and a Regional
 attorney are  assigned  to  track  the development of each case.
 Except for cases in which EPA is  named a party, the initial
 decision concerning the extent  of EPA's involvement, if any,
 is to  be made by the Waste Management Division Director,  in
 consultation with  the Regional  Counsel's office.

     Th« filing of an action by the United States or initiation
 of a  response action when a citizen suit notice has been re-
 ceived generally will be considered only where an enforcement
 or response action is already planned and is ready  to  be com-
 menced.  Likewise, in cases in  which a complaint  is filed
 under Section 7002 and EPA is not a party, intervention generally
 will be considered in cases concerning sites subject to ongoing
 enforcement 'actions (where the  Agency asserts that  the ongoing
enforcement action bars the citizen suit) and sites listed on
V   As with other civil actions, EPA refers recommendations
     to intervene or to file amicus briefs to the Department of
Justice for action.

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                                                OSWER  9945.1
                             - 8 -


the National Priorities List (NPL).V  Filing an amicus curiae
brief may be considered in such cases if a decision is made
not to intervene.  Filing an amicus brief also will be conside:
if the case involves an important enforcement or programmatic
issue, such as interpretation of what EPA's regulations may
require in a particular instance.

     Before making the initial decision of what, if any, in-
volvement EPA should have in a particular citizen suit, the
Regional attorney assigned to track the notice or complaint
should evaluate the following factors in consultation with the
designated Headquarters enforcement attorney:

     1)  Is EPA named as a defendant?

     If the Agency is named as a defendant, the Office of
General Counsel and the Office of Regional Counsel, along
with the Department of Justice, will represent the Agency
in defending the suit.  If the suit concerns a site which
is the subject of a planned or ongoing enforcement action
or CERCLA cleanup action, the enforcement staff should
remain actively involved in the handling of the suit.


     2)  Is an EPA enforcement or response action planned?

     In cases where the 60 or 90 day notice of intent to file
suit under Section 7002 is properly given, the Regional attor-
ney assigned to track the notice should determine if an enforce
ment action or CERCLA Section 104 response action concerning
the site is planned or is appropriate.  If such action is con-
templated, the Regional Waste Management Division Director, in
consultation with the Regional Counsel, OECM-W and OWPE, shoulc
determine if steps should be taken to preempt the filing of
the citizen suit by commencing an enforcement or response
5/   Not all §7002 suits are barred by ongoing EPA or State
    enforcement actions.  See S7002(b)(1)(B), (b)(2)(B),(C),
(D) and (C).  In general, only those actions which attempt to
duplicate ongoing enforcement actions are barred.  For example,
a suit by a transporter -filed pursuant to Section 7002 for
reimbursement by a generator for expenses incurred by the
transporter in paying for fines and removal activities in
connection with drums found to be leaking while in transit
would not be barred because of any ongoing enforcement action
against either the transporter or generator.

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                                                OSWER  9945.1
                             - 9 -
action within the applicable 60 or 90 day notice period.   At
this point, contact with the Department of Justice should
also be initiated.

     If it is decided that no action will be taken to preempt
the filing of the citizen suit, the assigned attorneys should
reevaluate the appropriateness of Agency involvement if the suit
is ultimately filed.  Although it will be too late to preempt a
RCRA §7002 suit after the suit is filed, the assigned attorneys
should decide at this point whether to file a separate action,
or whether intervention or filing an amicus brief is appropriate.
Remember that while notice to the Agency is required to be
given in all §7002 cases, a copy of any complaint is expressly
required to be served on the Administrator and the Attorney
General only in cases filed pursuant to Section 7002(a)(1)(B)
(imminent hazard).  (Section 7002(b)(2)(F)).

     3)  Is the action barred by Section 7002(b)(1)(B),
(b)(2)(B), (b)(2)(C), or (b)(2)(D)?

     Section 7002(b)(1)(B) and 7002(b)(2)(B) and (C) bar the
filing of a citizen suit when EPA or the State has initiated
certain enforcement actions or, in suits alleging an imminent
hazard, has incurred costs to initiate an RI/FS or has com-
menced site cleanup pursuant to CERCLA §104.

     Upon receipt of a complaint in a citizen suit,  the Regional
attorney assigned to track the suit should determine what,
if any, enforcement or CERCLA response action has already
been taken by EPA or the State.  If any such actions have been
taken which would bar the commencement of a suit under Section
7002, the Region may want to consider in a particular  situation
whether to intervene in the citizen suit.  Generally,  such
defenses will be left to the defendant to the Section  7002 suit
to raise.  In situations where the State has commenced an
enforcement or response action which bars the suit,  EPA should
coordinate closely with the State to determine whether action
is appropriate under the circumstances.

     Section 7002(b)(2)(D) bars the filing of a citizen suit
by any person, other than a State or local government, with
respect to the siting of a treatment, storage or disposal
facility or to enjoin issuance of a permit to a TSDF.  If such
an action is filed by any one other than a State or  local
government, 'a motion to dismiss may be filed along with a motion
to intervene.

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                                                 OSWER 9945.1
                              -  10  -
      4)   Is  the  action  an  intervention  in  an  EPA RCRA
 enforcement  action?

      As  noted  on page 6, supra,  the  language  in  Section  7002
 which provided that  any person may intervene  in  an  EPA RCRA
 enforcement  action was  deleted by HSWA.  Therefore,  if an
 action is  filed  pursuant to Section  7002 seeking  to  intervene
 in  an EPA  RCRA enforcement action, filing  a motion  to oppose
 the  intervention may be appropriate.  Given the  apparent con-
 flict between  the legislation and the legislative history noted
 above on p.  6, opposition  to intervention  in  such a  situation
 normally should  be considered only where permissive  interven-
 tion  is not  likely to be granted.

      5)  Is  a  Federal facility named as a  defendant?

      If a  Federal facility is named  as a defendant  in a RCRA
 Section 7002 action, EPA will not, as a matter of policy, in-
 tervene as a plaintiff, because  of the justiciability problems
 associated with  a case  in which  the  Federal government is
 represented on both sides of the case.  However,  if  EPA
 receives a notice regarding a citizen suit against a  Federal
 facility under Section  7002(a)(1)(B) (imminent hazard), the
 action could be  barred  if, inter alia, an  administrative order
 under CERCLA §106 or RCRA §7003  has  been issued  (See  Section
 7002(b)(2)(B)(iv)), but such action would  be  barred  "only as to
 the scope  and duration  of the administrative  order referred to
 in clause  (iv)."  (Section 7002(b)(2)(B), emphasis added)
            other hand, citizen suits against Federal facil-
            Section 7002(a)(1)(A) (violation of any permit,
standard, etc.) cannot be barred by such orders, since such
suits can only be barred if the Administrator (or State) has
commenced and is diligently prosecuting a civil or criminal
judicial action.  (See Section 7002(b)(1)(B)).

ADDITIONAL CONSIDERATIONS

     Because of the wide variety of possible situations which
may arise under actions taken pursuant to Section 7002, each
case must be dealt with individually, taking into consideration
the specific facts presented.  Actions brought by or against a
State or municipality will require that particular attention be
paid to consultation with the State in order to determine
whether EPA involvement is appropriate or necessary.  Likewise,
in actions brought concerning an NPL site which has been desig-
nated a State lead site, coordination with the State will be
required as a matter of policy before a decision concerning
whether or not EPA should become involved is made.

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                                                OSWER  9945,1
                             -11-
USE OF THIS GUIDANCE

     The policy and procedures set forth here, and internal
office procedures adopted in conjunction with this document,
are intended for the guidance of staff personnel, attorneys,
and other employees of the U.S. Environmental Protection
Agency.  They do not constitute rulemaking by the Agency, and
may not be relied upon to create a right or benefit,
substantive or procedural, enforceable at law or in equity,
by any person.  The Agency may take any action at variance
with the policies or procedures contained in this memorandum
or which are not in compliance with internal office procedures
that may be adopted pursuant to those materials.
cc:  Gene A. Lucero, Director, Office of Waste Programs
       Enforcement
     Lisa K. Friedman, Associate General Counsel, Solid Waste
       and Emergency Response
     Thomas E. Hookano, Deputy Assistant Attorney General, Land'
       and Natural Resources Division, Department of Justice

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RCRA CIVIL PENALTY POLICY
                         October 1990

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                  RCRA CIVIL PENALTY POLICY
                       TABLE OF CONTENTS
   I.  Summary of the Policy	1
  II.  Introduction	4
 III.  Relationship to Agency Penalty Policy	6
  IV.  Documentation and Release of Information	6
   V.  Relationship Between Penalty Amount Sought in an
       Administrative Complaint and Accepted in Settlement 10
  VI.  Determination of Gravity-Based Penalty	12
       A.  Potential for Harm	13
       B.  Extent of Deviation from Requirement	17
       C.  Penalty Assessment Matrix	18
 VII.  Multiple and Multi-Day Penalties	 19
       -A.  Penalties for Multiple Violations	19
       B.  Penalties for Multi-Day Violations	22
       C.  Calculation of the Multi-Day Penalty	23
VIII.  Effect of Economic Benefit of Noncompliance	25
       A.  Economic Benefits of Delayed Costs and	26
              Avoided Costs
       B.  Calculation of Economic Benefit	27
  IX.  Adjustment Factors and Effect of Settlement	30
       A.  Adjustment Factors	30
       B.  Effect of Settlement	40
   X.  Appendix	41
       A.  Penalty Computation Worksheet	41
       B.  Ben Worksheet	47
  XI.  Hypothetical Applications of the Penalty Policy	48

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                              - 1 -


                    RCRA CIVIL PENALTY POLICY
I.   SUMMARY OF THE POLICY

     The penalty calculation system established through EPA's
RCRA Civil Penalty Policy consists of  (1) determining
a gravity-based penalty  for a particular violation, from a
penalty assessment matrix,  (2) adding  a "multi-day" component, as
appropriate, to account  for a violation's duration, (3) adjusting
the sum of the gravity-based and multi-day components, up or
down, for case specific  circumstances, and (4) adding to this
amount the appropriate economic benefit gained through non-
compliance.  More specifically, the Revised RCRA Civil Penalty
Policy establishes the following penalty calculation methodology:

Penalty Amount = gravity-based + multiday  + adjust- + economic
                    component   component  - merits   -  benefit

     In administrative civil penalty cases. EPA will perform two
separate calculations under this policy: (1) to determine an
appropriate amount to seek in the administrative complaint and
subsequent litigation, and  (2) to explain and document the
process by which the Agency arrived at the penalty figure it has
agreed to accept in settlement.  The methodology for these
calculations will differ only in that  no downward adjustments
(other than those reflecting a violator's good faith efforts to
comply with applicable requirements) will usually be included in
the calculation of the proposed penalty for the administrative
complaint.  In those instances where the respondent or reliable
information demonstrates prior to the  issuance of the complaint
that applying further downward adjustment factors  (over and above
those reflecting a violator's good faith efforts to comply) is
appropriate, enforcement personnel may in their discretion (but
are not required to) make such further downward adjustments in
the amount of the penalty proposed in  the complaint.

     In determining the  amount of the  penalty to be included  in
the complaint, enforcement personnel should consider all possible
ramifications posed by the violation and resolve any doubts
(e.g.,  as to the application of adjustment factors or the
assumptions underlying the amount of the economic benefit enjoyed
by the violator) against the violator  in a manner consistent with
the facts and findings so as to preserve EPA's ability to
litigate for the strongest penalty possible.  It should be noted
that assumptions underlying any upward adjustments or refusal to
apply downward adjustments in the penalty amount are subject  to
revision later as new information becomes available.

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                              - 2 -
     In civil -judicial cases.  EPA will use the narrative penalty
assessment criteria set forth in the policy to argue for as  high
a penalty as the facts of a case justify should the case go  to
trial, and will prepare a calculation which applies this policy
to lay out the rationale behind any penalty amount the Agency
agrees to accept in settlement.

     Two factors are considered in determining the gravity-based
penalty component:

      o    potential for harm; and

      o    extent of deviation from a statutory or regulatory
           requirement.

These two factors constitute the seriousness of a violation  under
RCRA, and have been incorporated into the following penalty
matrix from which the gravity-based component will be chosen:

                              MATRIX

                   Extent of Deviation from Requirement
Potential
  for
 Harm

MAJOR
MODERATE
MINOR
MAJOR
$25,000
to
20,000
$10,999
to
8,000
$2,999
to
1,500
MODERATE
$19,999
to
15,000
$7,999
to
5,000
$1,499
to
500
MINOR
$14,999
to
11,000
$4,999
to
3,000
$499
to
100
     The policy also explains how to factor into the calculation
of the gravity component the presence of multiple and multi-day
(continuing) violations.  The policy provides that for days 2
through 180 of multi-day violations, multi-day penalties are
mandatory, presumed, or discretionary, depending on the "potential
for harm" and "extent of deviation" of the violations.  For each
day for which multi-day penalties are sought, the penalty amounts
must be determined using the multi-day penalty matrix.  The
penalty amounts in the multi-day penalty matrix range from 5% to
20% (with a minimum of $100 per day) of the penalty amounts in
the corresponding gravity-based matrix cells.  Regions also retain
discretion to impose multi-day penalties  (1) of up to $25,000 per
day, when appropriate under the circumstances, and  (2) for days
of violation after the first 180, as needed to achieve deterrence.

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                              - 3 -

      Where a company has derived significant savings or profits
by its failure to comply with RCRA requirements,  the amount of
economic benefit from noncompliance gained by the violator will
be calculated and added to the gravity-based penalty amount.
The Agency has developed and made available to Agency personnel a
computer model that can quickly and accurately calculate economic
benefit - BEN. 1

      After the appropriate gravity-based penalty amount
(including the multi-day component) has been determined, it may
be adjusted upward or downward to reflect particular
circumstances surrounding the violation.  Except in the unusual
circumstances outlined in Section VIII the amount of any economic
benefit enjoyed by the violator is not subject to adjustment.
when adjusting the gravity-based penalty amount the following
factors should be considered:

      o   good faith efforts to comply/lack of good faith
          (upward or downward adjustment);

      o   degree of willfulness and/or negligence (upward or
          downward adjustment);

      o   history of noncompliance (upward adjustment);

      o   ability to pay (downward adjustment);

      o   environmental projects to be undertaken by the violator
            (downward adjustment); and

      o   other unique factors, including but  not limited to
          the risk and cost of litigation  (upward or downward
            adjustment).

     These factors (with the exception of  (i)  upward adjustment
factors such as history of noncompliance, and  (ii) the  statutory
downward adjustment factor reflecting a violator's good faith
efforts to comply) should usually be considered  after the penalty
in the complaint has been proposed, i.e., during the settlement
stage.

    A detailed discussion of the policy  follows.  In addition,
this document includes a few hypothetical cases  where the  step-
by-step assessment of penalties is illustrated.  The steps
included are choosing the correct penalty cell on the matrix,
calculating the economic benefit of noncompliance, where
     1    For more information regarding the BEN model, call the
Office of Enforcement Policy  located within the  Office of
Enforcement, at 475-8777.

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                              - 4 -


 appropriate,  and  adjusting the penalty assessment on the basis of
 the  factors set forth above.

 II.   INTRODUCTION

      To  respond to the problem of improper management of
 hazardous waste,  Congress amended the Solid Waste Disposal Act
 with the Resource Conservation and Recovery Act  (RCRA) of 1976.
 Although the  Act  has several objectives, Congress' overriding
 purpose  in enacting RCRA was to establish the basic statutory
 framework for a national system that would ensure the proper
 management of hazardous waste.  Since 1976, the Solid Waste
 Disposal Act  has  been amended by the Quiet Communities Act of
 1978, P.L. 95-609, the Used Oil Recycling Act of 1980, P.L.
 96-463,  the Hazardous and Solid Waste Amendments of 1984, P.L.
 98-221,  the Safe  Drinking Water Act Amendments of 1986, P.L.
 99-39, the Superfund Amendments and Reauthorization Act of 1988,
 P.L.  99-499,  and  most recently, the Medical Waste Tracking Act of
 1988, P.L. 100-582.  For simplicity and convenience, the Solid
 Waste Disposal Act, as amended, will hereinafter be referred to
 as "RCRA."

      Section  3008(a) of RCRA, 42 U.S.C. §6928(a), provides that
 if any person has violated or is in violation of a requirement of
 Subtitle C, the Administrator of the Environmental Protection
 Agency (EPA)  may, among other options, issue an order assessing a
 civil penalty of  up to $25,000 per day for each violation.
 Section  3008(a)(3), 42 U.S.C. §6928(a)(3), provides that any
 order assessing a penalty shall take into account:

          o    the seriousness of the violation, and

          o    any good faith efforts to comply with the
               applicable requirements.

 Section  3008(g) applies to civil judicial enforcement actions
 and  establishes liability to the United States for civil
 penalties of  up to $25,000 per day for each violation of Subtitle
 C.

 This document sets forth the Agency's policy and internal
 guidelines for determining penalty amounts which (1) should be
 sought in administrative complaints filed under RCRA2
     2   This policy is in no way intended to limit the penalty
amounts sought in civil judicial actions.  In civil judicial
actions brought pursuant to RCRA the United States will at  its
discretion continue to file complaints requesting up to the
statutory maximum civil penalty amount and to litigate for  the
maximum amount justifiable on the facts of the case.

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                               -  5  -

 and (2)  would be acceptable  in settlement of administrative and
 judicial enforcement actions under RCRA.  This policy also
 governs  civil penalty calculations under the Medical Waste
 Tracking Act of 1988,  42  U.S.C.  §  6922 et seq. . and supersedes
 the guidance document entitled,  "Applicability of RCRA Penalty
 Policy to LOIS Cases (November 16, 1987) .   It does not, however,
 apply  to penalties  assessed  under  Subtitle  I (UST) of RCRA, 42
 U.S.C. § 6991 fit seq.
      The  purposes  of  the  policy  are to ensure that RCRA civil
 penalties are  assessed  in a  fair and consistent manner; that
 penalties are  appropriate for  the gravity of the violation
 committed;  that  economic  incentives for noncompliance with RCRA
 requirements are eliminated; that penalties are sufficient to
 deter persons  from committing  RCRA violations; and that
 compliance  is  expeditiously  achieved and maintained.

      This document does not  address whether assessment of a civil
 penalty is  the correct  enforcement response to a particular
 violation.  Rather, this  document focuses on determining the
 proper civil penalty  amount  that the Agency should obtain once a
 decision  has been  made  that  a  civil penalty is the proper
 enforcement remedy to pursue.  For guidance on when to assess
 administrative penalties,  enforcement personnel should consult
 the RCRA  Enforcement  Response  Policy, December 21, 1987.  The
 Enforcement Response  Policy  provides a general framework for
 identifying violations  and violators of concern as well as
 guidance  on selecting the appropriate enforcement action n
 response  to various RCRA  violators.

      The  1990  RCRA Civil  Penalty Policy is immediately applicable
 and should  be  used to calculate  penalties sought in all RCRA
 administrative complaints or accepted in settlement of both
 administrative  and judicial civil enforcement actions brought
 under the statute  after the  date of the policy, regardless of the
 date  of the violation.  To the maximum extent practicable, the
 policy shall also  apply to the settlement of administrative and
 judicial enforcement  actions instituted prior to but not yet
 resolved as of the date the  policy is issued.

      The procedures set out  in this document are intended solely
 for the guidance of government personnel.  They are not intended
and cannot  be  relied  upon to create rights, substantive or
procedural, enforceable by any party in litigation with the
United States.   The Agency reserves the right to at variance with
this  policy and  to change it at  any time without public notice.

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                              - 6 -
III. RELATIONSHIP TO AGENCY PENALTY POLICY

     The RCRA Civil Penalty Policy sets forth a system for
pursuing penalties consistent with the established goals of the
Agency's civil penalty policy which was issued on February 16,
1984.  These goals consist of:

      o  Deterrence;

      o  Fair and equitable treatment of the regulated
         community; and

      o  Swift resolution of environmental problems.

The RCRA penalty policy also adheres to the Agency policy's
framework for assessing civil penalties by:

      o  Calculating a preliminary deterrence amount
         consisting of a gravity component and a component
         reflecting a violator's economic benefit of
         noncompliance; and

      o  Applying adjustment factors to account for
         differences between cases.

IV. DOCUMENTATION AND RELEASE OF INFORMATION

      A. DOCUMENTATION FOR PENALTY SOUGHT IN ADMINISTRATIVE
         COMPLAINT/LITIGATION

       In order to support the penalty proposed in the complaint,
enforcement personnel must include in the case file an
explanation of how the proposed penalty amount was calculated. As
a sound case management practice in administrative cases, a case
"record" file should document or reference all factual
information on which EPA will need to rely to support the penalty
amount sought in the complaint.  Full documentation of the
reasons and rationale for the penalty complaint amount is
important to expeditious, successful administrative enforcement
of RCRA violations.  The documentation should include all
relevant information and documents which served as the basis for
the penalty complaint amount and were relied upon by the Agency
decision-maker.  In general, only final documents, but not
preliminary documents, such as drafts and internal memoranda
reflecting earlier deliberations, should be included in the
record file.  All documentation supporting the penalty
calculation should be in the record file at the time the
complaint is issued.  The documentation should be supplemented to

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                              - 7 -

include a justification for any adjustments to the penalty amount
in the complaint made after initial issuance of the complaint,  if
such adjustments are necessary.

     Additionally, Agency regulations governing administrative
assessment of civil penalties,  at 40 CFR 22.14(a)(5)  and (c),
require that the complaint contain a statement which sets forth
the Agency's basis for requesting the actual amount of the
penalty being sought.  To ensure that RCRA administrative
complaints comply with the statute and the rules,  as long as
sufficient facts are alleged in the complaint, enforcement
personnel may plead the following:

     Based upon the facts alleged in this Complaint and upon
     those factors which the Complainant must consider pursuant
     to Section 3008(a)(3) of the Resource Conservation and
     Recovery Act (RCRA), 42 U.S.C. §6928(a)(3) (as discussed in
     the RCRA Civil Penalty Policy), including the seriousness  of
     the violations, any good faith efforts, by the respondent to
     comply with applicable requirements, and any economic
     benefit accruing to the respondent, as well as such other
     matters as justice may require,, the Complainant proposes
     that the Respondent be assessed the following civil penalty
     for the violations alleged in this Complaint:
      /
               Count 1 	 $25,000
               Count 2 	..,.,,,, $80,000

     Enforcement personnel may use the above general language in
the complaint, but must be prepared to present at the pre-hearing
conference or evidentiary hearing more detailed information
reflecting the specific factors weighed in calculating the
penalty proposed in the complaint.  For example, evidence of
specific instances where the vj.Qlgt.i0n actually did, could have,
or still might result in harm couid be presented to the  trier of
fact to illustrate the potential  for harm factor, of the  penalty.
Experience also suggests that the Agency may  be called upon,
before the hearing, to present to the trie^ of fact and  the
respondent the penalty computation worksheet  supporting  the
proposed penalty amount sought in the complaint. 3

     Usually the record supporting the penalty amount specified
in the complaint should include a penalty computation worksheet
which explains the potential for  harm, extent of deviation from
statutory or regulatory requirements. < economic benefit  of non-
          See City of Kalamazoo Water Reclamation Plant.
CWA-AO-01-89 (March 16, 1989 J, whwTthe Administrative Law
Judge required EPA to provide its penalty  computation worksheet
to respondent during the pr-ehearing  exchange.

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                               - 8 -


 compliance,  and any adjustment factors applied (e.g.,  good  faith
 efforts to comply).   Also the record should include  any
 inspection reports  and other documents relating to the penalty
 calculation.

   B.  DOCUMENTATION  OF PENALTY SETTLEMENT AMOUNT

   Until settlement  discussions or pre-hearing information
 exchange are held with the respondent,  mitigating  and  equitable
 factors and  overall  strength of the Agency's enforcement case may
 be difficult to assess.   Accordingly,  preparation  of a penalty
 calculation  worksheet for purposes of establishing the Agency's
 settlement position  on penalty amount may not be feasible prior
 to the time  that negotiations with the violator commence.   Once
 the violator has presented the Region with its best  arguments
 relative to  penalty  mitigation the Region may,  at  its  discretion,
 complete a penalty calculation worksheet to establish  its initial
 "bottom line" settlement position.   However,  at a  minimum,  prior
 to final approval of any settlement,  whether administrative or
 judicial,  enforcement personnel should complete a  final worksheet
 and narrative explanation which provides the rationale for  the
 final  settlement amount  to be included in the case file for
 internal management  use  and oversight purposes only.   As noted
 above  enforcement personnel may,  in arriving at a  penalty
 settlement amount, deviate significantly from the  penalty amount
 sought in an  administrative complaint,  provided such discretion
 is exercised  in accordance with the provisions of  this policy.

   C.   RELEASE OF INFORMATION

   Release  of  information to members of the public  relating  to the
 use of the 1990 RCRA Civil Penalty Policy in enforcement cases is
 governed by the Freedom  of Information Act (FOIA)
 5  USC  §552, and the  Agency regulations  implementing  that act,
 40 CFR Part 2.   FOIA as  implemented through Agency regulations,
 sets forth procedural and substantive requirements governing the
 disclosure of information by Federal  agencies.   While  the Agency
 maintains  a policy of openness and freely discloses  much of what
 is  requested  by the  public,  there are a number of  exemptions in
 FOIA which allow the Agency to withhold and protect  from
 disclosure certain documents and  information in appropriate
 circumstances.

   In ongoing  enforcement cases, documents and other  material that
deal with  establishing the appropriate  amount of a civil penalty
 (particularly penalty computation worksheets)  may  be covered by
two different FOIA exemptions.  Documents that support or relate
to the amount of  the civil  penalty the  Agency would  be willing to
accept in  settlement are likely to  fall within the scope of these
exemptions and  in many cases can  be withheld.   Documents that
support or relate to the amount of a  penalty the Agency has

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                               -  9  -


 proposed in an administrative  complaint may also qualify for
 protection under the  exemptions.

     FOIA,  Exemption 7,  as  codified at 40 CFR 2.118(a)(7), allows
 such documents to be  withheld  if release could reasonably be
 expected to interfere with an  enforcement proceeding.  This
 exemption extends to  all stages  of law enforcement activities,
 from initial investigation to  completion.  Once the enforcement
 action  has been completed,  however, this exemption can no longer
 be  used to withhold information.   Nonetheless, there is
 potentially another avenue under FOIA which may be used in
 appropriate circumstances  to protect sensitive documents.

  FOIA,  Exemption 5,  as codified at 40 CFR 2.118(a)(5), protects
 from disclosure Agency  documents and information that are
 classified as attorney  work product, as well as pre-decisional
 deliberative documents.  The attorney work product privilege
 protects sensitive decisions and recommendations made in
 analyzing and choosing  appropriate enforcement options, and
 planning legal strategy, in response to violations of legal
 requirements.   Such documents  must be prepared in anticipation of
 litigation by,  or at  the direction of, an attorney.  The purpose
 of  the  deliberative process privilege is to preserve the quality
 of  Agency decisions by  encouraging honest and frank discussion
 within  the Agency.  The process  of developing penalty
 calculations may fall within the parameters of both attorney work
 product and deliberative process;  thus, withholding under FOIA
 Exemption  5 may be appropriate.

  An important distinction between the two exemptions  discussed
 is  that  the protective  scope of  Exemption 5 does not end when the
 enforcement process is  completed.  Thus, under Exemption 5,
 penalty  calculations  may be protected from disclosure at any
 time.

  The Agency may waive  the protection afforded by FOIA and
 release  exempt documents in its  discretion in appropriate cases,
without  jeopardizing  future use  of a FOIA exemption in another
case.  Such discretionary  waivers  should be made on a case-by-
case basis,  balancing the  public interest served by allowing the
release  and the Agency's policy  of openness against the harm to
the Agency caused by  release.  Generally, such releases should
 only be  made when settlement will  be facilitated.  Because issues
relating to FOIA and  application of its exemptions require
special  attention, the  Regional  Freedom of Information Act
Officer  or appropriate  attorney  in the Office of Regional Counsel
should be  consulted whenever any request is made by a member of
the public relating to  the application of the RCRA Penalty Policy
 in general  or  in a specific enforcement action.

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                             - 10 -
       The penalty computation worksheet to be included in the
case file is attached. (See; Section X,  Appendix.)

V.    RELATIONSHIP BETWEEN PENALTY AMOUNT SOUGHT IN AN
      ADMINISTRATIVE COMPLAINT AND ACCEPTED IN
      When read together, 40 C.F.R.  22. 14 (a)  and (c)  suggest that
the Agency must include in any administrative complaint filed
pursuant to RCRA Section 3008 (a)  a proposed penalty (the dollar
amount of which has been determined in accordance with the
applicable Agency penalty policy)  and a statement of the
reasoning behind this proposed penalty.   Indeed, in several cases
such a requirement has been imposed on the Agency in
administrative enforcement actions subject to the 40 C.F.R. Part
22 hearing procedures.4  The penalty policy not only facilitates
compliance with the cited regulations by requiring that
enforcement personnel calculate a proposed penalty (and include
this amount and the underlying rationale for adopting it in the
complaint) , but also establishes a methodology for calculating
penalty amounts which would be acceptable to EPA in settlement of
administrative and judicial enforcement actions.  The Agency
expects that the dollar amount of the proposed penalty included
in the administrative complaint will often* exceed the amount of
the penalty the Agency would accept in settlement.  This may be
so for several reasons.

      First, at the time the complaint is filed, the Agency will
often not be aware of mitigating factors (then known only to the
respondent) on the basis of which the penalty may be adjusted
downward.  Second, it is appropriate that the Agency have the
enforcement discretion to accept in settlement a lower penalty
than it has sought in its complaint, because in settling a case
the Agency is able to avoid the costs and risks of litigation.
Moreover respondents must perceive that they face some
significant risk of higher penalties through litigation to have
appropriate incentives to agree to penalty amounts acceptable to
the Agency in settlement.
     4   See. Katzson Bros. Inc. v. EPA, 839 F. 2d 1396,  (10th
Cir. Feb. 22, 1988), in which the court held that administrative
reviews of the default penalty amount for a FIFRA violation were
inadequate because they failed to analyze the factual basis for
the civil penalty; and Environmental Protection Corporation v.
Thomas. No.87-447, slip op. (E.D. Cal. July 14, 1988), where the
court held that 40 CFR 22.14(a) requires that the Agency  provide
defendants with the factual basis and rationale for the Agency's
penalty determination for a RCRA violation, so as to allow the
person being penalized an opportunity to mount a defense  in the
matter.

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                              -  11 -
      Therefore, Agency enforcement personnel should,  as
necessary, prepare two separate penalty calculations for each
administrative proceeding — one to support the initial  proposed
penalty included in the complaint and the other to be placed in
the administrative file as support for the final penalty amount
the Agency accepts in settlement.  5 In calculating the  amount of
the proposed penalty to be included in the administrative
complaint, Agency personnel should total (1) the gravity-based
penalty amount  (including any multi-day component) and (2)  an
amount reflecting upward adjustments 6 of the penalty and
subtract from this sum an amount reflecting any downward
adjustments in the penalty based solely on respondent's  "good
faith efforts 7 to comply with applicable requirements"  about
which the Agency is aware.  This total should then be added to
the amount of any economic benefit accruing to the violator.  The
result will be the proposed penalty the Agency will seek in its
complaint.
     5   In judicial actions it will generally only be necessary
to calculate a penalty amount to support any penalty the Agency
is to accept in settlement.  The United States is, of course,
free to argue to the court in judicial actions that the penalty
figure it seeks is consistent with the rationale underlying the
penalty policy.

     6   While the Agency may at this early juncture have limited
knowledge of facts necessary to calculate any upward adjustments
in the penalty it should be remembered that amendments to the
complaint (including the amount of the proposed penalty) may be
made after an answer is filed only with the leave of the
presiding officer.  See 40 C.F.R. 22.14(d).

     7   Since Section 3008(a)(3) of RCRA requires that a
violator's  "good faith efforts to comply with applicable
requirements1* be considered by the Agency in assessing any
penalty, it is appropriate that this factor be weighed in
calculating the proposed penalty based on information available
to EPA.  While Section 3008(a)(3) also requires that the Agency
weigh the seriousness of the violation in assessing a penalty,
this requirement is satisfied by including a gravity-based
component which reflects the seriousness (i.e., the potential  for
harm and extent of deviation from applicable requirements) of  the
violation.  As noted above, enforcement personnel may in their
discretion further adjust the amount of the proposed penalty
downward where the violator or information obtained from other
sources has convincingly demonstrated prior to the time EPA  files
the administrative complaint that application of  additional
downward adjustment factors is warranted.

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                              -  12  -

     The methodology for determining and documenting the penalty
figure the Agency accepts in settlement should be basically
identical to that employed in calculating the proposed penalty
included in the complaint, but should also include consideration
of  (1) any new and relevant information obtained from the
violator or elsewhere, and (2) all other downward adjustment
factors (in addition to the "good faith efforts" factor weighed
in calculating the proposed penalty appearing in the complaint).

     It may be noted here that the RCRA Penalty Policy serves as
guidance not only to Agency personnel charged with responsibility
for calculating appropriate penalty amounts for RCRA violations
but also under 40 CFR §22.27(b) to judicial officers presiding
over administrative proceedings at which proper penalty amounts
for violations redressable under RCRA Sections 3008(a) and (g)
are at issue.  Such judicial officers thus have discretion to
apply most of the upward or downward adjustment factors described
in this policy in determining what penalty should be imposed on a
violator.   However, judgments as to whether a penalty should be
reduced in settlement because (1) the violator is willing to
undertake an environmental project in settlement of a penalty
claim, or (2) the Agency faces certain litigative risks in
proceeding to hearing or trial, are decisions involving matters
of policy and prosecutorial discretion which by their nature are
only appropriate to apply in the context of settling a penalty
claim.  It is therefore contemplated that decisionmakers in
administrative proceedings would not adjust penalty amounts
downward based upon their assessment of either the litigative
risks faced by the Agency or a violator's willingness to
undertake an environmental project in lieu of paying part of a
penalty.

VI.  DETERMINATION OF GRAVITY-BASED PENALTY AMOUNT

     RCRA Section 3008(a)(3) states that the seriousness of a
violation must be taken into account in assessing a penalty for
the violation.  The gravity-based component is a measure of the
seriousness of a violation.  The gravity-based penalty amount
should be determined by examining two factors:

     o  potential for harm; and

     o  extent of deviation from a statutory or regulatory
        requirement.

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                              - 13 -
A.    POTENTIAL FOR HARM

      The RCRA requirements were promulgated in order to prevent
harm to human health and the environment.  Thus, noncompliance
with any RCRA requirement can result in a situation where there
is a potential for harm to human health or the environment.  Even
violations such as recordkeeping violations create a risk of harm
to the environment or human health by jeopardizing the integrity
of the RCRA regulatory program.  Accordingly, the assessment of
the potential for harm resulting from a violation should be based
on two factors:

         o  the risk of human or environmental exposure to
            hazardous waste and/or hazardous constituents
            that may be posed by noncompliance, and

          o the adverse effect noncompliance may have on
            statutory or regulatory purposes or procedures for
            implementing the RCRA program.

1.  Risk of Exposure

      The risk of exposure presented by a given violation depends
on both the likelihood that human or other environmental
receptors may be exposed to hazardous waste and/or hazardous
constituents and the degree of such potential exposure.
Evaluating the risk of exposure may be simplified by considering
the factors which follow below.

      a.  Probability of Exposure

      Where a violation involves the actual management of waste,
a penalty should reflect the probability that the violation could
have resulted in, or has resulted in a release of hazardous waste
or constituents, or hazardous conditions creating a threat of
exposure to hazardous waste or waste constituents.  The
determination of the likelihood of a release should be based on
whether the integrity and/or stability of the waste management
unit is likely to have been compromised.

      Some factors to consider in making this determination
would be:

    o evidence of release (e.g., existing soil or groundwater
      contamination)

    o evidence of waste mismanagement (e.g., rusting
      drums),  and

    o adequacy of provisions for detecting and preventing

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                              -  14  -


      a release (e.g., monitoring equipment and inspection
      procedures).

      A larger penalty is presumptively appropriate where the
violation significantly impairs the ability of the hazardous
waste management system to prevent and detect releases of
hazardous waste and constituents.

      b.  Potential Seriousness of Contamination

      When calculating risk of exposure, enforcement
personnel should weigh the harm which would result if the
hazardous waste or constituents were in fact released to the
environment.

      Some factors to consider in making this determination would
be:

    o quantity and toxicity of wastes (potentially)
      released

    o likelihood or fact of transport by way of
      environmental media (e.g., air and groundwater),
      and

    o existence, size, and proximity of receptor
      populations (e.g., local residents, fish, and wildlife,
      including threatened or endangered species) and sensitive
      environmental media (e.g., surface waters and
      aquifers).

In considering the risk of exposure, the emphasis is placed on
the potential for harm posed by a violation rather than on
whether harm actually occurred.  The presence or absence of
direct harm in a noncompliance situation is something over which
the violator may have no control.  Such violators should not be
rewarded with lower penalties simply because the violations
happened not to have resulted in actual harm.

2.  Harm To The RCRA Regulatory Program

      There are some requirements of the RCRA program which, if
violated, may not be likely to give rise directly or immediately
to a significant risk of contamination.  Nonetheless, all
regulatory requirements are fundamental to the continued
integrity of the RCRA program.  Violations of such requirements
may have serious implications and merit substantial penalties
where the violation undermines the statutory or  regulatory
purposes or procedures for implementing the RCRA program.   Some
examples of this kind of regulatory harm include:

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                             - 15 -


          o failure to notify as  a generator or transporter  of
            hazardous waste,  and/or owner/operator of  a
            hazardous waste facility pursuant to section  3010

          o failure to comply with financial assurance
            requirements

          o failure to submit a timely/adequate Part B applica-
            tion

          o failure to respond to a formal information request

          o operating without a permit or interim status

          o failure to prepare or maintain a manifest

          o failure to install or conduct adequate groundwater
            monitoring.

3.  General

      a.  Evaluating the Potential for Harm

      Enforcement personnel should evaluate whether the  potential
for harm is major, moderate,  or minor in a particular situation.
The degree of potential harm represented by each category is
defined as:

         MAJOR  (1)  the violation poses or may pose a
         substantial risk of exposure of humans or other
         environmental receptors to hazardous waste or
         constituents; and/or

                (2)  the actions have or may have a substantial
         adverse effect on statutory or regulatory purposes or
         procedures for implementing the RCRA program.

         MODERATE  (l) the violation poses or may pose a
         significant risk of exposure of humans or other
         environmental receptors to hazardous waste or
         constituents; and/or

                  (2) the actions have or may have a
         significant adverse effect on statutory or regulatory
         purposes or procedures for implementing the RCRA
         program.

         MINOR    (1) the violation poses or may pose a relatively
         low risk of exposure of humans or  other environmental
         receptors to hazardous waste or constituents; and/or

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                              - 16 -


                  (2)  the  actions  have or may have a small
          adverse  effect on  statutory or regulatory purposes or
          procedures  for implementing the RCRA program.

        The  examples  which follow  illustrate the differences
 between major, moderate,  and minor potential for harm.  Just as
 important as  the  violation  involved are the case specific factors
 surrounding the violation.  Enforcement personnel should avoid
 automatic classification  of particular violations.

      b.  Examples

 1.  Manor Potential  for Harm

      40  CFR  §265.143  requires that owners or operators of
 hazardous waste facilities  establish financial assurance to
 ensure  that funds will be available for proper closure of
 facilities.   Under §265.143(a)(2), the wording of a trust
 agreement establishing financial  assurance for closure must be
 identical to  the  wording  specified in 40 CFR §264.151(a)(1).
 Failure to  word the  trust agreement as required may appear
 inconsequential.  However,  even a slight alteration of the
 language  could change  the legal effect of the financial
 instrument  so that it  would no longer satisfy the intent of the
 regulation  thereby preventing the funds from being available for
 closure.  Such a  facility could potentially become another
 abandoned hazardous  waste site.   When the language of the
 agreement differs from the  requirement such that funds would not
 be available  to close  the facility properly, the lack of
 identical wording would have a substantial adverse effect on the
 regulatory  scheme (and, to  the extent the closure process is
 adversely affected,  could pose a  substantial risk of exposure).
 This violation would therefore be assigned to the major potential
 for harm  category.

 2.  Moderate  Potential for  Harm

      Under 40 CFR §262.34, a generator may accumulate hazardous
 waste on-site for 90 days or less without having interim status
 or a permit provided that,  among  other requirements, each
 container or  tank of waste  is marked clearly with the words
 "Hazardous  Waste.11   In a  situation where a generator is storing
 compatible  wastes, has labeled half of its containers, and has
 clearly identified its storage area as a hazardous waste storage
 area,  there is some  indication that the unlabeled containers hold
 hazardous waste.  However,  because there is a chance that the
 unlabeled containers could  be removed from the storage area, and
because it  would  be  difficult to  determine whether hazardous
waste had been stored  for more than 90 days, this situation poses
 a significant likelihood  of exposure to hazardous waste (although

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                              - 17  -


the likelihood is not as great as it would be if neither the
storage area nor any of the containers were marked).   The
moderate potential for harm category would be appropriate in this
case.

3.  Minor Potential for Harm

      Owners or operators of hazardous waste facilities must,
under 40 CFR §265.53, submit a copy of their contingency plans to
all police departments, fire departments, hospitals,  and state
and local emergency response teams that may be called
upon to provide emergency services.  If a facility has a complete
contingency plan, including a description of arrangements agreed
to by local entities to coordinate emergency services (§265.52),
but had failed to submit copies of the plan to all of the
necessary agencies, this would create a potential for harm.
Enforcement personnel would need to examine  the impact that
failure to send the plan to the necessary agencies would have on
these agencies' ability to respond in an emergency situation.  If
a complete plan existed and arrangements with all of the local
entities had been agreed to, the likelihood of exposure and
adverse effect on the implementation of RCRA may be relatively
low.  The minor potential for harm category could be appropriate
for such a situation.

      B.  EXTENT OF DEVIATION FROM REQUIREMENT

      The "extent of deviation" from RCRA and its regulatory
requirements relates to the degree to which the violation renders
inoperative the requirement violated. In any violative situation,
a range of potential noncompliance with the subject requirement
exists.   In other words, a violator may be substantially in
compliance with the provisions of the requirement or it may have
totally disregarded the requirement (or a point in between).
In determining the extent of the  deviation, the following
categories should be used:

         MAJOR;  the violator deviates from requirements of the
         regulation or statute to such an extent that most  (or
         important aspects) of the requirements are not met
         resulting in substantial noncompliance.

         MODERATE;  the violator significantly deviates from the
         requirements of the regulation or statute but some of
         the requirements are implemented as intended.

         MINOR;  the violator deviates somewhat from the regula-
         tory or statutory requirements but most (or all
         important aspects) of the requirements are met.

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                              -  18 -
      A few examples will help demonstrate how a given violation
is to be placed in the proper category:

Example 1 - Closure Plan

      40 CFR §265.112 requires that owners or operators of
treatment, storage, and disposal facilities have a written
closure plan.  This plan must identify the steps necessary to
completely or partially close the facility at any point during
its intended operating life.  Possible violations of the
requirements of this regulation range from having no closure plan
at all to having a plan which is somewhat inadequate (e.g.,  it
omits one minor step in the procedures for cleaning and
decontaminating the equipment while complying with the other
requirements).  Such violations should be assigned to the "major"
and "minor" categories respectively.  A violation between these
extremes might involve failure to modify a plan for increased
decontamination activities as a result of a spill on-site and
would be assigned to the moderate category.

Example 2 ~ Failure to Maintain Adequate Security

      40 CFR §265.14 requires that owners or operators of
treatment, storage, and disposal facilities take reasonable care
to keep unauthorized persons from entering the active portion of
a facility where injury could occur.  Generally, a physical
barrier must be installed and any access routes controlled.

      The range of potential noncompliance with the security
requirements is quite broad.  In a particular situation, the
violator may prove to have totally failed to supply any security
systems.  Total noncompliance with regulatory requirements such
as this would result in classification into the maior category.
In contrast, the violation may consist of a small oversight such
as failing to lock an access route on a single occasion.
Obviously, the degree of noncompliance in the latter situation is
less significant.  With all other factors being equal, the less
significant noncompliance should draw a smaller penalty
assessment.  In the matrix system this is achieved by choosing
the minor category.


      C. PENALTY ASSESSMENT MATRIX

      Each of the above factors—potential for harm and extent of
deviation from a requirement-forms one of the axes of the penalty
assessment matrix.  The matrix has nine cells, each containing  a
penalty range.  The specific cell is chosen after determining
which category (major, moderate, or minor) is appropriate for the

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                             - 19 -
potential for harm factor, and which category is  appropriate  for
the extent of deviation factor.  The complete matrix  is
illustrated below:

               Extent  of Deviation from Requirement
Potential
  for
 Harm

MAJOR
MODERATE
MINOR
MAJOR
$25,000
to
20,000
$10,999
to
8,000
$2,999
to
1,500
MODERATE
$19,999
to
15,000
$7,999
to
5,000
$1,499
to
500
MINOR
$14,999
to
11,000
$4,999
to
3,000
$499
to
100
      The lowest cell (minor potential for harm/minor extent of
deviation) contains a penalty range from $100 to $499.  The
highest cell (major potential for harm/major extent of deviation)
is limited by the maximum statutory penalty allowance of $25,000
per day for each violation.

      The selection of the exact penalty amount within each cell
is left to the discretion of enforcement personnel in any given
case.  The range of numbers provided in each matrix cell serves
as a "fine tuning" device to allow enforcement personnel to
better adapt the penalty amount to the gravity of the violation
and its surrounding circumstances.  In selecting a dollar figure
from this range it is appropriate to consider such factors as the
seriousness of the violation (relative to other violations
falling within the same matrix cell), efforts at remediation or
the degree of cooperation evidenced by the facility  (to the
extent this factor is not to be accounted for in subsequent
adjustments to the penalty amount), the size and sophistication
of the violator, the number of days of violation, and other
relevant matters.  For guidance on recalculation of the gravity
based penalty based on new information see Section IX A.2.

VII.   MULTIPLE AND MULTI-DAY PENALTIES

       A.  PENALTIES FOR MULTIPLE VIOLATIONS

       In certain situations, EPA may find that a particular firm
has violated several different RCRA requirements.  A separate
penalty should be sought in a complaint and obtained in

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                              - 20 -


 settlement  or  litigation for each separate violation that results
 from  an  independent  act  (or failure to act) by the violator and
 is  substantially distinguishable from any other charge in the
 complaint for  which  a penalty  is to be assessed.  A given charge
 is  independent of, and substantially distinguishable from, any
 other charge when  it requires  an element of proof not needed by
 the others.  In many cases, violations of different sections of
 the regulations constitute independent and substantially
 distinguishable violations.  For example, failure to implement a
 groundwater monitoring program, 40 CFR §265.90, and failure to
 have  a written closure plan, 40 CFR §265.112, are violations
 which can be proven  only if the Agency substantiates different
 sets  of  factual allegations.   In the case of a firm which has
 violated both  of these sections of the regulations, a separate
 count should be charged for each violation.  For litigation or
 settlement  purposes, each of the violations should be assessed
 separately  and the amounts added to determine a total penalty to
 pursue.

      It is also possible that different violations of the same
 section  of  the regulations could constitute independent and
 substantially  distinguishable violations.  For example, in the
 case  of  a firm which has open containers of hazardous waste in
 its storage area,  40 CFR §265.173(a), and which also ruptured
 these or different hazardous waste containers while moving them
 on  site, 40 CFR §265.173(b), there are two independent acts.
 While the violations are both of the same regulatory section,
 each  requires  distinct elements of proof.  In this situation, two
 counts with two separate penalties would be appropriate.  For
 penalty  purposes, each of the violations should be assessed
 separately  and the amounts totalled.

      Penalties for  multiple violations also should be sought in
 litigation  or  obtained in settlement where one company has
violated the same requirement  in substantially different
locations.  An example of this type of violation is failure to
clean up discharged  hazardous waste during transportation, 40 CFR
§263.31.  A transporter who did not clean up waste discharged in
two separate locations during the same trip should be charged
with two counts.  In these situations the separate locations
present  separate and distinct risks to public health and the
environment.   Thus,  separate penalty assessments are justified.

      Similarly, penalties for multiple violations are
appropriate when a company violates the same requirement on
separate occasions not cognizable as multi-day violations  (See
Section VII.B.)  An  example would be the case where a facility
fails for a year to  take required quarterly groundwater
monitoring samples.

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                              - 21 -
      In general, penalties for multiple violations may be less
likely to be appropriate where the violations are not independent
or substantially distinguishable.  Where a charge derives from or
merely restates another charge, a separate penalty may not be
warranted.  For example, if a corporate owner/operator of a
facility submitted a permit application with a cover letter,
signed by the plant manager's secretary, but failed to sign the
application, 40 CFR §270.11 (a), and also thereby failed to have
the appropriate responsible corporate officer sign the
application, 40 CFR §270.11 (a)(1) the owner/operator has
violated the requirement that the application be signed by a
responsible corporate officer.  EPA has the discretion to view
the violations resulting from the same factual event, failure to
sign the application at all, and failure to have the person
legally responsible for the permit application sign it, as posing
one legal risk.  In this situation, both sections violated should
be cited in the complaint, but one penalty, rather than two, may
be appropriate to pursue in litigation or obtain in settlement,
depending upon the facts of a case.  The fact that two separate
sections were violated may be taken into account in choosing
higher "potential for harm" and "extent of deviation" categories
on the penalty matrix.

      There are instances where a company's failure to satisfy
one statutory or regulatory requirement either necessarily or
generally leads to the violation of numerous other independent
regulatory requirements.  Examples are the case where  (1) a
company through ignorance of the law fails to obtain a permit or
interim status as required by Section 3005 of RCRA and as a
consequence runs afoul of the numerous other (regulatory)
requirements imposed on it by 40 CFR Part 265, or (2) a company
fails to install groundwater monitoring equipment as required by
40 CFR §§ 265.90 and 265.91 and is thus unable to comply with
other requirements of Subpart F of Part 265 (e.g., requirements
that it develop a sampling plan, keep the plan at the facility,
undertake quarterly monitoring, prepare an outline of a
groundwater quality assessment program, etc.).  In cases such as
these where multiple violations result from a single initial
transgression, assessment of a separate penalty for each
distinguishable violation may produce a total penalty which is
disproportionately high.  Accordingly, in the specifically
limited circumstances described, enforcement personnel have
discretion to forego separate penalties for certain
distinguishable violations, so long as the total penalty for all
related violations is appropriate considering the gravity of the
offense and sufficient to deter similar future behavior and
recoup economic benefit.

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                              -  22  -

     B.   PENALTIES FOR MULTI-DAY VIOLATIONS

     RCRA provides EPA with the authority to assess in
administrative actions or seek in court civil penalties of up to
$25,000 per day of non-compliance for each violation of a
requirement of Subtitle C (or the regulations which implement
that subtitle).  This language explicitly authorizes the Agency
to consider the duration of each violation as a factor in
determining an appropriate total penalty amount.  Accordingly,
any penalty assessed should consist of a gravity-based component,
economic benefit component, and to the extent that violations can
be shown or presumed to have continued for more than one day, an
appropriate multi-day component.  The multi-day component should
reflect the duration of the violation at issue, subject to the
guidelines set forth in Section VII C., below.

     After it has been determined that any of the violations
alleged has continued for more than one day, the next step is to
determine the length of time each violation continued and whether
a multi-day penalty is mandatory, presumed, or discretionary.  In
most instances, the Agency should only seek to obtain multi-day
penalties, if a multi-day penalty is appropriate, for the number
of days it can document that the violation in question persisted.
However, in some circumstances reasonable assumptions as to the
duration of a violation can be made.  For example, a violation by
an owner/operator of a land disposal facility for operating after
it had.lost interim status pursuant to RCRA §3005(e)(2) can
generally be deemed to have begun on November 8, 1985, and
continued at least until the time of the last inspection in which
it was determined the facility was being operated without interim
status.  In the case where an inspection reveals that a facility
has no groundwater monitoring wells in place it can be assumed,
in the absence of evidence to the contrary, that the facility has
never had any wells.  Here the violation can be treated as having
commenced on the day that waste management operations triggering
the Part 265, subpart F requirements began or the effective date
of the regulations, whichever is later.  A multi-day penalty
could then be calculated for the entire period  from the date the
facility was required to have wells in place until the date of
the inspection shoving they did not.

     Conversely, in cases where there is no statutory or
regulatory deadline from which it may be assumed compliance
obligations began to run, a multi-day penalty should account only
for each day for which information provides a reasonable basis
     8   Where EPA determines that a violation persists,
enforcement personnel may calculate the penalty for a period
ending on the date of compliance or the date the complaint  is
filed, provided documentation  (or a reasonable assumption)  to
support such a finding is available.

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                             - 23 -

for concluding that a violation has  occurred.   For example,  if  an
inspection revealed that unlabeled drums of hazardous wastes were
being stored by a generator for more than 90 days in violation  of
40 CFR 262.31 and 262.34, enforcement personnel should allege in
the complaint and present evidence as to the number of days  each
violation lasted.  Documentation in  a case such as this might
consist of an admission from a facility employee that drums  were
stored improperly for a certain number of days.  In such a case,
a multi-day penalty would then be calculated for the number  of
days stated.

     C.   CALCULATION OF THE MULTI-DAY PENALTY

     After the duration of the violation has been determined, the
multi-day component of the total penalty is calculated, pursuant
to the Multi-Day Matrix, as follows:

(1)  Determine the gravity-based designations for the violation,
e.g., major-major, moderate-minor, or minor-minor.

(2)  Determine, for the specific violation, whether multi-day
penalties are mandatory, presumed, or discretionary, as follows:

     Mandatory multi-day penalties;   Multi-day penalties are
mandatory for days 2-180 of all violations with the following
gravity-based designations:  major-major, major-moderate,
moderate-major.  The only exception is when they have been
waived, in "highly unusual cases" with prior Headquarters (HQ)
consultation, as described below.  Multi-day penalties for days
181+ are discretionary.

     Presumption in favor of multi-day penalties;  Multi-day
penalties are presumed appropriate for days 2-180 of violations
with the following gravity-based designations:  major-minor,
moderate-moderate, minor-major.  Therefore, multi-day penalties
must be sought, unless case-specific facts overcoming the
presumption for a particular violation are documented carefully
in the case files.  The presumption may be overcome  for  one  or
more days.  Multi-day penalties for days  181+  are discretionary.

     Discretionary multi-day penalties;   Multi-day penalties are
discretionary, generally, for all days of all  violations with  the
following gravity-based designations:  moderate-minor, minor-
moderate, minor-minor.  In these cases, multi-day penalties
should be sought where case-specific facts support  such  an
assessment.  Discretionary multi-day penalties may be  imposed  for
some or all days.  The bases for decisions to  impose or  not
impose any discretionary multi-day penalties must be documented
in the case files.

(3)  Locate the corresponding cell  in the following Multi-Day
Matrix.  Multiply a dollar amount selected from the appropriate

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                              - 24  -

cell in the multi-day matrix  (or, where appropriate, a larger
dollar amount not to exceed $25,000)  by the number of days the
violation lasted.   (Note: the duration used in the multi-day
calculation is the  length of the violation minus one day, to
account for the first day of violation at the gravity-based
penalty rate).
MULTI-DAY MATRIX OF MINIMUM DAILY PENALTIES (in dollars)

                                 Extent of Deviation
 Potential

    for

   Harm

MAJOR
MODERATE
MINOR
MAJOR
$5,000
to
1,000
$2,200
to
400
$600
to
100
MODERATE
$4,000
to
750
$1,600
to
250
$300
to
100
MINOR
$3,000
to
550
$1,000
to
150
$100
     The dollar figure to be multiplied by the number of days of
violation will generally be selected from the range provided in
the appropriate multi-day cell.  The figure selected should not
be less than the lowest number in the range provided.  Selections
of a dollar figure from the range of penalty amounts can be made
at the Region's discretion based on an assessment of case-
specific factors, including those discussed below.

     In determining whether to assess multi-day penalties for
days 2-180 of violations for which multi-day penalties are
presumed appropriate or are discretionary, as well as for days
180+ of all violations, as well as in selecting the appropriate
dollar figure from the range of penalty amounts in the multi-day
matrix, the Regions must analyze carefully the specific facts of
the case to determine that the penalties selected are
appropriate.  This analysis should be conducted in the context of
the penalty policy's broad goals of (1) ensuring fair and
consistent penalties which reflect the seriousness (gravity) of
violations, (2) promoting prompt and continuing compliance, and
(3) deterring future non-compliance.
     Additional factors which may be relevant in analyzing these
factors in the context of a specific case include the seriousness

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                              - 25 -

of the violation relative to other violations falling within the
same matrix cell, efforts at remediation or the promptness and
degree of  cooperation evidenced by the facility (to the extent
not otherwise accounted for in the proposed penalty or settlement
amount), the size and sophistication of the violator, the total
number of  days of violation, and  other relevant considerations.
All of these factors must be analyzed in light of the overriding
goals of the penalty policy to determine the appropriate
penalties  in a specific case.

     As discussed above, this penalty policy permits a Region to
waive multi-day penalties, when mandatory for a violation, in a
"highly unusual case."  Such a waiver may be exercised only with
prior Headquarters  (HQ) consultation.  Because EPA has determined
that almost all continuing "major" violations warrant multi-day
penalties, it is anticipated that such waivers will be sought
very infrequently.

     While this policy provides general guidance on the use of
multi-day  penalties, nothing in this policy precludes or should
be construed to preclude the assessment of penalties of up to
$25,000 for each day after the first day of any given violation.
Particularly in circumstances where significant harm has in fact
occurred and immediate compliance is required to avert a
continuing threat to human health or the environment, it may be
appropriate to demand the statutory maximum.

VIII.  EFFECT OF ECONOMIC BENEFIT OF NONCOMPLIANCE

     The Agency civil penalty policy mandates the recapture of
any significant economic benefit  of noncompliance that accrues to
a violator.  Enforcement personnel shall evaluate the economic
benefit of noncompliance when penalties are calculated.  A
fundamental premise of the policy is that economic incentives  for
noncompliance are to be eliminated.  If violators are allowed  to
profit by  violating the law, there is little incentive to comply.
Therefore, it is incumbent on all enforcement personnel to
calculate  economic benefit.  In accordance with the goals of the
Agency policy, the RCRA civil Penalty Policy sets forth the RCRA
requirements.  An "economic benefit component should be
calculated and added to the gravity-based penalty component when
a violation results in "significant" economic benefit to the
violator,  as defined below.

     The following are examples of regulatory areas for which
violations are particularly likely to present significant
economic benefits:  groundwater monitoring, financial
requirements, closure/post-closure, surface impoundment
retrofitting, improper land disposal of restricted waste, clean-
up of discharges, part B submittals, and minimum technology
requirements.

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                              -  26  -

     For certain RCRA requirements the economic benefit of
noncompliance may be relatively insignificant (e.g.,  failure to
submit a report on time).  In the interest of simplifying and
expediting an enforcement action, enforcement personnel may
forego calculating the benefit component where it appears that
the amount of the component is likely to be less than $2,500 for
all violations alleged in the complaint.  However, this decision
should be documented on the Penalty Computation Worksheet.

     It is generally the Agency's policy not to settle cases
(i.e.. the penalty amount) for an amount less than the economic
benefit of noncompliance.  However, the Agency civil penalty
policy explicitly sets out three general ares where settling the
total penalty amount for less than the economic benefit may be
appropriate.  The RCRA policy has added a fourth exception for
cases where ability to pay is a factor.  The four exceptions are:


          o  the economic benefit component consists of an
             insignificant amount  (i.e.. less than $2,500);

          o  there are compelling public concerns that would not
             be served by taking a case to trial;

          o  it is unlikely, based on the facts of the particular
             case as a whole, that EPA will be able to recover
             the economic benefit in litigation;

          o  the company has documented an inability to pay the,
             total proposed penalty.


     If a case is settled for less than the economic benefit
component, a justification must be included on the Penalty
Computation Worksheet in Section X, under the heading, "Economic
Benefit."

     A.   ECONOMIC BENEFIT OF DELAYED COSTS AND AVOIDED COSTS

     Compliance/enforcement personnel should examine two  types  of
economic benefit from noncompliance in  determining the economic
benefit component:


          o  benefit from delayed costs; and

          o  benefit from avoided costs.

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                             - 27 -


       Delayed costs are expenditures which have been deferred  by
the violator's failure to comply with the requirements.  The
violator eventually will have to spend the money in order to
achieve compliance.  Delayed costs are the equivalent of capital
costs.  Examples of violations which result in savings from
delayed costs are:

         o failure to timely install ground-water monitoring
           equipment;

         o failure to timely submit a Part B permit application;
           and

         o failure to timely develop a waste analysis plan.

       Avoided costs are expenditures which are nullified by the
violators's failure to comply.   These costs will never be
incurred.  Avoided costs include the usual operating and
maintenance costs which would include any annual periodic costs
such as leasing monitoring equipment.  Examples of violations
which result in savings from avoided costs are:

         o failure to perform annual and semi-annual
           ground-water monitoring sampling and analysis;

         o failure to use registered medical waste
           transporters;

         o failure to perform waste analysis before adding
           waste to tanks, waste piles, incinerators; and

         o failure to install secondary containment around a
           tank, where such a containment is never installed
           because the violator chooses closure rather than
           correction and continued operation.

       B.  CALCULATION OF ECONOMIC BENEFIT

      Because the savings that are derived from delayed  costs
differ from those derived from avoided costs, the economic
benefit from delayed and avoided costs are calculated in a
different manner.  For avoided costs, the economic benefit  equals
the cost of complying with the requirements, adjusted to reflect
anticipated rate of return and income tax effects on the company.
For delayed costs, the economic benefit does not equal  the  cost
of complying with the requirements, since the violator  will
eventually have to spend the money to achieve compliance.   The
economic benefit for delayed costs consists of  the  amount of
interest on the unspent money that reasonably could  have been
earned by the violator during noncompliance.   If  noncompliance

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                              - 28 -
 has  continued  for more  than a year, compliance/enforcement
 personnel  should calculate the economic benefit of both the
 delayed  and  avoided  costs for each year.

       Since  the fall of 1984, it has been Agency policy to use
 the  BEN  computer model  to calculate the economic benefit of
 noncompliance.  The  model can perform a calculation of economic
 benefit  based  on delayed/avoided costs with as few as only seven
 data inputs  (see first  seven below).  The rest of the data inputs
 consist  of optional  data items and standard values already
 contained  in the program (see Ben Worksheet in Section X).  The
 following  is a list  and short explanation of each input.

                          INPUTS
      1.  CASE NAME - Self explanatory.

**    2.  INITIAL CAPITAL INVESTMENT - This is essentially a
         depreciable investment such as the initial cost of
         equipment.

**    3.  ONE-TIME NONDEPRECIABLE EXPENDITURE - This is an
         expense that will only be incurred once and does not
         involve capital investments.  It may or may not be tax
         deductible, but it is not depreciable.  Some examples
         are reporting requirements, purchase of land, or permit
         application costs and fees.

**    4.  ANNUAL OPERATION AND MAINTENANCE - This expense
         category is for routine annual expenses such as the
         costs of operating equipment, cost of leasing
         equipment, or cost of annual insurance premiums.

*     5.  FIRST MONTH OF NONCOMPLIANCE - Self explanatory.

*     6.  COMPLIANCE DATE - This could be off in the future.
         The key is to make a reasonable estimate.  (For TSD
         facilities this date could be the date on which the
         facility certifies closure rather than the date on
         which compliance is achieved).

*    7.  PENALTY PAYMENT DATE - Again, this may be in the
         future.  Enforcement personnel should make a reasonable
         estimate for date of payment.

+    8.  USEFUL LIFE OF EQUIPMENT - Here the model accounts for
         the fact that the equipment purchased in input two has a
         useful life of limited duration.  The model assumes it
         will last 15 years, then it must be replaced, however
         the model is being adjusted to address this matter.

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                                - 29 -

 +      9.  MARGINAL  INCOME TAX RATE  - This is the rate at which the
          last  dollar  of earnings was taxed.  It almost always will
          be  the highest tax rate,  as most businesses meet the
          maximum rate quickly.

 +     10.  ANNUAL INFLATION RATE  - Self explanatory.

 +     11.  DISCOUNT  RATE - This is the rate of return the violator
          expects to obtain on its  investment.  The money needed for
          pollution control was  invested in something else and we
          assume the rate of return was the discount rate.

 +     12.  AMOUNT OF LOW INTEREST FINANCING - This is the amount of
          subsidized financing for  pollution control equipment.  This
          almost always is 0.

      *    Required  Input
      **   Required  if  Applicable
      +    Standard  Values Available

      As noted above, the BEN model  may be used to calculate only the
 economic benefit accruing to a violator through delay or avoidance of
 the costs of  complying with applicable requirements of RCRA and its
 implementing  regulations.  There are instances in which the BEN
 methodology either  cannot compute or will fail to capture the actual
 economic benefit of noncompliance.  In those instances, it will be
 appropriate for the Agency to include in its penalty analysis a
 calculation of  economic benefits in a manner other than those provided
 for in the BEN  methodology.  A recurring example is the case where an
 entity unlawfully operated a land disposal facility without interim
 status and thus has reaped profits  as a proximate result of the
 violation which are greater than the costs the defendant would have
 incurred by taking  the further actions needed to avoid losing interim
 status.  In such a  case, the economic benefit component of the
 penalty calculation would include the profits proximately attributable
 to the violation of the applicable  RCRA requirement. '/  In contrast,
 consider a large manufacturing facility which, but for the storage of
 a few drums of  wastes  over 90 days, is otherwise in compliance with
 RCRA.  The facility's  profits, earned almost entirely as a result of
 lawful activity, would not be considered properly attributable to the
 facility's noncompliance.  Thus, care must be taken to insure that
 any calculation of  profits included in an alternative economic
 benefit component of the penalty calculation does not include profits
 attributable  to lawful operations of the facility or delayed or
 avoided costs already  accounted  for in the BEN calculation.

     Enforcement personnel should have a copy of the revised BEN
 User's Manual (May  1987).  The manual describes how to use BEN,
 a computer program  that calculates  the economic benefit for any
 type of entity.  It is designed  to  aid enforcement personnel with
     V   Of course, penalties may not  exceed  the  statutory
maximim of $25,000 per day of noncompliance.   42 U.S.C.  §  6928

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                              -  30 -


procedures for entering data in BEN,  and to explain the program's
results.10  BEN supersedes previous methodologies used to
calculate the economic benefit for civil penalties.

       The economic benefit formula provides a reasonable
estimate of the economic benefit of noncompliance.  If a
respondent believes that the economic benefit it derived from
noncompliance differs from the estimated amount, it should
present all relevant information documenting its actual savings
to enforcement personnel at the settlement stage.

IX.  ADJUSTMENT FACTORS AND EFFECT OF SETTLEMENT

       A.  ADJUSTMENT FACTORS

1.  Background

       As mentioned in Section VI of this document, the
seriousness of the violation is considered in determining the
gravity-based penalty component.  The reasons the violation was
committed, the intent of the violator, and other factors related
to the violator are not considered in choosing the appropriate
cell from the matrix.  However, any system for calculating
penalties must have enough flexibility to make adjustments that
reflect legitimate differences between separate violations of the
same provision.  RCRA §3008(a)(3) states that in assessing
penalties, EPA must take into account any good faith efforts to
comply with the applicable requirements.  The Agency civil
penalty policy sets out several other adjustment factors to
consider.  These include the degree of willfulness and/or
negligence, history of noncompliance, ability to pay, and other
unique factors.  This revised RCRA policy also includes an
additional adjustment factor for environmental projects
undertaken by the respondent.
     10   Enforcement personnel are encouraged to use whatever
cost documentation is available to calculate RCRA compliance
costs, (e.g., contractors and commercial brochures).  If it is
disputed, the burden will then shift to the respondent to present
cost documentation to the contrary to be entered and run in BEN.
Data provided by respondent relating to economic benefit should
not be run in BEN unless its accuracy and legitimacy have been
verified by the Region.  Additionally, OSW's Guidance Manual:
Cost Estimates for Closure and Post-Closure Plans, November,
1986, provides information regarding cost estimates for input
data for BEN.

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                              -  31  -


2.  Recalculation of Penalty Amount

      Before EPA considers mitigating the penalty contained in
the complaint and applies the adjustment factors, it may be
necessary, under certain circumstances, for enforcement personnel
to recalculate the gravity-based or economic benefit component of
the penalty figure.  If new information becomes available after
the issuance of the complaint which makes it clear that the
initial calculation of the penalty contained in the complaint is
in error, enforcement personnel should adjust this figure.
Enforcement personnel should document on the Penalty Computation
Worksheet the basis for recalculating the gravity-based or
economic benefit component of the penalty sought in litigation or
obtained in settlement.

      For example, if after the issuance of the complaint,
information is presented which indicates that much less waste is
involved than was believed when the complaint was issued, it may
be appropriate to recalculate the gravity-based penalty
component.  Thus, if enforcement personnel had originally
believed that the violator had improperly stored ten barrels of
acutely hazardous wastes but it was later determined that only a
single container of characteristic hazardous waste was improperly
stored, it may be appropriate to recalculate the "potential for
harm" component of the gravity-based penalty from "major" to
"moderate" or "minor."

      On the other hand, if enforcement personnel initially
believed a violator had fully complied with a specified
requirement but subsequently determine that this is not the case,
it would be appropriate to amend the complaint as necessary to
add a new count, and revise the total penalty amount upward to
account for this previously undiscovered violation.  Likewise, if
new information shows that a previously known violation  is more
serious than initially thought, an upward revision of the penalty
amount may be required.

      Furthermore, if the violator presented new information
which established that the work performed was technically
inadequate or useless (e.g., the violator drilled wells  in the
wrong spot or did not dig deep enough), it may be more
appropriate to keep the gravity-based penalty as originally
calculated and evaluate whether it would be appropriate  to
mitigate the penalty based on the  "good faith efforts'* adjustment
factor.

      When information is presented which makes  it clear that the
gravity-based or economic benefit  penalty component  is  in error,
enforcement personnel may, of course, choose to  formally amend

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                              - 32 -


the complaint to correct the original penalty component, as well
as carefully document the basis for the recalculation on the
Penalty Computation Worksheet  in the enforcement file.

3.  Application of Adjustment  Factors

   The adjustment factors can  increase, decrease or have no
effect on the penalty amount obtained from the violator.
Adjustments should generally be applied to the sum of the
gravity-based and multi-day components of the penalty for a given
violation.  Note, however, that after all adjustment factors have
been applied the resulting penalty shall not exceed the statutory
maximum of $25,000 per day of  violation.  As indicated
previously, all supportable upward adjustments of the penalty
amount of which EPA is aware ordinarily should be made prior to
issuance of the complaint, while downward adjustments (with the
exception of those reflecting  good faith efforts to comply)
should generally not be made until after the complaint has been
issued, at which time the burden of persuasion that downward
adjustment is proper should be placed on respondent.  Enforcement
personnel should use whatever  reliable information on the
violator and violation is readily available at the time of
assessment.

  Application of the adjustment factors is cumulative, i.e.. more
than one factor may apply in a case.  For example, if the base
penalty derived from the gravity-based and multi-day matrices is
$109,500, and upward adjustments of 10% will be made for both
history of noncompliance and degree of willfulness and/or
negligence, the total adjusted penalty would be $131,400
($109,500 + 20%).

  For any given factor (except ability to pay and litigative
risk)  enforcement personnel can, assuming proper documentation,
adjust the sum of the gravity-based and multi-day penalty
components for any given violation up or down (1) by as much as
25% of that sun in ordinary circumstances or (2). from 26% to 40%
of that sum, in unusual circumstances.  Downward adjustments
based on inability to pay or litigative risk will vary in amount
depending on the individual facts present in a given case and in
certain circumstances may be applied to the economic benefit
component.

  However, if a penalty is to  achieve deterrence, both the
violator and the general public must be convinced that the
penalty places the violator in a worse position than those who
have complied in a timely fashion.  Moreover, allowing a violator
to benefit from noncompliance  punishes those who have complied by
placing them at a competitive  disadvantage.  For these reasons,
the Agency should at a minimum, absent the special circumstances
enumerated in section VIII, recover any significant economic

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                              - 33 -


benefits resulting  from failure to comply with the law.  If
violators are allowed to settle for a penalty less than their
economic benefit of noncompliance, the goal of deterrence is
undermined.  Except in extraordinary circumstances, which include
cases where there are demonstrated limitations on a respondent's
ability to pay or very significant litigative risks, the final
adjusted penalty should also include a significant gravity-based
component beyond the economic benefit component.

  Finally, as has been noted above, it is intended that only
Agency personnel, as distinct from an administrative law judge
charged with determining an appropriate RCRA penalty, will
consider adjusting  the amount of  a penalty downward based on the
litigative risks confronting the  Agency or the willingness of a
violator to undertake an environmental project in settlement of a
penalty claim.  This is because these factors are only relevant
in the settlement context.

  The following discussion of the adjustment factors to consider
is consistent with  the general Agency civil penalty policy issued
in 1984.

  (a) Good Faith Efforts To Comply/Lack Of Good Faith

  Undtir § 3008(a)(3) of RCRA, good faith efforts to comply with
applicable requirements must be considered in assessing a
penalty.  The violator can manifest good faith by promptly
identifying and reporting noncompliance or instituting measures
to remedy the violation before the Agency detects the violation.
Assuming self-reporting is not required by law and the violations
are expeditiously corrected, a violator's admission or correction
of a violation prior to detection may be cause for mitigation of
the penalty, particularly where the violator institutes
significant new measures to prevent recurrence.
Lack of good faith, on the other  hand, can result in an increased
penalty.

    No downward adjustment should be made if the good  faith
efforts to comply primarily consist of coming into compliance.
Moreover, no downward adjustment  should be made because
respondent lacks knowledge concerning either applicable
requirements or violations committed by respondent.  EPA will
also apply a presumption against  downward adjustment for
respondent's efforts to comply or otherwise correct violations
after the Agency's  detection of violations (failure to undertake
such measures may be cause for upward adjustment as well as
multi-day penalties), since the amount set in the gravity-based
penalty component matrix assumes  good faith efforts by a
respondent to comply after EPA discovery of a violation.

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                              -  34  -


      If a respondent reasonably relies on written statements by
the state or EPA that an activity will satisfy RCRA requirements
and it later is determined that the activity does not comply with
RCRA, a downward adjustment in the penalty may be warranted if
the respondent relied on those assurances in good faith.   Such
claims of reliance should be substantiated by sworn affidavit or
some other form of affirmation.   On the other hand, claims by a
respondent that "it was not told" by EPA or the State that it was
out of compliance should not be cause for any downward adjustment
of the penalty.

      (b)  Degree of willfulness and/or negligence

      While "knowing" violations of RCRA will support criminal
penalties pursuant to Section 3008(d), there may be instances of
heightened culpability which do not meet the criteria for
criminal action.  In cases where civil penalties are sought for
actions of this type, the penalty may be adjusted upward for
willfulness and/or negligence.  Conversely, although
RCRA is a strict liability statute, there may be instances where
penalty mitigation may be justified based on the lack of
willfulness and/or negligence.

      In assessing the degree of willfulness, and/or negligence,
the following factors should be considered, as well as any others
deemed appropriate:

         o how much control the violator had over the
           events constituting the violation;

         o the foreseeability of the events constituting the
           violation;

         o whether the violator took reasonable precautions
           against the events constituting the violation;

         o whether the violator knew or should have known of
           th« hazards associated with the conduct; and

         o whether the violator knew or should have known of the
           legal requirement which was violated.

      It should be noted that this last factor, lack of knowledge
of the legal requirement, should never be used as  a basis to
reduce the penalty.  To do so would encourage ignorance of the
law.  Rather, knowledge of the law should serve only to enhance
the penalty.

       The amount of control which the violator had over how
quickly the violation was remedied also is relevant in certain
circumstances.  Specifically, if correction  of the environ-

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                              -  35  -


mental problem was delayed by factors which the violator can
clearly show were not reasonably foreseeable and out of his or
her control and that of his or her agents, the penalty may be
reduced.

       (c)  History of noncompliance (upward adjustment only)

      Where a party previously has violated RCRA or State
hazardous waste law at the same or a different site, this is
usually clear evidence that the party was not deterred by the
previous enforcement response.  Unless the current or previous
violation was caused by factors entirely out of the control of
the violator, this is an indication that the penalty should be
adjusted upwards.

       Some of the factors that enforcement personnel should
consider are the following:

         o how similar the previous violation was;

         o how recent the previous violation was;

         o the number of previous violations; and

         o violator's response to previous violation(s)
           in regard to correction of problem.

       A violation generally should be considered "similar" if
the Agency's or State's previous enforcement response should have
alerted the party to a particular type of compliance problem.  A
prior violation of the same RCRA or State requirement would
constitute a similar violation.  Nevertheless, a history of
noncompliance can be established even in the absence of similar
violations, where there is a pattern of disregard of
environmental requirements contained in RCRA or another statute.

       For purposes of this section, a "prior violation" includes
any act or omission for which a formal or informal  enforcement
response has occurred (e.g.. EPA or State notice of violation,
warning letter, complaint, consent agreement, final order, or
consent decree).

      It also includes any act or omission  for which the violator
has previously been given written notification, however informal,
that the Agency believes a violation exists.

       In the case of large corporations with many  divisions  or
wholly-owned subsidiaries, it is sometimes  difficult to determine
whether a previous instance of noncompliance should trigger  the
adjustments described in this section.  New ownership  often
raises similar problems.  In making this determination,

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                              - 36 -


 enforcement personnel  should  attempt to ascertain who in the
 organization had control  and  oversight responsibility for
 compliance  with  RCRA or other environmental laws.  The violation
 will  be  considered  part of  the compliance history of any
 regulated party  whose  officers had control or oversight
 responsibility.

       In general,  enforcement personnel should begin with the
 assumption  that  if  the same corporation was involved, the
 adjustments for  history of  noncompliance should apply.  In
 addition, enforcement  personnel should be wary of a party
 changing operators  or  shifting responsibility for compliance to
 different persons or entities as  a way of avoiding increased
 penalties.   The  Agency may  find a consistent pattern of
 noncompliance by many  divisions or subsidiaries of a corporation
 even  though the  facilities  are at different geographic locations.
 This  often  reflects, at best,  a corporate-wide indifference to
 environmental protection.   Consequently, the adjustment for
 history  of  noncompliance  probably should apply unless the
 violator can demonstrate  that the other violating corporate
 facilities  are independent.

       (d)   Ability  to  Pay (downward adjustment only)

       The Agency generally  will not assess penalties that are
 clearly  beyond the  means  of the violator.  Therefore, EPA should
 consider the ability of a violator to pay a penalty.  At the same
 time,  it is important  that  the regulated community not see the
 violation of environmental  requirements as a way of aiding a
 financially troubled business.  EPA reserves the option, in
 appropriate circumstances,  to seek penalties that might put a
 company  out of business.  It  is unlikely, for example, that EPA
 would  reduce a penalty where  a facility refuses to correct a
 serious  violation.   The same  could be said for a violator with a
 long history of  previous  violations.  That long history would
 demonstrate that less  severe  measures are ineffective.

       The burden to demonstrate inability to pay rests on the
 respondent,  as it does with any mitigating circumstances.  Thus,
 a company's inability  to  pay  usually will be considered at the
 settlement  stage, and  then  only if the issue is raised by the
 respondent.   If  the respondent fails to fully provide sufficient
 information,  then compliance/enforcement personnel should
 disregard this factor  in  adjusting the penalty.

      There  are  several sources available to assist the Regions
 in determining a  firm's ability to pay.  First, the Region should
consult the Agency's guidance on  Determining a Violator's Ability
to Pay A Civil Penalty, Dec 16, 1986.  Second, the National
Enforcement  Investigations  Center (NEIC) can help obtain
information assessing  the ability to pay of publicly held

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                              - 37 -


 corporations.   ABEL,  the Agency's  computer model  is available to
 help analyze inability to pay claims.  Although ABEL was designed
 with privately held corporations in mind, it can  be used as one
 possible way to analyze other forms of business entities,
 including partnerships,  and it may serve as an adjunct to other
 programs available through NEIC (e.g., the Superfund Financial
 Assessment System).

       When EPA determines that a violator cannot  afford the
 penalty prescribed by this policy, or that payment of all or a
 portion of the penalty will preclude the violator from achieving
 compliance or from carrying out remedial measures which the
 Agency deems to be more important  than the deterrence effect of
 the  penalty (e.g.,  payment of penalty would preclude proper
 closure/post-closure),   the following options should be
 considered in the  order presented:

          o  Consider  an installment payment plan  with
             interest.

          o  Consider  a delayed payment schedule with interest.
             Such a schedule might  even be contingent upon an
             increase  in sales or some other indicator of
             improved  business.

          o  Consider  straight penalty reductions  as a last
             recourse.

       As indicated above,  the amount of any downward adjustment
 of the penalty is  dependent on the individual facts of the case
 regarding the  financial  capability of the defendant/respondent
 and  the nature of  the violations at issue.

       (e)  Environmental  Projects (downward adjustment only)

       Under certain circumstances  the Agency may  consider
 adjusting the  penalty amount downward in return for an agreement
 by the violator to undertake an appropriate environmentally
 beneficial  project.   The following criteria are provided to
 determine the  appropriateness of the use of environmentally
 beneficial  mitigation projects in  settlements.  Mitigation
 projects  serve as  an  incentive to  settlement and  shall be allowed
 only in prelitigation agreements (prior to the actual hearing),
 except  in extraordinary  circumstances.  EPA will  consider on a
 case-by-case basis accepting only  those projects  that satisfy all
 the following  criteria.

       (i)   The activity  must be initiated in addition to all
 statutory and  regulatory compliance obligations,  and not be used
 for penalty mitigation  in any other enforcement action.  The
project may not  be a  substitute for full compliance; rather, it

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                              -  38  -


must be designed to provide an environmental benefit beyond the
benefits of full compliance and may not be part of the company's
normal business practice or a project the company was already
planning to do.

       (ii)  In order to attain the deterrent objectives of the
civil penalty policy, penalty reductions shall reflect the actual
cost of undertaking the activity, taking into account the tax
benefits that accrue.  With consideration of tax benefits, the
actual cost of the project to the respondent shall equal or
exceed the value of the mitigation.  If the respondent fails to
complete the agreed upon project, the settlement document should
provide that a commensurate amount of any previous downward
adjustment of the penalty be reinstated.  For more information
enforcement personnel should consult the Guidance on Calculating
After Tax Net Present Value of Alternative Payments, Oct, 28,
1986, General Enforcement Policy Compendium, GM-51, or the Office
of Enforcement Policy.

       (iii)  The activity must demonstrate a good-faith
commitment to statutory compliance and environmental improvement.
One test of good faith is the degree to which the violator takes
the initiative to identify and propose specific, potential
mitigation projects.  In addition, the project must be primarily
designed to benefit the environment and general public rather
than to benefit the violator or any governmental unit.

       (iv)  Mitigation based on the defendant's activity must not
detract significantly from the general deterrent effect of the
settlement as a whole.  In the settlement context the government
should continue to consider mitigation projects as the exception
rather than the rule.  Efforts should be made to eliminate any
potential perception by the regulated community that the
government lacks the resolve to impose significant penalties for
substantial violations.  The government should seek penalties in
conjunction with mitigation activities which deter both the
specific violator and also the entire regulated community.
Accordingly, every settlement should include a substantial
monetary penalty component.

       (v)  Judicially-enforceable consent decrees must meet  the
ST.. -utory and public interest criteria for consent decrees and
cannot contain provisions which would be beyond the power of the
court to order under the particular statute which had been
violated.  Additional guidance on the appropriate scope of relief
might be found in the statute, the legislative history or the
implementing regulations.

       (vi)  The activity or project must require  little EPA
oversight.  The project should be designed to minimize the need
for EPA monitoring of implementation.

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                               - 39 -

     (vii)  Any settlement which  includes a mitigation  project  shall
require that any public statement by the violator  regarding  the
environmental or general public benefits of the project must include
a statement that funding for the  project is in partial  settlement  of
an enforcement case brought by EPA.

     (viii)  Qualifying activities must provide a  discernable
response to the perceptible risk  or harm caused by the  violations
which are the focus of the government's enforcement action.   The
activity is most likely to be an  acceptable basis  for mitigating
penalties if it closely addresses the environmental effects  of  the
violations.

     Other Considerations

     The Agency should exercise case-by-case judgment in deciding
whether to accept a mitigation project based upon  the above  criteria
and, should consider the difficulty of monitoring  the implementation
of the proposed project in light  of the anticipated benefits of the
project.  Any final cross-media guidance on environmental projects
should be consulted to determine  if they supplement or supersede the
"Environmental Projects" section  of this penalty policy.  In
particular, the Agency is currently developing cross-media guidance
on penalty mitigation projects, to supersede the "Alternative
Payments" section of the Agency's February 16, 1984 penalty policy
(GM-22).  When the final guidance is issued, penalty mitigation
projects under all statute-specific penalty policies will be required
to conform to the new guidance.

     (f)  Other unique factors

     This policy allows an adjustment for factors which may arise on
a case-by-case basis.  When developing  its settlement position, EPA
should evaluate every penalty with a view toward the potential for
protracted litigation and attempt to ascertain the maximum  civil
penalty the court or administrative law judge is likely to  award  if
the case proceeds to hearing or trial.   The Agency should take, into
account, inter alia, the inherent strength of the case, considering,
for example, the probability of proving violations, the probability
that the government's legal arguments will be accepted, the
opportunities which exist to establish  a useful precedent or send a
signal to the regulated community, the  availability and potential
effectiveness of the government's evidence, including  witnesses,  and
the potential strength of the violator's equitable and legal
defenses.  Where the Agency determines  that significant  litigative
risks exist, it may also take into account any disproportionate
resource outlay involved in litigating  a case that  it  might avoid by
entering into a settlement.  Downward adjustments  of the proposed
penalty for settlement purposes may be  warranted depending  on  the
Agency's assessment of these litigation considerations.  The extent
of the adjustments will depend, of course,  on the  specific  litigation
considerations presented in any particular case.   The  August 9,  1990
memorandum, "Documenting Penalty Calculations and Justifications  in
EPA Enforcement Actions," discusses  further the requirements for
legal and factual "litigation risk"  analyses.

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                                - 40 -

     However, where the magnitude of the resource outlay necessary to
litigate is the only significant litigation consideration dictating
downward adjustment in the penalty  amount, the Agency should still
obtain a penalty which not only recoups the economic benefit the
violator has enjoyed, but includes  an additional amount sufficient to
create a strong economic disincentive against violating applicable
RCRA requirements.

     If lengthy settlement negotiations cause the violation(s) to
continue significantly longer than  initially anticipated, the initial
proposed penalty amount should be increased, as appropriate, with a
corresponding amendment of the complaint.  The revised figure would
be calculated in accordance with this policy, and account for the
increasing economic benefit and protracted non-compliance.

     B.   EFFECT OF SETTLEMENT

      The Consolidated Rules of Practice for the Assessment of Civil
Penalties incorporates the Agency policy of encouraging settlement of
a proceeding at any time as long as the settlement is consistent with
the provisions and objectives of RCRA and its regulations.  40 CFR
§22.18(a).  If the respondent believes that it is not liable or that
the circumstances of its case justify mitigation of the penalty
proposed in the complaint, the Rules of Practice allow it to request
a settlement conference.

      In many cases, the fact of a  violation will be less of an issue
than the amount of the proposed penalty.  Once the Agency has
established a prima facie case, the burden is always on the violator
to justify any mitigation of the proposed penalty.  The mitigation,
if any,  of the penalty proposed in  the complaint should follow the
guidelines in the Adjustment Factors section of this document.

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                             - 41 -

X.  APPENDIX

A.  PENALTY COMPUTATION WORKSHEET

Company Name   	

Address
Requirement Violated
                   PENALTY  AMOUNT  FOR COMPLAINT

1.   Gravity based penalty from matrix	
     (a)  Potential for harm.,
     (b)  Extent of Deviation,
2.   Select an amount from the appropriate multiday
       matrix cell	
3.   Multiply line 2 by number of days of violation minus
       1 [or other number, as appropriate (provide narrative
       explanation) ]	 	
4.   Add line 1 and line 3	

5.   Percent increase/decrease for good faith.

6.   Percent increase for willfulness/
       negligence	
7.   Percent increase for history of
       noncompliance	,
8.*  Total lines 5 thru 7	

9.    Multiply line 4 by line 8  .

10.  Calculate economic benefit.
11.  Add lines 4, 9 and 10 for penalty amount.
       to be inserted in the complaint
   Additional downward adjustments, where substantiated by
   reliable information, may be accounted for here.

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                              - 42 -
Company Name	
Address
Requirement Violated
                    SETTLEMENT PENALTY AMOUNT
1.   Gravity based penalty from matrix	
     (a)  Potential for harm..
     (b)  Extent of deviation.
2.    Select an amount from the appropriate multiday
     matrix cell	
3.    Multiply line 2 by number of days of violation minus
     1 [or other number as appropriate (provide narrative
     explanation) ]	 .
4.   Add line 1 and line 3	
5.   Percent increase/decrease for good faith	
6.   Percent increase for willfulness/negligence...
7.   Percent increase for history of noncompliance
8.   Percent increase/decrease for other unique factors
     (except litigation risk) ......;	
9.   Add lines 5, 6, 1, and 8	
10.  Multiply line 4 by line 9 	
11.  Add lines 4 and 10 	
12.  Adjustment amount for environmental project
13 ...  Subtract line 12 from line 11	
14.  Calculate economic benefit	
15.  Add lines 13 and 14	
16.  Adjustment amount for ability-to-pay  	

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                              -  43  -


17. Adjustment amount for litigation risk.

18.  Add lines 16 and 17	
19.   Subtract line 18 from line 15 for	
       final settlement amount

This procedure should be repeated for each violation.

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                              - 44 -
                     NARRATIVE EXPLANATION
 1.  Gravity Based Penalty

 (a)  Potential  for Harm _
 (b)  Extent of Deviation
                         (attach additional sheets if necessary)
 (c)  Multiple/Multi-day
                         (attach additional sheets if necessary)
                          (attach additional sheets if necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence,
history of compliance, ability to pay, environmental credits, and
other unique factors must be justified, if applied.)

(a)  Good Faith 	
     11 A separate "Narrative Explanation" should be attached to
the Penalty Computation Worksheets for both the complaint amount
and settlement amount.  Where the discussion of a given element
of a penalty to be included in the Narrative Explanation
supporting the settlement amount will duplicate that appearing in
the Narrative Explanation supporting the complaint amount, the
earlier discussion may simply be incorporated by reference.

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                              - 45 -
(b)  Willfulness/Negligence
                          (attach additional sheets if necessary)
(c)  History of Compliance
                         (attach additional sheets if necessary)
(d)  Ability to pay_
                        (attach additional sheets if necessary)
(e)   Environmental Project
                        (attach additional sheets if necessary)
(f)   Other Unique Factors
                        (attach additional sheets if necessary)
                        .(attach additional sheets  if necessary)

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                              -  46  -






3.   Economic Benefit  	 	
                        (attach additional sheets if necessary)
4.  Recalculation of Penalty Based on New Information
                        (attach additional sheets if necessary)

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                             - 47 -


B. BEN WORKSHEET 12
1.  Case Name
    Requirement Violated
2.   Initial Capital Investment/Year Dollars

3.   One Time Expenditure/Year Dollars

     a.  Tax Deductible
     b.  Not Tax Deductible

4.   Annual Operating and Maintenance
      (O&M) Expenses Year Dollars

5.   Date of Noncompliance

6.   Date of Compliance

7.   Anticipated Date of Penalty Payment
         /
8.*  Useful Life of Pollution
     Control Equipment

9.*   Marginal Income Tax Rate
      (On Time Case)

10.*  Marginal Income Tax Rate
      (Delayed Compliance Case)

11.*  Inflation Rate

12.*  Discount Rate

13.*  Low Interest Financing

      Low Interest Rate
      Corporate Debt Rate
14.  Economic Benefit Penalty Component
*  See standard value from BEN model
     12  A separate "BEN Worksheet" should be attached to the
Penalty Computation Worksheets for both the complaint amount and
settlement amount.

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                              - 48 -


 XI.  HYPOTHETICAL APPLICATIONS OF THE PENALTY POLICY

      A.  EXAMPLE 1

       (1) Violation

        Company A operated a facility at which it was generating
 one waste and  storing a different waste generated by a since
 discontinued process.  These wastes which company A had managed
 at its  facility for years were first listed as hazardous wastes
 u.ider RCRA  in  1987.  As a result, Company A became subject to
 regulation  under Subtitle C of RCRA on the effective date of the
 regulation  which was November 5, 1987.  In a notification timely
 provided  to EPA pursuant to RCRA Section 3010(a), Company A
 indicated that it only generated hazardous waste, without
 mentioning  storage.  This notification was never amended or
 supplemented.  During an inspection on January 10, 1989, an
 employee  revealed that Company A had also been storing another
 kind of waste  in containers, on site for years.  RCRA Section
 3010(a) provides that notification of waste management activities
 must be provided to EPA within 90 days of the promulgation of
 regulations listing a substance as a hazardous waste subject to
 Subtitle  C  of  RCRA.  40 CFR 262.34 provides that a generator may
 only store  hazardous waste on-site for 90 days without obtaining
 a permit  or interim status.  Thus, beginning on February 3, 1988
 (90 days  after November 5, 1987), Company A was in violation of
 (1) the requirement that it notify the Agency pursuant to RCRA
 Section 3010(a) of its activity as a storer of hazardous waste,
 and (2) the requirement imposed by RCRA Section 3005 that-it
 obtain interim status or a permit for its storage activity.
 Failure to  notify and operating without a permit or interim
 status constitute independent or substantially distinguishable
 violations.  Each violation would be assessed separately and the
 amounts totalled.  The inspectors indicated that Company A's
 storage area was secured and that, in general, the facility was
 well managed.  However, there were a number of violations of the
 interim status standards.  The complaint issued to Company A
 assessed  penalties for the Part 265 violations as well as the
 statutory violations.  For simplification, this example will
 discuss the 13005 and §3010 violations only.  Below is a
 discussion  of  the methodology used to calculate the amount of the
 penalty proposed in the complaint, followed by a discussion of
 the methodology used to calculate the amount of the penalty to be
 accepted  in settlement.

      (2)  Seriousness;

   (a)  Failure to Notify: Potential for Harm.   Moderate -
 EPA was prevented from knowing that hazardous waste was
being stored at the facility.  However, because Company A
notified  EPA that it was a generator, EPA did know that

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                                - 49 -

 hazardous waste was handled at  the  facility, but was unaware of the
 extent of those activities  and  the  risks posed by them.  The
 violation may have a significant  adverse effect on the statutory
 purposes  or procedures  for  implementing the RCRA program.  Extent of
 Deviation.    Moderate - although  Company A did notify the Agency that
 it  was a  generator,  it  did  not  notify  EPA that it stored hazardous
 waste,  and it did not notify EPA  as to all of its activities.
 Company A significantly deviated  from  the requirement-r

      (b)  Operating without  a permit:   Potential for Harm.  Major -
 The fact  that the facility  generally was well managed is irrelevant
 as  to  the potential for harm for  operating without a permit.  This
 situation may pose a substantial  risk  of exposure, and may have a
 substantial adverse effect  on the statutory purposes for implementing
 the RCRA  program.   Extent of Deviation.  Major - substantial
 noncompliance with the  requirement  because Company A did not notify
 EPA that  it stored hazardous waste,  and did not submit a Part A
 application.

 (3)  Gravity-based Penalty

      (a)  Failure to notify.  Moderate potential for harm and moderate
 extent  of deviation lead one to the cell with the range of $5,000 to
 $7,999.   Enforcement personnel  selected the mid-point, which is
 $6,500.

      (b)  Operating without  a permit.   Major potential for harm and
 major extent  of deviation lead  one  to  the cell with the range of
 $20,000 to  $25,000.   Enforcement  personnel selected the midpoint,
 which  is  $22,500.

      (c)  Penalty Subtotal:  $6,500 + $22,500 = $29,000

 (4)  Multi-day Penalty  Assessment

      (a)  Failure  to notify.  Moderate potential for harm and
moderate  extent of deviation lead one  to presume that multi-day
penalties are  appropriate.   The applicable cell ranges from $250 to
$1,600.   The aid-point  is $925.   [Based on an assessment of relevant
factors (e.g.,  the seriousness  of the  violation relative to others
falling within the same matrix  cell, the degree of cooperation
evidenced by the facility,  the  number  of days of violation) the mid-
point in  the range of available multi-day penalty amounts was
selected.]  EPA was  able to document that the violation continued
from February  2,  1988,  to the date  of  the inspection on January 10,
1989, for a total  of 343 days (minus 1st day).  [The inspection
prompted  the Company to immediately file a Section 3010(a)
notification and Part A permit  application.]  The Region elected not
to place  a  180  day cap  on multi-day penalties.  Penalty Subtotal:
$925 X 342 = $316,350.

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                                -  50  -

      (b)  Operating without a permit.  Major potential for harm and
major extent of deviation result in mandatory multi-day penalties.
The applicable cell ranges from $1,000 to $5,000.  The mid-point is
$3,000.  [Based on an assessment of such relevant factors as those
noted in (4)(a), above, the mid-point in the range of available
multi-day penalty amounts was selected.]  The violation continued
from February 2, 1988, to January 10, 1989, for a total of 343 days
(minus one day).  The Region elected not to place a 180 day cap on
multi-day penalties.  Total Penalty Subtotal: $3,000 x 342 =
$1,026,000.

(5)  Economic Benefit of Noncompliance

     The economic benefit obtained by Company A through its failure
to notify pursuant to RCRA Section 3010(a) consists of savings on
mailing and personnel costs which are negligible.  However, the
economic benefit the company obtained as a result of its failure to
obtain a permit or interim status is not insignificant. This
violation allowed the company to avoid or delay the costs of filing
a Part A permit application and the costs of complying with
regulatory requirements regarding storage of hazardous wastes in
containers.  In a BEN analysis  (copy omitted for purposes of this
example), the Region calculated the economic benefit to Company A at
$9,000.

(6)  Application of Adjustment Factors  for Computation of the
       Complaint Amount

      (a)  Good faith efforts to comply.  Prior to issuing the
complaint,  EPA had only limited discussions with the facility.  Since
neither these discussions nor the inspector's observations indicated
any effort had been made to correct the violations prior to
notification of violations by EPA, no downward adjustment for good
faith efforts to comply was made.  Similarly no evidence of lack of
good faith was apparent.

      (b)  Degree of willfulness and/or  negligence.  In the absence of
any affirmative presentation by"the facility warranting downward
adjustment (and consistent with the policy of resolving any
uncertainty about the application of downward adjustment  factors
against th« violator when computing the complaint amount), the  Region
only considered information which might support an upward adjustment.
Available information did not support an upward adjustment.

      (c)  History of noncompliance.  No evidence has been produced
thus far that Company A has had any similar previous violation  at
this site.   The facility in question is the only facility owned or
operated by Company A.  Therefore, no upward adjustment shall be made
for the violations cited above.

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                              -  51  -


       (d)  Other adjustment factors.   Since this computation was
designed to produce a penalty figure to be proposed in the
complaint, the Region did not consider any other downward
adjustment factors.  No additional basis for upward adjustment
was uncovered.

(7)  Final Complaint Penalty Amount

    Gravity base  +  Multiday  + Economic Benefit » Penalty
     $29,000       $1,342,350     $9,000           $1,380,350

(8)  Settlement Adjustments

      During settlement discussions Company A presented
information which it felt warranted adjustment of the penalty.
After issuance of the complaint no new information came to light
which supported recalculation of the gravity-based, multi-day, or
economic benefit components of the penalty proposed in the
complaint.

      After consideration of the seriousness of the violations
and in order to set penalties at a level which would allow it to
achieve compliance quickly (but nevertheless deter future
similar violations), the Region elected to place a 180 day cap on
multi-day penalties.  Multiday Penalty Subtotal: ($925 + $3000) x
179 - $702,575.

       (a)  Good faith efforts to comply.  At settlement
negotiations Company A presented a written but explicitly non-
binding opinion dated October 30, 1987 from the Director of EPA's
Office of Solid Waste (OSW) indicating that the waste which
Company A stored did not come within the ambit of the regulation
listing new wastes, which became effective on November 5, 1987.
other information indicated that six months later the Assistant
Administrator for Solid Waste and Emergency Response formally
renounced the view contained in the Director's opinion, that
Company A probably was aware of this action, and that the company
had failed to provide EPA with either a Section 3010(a)
notification or a Part A permit application even after it likely
knew that its storage activities were subject to Subtitle C
regulation.  In view of these unusual facts - i.e., that the
company had for roughly a third of the duration of the violation
acted in apparent good faith reliance on the opinion of
the Director of OSW indicating its stored wastes were not subject
to regulation - the Region decided to adjust the penalty  for  both
violations downward by 30% ($29,000 + $702,575) x  30% -
$219,472.50.

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                              - 52 -
      (b)  Degree of willfulness and/or negligence.  No evidence
relative to this factor was presented for consideration.

      (c)  History of non-compliance.  No new information
relevant to this adjustment factor came to light after issuance
of the complaint.

      (d)  Ability to pay.  Company A raised and documented that
it has cash flow problems.  It did not convince EPA that the
penalty should be mitigated.  An installment plan was accepted by
both parties as a means of payment.  Total penalty remained
unchanged.

      (e) Environmental Projects
The company did not propose any projects.

      (f)  Other unique factors
No other unique factors existed in this case.

(9)  Final settlement penalty amount;

      Gravity Multi-   Downward       Economic  Total
      base    day      Adjustment     Benefit   Penalty


      $29,000 + $702,575 - $219,472.50 + $9,000 » $521,102.50

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                              -  53  -
A.  PENALTY COMPUTATION WORKSHEET
Company Name Company A
Address	
Requirement Violated  42 U.S.C. 6930fa). Failure to notify of
                hazardous waste management activities
                   PENALTY AMOUNT FOR COMPLAINT

1 .  Gravity based penalty from matrix .................. S6.500

      (a)  Potential for harm ........................... Moderate

      (b)  Extent of Deviation .......................... Moderate

2 .  Select an amount from the appropriate multiday
       matrix cell ...................................... 3925

3.  Multiply line 2 by number of days of violation
       minus l..($925 X 342) ............................ $316.350

4 .  Add line 1 and line 3 .............................. S322.850

5.  Percent increase/decrease for good faith ........... N/A

6.  Percent increase for willfulness/
      negligence ........................................ N/A

7.  Percent increase for history of
       noncompl iance .................................... N/A_
8.* Total lines 5 thru 7 ...........................

9.  Multiply line 4 by line 8

10. Calculate Economic Benefit ......................... N/A

11. Add lines 4, 9 and 10 for penalty amount ........... 5322.850
      to be inserted in the complaint


*  Additional downward adjustments where substantiated by
reliable information may be accounted for here.

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                                -  54  -

          NARRATIVE EXPLANATION TO SUPPORT COMPLAINT AMOUNT


1.  Gravity Based Penalty

(a)  Potential for Harm Moderate - EPA was prevented from knowing
that hazardous waste was being stored at the facility.   However.
because Company A notified EPA that it was a generator.  EPA did know
that hazardous waste was handled at the facility, but was unaware of
the extent of those activities and the risk posed by them.  The
violation mav have a significant adverse effect on the statutory
purposes or procedures for implementing the RCRA
program.	

	(attach additional sheets if necessary)
(b)  Extent of Deviation Moderate - Although Company A did notify the
Agency that it was a generator, it did not notify EPA that it stored
hazardous waste.  While there was partial compliance. Company A
significantly deviated from the requirement.
                      (attach additional sheets if necessary)
(c)  Multiple/Multi-day  Moderate potential for harm and moderate
extent of deviation lead one to presume that multi-dav penalties are
appropriate.  There are no case-specific facts which would overcome
the presumption.  The applicable cell ranges from $250 to $1.600. .
The midpoint is $925.  Based on an assessment of relevant factors
(e.g.. the seriousness of the violation relative to others fall-ing
within the same matrix cell, the degree of cooperation evidenced bv
the facility, the number of days of violation). the mid-point in the
available range was selected.  The violation persisted for 343 days.
                     .(attach additional sheets if necessary)
2.  Adjustment Factors (Good faith, willfulness/negligence, history
of compliance, ability to pay, environmental credits,
and other unique factors must be justified, if applicable.)

(a)  Good Faith  Neither discussions with the facility  nor  the
inspector's observations indicated any effort had been  made to
correct violations prior to notification of violations  by EPA.   Thus
no downward adjustment for good faith efforts to comply was made.
Similarly, no evidence of lack of good faith was apparent.
                       (attach additional  sheets  if  necessary)

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                              -  55  -
 (b)  Willfulness/Negligence No evidence relative to this factor
was presented for consideration.	
                         (attach additional sheets if necessary)
 (c)  History of Compliance No evidence relative to this
adjustment factor was presented for consideration.  There is no
evidence of similar previous violations at this (the Company's
only) facility.
                         (attach additional sheets if necessary)
(d)  Ability to pay No evidence relative to this factor was
presented for consideration.
                         (attach additional sheets if necessary)
(e) Environmental Project_
                                N/A
(f)  Other Unique Factors_
                          (attach additional sheets if necessary)
                               N/A
                         .(attach additional sheets  if  necessary)
3.  Economic Benefit Although there  is some economic benefit
gained from the above cited violation  (i.e.. personnel  costs and
postage for notification forms). such costs are  negligible
enough  not to include in the calculation.	

                         (attach additional sheets  if necessary)
4.  Recalculation of Penalty Based on New  Information.
                          (attach  additional  sheets if necessary)

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                              -  56  -
Company Name Company
Address
Requirement Violated 40 U.S.C. 6930fa). Failure to notify of
                hazardous waste management activities
                    SETTLEMENT PENALTY AMOUNT


1.  Gravity based penalty from matrix	S6.500

      (a)  Potential for harm   	Moderate

      (b)  Extent of Deviation	Moderate

2.  Select an amount from the appropriate multiday
      matrix cell	S925

3.  Multiply line 2 by number of days of violation
      minus 1. ($925 X 179)	$165.575

4.  Add line 1 and line 3	$172.075

5.  Percent increase/decrease for good faith	-30%

6.  Percent increase/decrease for
      willfulness/negligence	N/A

7.  Percent increase for history
      of noncompliance	N/A

8.  Percent increase/decrease for
      other unique factors 	N/A
      (except litigation risk)

9.  Add lines 5, 6, 7, and 8	 .-30%

10. Multiply line 4 by line 9	$51.622.50

11. Add lines 4 and 10	$120.452.50

12. Adjustment amount for environmental	-0-
      project

13. Subtract line 12 from line 11	$120.452.50

14. Calculate economic benefit	-0-

15. Add lines 13 and 14	$120.452.50

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                              -  57  -


16. Adjustment amount for ability-to-pay	-0-

17. Adjustment amount for litigation risk	-0-

18.  Add lines 16 and 17	-0-

19.   Subtract line 18 from line 15 for	S120.452.5Q
       final settlement amount

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                                - 58  -

          NARRATIVE EXPLANATION TO SUPPORT SETTLEMENT  AMOUNT

 1.  Gravity Based  Penalty

 (a)  Potential for Harm Moderate - EPA was prevented from knowing
 that hazardous waste was being stored at the facility.  However.
 because Company A  notified EPA that it was a generator. EPA did know
 that hazardous waste was handled at the facility, but was unaware of
 the extent of those activities and the risk posed bv them.  The
 violation may have a significant adverse effect on the statutory
 purposes or procedures for implementing the RCRA program.


 	(attach additional sheets if necessary)
 (b)  Extent of Deviation Moderate - Although Company A did notify the
Agency that it was a generator, it did not notify EPA that it stored
hazardous waste.  While there was partial compliance. Company A
significantly deviated from the recruirement.
                       (attach additional sheets if necessary)
(c)  Multiple/Multi-day Moderate potential for harm and moderate
extent of deviation lead one to presume that multi-day penalties are
appropriate.  There are no case-specific facts which would overcome
the presumption.  The applicable cell ranges from $250 to $1.600.
The midpoint is $925.  Based on an assessment of relevant factors •
(e.g.. the seriousness of the violation relative to others falling
within the same matrix cell, the degree of cooperation evidenced by  .
the facility, the number of days of violation). the mid point in the
available range was selected.  The violation persisted for 343 days.
The Region determined that the total penalty would have sufficient
deterrent impact if multidav penalties were assessed only for the
minimum 180 day period presumed under the penalty policy, rather than
for the full 343 (minus 1) days of violation.	

	(attach additional sheets if necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence, history
of compliance, ability  to pay, environmental credits,
and other unique factors must be justified, if applicable.)

(a)  Good Faith At settlement negotiations Company A presented  a
written but explicitly  non-binding opinion dated October  30,  1987.
from the Director pf EPA's Office of Solid Waste  (OSW). indicating
that the waste which Company A stored did not come within the
ambit of the regulation listing new wastes, which became
effective on November 5. 1989.  Other information indicated that
6 months later the Assistant Administrator for Solid Waste and

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                              -  59  -
Emergency Response formally renounced the view contained in the
Director's opinion, that Company A was probably aware of this
action, and that the Company had failed to provide EPA with
either a §3010(a) notification or a Part A permit application
even after it likely knew that its storage activities were
subject to Subtitle C regulation.  In view of these unusual facts
- i.e.. that the company had for roucrhlv a third of the duration
of the violation acted in apparent good faith reliance on the
opinion of the Director of OSW indicating its stored wastes were
not subject to regulation - a downward adjustment of 30% in the
amount of the penalty is appropriate.	

                      (attach additional sheets if necessary)
(b)  Willfulness/Negligence No evidence relative to this factor
was presented for consideration.  Evidence that Company A
knowingly failed to comply with notification/permitting
requirements after the Aaencv had clarified its regulatory
interpretation was not deemed so persuasive as to warrant a
finding that the company had acted willfully.
                         (attach additional sheets if necessary)
(c)  History of Compliance No new information relevant to this
adjustment factor came to light after issuance of the complaint.
There is no evidence of similar previous violations at this  (the
company's only) facility.	
                         (attach additional sheets  if necessary)
(d)  Ability to pay Company A raised and documented  that  it has
cash flow problems.  It did not convince EPA that  the  penalty
should be mitigated.  An installment plan was  accepted by the
Aoencv.              	              	
                         (attach additional  sheets  if necessary)
(@) Environmental Project,
                                N/A
                          (attach  additional sheets if necessary)

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                              - 60 -
(f)  Other Unique Factors_
                               N/A_
                          (attach additional sheets if necessary)
3.  Economic Benefit Although there is some economic benefit
gained from the above cited violation (i.e.. personnel costs and
postage for notification forms). such costs are negligible
enough not to include in the calculation.	

                         (attach additional sheets if necessary)
4.  Recalculation of Penalty Based on New Information_
                              N/A
                         (attach additional sheets if necessary)

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                              - 61 -
                A.  PENALTY COMPUTATION WORKSHEET
Company Name Company A
Address	
Requirement Violated  42 U.S.C. 6925. Operating without a permit
                      or interim status
                   PENALTY AMOUNT FOR COMPLAINT
1.  Gravity based penalty  from matrix	$22 . 500
       (a)  Potential for harm	Manor
       (b)  Extent of Deviation	Manor
2.  Select an amount from  the appropriate multiday
       matrix cell	S3.OOP
3.  Multiply line 2 by number of days of violation
       minus l..($3000 x 342)	Si.026.OOP
4.  Add line 1 and line 3..	$1.048.500
5.  Percent increase/decrease for good faith	N/A
6.  Percent increase for willfulness/
      negl igence	N/A
7.  Percent increase for history of
       noncompliance	N/A_
8.* Total lines 5 thru 7		E/A.
9.  Multiply line 4 by line 8 	M/A.
10. Calculate Economic Benefit	S9.000
11. Add lines 4, 9 and 10  for penalty amount	Sl.P57.5PP
      to be inserted in the complaint

*  Additional downward adjustments where substantiated by
reliable information may be accounted for here.

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                                -  62  -

          NARRATIVE EXPLANATION TO SUPPORT COMPLAINT AMOUNT


1.  Gravity Based Penalty

(a)  Potential for Harm Manor - The fact that the facility generally
was well managed is irrelevant as to the potential for harm for
operating without a permit.  This situation may pose a substantial
risk of exposure and mav have a substantially adverse effect on the
statutory purposes for implementing the RCRA Program.
                         (attach additional sheets if necessary)
(b)  Extent of Deviation Manor - Substantial noncompliance with the
requirement was found because Company A did not notify EPA that it
stored hazardous waste, and did not submit a Part A application.
                        (attach additional sheets if necessary)
(c)  Multiple/Multi-day Major potential for harm and manor extent of
deviation result in mandatory multi-day penalties.  The applicable
cell ranges from Si.OOP to S5.000.  The midpoint is $3.000.  Based on
an assessment of relevant factors (e.g.. the seriousness of the
violation relative to others falling within the same matrix cell, the
degree of cooperation evidenced by the facility, and the number of
davs of violation) the mid point in the available range was selected.
The violation persisted for 342 days.	,_

                        (attach additional sheets if necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence, history
of compliance, ability to pay, environmental credits, and other
unique factors must be justified, if applicable.)

(a)  Good Faith Neither discussions with the facility nor the
inspector's observations indicate any effort had been made to correct
violations prior to notification of violations by EPA.  Thus no
downward adjustment for good faith efforts to comply was made.   There
was also no evidence of a lack of good faith.
                          (attach additional sheets  if  necessary)

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                              -  63  -
 (b)  Willfulness/Negligence No evidence relative to this factor
was presented for consideration.
                          (attach additional sheets if necessary)
 (c)  History of Compliance No evidence has been produced thus far
that Company A has had any similar previous violations at this
site.  The facility in question is the only facility owned or
operated by Company A.  Therefore, no upward adjustment shall be
made on the basis of past compliance history.
                          (attach additional sheets if necessary)
(d)  Ability to pay No evidence relative to this factor was
presented for consideration.
                         (attach additional sheets if necessary)
(e) Environmental Project,
                                N/A
(f)  Other Unique Factors.
                         .(attach additional sheets if necessary)
                               N/A
                          (attach additional sheets  if  necessary)
3.   Economic Benefit By failing to obtain  interim  status  (the
least expensive option available to  it under the statute)  Company
A avoided or delayed the costs of filing a Part A  permit
application and complying with the regulatory  requirements
relative to storage of hazardous wastes in containers.  In a BEN
analysis (copy omitted for purposes  of this example)  the  Region
found that these costs amounted to $9.000.                  	
                       _attach  additional  sheets if necessary)

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                              - 64 -
4.  Recalculation of Penalty Based on New Information
                        _N/A_
                         .(attach additional  sheets  if  necessary)

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                             - 65 -
Company Name Company A
Address      	
Requirement Violated 40 U.S.C. 6925. Operating without a permit
                     or interim status
                    SETTLEMENT PENALTY AMOUNT


1.  Gravity based penalty from matrix .................. S22.500

      (a)  Potential for harm   ........................ Manor

      (b)  Extent of Deviation .......................... Manor

2.  Select an amount from the appropriate multiday
      matrix cell ....................................... S3. OOP

3.  Multiply line 2 by number of days of violation
      minus l..($3,000 x 179) ........................... S537.000

4.  Add line 1 and line 3 ............................... $559.500

5.  Percent increase/decrease for good faith ........... -30%

6.  Percent increase/decrease for
      willfulness/negligence ............................ N/A

7.  Percent increase for history of
      noncompliance ..................................... N/A

8.  Percent increase/decrease for
      other unique factors
      (except litigation risk)
9.  Add lines 5, 6, 7, and 8 ........................... -30%

10. Multiply line 4 by line 9 ......................... -S167.850

11. Add lines 4 and 10 ................................. $391,650
12.  Adjustment amount for environmental	~°"_
      project

13.  Subtract line 12 from line 11	 .$391,550

14.  Calculate economic benefit	$9.000

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                              -  66  -


15.  Add lines 13 and 14	S400.650

16.  Adjustment amount for ability-to-pay	-0-

17.  Adjustment amount for litigation risk	-0-

18.   Add lines 16 and 17	-0-

19.    Subtract line 18 from line 15 for	S400.650
       final settlement amount

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                                -  67  -

          NARRATIVE EXPLANATION TO SUPPORT SETTLEMENT AMOUNT

1.  Gravity Based Penalty

(a)  Potential for Harm Major - The fact that the facility generally
was well managed is irrelevant as to the potential for harm for
operating without a permit.  This situation may pose a substantial
risk of exposure and may have a substantially adverse effect on the
statutory purposes for implementing the RCRA Program.
                         (attach additional sheets if necessary)
(b)  Extent of Deviation Major - Substantial noncompliance with the
requirement was found because Company A did not notify EPA that it
stored hazardous waste, and did not submit a Part A application.
                         (attach additional sheets if necessary)
(c)  Multiple/Multi-day Major potential for harm and major extent of
deviation result in mandatory multi-day penalties.  The applicable
cell ranges from $1,000 to $5.000.  The midpoint is $3.000.  Based on
an assessment of relevant factors (e.g.. the seriousness of the
violation relative to others falling within the same matrix cell, the
degree of cooperation evidenced by the facility, and the number of
days of violation) the mid point in the available range was selected.
The violation persisted for 342 days.  The Region determined that the
total penalty would have sufficient deterrent impact if multiday
penalties were assessed only for the minimum 180 day period mandated
by the penalty policy rather than the full 342 days of violation.

	(attach additional sheets if necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence, history
of compliance, ability to pay, environmental credits, and other
unique factors must be justified,  if applicable.)

(a)  Good Faith At settlement negotiations Company A presented
a written but explicitly non-binding opinion dated October  30.
1987. from the Director of EPA's Office of Solid Waste  fOSW).
indicating that the waste which Company A stored did not come
within the ambit of the regulation listing new wastes,  which
became effective on November 5. 1987.  Other information indicated
that 6 months later the Assistant  Administrator for Solid Waste  and

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                              - 68 -


Emergency Response  formally renounced the view contained in the
Director/s opinion, that Company A was probably aware of this
action, and that the company had failed to provide EPA with
either a $3010fa) notification or a Part A permit application
even after it likely knew that its storage activities were
subject to Subtitle C regulation.  In view of these unusual facts
- i.e. that the company had for roughly a third of the duration
of the violation acted in apparent good faith reliance on the
opinion of the Director of OSW indicating its stored wastes were
not subject to regulation - it is appropriate to adjust the
penalty for this violation downward by	
30%.	
(attach additional sheets if necessary)

(b)  Willfulness/Negligence No evidence relative to this factor
was presented for consideration.	
                           (attach additional sheets if necessary)
(c)  History of Compliance No new information relevant to this
adjustment factor came to light after issuance of the complaint.
                          (attach additional sheets if necessary)
(d)  Ability to pay Company A raised and documented that it has
cash flow problems.  It did not convince EPA that the penalty
should be mitigated.  An installment plan was accepted by the
Aaencv.
(e)  Environmental Project,
                         (attach additional sheets if necessary)
                                N/A
(f)   Other Unique Factors.
                          (attach additional sheets if necessary)
                               N/A
                         (attach additional sheets  if necessary)

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                              - 69  -
                                                          (the
                                                          Company
3.   Economic Benefit  By failing to obtain interim status
least expensive option available to it under the statute)	
A avoided or delayed the costs of filing a Part A permit
application and complying with the regulatory requirements
relative to storage of hazardous wastes in containers.  In a BEN
analysis (COPY omitted for purposes of this example) the Region
found that these costs amounted to S9.000.
                         (attach additional sheets if necessary)
4.  Recalculation of Penalty Based on New Information,
                        N/A
                         (attach additional sheets if necessary)

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                                - 70  -

     A.  EXAMPLE 2

     (1)  Violation

Company B failed to prevent entry of persons onto the active portion
of its surface impoundment facility.   A portion of the fence
surrounding the area had been accidentally knocked down during
construction on the new wing of the facility on October 30, 1988, and
had never been replaced.  Several children have entered the active
portion of the facility.  40 CFR §265.14.  An inspection by EPA on
March 15, 1989, revealed that the damaged area of the fence still
needed to be replaced.  The complaint issued to Company A assessed
penalties for the violation of failing to provide adequate security
pursuant to 40 CFR § 265.14.  Below is a discussion of the
methodology used to calculate the penalty amount proposed in the
complaint, followed by a discussion of the methodology used to
calculate the penalty amount to be accepted in settlement.

     (2)  Seriousness:  Potential for Harm.  Major - Some children
already have entered the area; potential for harm due to exposure to
waste is substantial because of the lack of adequate security around
the site.  Extent of Deviation.  Moderate - there is a fence, but a
portion of it has been knocked down.   Significant degree of
deviation, but part of the requirement was implemented.

     (3)  Gravity-based Penalty:  Major potential for harm and
moderate extent of deviation yield the penalty range of $15,000 to
$19,999.  The midpoint is $17,500.

     (4)  Multi-Dav Penalty Assessment

     (a)  Failure to provide security.  Major potential for harm and
moderate extent of deviation result in mandatory multi-day penalties.
The applicable cell ranges from $750 to $4,000.  The midpoint is
$2,375.  [Based on an assessment of relevant factors  (e.g., the
seriousness of the violation relative to others falling within the
same matrix cell, the degree of cooperation evidenced by the
facility, the number of days of violation) the mid-point in the  range
of available multi-day penalty amounts was selected.]  EPA documented
that the violation continued from October 30, 1988, to March  15,
1989, a total of 136 days (minus one day).  Total Penalty:  $2,375  x
135 - $320,625.

     (b)  Penalty Subtotal;  $17.500 + $320.625 » $338.125

     (5)  Economic benefit of noncompliance.

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                              -  71  -
Since Company B reaped an economic benefit by failing to repair
the fence, a BEN worksheet should be completed.   For information
describing each of the inputs see Section VIII.B.  For purposes
of the above violation, the following input data should be
furnished:

           1.  (EPA v. Company B). the case name
           2.  (SlOO.OOCn. the initial capital investment of
               replacing the fence
           3.  -0-. there are no one time expenditures
           4.  -0-. no annual operating and maintenance (O&M
               expenses have been identified
           5.  3/1989. the date of the inspection
               documenting noncompliance
           6.  4/1990. the date of compliance
           7.  6/1990. the anticipated date of penalty
               payment
The above data was entered into the BEN model which yielded an
economic benefit amount of $12,743 (see attached BEN worksheet
and printout).

(6)  Application of Adjustment Factors For Computation of the
Complaint Amount

      (a) Good faith efforts to comply.  At the time of
computation of the amount of the penalty to be proposed in the
complaint no information (i) relative to the violator's good
faith efforts to comply or  (ii) indicative of lack of good faith
was available.

      (b)  Degree of willfulness and/or negligence.  Little
evidence as to application of this factor was available.

      (c) History of non-compliance.  Company B had on two
previous occasions been cited in writing for failure to prevent
public access to the active portion of the facility.  While such
previous violations had been corrected, they indicate that
Company B had not been adequately deterred by prior notice of
similar violations.  The sum of the gravity/multi-day penalty
components is adjusted upwards by 15% because of the company's
history of noncompliance.

($17,500 + $320,625) X 15% - $50,718.75

      (d)  Other adjustment factors.  Consistent with the general
policy of delaying consideration of downward adjustment factors
(other than that relating to good faith efforts to comply) until
the settlement stage, the Region reviewed available information

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                              - 72 -


 only to  see  if  it supported  further upward adjustment of the
 penalty  amount.  No  information supporting further upward
 adjustment was  uncovered.

 (7)  Final Complaint Penalty Amount

      Gravity base    Multiday     Economic benefit   Upward Adj.
       $17,500    +  $320,625  +    $12,743        +  $50,718.75

      -  Total  Penalty:  $401,586.75

 (8)  Settlement Adjustments

      During settlement discussions Company B presented
 information  which it felt warranted adjustment of the penalty.
 After issuance  of the complaint no new information came to light
 which supported recalculation of  the gravity-based, multi-day,
 or economic  benefit  components of the penalty proposed in the
 complaint.

      (a)  Good faith efforts to  comply.  Company B gave evidence
 at settlement of labor problems with security officers and
 reordering and  delivery delays for a new fence.  After issuance
 of the complaint, Company B  was very cooperative and stated that
 a new fence  would be installed and that security would be
 provided for by another company in the near future.  Even though
 the company  was very cooperative, its actions were only those
 required under  the regulations.   No justification for mitigation
 for good faith  efforts to comply  exists.  No change in penalty.

      (b)  Degree of willfulness  and/or negligence.  If the
 evidence presented by Company B with respect to reordering delays
 had been convincing, it might arguably have served as a basis for
 finding that the company acted without willful disregard of the
 regulation (or  should not have been charged multi-day penalties
 at a rate so high as that established during computation of the
 complaint amount).   However, such claims of unavoidable delay are
 easily made  and must be viewed with skepticism.  The company's
 evidence on  this point was unconvincing since the security and
 fencing could have been easily provided by other suppliers.

      While  the fact that the fence was knocked down accidentally
might indicate  a lack of willfulness, the company's failure to
 take remedial action for 136 days argues against a downward
adjustment.  The violation may even have become a willful one
when left uncorrected.  But  in the absence of more information
about precautionary  steps the company took prior to the accident
 and the extent  of the violator's  knowledge of the regulations, no
 adjustment was  made.

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                              - 73 -
      (c)  History of non-compliance.  The Region was confronted
with no reason to rethink the previous upward adjustment of the
penalty based on past violations of a similar nature.

      (d)  Ability to pay.  The Company made no claims regarding
ability to pay.

      (e)  Environmental projects.  The company did not propose
any environmental projects.

      (f)  Other unique factors.  No other unique factors existed
in this case.

(9) Final Settlement Penalty Amount

                 Upward       Economic    Total
Gravity base    Multi-day    Adjustment   Benefit    Penalty
 $17,500      + $320,625   + $50,718.75 + $12,743  -  $401,586.75

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                              -  74  -
           PENALTY COMPUTATION WORKSHEET
Company Name Company B (DC 5456)
Address      402 M. Street. S.W.
              Washington. D.C.20254_
Requirement Violated 40 CFR §265.14. failure to prevent entry

                    PENALTY AMOUNT FOR COMPLAINT
1.  Gravity based penalty from matrix	S17.500
      (a)  Potential for harm   	 Malor
      (b)  Extent of Deviation  	Moderate
2.  Select an amount from the appropriate multiday
      matrix cell	$2375
3.  Multiply line 2 by number of days of violation
      minus 1. ($2375 X 135)	$320.625
4.  Add line 1 and line 3.	$338.125
5.  Percent increase/decrease for good faith	N/A
6.  Percent increase for willfulness/
      negl igence	N/A
7.  Percent increase for history of noncompliance	15%
8.* Total lines 5 thru 7	15%_
9.  Multiply line 4 by line 8 	$50.718.75
10. Calculate Economic Benefit	$12.743
11. Add lines 4, 9 and 10 for penalty amount
      to be inserted in the complaint	$401.586.75

*  Additional downward adjustments where substantiated by
reliable information may be accounted for here.

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                                -  75  -

          NARRATIVE EXPLANATION TO SUPPORT COMPLAINT

1.  Gravity Based Penalty

(a)  Potential for Harm Mai or - Some children have already entered
the area; potential for harm due to exposure to waste is substantial
because of the lack of adequate security around the site.



                       (attach additional sheets if necessary)
(b)  Extent of Deviation Moderate - There is a fence, but a
substantial portion of it has been knocked down.  There is a
significant degree of deviation, but part of the requirement
has been implemented.
                     (attach additional sheets if necessary)
(c)  Multiple/Multi-day  Multi-dav penalties are mandatory for  .
manor-moderate violations.  Based on consideration of relevant
factors (e.g.. number of days of violation and degree of cooperation
evidenced bv the facility) the mid-point in the available range in
the multi—day matrix was selected.  The violation can be shown to
have persisted for 135 days.
                       (attach additional sheets if necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence, history
of compliance, ability to pay, environmental credits, and other
unique factors must be justified, if applied.)

(a)  Good Faith.  No information indicating a lack of good  faith
or of good faith efforts bv the violator to comply is available.
                         .(attach additional sheets  if  necessary)
(b)  Willfulness/Negligence	N/A
                         .(attach additional  sheets  if necessary)

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                              - 76 -
 (c)  History  of  Compliance  Company  B had on two previous
 occasions  been cited  in writing  for failure to prevent public
 access  to  the active  portion  of  the facility.  While such
 previous violations had been  corrected, they  indicate that
 Company B  has not  been adequately deterred by prior notice of
 similar violations.   Hence, the  penalty is adjusted upward 15%
                         (attach  additional sheets  if necessary)
 (d)  Ability to pay	N/A
                         (attach additional sheets  if necessary)
 (e)  Environmental Project 	N/A
 (f)  Other Unique Factors
                        .(attach additional  sheets  if  necessary)
                         (attach  additional  sheets  if  necessary)
3.  Economic Benefit Company B has gained  an  economic  benefit
from failing to install a new fence.   See  the BEN  Worksheet  for
the data input into the BEN model which  calculated an  economic
benefit of S12.743.                         	
                       .(attach additional  sheets  if  necessary)

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                              -  77  -
4. Recalculation of Penalty Based on New Information     N/A
                        (attach additional sheets if necessary)

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                             - 78 -
                           BEN Worksheet
1.   Company B
     Requirement Violated: 40 CFR 5265.14
5,

6,

7,
Initial Capital Investment/
Year Dollars

One Time Expenditure/Year
Dollars
a.  Tax Deductible
b.  Not Tax Deductible

Annual Operating and
Maintenance (O&M) Expenses/
Year Dollars

Date of Noncompliance

Date of Compliance

Anticipated Date of Penalty
Payment
B.*  Useful Life of Pollution
     Control Equipment

9.*  Marginal Income Tax Rate
     (On Time Case)

10.* Marginal Income Tax Rate
     (Delayed Compliance Case)

11.* Inflation Rate

12.* Discount Rate

13.* Low Interest Financing

     Low Interest Rate

     Corporate Debt Rate
                                                   BEN Inputs

                                                   100.000
3.1989

4.1990



6.1990
14.   Economic Benefit Penalty Component

*  See standard value from BEN model

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                              -  79  -
THE ECONOMIC BENEFIT OF A 13 MONTH DELAY AS
OF THE PENALTY PAYMENT DATE, 15 MONTHS AFTER
THE INITIAL DATE OF NONCOMPLIANCE
   S   12743
>»»»»  THE ECONOMIC SAVINGS CALCULATION ABOVE
            USED THE FOLLOWING VARIABLES:
 USER SPECIFIED VALUES

 1.  CASE NAME =  HYPO
 2.  INITIAL CAPITAL INVESTMENT =         $  100000
 3.  ONE-TIME NONDEPRECIABLE EXPENDITURE  $   - 0 -
 4.  ANNUAL O&M EXPENSES =                $   - 0 -
 5.  FIRST MONTH OF NONCOMPLIANCE =       $   3,1989
 6.  COMPLIANCE DATE =                    $   4,1990
 7.  PENALTY PAYMENT DATE =               $   6,1990
       1989 DOLLARS
 STANDARD VALUES

 8.  USEFUL LIFE OF POLLUTION CONTROL
      EQUIPMENT -
 9.  MARGINAL INCOME TAX RATE FOR THE
       ON-TIME CASE =
10.  MARGINAL INCOME TAX RATE FOR THE
       DELAY CASE
11.  ANNUAL INFLATION RATE =
12.  DISCOUNT RATE -
13.  AMOUNT OF LOW INTEREST FINANCING =
15 YEARS

38.50 %

 38.50 %

  3.40 %
 17.50 %
     0 %

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                              - 80 -
 Company Name Company  B  (DC  5456)
Address       402 M. Street. S.W.
              Washington. D.C.20254_
Requirement Violated 40 CFR S265.14. Failure to prevent entry

                    SETTLEMENT PENALTY AMOUNT

1.  Gravity based penalty from matrix	S17.500
       (a)  Potential for harm    	Major
       (b)  Extent of Deviation	Moderate
2.  Select an amount from the appropriate multiday
      matrix cell	$2.375
3.  Multiply line 2 by number of days of violation
      minus 1 ($2,375 X 135)	$320.625
4.  Add line 1 and line 3	$338.125
5.  Percent increase/decrease for good faith	N/A
6.  Percent increase/decrease for
      willfulness/negligence	N/A
7.  Percent increase for
      history of noncompliance	15%
8.  Percent increase/decrease for
      other unique factors	N/A
      (except litigation risk)
9.  Add lines 5, 6, 7, and 8	 .15%
10.  Multiply line 4 by line 9	$50.718.75
11.  Add lines 4 and 0.	$388.843.75
12.  Adjustment amount for environmental	N/A
      project
13.  Subtract line 12 from line 11 	$388.843.75
14.  Calculate economic benefit	$12.743
15.  Add lines 13 and 14	$401.586.75

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                              -  81  ^

16. Adjustment amount for ability-to-pay	N/A
17. Adjustment amount for litigation risk	N/A
18.  Add lines 16 and 17	- 0 -
19.   Subtract line 18 from line 15 for	$401.586.75
       final settlement amount
This procedure should be repeated for each violation.

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                                -  82  -

     NARRATIVE EXPLANATION TO SUPPORT SETTLEMENT AMOUNT

1.  Gravity Based Penalty

(a)  Potential for Harm Maior - Some children have already  entered
the area; potential for harm due to exposure to waste is substantial
because of the lack of adequate security around the site.



                       (attach additional sheets if necessary)
 (b)  Extent of Deviation Moderate - There is a fence, but a
substantial portion of it has been knocked down.  There is a
significant degree of deviation, but part of the requirement
has been implemented.
                     (attach additional sheets if necessary)
(c)  Multiple/Multi-day  Multiday penalties are mandatory for
major-moderate violations.  Based on consideration of relevant
factors (e.g.. number of davs of violation and degree of cooperation
evidenced bv the facility) the mid-point in the available range in
the multi-dav matrix was selected.  The violation can be shown to
have persisted for 135 davs.
                       (attach additional sheets if necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence, history
of compliance, ability to pay, environmental credits, and other
unique factors must be justified, if applied.)

(a)  Good Faith.  Company B gave evidence of labor problems with
security officer and reordering and delivery delays  in obtaining a
new fence.  After issuing the complaint. Company B stated that a new
fence would be installed and that security would be  provided by
another company in the near future.   Even though the Company was
very cooperative, its actions were only those required under the
regulations.  No Justification for mitigation for good faith efforts
to comply exists.                       	  	
                          (attach additional sheets  if  necessary)

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                              -  83  -
(b)  Willfulness/Negligence.  While the fact that the fence was
knocked down accidentally might indicate a lack of willfulness,.
the Company/s failure to take remedial action for 136 davs aroues
against a downward adjustment.  The violation may even have
become a willful one when left uncorrected.  But in the absence
of more information about precautionary steps the company mav
have taken prior to the accident and the extent of the violator's
knowledge of the regulations, no adjustment was made.
                                (additional sheets if necessary)
(c)  History of Compliance Company B had on two previous
occasions been cited in writing for failure to prevent public
access to the active portion of the facility.  While such
previous violations had been corrected, they indicate that
Company B has not been adequately deterred by prior notice of
similar violations.  Hence, the penalty is adjusted upward 15%.
                        .(attach additional sheets if necessary)
(d)  Ability to pay	N/A
(e)   Environmental Project
                        .(attach additional sheets if necessary)
                         (attach additional sheets  if  necessary)
(f)   Other Unique Factors 	N/A
                        .(attach additional  sheets if necessary)

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                              - 84  -
3.  Economic Benefit Company B has gained an economic benefit
from failing to install a new fence.  See the BEN Worksheet for
the data input into the BEN model which calculated an economic
benefit of $12.743.
                       (attach additional sheets if necessary)
4. Recalculation of Penalty Based on New Information     N/A
                        .(attach additional sheets if necessary)

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                              - 85 -
                          BEN Worksheet
 1.   Company B
     Requirement Violated: 40 CFR $265.14
5.

6.

7.
Initial Capital Investment/
Year Dollars

One Time Expenditure/Year Dollars
a.  Tax Deductible
b.  Not Tax Deductible

Annual Operating and
Maintenance (O&M) Expenses/
Year Dollars

Date of Noncompliance

Date of Compliance

Anticipated Date of Penalty
Payment
                                       BEN Inputs

                                             100.000
8.*  Useful Life of Pollution
     Control Equipment

9.*  Marginal Income Tax Rate
     (On Time Case)

10.* Marginal Income Tax Rate
     (Delayed Compliance Case)

11.*  Inflation Rate

12.* Discount Rate

13.* Low Interest Financing

     Low Interest Rate

     Corporate Debt Rate
3.1989

4.1990


6.1990
14.  Economic Benefit Penalty Component

*  See standard value from BEN model

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                             - 86  -
THE ECONOMIC BENEFIT OF A 13 MONTH DELAY AS
OF THE PENALTY PAYMENT DATE, 15 MONTHS AFTER
THE INITIAL DATE OF NONCOMPLIANCE
   S  12743
>»»»»  THE ECONOMIC SAVINGS CALCULATION ABOVE
            USED THE FOLLOWING VARIABLES:
 USER SPECIFIED VALUES

 1.  CASE NAME =  HYPO
 2.  INITIAL CAPITAL INVESTMENT =         $  100000
 3.  ONE-TIME NONDEPRECIABLE EXPENDITURE  $   - 0 -
 4.  ANNUAL O&M EXPENSES =                $   - 0 -
 5.  FIRST MONTH OF NONCOMPLIANCE -       $   3,1989
 6.  COMPLIANCE DATE -                    $   4,1990
 7.  PENALTY PAYMENT DATE -               $   6,1990
       1989 DOLLARS
 STANDARD VALUES

 8.  USEFUL LIFE OF POLLUTION CONTROL
      EQUIPMENT =
 9.  MARGINAL INCOME TAX RATE FOR THE
       ON-TIME CASE -
10.  MARGINAL INCOME TAX RATE FOR THE
       DELAY CASE
11.  ANNUAL INFLATION RATE =
12.  DISCOUNT RATE =
13.  AMOUNT OF LOW INTEREST FINANCING
15 YEARS

38.50 %

 38.50 %

  3.40 %
 17.50 %
     0 %

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                              -  87  -
C.  EXAMPLE 3

(1)  Violation

      Company C, an owner/operator of several permitted
commercial treatment facilities, regularly receives a large
volume of diverse types of RCRA hazardous wastes at its Evanstoh
facility.  Upon receipt of the wastes, Company C's Evanston
facility immediately treats them and sends the treatment residues
off-site for land disposal at another company's facility, Company
Z.

      Between December 16, 1988 and December 18, 1989, Company
C's Evanston facility received one shipment per month of liquid
F002 spent solvent wastes from various generators.  Each shipment
consisted of two 55-gallon drums, but the composition and
concentration level of hazardous constituents in each drum was
different due to the highly variable process that generated the
waste.  The Evanston facility did not test the wastes before or
after treating them, and its existing waste analysis plan did
not require any such testing or other analysis to determine if
wastes are restricted.  The Evanston facility properly manifested
the 12 monthly shipments of wastes sent off-site to Company Z,
but it did not know until June 18, 1989 that it was required by
40 C.F.R. § 268.7 to send a land disposal restrictions (LDR)
notification and certification with each shipment of waste.  At
that time, it began sending § 268.7 forms routinely stating that
the treatment residues were eligible for land disposal.

      On October 30, 1989, an EPA inspector at Company Z found
that 24 drums of Company C's F002 solvents were unlawfully
disposed in Company Z's landfill.  EPA determined that the
unlawfully disposed wastes had been sent to Company Z in 1989
from the Evanston facility.  Company Z's landfill did not meet
minimum technological requirements and was leaking hazardous
constituents into the ground water, the only source of drinking
water for th« area.  The unlawfully disposed drums contained
concentrations of F002 solvents in excess of the applicable Part
268 LDR treata«nt standards.

      Although four separate violations are identified in
(a) through (d) below, only the first two violations  (in  (2)  (a)
and (b) below) are discussed for purposes of this Example.  Below
is a discussion of the methodology used to calculate  the penalty
amount for the complaint followed by a discussion of  the
methodology used to calculate the settlement amount.

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                              - 88 -
 (2)  Seriousness:

       (a)  Failure to Send Accurate § 268.7(b) Notifications and
 Certifications:

       Potential  for Harm.  Major - Because Company C did not
 notify the receiving facility, Company z, that the waste was
 prohibited from  land disposal, Company Z was unaware that the
 wastes were required to be further treated before land disposal.
 The violation may have a substantial adverse effect on the
 purposes or procedures for implementing the RCRA program.  The
 violation  may also pose a substantial risk of exposure to
 hazardous  waste.

       Extent of  Deviation.  Major - Initially, Company C did not
 merely prepare and send deficient § 268.7 notifications/
 certifications.  Rather, it completely failed to prepare and send
 such forms for the first six months.  During the next six months,
 Company C  sent unverified certifications.  In each instance,
 Company C  substantially deviated from the applicable requirement.

       (b)  Failure to Test Restricted Wastes as Required by
 §§ 268.7(b) and  264.13(a):

       Potential  for Harm.  Major - Company C's complete failure
 to test the wastes prevented it from determining that the wastes
 were ineligible  for land disposal, which contributed to the
 actual disposal  in a leaking unit above the area's sole source of
 drinking water.  The violation has a substantial adverse effect
 on the procedures for implementing the LDR program because
 testing to assure compliance is critically important.  The
 violation  may also pose a substantial risk of exposure to
 hazardous  waste.

      Extent of  Deviation.  Major - Company C's waste analysis
 plan is deficient in not explicitly requiring any testing to
 determine  if wastes are restricted, as evidenced by the resulting
 shipments  froi Company C which failed to identify their waste as
 restricted.  Such deficiency is particularly significant where
 the wastes are very diverse, as is the case here, because in the
 absence of reliable test results it is very difficult, if not
 impossible, for  Company C to comply with the § 264.13
 requirement that the operator obtain "all the information which
must be known to [manage] the waste in accordance with .  .  . Part
 268."

       (c) Treating Hazardous Waste Prior to Obtaining Adequate
Waste Analysis Data as Required by § 264.13(a): Potential for
Harm - Major.  Extent of Deviation - Major.

-------
                              - 89 -

       (d)   Failure to Maintain  §  268.7 Paperwork in Operating
 Record as Required by §  264.73(b):  Potential for Harm -
 Moderate.   Extent of Deviation  -  Major.

 (3)  Gravity-based Penalty

       (a)   Failure to Send Accurate § 268.7(b) Notifications and
 Certifications:  Major potential  for harm and major extent of
 deviation leads one to the cell with the range of $20,000 to
 $25,000.  The mid-point  is $22,500.

       (b)   Failure to Test Restricted Wastes as Required by §§
 268.7(b) and 264.13(a):  Major potential for harm and major extent
 of deviation leads one to the cell with the range of $20,000 to
 $25,000.  The mid-point  is $22,500.

       Total Penalty Per  Shipment:  $22,500 + $22,500 = $45,000.

       Since these violations were repeated once every month for
 12 months, the above penalty figure should be multiplied by 12,
 to yield a total penalty (prior to application of adjustment
 factors, addition of multi-day  component, and addition of
 economic benefit component) as  follows:

       Penalty Subtotal:  $45,000 x 12 = $540,000.

 (4)  Multi-day Penalty Assessment - Because each violation is
 viewed  as independent and noncontinuous, no multi-day assessment
 was made.

 (5)  Economic Benefit of Noncompliance - Company C avoided a
 number  of costs in committing the violations noted in (2)(a) and
 (b) above.  These included (i)  the costs of forms and labor
 necessary to complete the forms notifying and certifying to
 Company z that the wastes were  or were not appropriate for land
 disposal, and (ii) the costs of waste analysis necessary to
 determine the eligibility of the  wastes for land disposal.  A BEN
 analysis (copy omitted for purposes of this example) of these
 avoided costs was performed and indicated that Company C reaped
 an economic benefit of $12,500  from its failure to comply with
 the two requirements in  question  ($2,500 for the violations
         Where, as here, a facility has through a series of
independent acts repeatedly violated the same statutory or
regulatory requirement, the violations may begin to closely
resemble multi-day violations in their number and similarity to
each other.  In these circumstances, enforcement personnel have
discretion to treat each violation after the first in the series
as multi-day violations (assessable at the rates provided in the
multi-day matrix), if to do so would produce a more equitable
penalty calculation.

-------
                              -  90  -

specified in (2)(a) and $10,000 for the violations noted in
(2)(b)).14

(6)  Application of Adjustment Factors for Computation of the
Complaint Amount

      (a)  Good faith efforts to comply  - As soon as Company C's
Evanston facility learned of its obligation to submit § 268.7
forms, it began submitting such forms.  However, evidence
demonstrates that efforts to comply were weak because Company C
made no effort to ensure the accuracy of such submissions.  Even
if such submissions had been accurate, Company C's actions would
have been only those required by the regulations.  No justifica-
tion for mitigation for good faith efforts to comply exists.  No
change in the $540,000 penalty.

      (b)  Degree of wilfulness and/or negligence - The prior
knowledge of the § 268.7 requirements by Company C's other
facilities is evidence of negligence because a prudent company
would advise all its facilities of the appropriate requirements,
especially after one of the company's other facilities recently
had been found liable for similar violations.  Based on these
facts, an upward adjustment in the amount of the penalty of 10%
is justified.  $540,000 x 10% = $54,000.

      (c)  History of noncompliance.  No evidence demonstrating
that Company C has had any similar previous violations at the
Evanston facility has been presented.  However, Company C
operates other commercial treatment facilities, at least one of
which recently has been found liable for similar violations.
Based on these factors, an upward adjustment in the penalty is
justified.  However, because the upward adjustment is accounted
f.Qr in (6)(b) above, such adjustment will not be duplicated here.

      (d)  Other adjustment factors.  Since this computation was
for purposes of determining the amount of the penalty to propose
in the complaint, no further consideration was given to possible
         Company C was not itself under a legal obligation to
treat the wastes in question to the BOAT levels mandated by the
land disposal restrictions; but it nevertheless reaped an
economic benefit by misrepresenting to Company Z that these
wastes were eligible for land disposal when they were not.  Had
Company C accurately represented to Company Z the truth - that
the wastes needed to be treated before being landfilled -,
Company Z would undoubtedly have imposed a higher disposal fee on
Company C.  EPA could in its discretion include the excess
profits Company c earned through misrepresentation in its
calculation of the economic benefits enjoyed by Company C as a
result of the violations specified in 2(a) and 2(b).

-------
                              -  91  -

downward adjustments.  At the same time no reason to adjust the
penalty amount upward based on the remaining adjustment factors
was evident.

(7)  Final Complaint Penalty Amount

                       Upward           Economic       Total
      Gravity base   Adjustment         Benefit        Penalty
        $540,000  +   $54,000      +    $12,500   =    $606,500

      Since a penalty of $606,500 would exceed the statutory
maximum for 24 violations (24 x $25,000 = $600,000), the penalty
amount to be sought in the complaint was adjusted downward to
$600,000.

(8)   Settlement Adjustments

      After issuance of the complaint the Region uncovered no
basis for recalculating the gravity-based, multi-day, or economic
benefit components of the penalty sought in the complaint.
However, based on information available to it (including that
provided by Company C) the Region did consider certain downward
adjustments in the penalty amount.

      (a)  Good faith efforts to comply.  The company did not
present and the Region did not find any grounds for reconsidering
its initial conclusion that downward adjustment based on the
company's good faith efforts at compliance was not justified.

      (b)  Degree of willfulness and/or negligence.  Although the
company argued that its lack of knowledge regarding land ban
requirements indicated a lack of willfulness during the first 6
months the violations continued, the Region declined to adjust
the penalty downward because to do so would encourage or reward
ignorance of the law.

      (c)  History of non-compliance.  No reason was presented to
address this issue differently than it had been in computing the
complaint amount of the penalty.

      (d)  Ability to pay.  Company C made no claims regarding
ability to pay.

      (e)  Environmental projects.  Company C did not propose any
environmental projects.

      (f)  Other Unique Factors.  In reviewing its liability case
against Company C the Region determined that there were major
weaknesses in its ability (i) to tie a number of the 24 drums
discovered at company Z's landfill to Company C, and (ii)  to show
that all the drums contained F002 solvent.  The Region concluded
that in light of these evidentiary weaknesses it was unlikely

-------
                               - 92 -

that it would be able to obtain through litigation the amount of
the penalty it had sought in the complaint.  Since these
evidentiary difficulties adversely affected the Region's ability
to prove violations related to 4 of the 12 (or one-third of the)
monthly shipments, the Region decided that for settlement
purposes it was willing to forego roughly one-third of the total
proposed penalty amount.  Accordingly, the Region decided to
adjust the amount of the penalties sought for the violations
identified in 2(a) and (b) above downward by $100,000 each based
on litigative risk.

(9)  Final Settlement Penalty Amount:

Gravity-   Upward        Economic       Downward       Total
Base       Adjustment    Benefit        Adjustment     Penalty

$540,500  + $54,000  +    $12,500  -     $200,000  =  $406,500

-------
                              -  93  -
A.  PENALTY COMPUTATION WORKSHEET

Company Name Company C - Evanston Facility
Address
Requirement Violated  40 CFR S268.7fb)_Failure to send accurate
notifications and certifications
                   PENALTY AMOUNT FOR COMPLAINT

1.  Gravity based penalty from matrix..($22,500 x 12)..$270.000

      (a)  Potential for harm	major

      (b)  Extent of Deviation	manor

2.  Select an amount from the appropriate multiday
       matrix cell	N/A_

3.  Multiply line 2 by number of days of violation
       minus 1	N/A

4.  Add line 1 and line 3	$270.000

5.  Percent increase/decrease for good faith	N/A

6.  Percent increase for willfulness/
      negligence	10%_

7.  Percent increase for history of
       noncompliance	N/A_

8.* Total lines 5 thru 7	10%_

9.  Multiply line 4 by line 8 	$27.000

10. Calculate Economic Benefit	$2.500

11. Add lines 4, 9 and 10 for penalty amount	S299.500
      to be inserted in the complaint


*  Additional downward adjustments where substantiated by
reliable information may be accounted for here.

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                              - 94  -



      NARRATIVE EXPLANATION TO SUPPORT COMPLAINT AMOUNT

1.  Gravity Based Penalty

(a)  Potential for Harm Manor - Because Company C did not notify
the receiving facility. Company Z. that the waste was prohibited
front land disposal. Company Z was unaware that the wastes were
required to be further treated before land disposal.  The
violation may have a substantial adverse affect on the purposes
or procedures for implementing the RCRA program.  In addition.
the violation creates a potential for harm because it hinders
Company Z's ability to adequately characterize the waste in order
to assure that it is properly managed.  (Note, however, that
Company Z has an independent regulatory obligation to
characterize and properly manage wastes it receives.  Thus.
Company C's violation is one factor contributing to the potential
for harm, rather than the sole factor creating such risks.)


	(attach additional sheets if necessary)
(b)  Extent of Deviation Maior - Initially. Company C did not
merely prepare and send deficient S268.7 notifications/
certifications.  Rather it completely failed to prepare and send
such forms for the first six months.  Purina the next six months
Company C sent unverified certifications.  In each instance.
Company C substantially deviated from the applicable requirement,
                         (attach additional sheets if necessary)
(c)  Multiple/Multi-day Because each violation is properly
viewed as independent and noncontinuous. no multi-dav assessment
is warranted.  Because the violation was repeated 12 times, the
gravity-based penalty amount is multiplied bv 12.
                         (attach additional sheets if necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence,
history of compliance, ability to pay, environmental credits,  and
other unique factors must be justified, if applied.)

(a)  Good Faith As soon as Company C's Evanston  facility  learned
of its obligation to submit 268.7 forms,  it began  submitting such
forms.  However, evidence demonstrates that efforts to  comply
were weak because Company C made no effort to ensure the  accuracy
of such submissions.  Even if such submissions had been
accurate. Company C'i actions would have  been only those  required

-------
                              -  95  -


bv the regulations.  No Justification for mitigation for good
faith efforts to comply exists.	

                          (attach additional sheets if necessary)
(b)  Willfulness/Negligence No evidence of willfulness has been
presented but the prior knowledge of the 268.7 requirements by
Company C's other facilities is evidence of negligence because a
prudent company would advise all its facilities of the
appropriate requirements, especially after one of the company's
other facilities recently had been found liable for similar
violations.  Based, on these facts, an upward adjustment in the
amount of 10% is "justified.
                        (attach additional sheets if necessary)
(c)  History of Compliance No evidence demonstrating that Company
C has had any similar previous violations at the Evanston
facility has been presented.  However. Company C operates other
commercial treatment facilities, at least one of which recently
has been found liable for similar violations.  Based on these
factors, an upward adjustment in the penalty is -justified.
However, because the upward adjustment is accounted for in 2.fb)
above, we will not duplicate such adjustment here.
                         (attach additional sheets if necessary)
(d)  Ability to pay_
                               N/A
(e)  Environmental Project
                         (attach additional sheets  if  necessary)
                               N/A
(f)  Other Unique Factors 	


                               N/A"
                         (attach additional  sheets  if necessary)

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                              - 96  -
                        (attach additional sheets if necessary)
3.  Economic Benefit Company C has reaped an economic benefit by
avoiding the costs of materials and labor necessary to send
proper notifications/certifications to Company Z.  A BEN analysis
icopy omitted for purposes of this example1 indicates the
economic benefit of this violation amounted to $2.500.
                        .(attach additional sheets if necessary)
4. Recalculation of Penalty Based on New Information
                        N/A
                        .(attach additional sheets if necessary)

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                              - 97  -
Company Name Company C - Evanston Facility
Address                              *
Requirement Violated  40 CFR S268.7fbl  Failure to send accurate
notifications and certifications
                    SETTLEMENT PENALTY AMOUNT

1.  Gravity based penalty from matrix. .:••.-. . . . .......... $270.000

      (a)  Potential for harm   ........................ Mai or

      (b)  Extent of Deviation .......................... Manor

2.  Select an amount from the appropriate multiday
      matrix cell ....................................... N/A

3.  Multiply line 2 by number of days of violation
      minus 1 ........................................... N/A

4.  Add line 1 and line 3 .............................. $270.000

5.  Percent increase/decrease for good faith
6.  Percent increase/decrease for
      willfulness/negligence ............................ 10%

7.  Percent increase for
      history of noncompliance .......................... N/A

8.  Percent increase/decrease for
      other unique factors  ............................. N/A
      (except litigation risk)

9.  Add lines 5, 6, 7, and  8 ...................... .. ---- Ifli

10. Multiply line 4 by line 9 .......................... $27.000

11. Add line* 4 and 10 .................................. $297.000

12 . Adjustment amount for environmental ................ .N/A
      project

13 . Subtract line 12 from line 11  ...................... $297.000

14. Calculate economic benefit .......................... $2.500

15. Add lines 13 and 14 ................................. $299.500

-------
                              -  98  -

16. Adjustment amount for ability-to-pay	N/A
17. Adjustment amount for litigation risk	-S100.0QO
18.  Add lines 16 and 17	N/A
19.   Subtract line 18 from line 15 for	S199.500
       final settlement amount
This procedure should be repeated for each violation.

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                              -  99  -


      NARRATIVE EXPLANATION TO SUPPORT SETTT.RMENT AMOUNT

1.  Gravity Based Penalty

(a)  Potential for Harm. Maior - Because Company C did not notify
the receiving facility. Company Z. that the waste was prohibited
from land disposal. Company Z was unaware that the wastes were
required to be further treated before land disposal.  The
violation may have a substantial adverse affect on the purposes
or procedures for implementing the RCRA program.  In addition.
the violation creates a potential for harm because it hinders
Company Z's ability to adequately characterize the waste in order
to assure that it is properly managed.  (Note, however, that
Company Z has an independent recrulatorv obligation to
characterize and properly manage wastes it receives.  Thus.
Company C's violation is one factor contributing to the potential
for harm, rather than the sole factor creating such risks.)


                        (attach additional sheets if necessary)
(b)  Extent of Deviation. Malor - Initially. Company C did not
merely prepare and send deficient 1268.7 notifications/
certifications.  Rather it completely failed to prepare and send
such forms for the first six months.  Purina the next six months
Company C sent unverified certifications.  In each instance.
Company C substantially deviated from the applicable requirement.
                        .(attach additional sheets if necessary)
(c)  Multiple/Multi-day. Because each violation is properly
viewed as independent and noncontinuous. no multi-day assessment
is warranted.  Because the violation was repeated 12 times, the
gravity-based penalty amount is multiplied bv 12.
                        .(attach additional sheets  if  necessary)
2.  Adjustment Factors  (Good faith, willfulness/negligence,
history of compliance,  ability to pay, environmental  credits,  and
other unique factors must be justified,  if applied.)

(a)  Good Faith. As soon as Company C's  Evanston  facility learned
of its obligation to submit 268.7 forms,  it began submitting such
forms.  However,, evidence demonstrates that efforts to comply
were weak because Company C made no effort to ensure  the accuracy
of such submissions.  Even if such submissions had been
accurate. Comcanv C's actions would have been onlv those required

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                             - 100 -


by the retaliations.  No Justification for mitigation for good
faith efforts to comply exists.	

                           (attach additional sheets if necessary)
 (b)  Willfulness/Negligence As indicated above, lack of knowledge
of the legal requirement is not a basis for reducing the penalty.
To do so would encourage ignorance of the law.  No evidence of
willfulness has been presented but the prior knowledge of the
268.7 requirements by Company C's other facilities is evidence of
negligence because a prudent company would advise all its
facilities of the appropriate requirements, especially after one
of the company/s other facilities recently had been found liable
for similar violations.  Based on these facts, an upward
adjustment in the amount of 10% is "Justified.
                        (attach additional sheets if necessary)
(c)  History of Compliance. No evidence demonstrating that
Company C has had any similar previous violations at the Evanston
facility has been presented.  However. Company C operates other
commercial treatment facilities, at least one of which recently
has been found liable for similar violations.  Based on these
factors, an upward adjustment in the penalty is "Justified.
However, because the upward adjustment is accounted for in 2.fb)
above, we will not duplicate such adjustment here.
(d)  Ability to pay_
                        .(attach additional sheets if necessary)
                               N/A
(e)   Environmental Project
                        (attach additional sheets if necessary)
                               N/A
                        .(attach additional sheets  if necessary)

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                             - 101 -


(f)  Other Unique Factors Based on the litigation risk posed by
(1) the Aaencv/s inability to show (i) that all 24 drums were
Company C's and fill that all drums contained F002 solvent.
the Region decided to accept in settlement a smaller penalty than
that proposed in the complaint.  Since the aforementioned
evidentiary weaknesses adversely affected one third of the 12
counts in the complaint, the Region reduced the proposed penalty
amount bv roughly one third or SlOO.OOO.
                        (attach additional sheets if necessary)
3.  Economic Benefit Company C has reaped an economic benefit bv
avoiding the costs of materials and labor necessary to send
proper notifications/certifications to Company Z.  A BEN analysis
(copy omitted for purposes of this example) indicates the
economic benefit of this violation amounted to $2.500.
                        (attach additional sheets if necessary)
4. Recalculation of Penalty Based on New Information
                        N/A
                        (attach additional sheets if necessary)

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                             - 102 -
PENALTY COMPUTATION WORKSHEET
Company Name Company C - Evanston Facility
Address            	            	
Requirement Violated  40 CFR S264.13fal  & 268.7fbl.  Failure to
                      test restricted wastes
                  PENALTY AMOUNT FOR COMPLAINT
1.  Gravity based penalty from matrix..($22,500  x 12) . .$270.000
      (a)  Potential for harm   	major
      (b)  Extent of Deviation  	major
2.  Select an amount from the appropriate nultiday
      matrix cell	N/A
3.  Multiply line 2 by number of days of violation
      minus 1	N/A
4.  Add line 1 and line 3	$270.000
5.  Percent increase/decrease for good faith	N/A
6.  Percent increase for willfulness/
      negl igence	10%_
7.  Percent increase for history of noncompliance	N/A
8.* Total lines 5 thru 7	10%_
9.  Multiply line 4 by line 8 	$27.000
10. Calculate Economic Benefit	$10.OOP
11. Add lines 4, 9 and 10 for penalty amount	$307.000
      to be inserted in the.complaint

*  Additional downward adjustments where substantiated by
reliable information may be accounted for here.

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                             - 103 -
        NARRATIVE EXPLANATION TO SUPPORT COMPLAINT AMOUNT
1.    Gravity Based Penalty

(a)   Potential for Harm  Major - Company C's complete failure to
test the wastes prevented Company Z from determining that the
wastes were ineligible for land disposal, which contributed to
the actual disposal in a leaking unit above the area's sole
source of drinking water.  The violation has a substantial
adverse effect on the procedures for implementing the LDR program
because testing to assure compliance is critically important.
                          (attach additional sheets if necessary)
(b)  Extent of Deviation Major - Company C's waste analysis plan
is substantially deficient in not explicitly requiring anv
testing to determine wastes are restricted, as evidenced by the
resulting shipments from Company C which failed to identify their
waste as restricted.  Such deficiency is particularly
significant where the wastes are very diverse as is the case
here, because it is very difficult, if not impossible, to comply
with the §264.13 requirement that the operation obtain "all of
the information which must be known to Cmanage] the waste in
accordance with ... Part 268."
                       (attach additional sheets if necessary)
(c)  Multiple/Multi-day Because each violation is properly viewed
as independent and noncontinuous. no multi-day assessment is
warranted.  Because the violation was repeated 12 times, the
qravitv—based penalty amount is multiplied bv 12.
                        .(attach additional sheets if necessary)
2.  Adjustment Factors  (good faith, willfulness/negligence,
history of compliance,  ability to pay, environmental credits,
and other unique factors must be justified,  if applied.)

(a)  Good Faith No good faith efforts to comply have been made.

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                             - 104 -
                           (attach additional sheets if necessary)
(b)  Willfulness/Negligence No evidence of willfulness has been
presented, but the prior knowledge of the 268.7 requirements by
Company C's other facilities is evidence of negligence because a
prudent company would advise all its facilities of the
appropriate requirements, especially after one of the company/s
other facilities recently had been found liable for similar
violations.  Based on these factors, an upward adjustment in the
amount of 10% is "Justified.

(c)  History of Compliance No evidence demonstrating that Company
C has had any similar previous violations at the Evanston
facility has been presented.  However. Company C operates other
commercial treatment facilities, at least one of which recently
has been found liable for similar violations.  Based on these
factors, an upward adjustment in the penalty is justified.
However, because the upward adjustment is accounted for in 2.fb)
above,  we will not duplicate such adjustment here.	

                          (attach additional sheets if necessary)
(d)  Ability to pay
                              N/A
(e)   Environmental Project,
                          (attach additional sheets if necessary)
                              N/A
(f)   Other Unique Factors
                          .(attach additional sheets if necessary)
                               N/A
                          (attach additional sheets if necessary)

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                             - 105 -
3.   Economic Benefit Company C reaped an economic benefit by
avoiding the costs of waste analysis needed to determine the
eligibility of the wastes for land disposal.  A BEN analysis
(copy omitted for purposes of this example) indicates the
economic benefit attributable to these violations is $10,000.
	(attach additional sheets if necessary)

4.   Recalculation of Penalty Based on New Information 	
                              N/A
                          (attach additional sheets if necessary)

-------
                             - 106 -
Company Name Company C - Evanston Facility
Address                  	
Requirement Violated  40 CFR S264.13fai & 3268.7fbl  Failure to
                      test restricted wastes
                    SETTLEMENT PENALTY AMOUNT


1.  Gravity based penalty from matrix. . ($22,500 x 12) . .$270.000

      (a)  Potential for harm   ........................ Manor

      (b)  Extent of Deviation .......................... Mai or

2 .  Select an amount from the appropriate multiday
      matrix cell ....................................... N/A

3.  Multiply line 2 by number of days of violation
      minus 1 ............................ '. .............. N/A

4.  Add line 1 and line 3 .............................. S270.000

5.  Percent increase/decrease for good faith ........... N/A

6.  Percent increase/ decrease for
      willfulness/negligence ............................ 10%

7.  Percent increase for
       history of violation ............................. N/A

8.  Percent increase/ decrease for
      other unique factors ............................. N/A
      (except litigation risk)
9.  Add line* 5, 6, 7, and 8

10. Multiply line 4 by line 9 ......................... $27.000

11. Add lines 4 and 10 ..... . ........................... 5297.000

12 . Adjustment amount for environmental ................ N/A_
      project

13 . Subtract line 12 from line 11  ..................... S297.000

14 . Calculate economic benefit ......................... SlQ.OQO

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                             - 107 -


15. Add lines 13 and 14	S307.000

16. Adjustment amount for ability-to-pay	N/A

17. Adjustment amount for litigation risk	-SlOO.OOO

18.  Add lines 16 and 17	N/A

19.   Subtract line 18 from line 15 for	$207.000
       final settlement amount

This procedure should be repeated for each violation.

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                             -  108 -



NARRATIVE EXPLANATION TO SUPPORT SETTLEMENT AMOUNT

1.    Gravity Based Penalty

(a)   Potential  for Harm  Manor - Company C's complete failure to
test the wastes  prevented Company Z from determining that the
wastes were ineligible for land disposal, which contributed to
the actual disposal in a leaking unit above the area's sole
source of drinking water.  The  violation has a substantial
adverse effect on the procedures for implementing the LDR program
because testing  to assure compliance is critically important.


	(attach additional sheets if necessary)
 (b)  Extent of Deviation Major -Company C/s waste analysis plan
 is substantially deficient in not explicitly requiring anv
 testing to determine wastes are restricted, as evidenced by the
 resulting shipments from Company C which failed to identify their
waste as restricted.  Such deficiency is particularly
 significant where the wastes are very diverse as is the case
here, because it is very difficult, if not impossible, to comply
with the 'S264(3Wal requirement that the operation obtain "all of
 the information which roust be known to rmanage] the waste in
accordance with ... Part 268."	

                        (attach additional sheets if necessary)
(c)  Multiple/Multi-day Because each violation is properly viewed
as independent and noncontinuous. no multi-day assessment is
warranted.  Because the violation was repeated 12 times, the
aravitv-based penalty amount is multiplied bv 12.
                         (attach additional sheets  if necessary)
2.  Adjustment Factors  (good faith, willfulness/negligence,
history of compliance,  ability to pay, environmental credits,  and
other unique factors must be justified, if applied.)

(a)  Good Faith No good faith efforts to comply have been made.
                          .(attach additional sheets  if  necessary)

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                             - 109 -


 (b)  Willfulness/Negligence As indicated above, lack of knowledge
 of the legal requirement  in not a basis for reducing the penalty.
 To do so would encourage  ignorance of the lav.  No evidence of
 willfulness has been presented, but the prior knowledge of the
 268.7 requirements by Company C's other facilities is evidence of
 negligence because a prudent company would advise all its
 facilities of the appropriate requirements, especially after one
 of the company's other  facilities recently had been found liable
 for similar violations.   Based on these factors, an upward
 adjustment in the amount  of 10% is "Justified.

 (c)  History of Compliance No evidence demonstrating that Company
 C has had any similar previous violations at the Evanston
 facility has been presented.  However. Company C operates other
 commercial treatment facilities, at least one of which recently
 has been found liable for similar violations.  Based on these
 factors, an upward adjustment in the penalty is -Justified.
 However, because the upward adjustment is accounted for in 2.(bl
 above, we will not duplicate such adjustment here.	

                          (attach additional sheets if necessary)
(d)  Ability to pay
                              N/A
(e)  Environmental Project,
                           (attach additional sheets  if necessary)
                              N/A
                           (attach additional  sheets  if  necessary)
(f)  Other Uniqu* Factors Based on the  litigation  risk posed  by
the Agency/a inability to show  li) that all  24  drums  were
Company C/s and  fiil that all drums contained F002 solvent, the
Region decided to accept in settlement  a  smaller penalty than had
been proposed j.n the complaint.  Since  the aforementioned
evidentiary weaknesses adversely affected the Agency/s ability to
prove one third of the 12 counts in our complaint, the Region
reduced the orooosed penaltvibv: roughly one  third  or  SlOO.OOO.
                          .(attach additional  sheets if necessary)

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                             - 110 -
3.   Economic Benefit Company C reaped an economic benefit by
avoiding the costs of waste analysis needed to determine the
eligibility of the wastes for land disposal.  A BEN analysis
(copy omitted for purposes of this example) indicates the
economic benefit attributable to these violations is $10.000.
                         (attach additional sheets if necessary)
4.  Recalculation of Penalty Based on New Information
                              N/A
                          (attach additional sheets if necessary)

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      Section 2
Civil/Criminal Actions

-------
CIVIL/CRIMINAL ACTIONS
                                                     en
                                                     w
                                                     O
                                                     H
                                                     M
                                                     O

-------
        Section 2
     (Documents that
- Civil/Criminal Actions - Table  of Contents
appear in their entirety in this Section of the Compendium)
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE
 OTHER
 RELEVANT
 SECTIONS
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE
 OTHER
 RELEVANT
 SECTIONS
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE
 OTHER
 RELEVANT
 SECTIONS
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE
 OTHER
 RELEVANT
 SECTIONS
SS&SWiSS;
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE
 OTHER
 RELEVANT
 SECTIONS
 Use of RCRA Section 3008(g) Independently of Section 3008(a)
 9940.0
 07/28/81
 OWPE
 Policy on Enforcing Information Requests in Hazardous Waste Cases
 9834.4
 09/10/84
 OECM
 Administrative Orders/Administrative Authorities
 Referrals
 Implementation of EPA Criminal Enforcement Strategy for RCRA Interim Status Facilities
 9930.01-a
 11/15/85
 OWPE/NEIC
 Interim Status
 Guidance on Determining a Violator's Ability to Pay a Civil Penalty

 12/16/86
 OECM
 Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent Decrees

 09/21/87
 OECM
 Settlement
 Referrals

-------
     Section 2 • Civil/Criminal Actions - Cross  References
 (Documents that are referenced under Civil/Criminal Actions but appear in the
 Primary Section indicated)
 TITLE            Enforcement Response Policy

 DIRECTIVE NO.   9900.0-13
 SOURCE         OWPE
 PRIMARY         Violation Classification
 SECTION
 TITLE            Expanded Civil Judicial Referral Procedures .

 DIRECTIVE NO.   9891.1
 SOURCE         OECM
 PRIMARY         Referrals
 SECTION
sssssss^ssissas
 TITLE            Expansion of Direct Referral of Cases to the Department of Justice

 DIRECTIVE NO.   9891.5A
 SOURCE         OECM
 PRIMARY         Referrals
 SECTION

&^^^^^™
 TITLE            Guidance for Drafting Judicial Consent Decrees
 DIRECTIVE  NO.
 SOURCE        Office of Legal and Enforcement Counsel
 PRIMARY        Settlement
 SECTION

-------
    Section 2 - Civil/Criminal Actions • Cross References
(Documents that are referenced under Civil/Criminal Actions but appear in the
Primary Section indicated)
TITLE
Guidance on the Use and Issuance of Administrative Orders Under
Section 7003 of RCRA
DIRECTIVE  NO.  9940.2

SOURCE         OECM/OSWER

PRIMARY         Administrative Orders/Administrative Authorities
SECTION
TITLE
Implementation of Direct Referrals for Civil Cases Beginning December 1,1983
DIRECTIVE  NO.  9891.5

SOURCE         OECM

PRIMARY         Referrals
SECTION
TITLE
RCRA Civil Penalty Policy
DIRECTIVE  NO.  9900.1

SOURCE         OECM/OSWER

PRIMARY         Administrative Orders/Administrative Authorities
SECTION

-------
                                           OSWER Directive # 9940.0
                          July 28, 1981
MEMORANDUM
SUBJECT:  Use of RCRA §3008(g) Independently of §3008(a)

FROM:     Douglas MacMillan, Director
          Office of Waste Programs Enforcement

TO:       Enforcement Division Directors
          Regions I-X


     In  discussions  with  Regional  enforcement  personnel  the
question  has  frequently arisen  of  whether  the  civil  penalty
authorized by §3008(g)  of RCRA may be sought for a violation of the
requirements  of  Subtitle C in  cases in which no  administrative
order authorized by §3008(a) has been issued.  We interpret the Act
as  clearly   authorizing the   imposition   of  civil  penalties,
regardless of whether  an administrative  order has  been issued or
violated,  when otherwise  appropriate.   The  Office  of  General
Counsel concurs in this interpretation.  This memorandum sets forth
the basis for this conclusion.

     Both  the  language  and  structure  of  §3008  indicate  that
subsection (g) was intended  to operate independently of subsection
(a).   First, the  fact  that  civil penalties  and  administrative
orders are provided for in separate subsections indicates that they
are to be treated as separate means of enforcing Subtitle C.  (See
2A SUTHERLAND, STATUTES  AND STATUTORY INTERPRETATION §47.02 (4th
ed. 1964)  "...if the meaning  of  any  particular phrase or section
standing alone is clear no other section or part of the  act may be
applied to  create doubt.")    Subsection (g) makes no  mention of
administrative orders.   In  addition,  subsection (a)  (3) provides
for a penalty specifically applicable to failure to comply with an
administrative order.   Were issuance and  non-compliance  with an
administrative order a prerequisite for the imposition of a civil
penalty  subsection  (g)  would  be superfluous.    In  general,  a
statute, "...should be  construed so that effect is given to all its
provisions."  (Sutherland § 46.06).

     Furthermore, the legislative history of §3008(g)  leaves little
doubt  that  civil  penalties  may  be  imposed  for  violations  of


                     "Retyped From The Original"

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                                2          OSWER Directive # 9940.0

Subtitle C regardless of whether an order has  been issued requiring
compliance.  Subsection (g) was added by the  1980 Amendments.  The
language adopted  with regard to civil penalties was contained in
Senate Bill 1156.  (H. Rep. No.  96-1444, 96th Cong.,  1st Sess.  36
(1980)).

According to the Report of the Committee on Environment and Public
Works the relevant Section of S.1156:

     ...amends the enforcement provisions of substitle C to bring
them into line with  those in the  Clean Air  and Clean Water Acts.
First, it provides  a civil penalty of  up to $25,000 per  day for
dumping of hazardous wastes regardless of whether the  dumping party
has been served with  an order to stop dumping.

     Under  existing  law,  only  persons actually ordered  to halt
dumping are liable  for a  civil penalty.  S.Rep. No.  96-172, 96th
Cong., 1st Sess.  3-4  (1979).

     Although the Report speaks only in terms  of dumping, given the
broad language of §3008(g),  the  reference clearly  is intended to
provide an illustration of how the penalty provision would operate
in  the  context  of  a  violation  of  a particular requirement  of
Subtitle C.   The civil penalty  provisions  of the Clean  Air and
Clean Water Acts,  after which §3008(g) is explicitly modelled, both
provide for the imposition of civil penalties for the violation of
regulatory  requirements  promulgated  pursuant  to  those  Acts,
regardless  of  whether an  administrative order  has  been  issued.
(See §113(b) CAA  and  §309(d) CWA).

     In  conclusion,   it  is  the  policy  of   the  Office of  Waste
Programs  Enforcement  that,  §3008(g)  provides   discretionary
authority for  the  imposition of civil penalties regardless  of
whether  an  administrative  order  has  been  issued  pursuant  to
§3008(a)  and that  such penalties should be sought for violations of
Subtitle C of RCRA when otherwise deem appropriate.   If you have
any questions or  problems relating to  the relationship of civil
penalties to administrative orders please contact Doug Farnsworth
at FTS 382-3058.
                     "Retyped From The Original"

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                                                            9834.4

MEMORANDUM

SUBJECT:  Policy on Enforcing Information Requests in Hazardous
          Waste Cases

FROM:     Courtney M. Price
          Assistant Administrator for Enforcement
            and Compliance Monitoring

TO:       Regional Administrators, I-X
          Regional Counsels, I-X
          Lee M. Thomas, Assistant Administrator for
            Solid Waste and Emergency Response


     The attached policy has been developed to assist the Regions
in enforcing information request letters issued pursuant to
Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and Section 3007 of the
Resource Conservation and Recovery Act  (RCRA).  The policy is
intended to encourage aggressive enforcement against parties that
do not comply with such letters.

     The policy delineates statutory authority to obtain
information, briefly discusses other sources of information and
sets forth options available to the Agency to enforce requests
for information in civil cases dealing with hazardous waste and
hazardous substances.

     If you or your staff have any further questions regarding
enforcement of CERCLA and RCRA information requests, please
contact Fred Stiehl (FTS) 382-3050 or Jerry Schwartz at (FTS)
382-3104.
Attachment
                   -RETYPED FROM THE ORIGINAL-

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                                                            9834.4
             POLICY  ON ENFORCING  INFORMATION REQUESTS
                     IN HAZARDOUS WASTE  CASES
INTRODUCTION

     Section 104 of the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) and Section 3007 of the

Resource Conservation and Recovery Act  (RCRA) provide EPA with

considerable authority to obtain information from parties

involved with hazardous substances or hazardous wastes

(collectively "hazardous materials").-'  Information request

letters issued pursuant to these sections have proven quite

useful, particularly because of the high rate of compliance

associated with these letters.  Occasionally, however, letter

recipients refuse to respond to requests, or provide an

inadequate response.  This policy document delineates statutory

authority to obtain information and sets forth options available

to the Agency to enforce requests for information in civil cases

dealing with hazardous materials.-'

     This policy has been developed along with the guidance

document on issuing notice/information request letters ("Notice

Letter Guidance"), which will be issued shortly.
-' These sections also provide authority to enter facilities to
perform inspections, conduct studies, and obtain samples.  Access
authority is discussed in a policy document which will be issued
separately.


-' With regard to obtaining information in the context of
parallel civil and criminal cases, consult Courtney M. Price's
memorandum "Policy and Procedures on Parallel Proceedings at the
Environmental Protection Agency," dated January 24, 1984.
                   -RETYPED FROM THE ORIGINAL-

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                               -2-                          9834.4

STATUTORY AUTHORITY

     Section 104(e)(l) of CERCLA provides:

        For purposes of assisting in determining the need
        for response to a release under this title or
        enforcing the provisions of this title, any
        person who stores, treats, or disposes of, or,
        where necessary to ascertain facts not available
        at the facility where such hazardous substances
        are located, who generates, transports, or
        otherwise handles or has handled, hazardous
        substances shall upon request ... furnish
        information relating to such substances...."
        (Emphasis supplied)

     Section 3007 (a) of RCRA provides:-'

        For purposes of ... enforcing the provisions of
        this title any person who generates, stores,
        treats, transports, disposes of, or has handled
        hazardous wastes shall, upon request ... furnish
        information relating to such wastes...."
        (Emphasis supplied)

     In most information request letters, both sections should be

cited as authority for the request.  Note that it is appropriate

to cite RCRA §3007(a) as authority for requests relating to those

wastes the regulation of which has been partially suspended by

Congress pursuant to RCRA §3001(b)(3)(A) (e.g.. "mining waste").

This suspension does not limit the wastes which may be considered

"hazardous wastes" for purposes of several sections of the

statute, including section 3007. 45 Fed. Reg. 33090, (May 19,

1980) and 40 CFR 261.l(b). Additionally, if the "mining waste" or

other waste suspended under RCRA falls within the definition of

hazardous substance under categories A,B,D,E, or F of CERCLA

§101(14),  the waste is a hazardous substance for CERCLA purposes

and is properly subject to a request under CERCLA §104.  See U.S.
-' The Agency has also issued RCRA §3013 Orders which contain,
inter alia, requests for information.

                   -RETYPED FROM THE ORIGINAL-

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                               -3-                          9834.4



v. Metate Asbestos Corp.. et al.. 	 F. Supp. 	, (Az.,



1984) (Globe case) holding that asbestos tailings, which are



mining wastes, are hazardous substances pursuant to CERCLA



§101(14).



INADEQUATE OR NON-RESPONSE



     A diligent, good faith effort by the information request



letter recipient to directly respond to the Agency's questions



and to provide information is adequate.  The determination of



whether a diligent, good faith effort has been made is



necessarily a case by case decision.  Most information requests



require the recipient to indicate the types of files searched in



response to the request.  This information should help the Case



Development Team  (CDT) determine whether the recipient's file



searching efforts were diligent and whether the recipient



actually has submitted all available information.



     In some cases, letter recipients may not have retained



records pertaining to the time period in which the Agency is



interested.  This may frequently be the case in multi-party cases



containing many "small" generators who dealt with a site that was



in operation many years ago.  In these cases, unless the Agency



has evidence to the contrary, the CDT generally will accept the



recipient's assertion that its records do not go back that far.



The CDT can help ensure the veracity of a recipient's claim that



it does not have pertinent records by insisting on a signed



affidavit to that effect from a duly authorized company official.



     Of course, the easiest determinations regarding adequacy of



response are those where the company simply refuses to comply.






                   -RETYPED FROM THE ORIGINAL-

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                               -4-                          9834.4

This includes cases where a recipient responds by stating it will

not answer the questions, or simply does not respond by the

deadline included in the letter.*'

     In one case, a letter recipient asserted that certain

information requested by the Agency was properly withheld because

it was "covered by the attorney-client privilege and the work

product rule."  In that case, the Agency issued a RCRA §3008

administrative order (AO) to enforce compliance with the

information request.  The Administrative Law Judge (ALJ) rejected

the company's claim and ordered it to comply with the AO.  The

ALJ looked to the language and purpose of the statute and the

relevance of the information requested in rejecting the privilege

claims of the company.57  While there have been several cases

supporting the Agency's information gathering authority under

other statutes, this is the only case addressing a privilege

claim as a defense to an information request under RCRA or

CERCLA.

ENFORCEMENT RESPONSE

     A.  First Step;  Reminder Letter

     Once the CDT has made a decision that a recipient has not

responded or has responded inadequately to a request, a

"reminder" letter should be issued.  If a letter recipient,
*' Information request letters are sent return receipt requested.
The CDT should ensure the party actually received the letter
before taking further action.

-' See "Order Denying Motion  and Requiring Compliance" in the
Matter of Hughes Aircraft Company case.  (Attachment A)
Subsequent to this Order, the company submitted the requested
information.

                   -RETYPED  FROM THE ORIGINAL-

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                               -5-                          9834.4



however, clearly indicates its refusal to respond to a request, a



reminder letter would be inappropriate.  The letter should recite



pertinent past details (such as when the first letter was sent



and a general description of the information sought), and



indicate that the response is inadequate or that no response was



received.  It should also point out that the Agency is



considering further enforcement action if it does not receive the



requested information by a date within the next several weeks.



See Attachment B for a sample reminder letter.



     Compliance with information request letters can also be



increased by informing the responsible party coordinating



committee (in multi-party cases) that the government will not



settle nor exchange information with any party that has not



complied with a request.  This has proven effective in several



multi-party cases.



     Any telephone or other contacts with the recipient regarding



the request should be well documented, including telephone calls



requesting clarification to questions or agreements to extend the



deadline for response.  This information will be critical should



the Agency decide to take further enforcement action.



     B.  Second Step;  Evaluate Candidates for Further Action



     As a general rule, the CDT should first consider for further



enforcement action those recipients that clearly have not



complied with the information request.  These are recipients whom



the CDT is sure received the information request and, if



applicable, reminder letters, but have not responded at all or



have responded by refusing to comply with the request.  The CDT






                   -RETYPED FROM THE ORIGINAL-

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                               -6-                          9834.4

should next consider  for  further enforcement action those

recipients that responded with a less than diligent effort at

searching their files, or whose response was otherwise

inadequate.  Finally, the CDT should consider those recipients

that responded late to the request.

     C.  Third Step;  Evaluate Enforcement Options

     The Agency's authority for enforcing an information request

is contained in §3008(a)  of RCRA, and §§104(e) and 113 of CERCLA.

     Section 3008 provides in pertinent part:

         11... whenever on the basis of any information the
         Administrator determines that any person is in violation
         of any requirement of this subtitle, the Administrator
         may issue an order requiring compliance immediately or
         within a specified time period or the Administrator may
         commence a civil action..."

     Section 3008 civil actions and AOs can seek both injunctive

relief and penalties.

     Section 113 of CERCLA grants federal district courts

jurisdiction to hear an EPA motion for injunctive relief to

compel compliance with an information request.  Unlike §3008 of

RCRA, however, §104(e)(l) of CERCLA does not provide for

penalties.  Section 113(b) provides in pertinent part:

         "...the United States district courts shall have
         exclusive original jurisdiction over all controversies
         arising under this Act...."

     Thus, the options available to the Agency to pursue an

inadequate response are:  (1)  issue a RCRA §3008 AO seeking

injunctive relief and penalties, (2) file a civil action pursuant

to RCRA §3008 and CERCLA  §113 seeking injunctive relief and

penalties, where appropriate and (3) issue a RCRA §3008 AO

seeking penalties, only.  In determining which option to choose,

                   -RETYPED FROM THE ORIGINAL-

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                               -7-                          9834.4

the CDT should examine the  same considerations as  in other

potential enforcement cases, such as the likelihood that the

particular recipient will comply with an AO and the immediacy of

the need for the  information.  In those cases where the

information is needed immediately or likelihood of compliance is

small, a civil action may be preferable.  Each option is

discussed in more detail below.

      1.  RCRA §3008 AOs Seeking Injunctive Relief  and Penalties;

      AOs issued to compel compliance with an information request

are similar to other RCRA §3008 AOs.  They should  contain

findings of fact  and determinations, should assess penalties in

accordance with the Agency's RCRA Penalty Policy57  and should

order the respondent to comply with the original information

request.  Care should be taken to ensure that the  findings of

fact  demonstrate  the relevance of the information  requested, that

the information is necessary to respond to a release or to

enforce the appropriate provisions of the Acts, and that the

recipient deals with hazardous waste.  Note that under RCRA

§3008(a) each day of noncompliance with an AO is a separate

violation for purposes of assessing penalties.
-' See the Final RCRA Civil Penalty Policy, May 8,  1984, page  31,
number (4) for an example of a penalty calculation for
noncompliance with a RCRA §3007 information request.

                   -RETYPED FROM THE ORIGINAL-

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                               -8-                          9834.4

     2.  Filing RCRA §3008 and CERCLA S113 Civil Actions;z/

     A referral to the Department of Justice (DOJ)  for inadequate

or non-response to an information request should include all

relevant letters, documentation of telephone contacts,

information sufficient to demonstrate that the recipient deals

with hazardous materials, and that the information request is for

one or both of the specified purposes of the statutes.  Again,

these referrals are similar to other referrals and all pertinent .

guidance should be followed.  As indicated in previous guidance,

a referral, pursuant to §3008 can seek enforcement of an AO,

penalties or remedies for the underlying §3008 violation.

     3.  Issuing AOs Assessing Penalties Only;

     RCRA §3008 AOs issued to letter recipients who eventually

submit the requested information, but submit it late or after the

Agency had issued reminder letters only assess a penalty, since

injunctive relief (for submission of the information) is no

longer necessary.  Regional enforcement personnel are encouraged

to use penalty-only AOs for late submissions if adequate

resources are available.  These AOs will demonstrate to the

regulated community that the Agency is serious about utilizing

its information gathering authority and taking further action to

enforce the use of that authority, where appropriate.
7_' The United States has  filed a complaint  for noncompliance  with
a RCRA §3007/ CERCLA §104 information request in U.S. v. George
Liviola. Jr.. et al.. No. C84-1879Y, Northern District of Ohio.
Copies are available from OECM-Waste.

                   -RETYPED FROM THE ORIGINAL-

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                               -9-                          9834.4



CONCLUSION



     The information gathering authority available to the Agency



will continue to be effective only if the Agency takes a strong



stand in enforcing these requests.  Whenever possible, the CDTs



should take whatever action is necessary to ensure compliance



with these letters.







Attachments
                   -RETYPED FROM THE ORIGINAL-

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                                                            9834.4
                 ENVIRONMENTAL PROTECTION AGENCY


IN THE MATTER OF:             )   Docket No. IX-81-RCRA-123
Hughes Aircraft Company,      )   Marvin E. Jones
                              )   Administrative Law Judge
             Respondent.      )   Environmental Protection Agency
                              )   324 East llth Street
                              )   Kansas City, Missouri  64106

          ORDER DENYING MOTION AND REQUIRING COMPLIANCE

     By Motion dated November 3, 1981, Respondent Hughes Aircraft

Company moves to dismiss the Complaint filed herein on September

30, 1981.  Said motion is based on its contentions set forth in

its "Memorandum in Support Hughes' Motion — ", filed therewith,

which recounts that on July 17, 1981, Complainant (U.S.

Environmental Protection Agency, Region 9) issued a letter

requesting that Respondent provide certain information relating

to tests conducted by it on soil, water supply and well water

samples taken on grounds of Air Force Plant No. 44 or in the

vicinity of Tucson International Airport, along with information

relating to samples taken in March and May 1981, pursuant to

Section 3007 (a) of the Solid Waste Disposal Act as amended by the

Resource Conservation and Recovery Act of 1976 (hereinafter

"RCRA"), 42 U.S.C. Section 6927(a), including "Solid Waste

Disposal Act Amendments of 1980" P.L. 96-482, October 21, 1980).

Said Section 3007 of RCRA, 42 U.S.C. Section 6927, provides in

pertinent part as follows:

          "For purposes of ... enforcing the provisions of this
     title, any person who generates, stores, treats, transports,
     disposes of, or otherwise handles or has handled hazardous
     wastes shall, upon request of any officer, employee or
     representative of the Environmental Protection Agency, duly

                   -RETYPED FROM THE ORIGINAL-

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                               -2-
9834.4
     designated by the Administrator .  .  .  furnish information
     relating to such wastes and permit such person at all
     reasonable times to have access to,  and to copy all records
     relating to such wastes." (emphasis added)

     Said 3007 letter states, in pertinent part,  as follows:

          "On or about March 5,  1981 and again on or about May
     28, 1981 representatives of Ecology and Environment,  Inc.
     took well samples in the vicinity of the airport for EPA.
     Some of these wells were located on your property and the
     samples taken from these wells were split for a duplicate
     analysis by your own or a contracted laboratory.

          EPA hereby requests the results of the above mentioned
     samples obtained by your laboratory.  EPA also requests the
     results of any sampling (soil, water supply and well water)
     for TCE, DCE, or Cr+6 that you conducted on your property or
     in the vicinity of the Tucson International Airport."

     Hughes responded on August 11, 1981, and on August 31, 1981,

to the first and second parts, respectively, of said 3007 Letter,

as follows:

          August 11. 1981

               "1.  Hughes did not obtain a split sample from the
                    samples taken by representatives of Ecology,
                    and Environment, Inc.,  on March 5, 1981.
                    This fact is documented on page three of the
                    Sampling Documentation attached to the FIR.

                2.  The split samples obtained from the
                    representatives of Ecology and Environment,
                    Inc., on May 28, 1981,  were obtained and
                    analyzed under the direction and supervision
                    of Hughes counsel.   These tests results are
                    covered by the attorney-client privilege and
                    the work product rule,  and are not properly
                    subject to disclosure under your Section 3007
                    request.  Also, please note that Section 3007
                    expressly requires the Environmental
                    Protection Agency to furnish promptly to the
                    party being investigated the results of any
                    analysis made of such samples.  Section 3007,
                    however, does not have a similar requirement
                    with respect to the party under
                    investigation.  We interpret this to mean
                    that Section 3007 does not require the party
                    under investigation to disclose the results
                    of its analysis and that the Environmental
                    Protection Agency is not authorized by

                   -RETYPED FROM THE ORIGINAL-

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                               -3-                          9834.4

                    Section 3007 to seek disclosure of such
                    results."

          August 31. 1981

               "1.  Hughes has not conducted tests for DCE on its
                    property or in the vicinity of the Tucson
                    International Airport.

                2.  Except for the data obtained from an outside
                    laboratory (see Attachment A), and for data
                    covered by the attorney-client privilege and
                    the work product rule, and not properly
                    subject to disclosure under your Section 3007
                    request, Hughes has not conducted tests for
                    TCE on its property or in the vicinity of the
                    Tucson International Airport.

                3.  The attached data relating to Cr+6 (See
                    attachments B-C, are the only data which
                    Hughes has been able to locate relating to
                    tests conducted by Hughes on its property or .
                    in the vicinity of the Tucson International
                    Airport.

Hughes was served, on October 7, 1981, with the subject Complaint

and Compliance Order which alleges that Hughes' reply contained

in its letters of August 11 and 31 "did not provide the

information requested in the Section 3007 letter" and for said

cause concludes that Hughes thereby is "in violation of Section

3007 of RCRA."  The Compliance Order therein issued to require

Respondent to provide Complainant all of the information

requested in its Section 3007 letter.  Hughes' motion is bottomed

on its factually unsupported contention stated in its said

letters dated August 11 and- 31 and in its Motion's supporting

memorandum, that the test results sought are "covered by the

attorney-client privilege and the work product rule" and thus are

not properly subject to disclosure under Complainant's 3007

request.  In its August 31 letter [?] states that Hughes

conducted no tests for dichloroethylene (DCE) on subject sites;

                   -RETYPED FROM THE ORIGINAL-

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                               -4-                           9834.4



and apparently  contends that any tests made  for trichloroethylene



 (TCE)  and data  relating to TCE, on subject sites, are privileged



and not properly  subject to disclosure.  The August 31  letter



further indicates that data relating to Hexavalent Chromium



 (Cr+6) as furnished therewith and as the only data which Hughes



has been able to  locate  (relating to tests conducted by Hughes)



on subject sites.



     In the alternative, Respondent characterizes the allegations



in subject complaint as "vague, ambiguous and overly broad"  to



the extent that Respondent cannot reasonably frame its  answer



thereto and requests that Complainant be directed to set forth a



more definite statement of its claim.



     In its letter of August 31, 1981, Respondent states: "Hughes



considers all of  the information contained in both letters



(August 10 and  August 31, 1981) to be confidential" and asserts



its claim of "confidentiality."



     I find that  Respondent's claim that the information, sought



by Complainant  in its 3007 letter, is privileged and not properly



subject to disclosure is without merit.  Respondent is  in



violation and continues in violation of the Act by its  refusal to



furnish information so requested.



     Rules of disclosure were not known at common law.  The  scope



of the privilege, if properly claimed, must be determined



primarily by words and intent of pertinent statutes.   (State ex



rel Von Hoffman Press v.  Seitz. 607 S.W.2d 219 (MO);  27CJS



Section 69,  p.  203))   Privilege when properly claimed is limited



to work product of the attorney with respect to the pending






                   -RETYPED FROM THE ORIGINAL-

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                               -5-                          9834.4

action  and goes  no  further  (27 CJS, Discovery, Note  3.6, p. 227),

and whether  any  information  is privileged in any instance is a

question of  fact and the burden  is on the party claiming the

privilege.

     Administrative agencies are not rigidly restricted by jury

trial rules  of evidence  (Buckwater v. FTC, 235 (F2d) 344; Opp

Cotton  Mills v.  ADMR.  312 US 126, 155, 61 S.Ct. 524).  Davis,

Adm. Law Treatise,  Section 8.15, p. 584 states that  Federal Rules

of Civil Procedure  Governing Discovery do not apply  to

administrative proceedings.  More important in the instant case,

the salient  question as ruled by the express provisions, cited

hereinabove, of  Section 3007 of  RCRA:

          "(Respondent should, upon request	furnish information
          relating  to  such wastes	".

     The offense here  changed is "regulatory."  As stated in

Belsinaer v. D.C. (1969), 295FS159; 436 F.2d 214, "In regulatory

offenses, the public interest outweighs the individual interest."

For the sake of  adequate public  protection, it is necessary to

require a standard  of  conduct which assumes a result that will

protect the  public  to  the extent intended by the Act.  The

relevance of the subject information to the instant proceeding is

an important consideration.  The information sought consists of

data and records necessary to the proper prosecution of the

subject Complaint and  regulatory action germane thereto.  In

general, exemption  of  documents  from discovery is based on

principles of public policy, and the holdings indicate that such

exemptions are narrowly construed; interpretations of such are

generally grounded  in  the principle that the interpretation must

                   -RETYPED  FROM THE ORIGINAL-

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                               -6-                          9834.4
uphold rather than vitiate the Act.  Here the subject statute
must be read in a manner which affectuates rather than frustrates
the major purpose of the legislation (see Shapiro v. U.S..  335
US1 (1948)).  Further, I do not find that Complainant's request
for subject information to be either "too broad" or "vague and
indefinite."  A movant for production should not be held on "too
strict a showing" of content of record he has never seen (State
ex rel Boswell v. Curtis. 334 S.W.2d 757 (MO I960)).  The
responses of Hughes make clear that no information is available
as to tests for DCE and indicate that tests for TCE are "data
covered by privilege."  In like manner Respondent's claim of
confidentiality must be summarily rejected (see 40 C.F.R.
2.305(g) where provision is made for disclosure of information
(actually furnished) "because of the relevance of the information
in a proceeding under the Act (RCRA).")
     By reason of the foregoing, Respondent's Motion to Dismiss
and Alternative Motion for a More Definite Statement, along with
its suggestion of confidentiality appearing herein, are denied.
                              ORDER
     It is hereby ordered that Respondent shall, within fifteen
days from the date hereof:
     1.  Furnish to U.S. Environmental Protection Agency the
results of any and all tests, made by it or at its instance or
procurement, of samples taken by Ecology and Environment, Inc.
from wells in the vicinity of Tucson International Airport (TIA)
on March 5, 1981, on or about May 28, 1981, and
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                               -7-                          9834.4

     2.  Furnish to U.S. Environmental Protection Agency the test

results of any sampling (soil, water supply, and well water) for

TCE, DCE or Cr+6 conducted by Respondent on its property or in

the vicinity of TIA.

     It is further ordered that:

     1.  Failure of Respondent to comply with the above order,

and with the Compliance Order herein previously made, shall

constitute a continuing violation;

     2.  Prompt compliance with said orders shall be considered

in arriving at the amount of the penalty, if any, to be properly

assessed herein.

     It is so ordered.



Dated: 	December 29. 1981
                                   Marvin E. Jones
                                   Administrative Law Judge
                   -RETYPED FROM THE ORIGINAL-

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                               -8-
                      CERTIFICATE  OF SERVICE
                     9834.4
I certify that the original of this Order Denying Motion and
Requiring Compliance was mailed by certified mail, return receipt
requested, to the Regional Hearing Clerk, Region IX, U.S.
Environmental Protection Agency, 215 Fremont Street, San
Francisco, California 94105 and that true and correct copies were
sent to the following on this 29th day of December 1981.
Mr. David L. Mulliken
Latham & Watkins
555 South Flower Street
Los Angeles, California 90071

Mr. John D. Rothman
Enforcement Division
U.S. Environmental Protection Agency
Region IX
215 Fremont Street
San Francisco, California 94105
Certified Mail PO4 5831713
Return Receipt Requested
Certified Mail P04 5831714
Return Receipt Requested
                                    Mary Lou Clifton
                                    Secretary to Marvin E. Jones
                   -RETYPED FROM THE ORIGINAL-

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                                                            9834.4

Address
CERTIFIED MAIL
RETURN RECEIPT REQUESTED

Re:   Silresim Chemical  Corporation  hazardous waste  facility  in
      Lowell,  Massachusetts

Dear  Sir or Madam:

In notice letters issued in August  and September of this year,
the Environmental Protection Agency (EPA) and the Commonwealth of
Massachusetts notified  you of potential liability that your
company may incur or may have incurred in connection with the
Silresim Chemical Corporation hazardous waste facility in Lowell,
Massachusetts.  In that same correspondence, EPA requested that
you furnish information and copies  of records describing your
company's involvement with the Silresim facility.  You were
advised that this information was being requested pursuant to
Section 104(e) of the Comprehensive Environmental Response,
Compensation, and Liability Act  (CERCLA) and pursuant to Section
3007  of the Resource Conservation and Recovery Act  (RCRA).
Responses to these information requests were due to EPA within 30
days  of your receipt of the request.  At a September 21 meeting
in Boston with responsible parties, this deadline was altered to
require response within 30 days of  receipt or by October 1,
whichever came later.   In  addition, because of the difficulty
your  company had experienced in locating information relevant to
the information request, your company also received a letter
supplying you with further information to assist you in locating
information in your files.  As announced at the September 21
meeting, recipients of  these "tip sheet" letters received an
additional ten day extension of the response deadline dating from
the date of receipt of  that letter.

EPA has not yet received any information from your company in
response to this information request, despite the fact that the
applicable deadline has passed.  We hereby request that you
promptly supply EPA with any information that you have collected
to date in response to  this information request.  We also ask
that you complete your  document search promptly and forward any
additional material to  EPA at that  time.  In the event that you
have been unable to find any such information at the conclusion
of your document search, you are requested to provide an
affidavit to that effect in order to formalize your company's
compliance with EPA's information request.  Your affidavit should
be signed by the company official responsible for the company's
response to EPA's information request, and it should indicate
that a diligent search of  the company records has been conducted
and that all relevant information discovered in that search,  if
any,  is being presented to EPA.
                   -RETYPED FROM THE ORIGINAL-

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Page 2                                                      9834.4

Continued noncompliance with these information requests may pose
a serious impediment to the negotiations currently underway on
this site.  Moreover, it is EPA's position that failure to comply
with these requests within the specified time period is a
violation of federal law which may result in administrative or
civil enforcement action, including penalties under Section 3008
of RCRA of up to $25,000 per day for each day of continued
noncompliance.  In most cases EPA will consider noncompliance to
have begun on the revised deadline described in the first
paragraph of this letter.

EPA is currently evaluating which of its enforcement options
might be most appropriately taken in response to noncompliance
with its information requests relative to the Silresim facility
and will decide on a course of action shortly after November 11,
1983.  In order to mitigate the extent of any enforcement actions
that may be forthcoming in this matter, your company is hereby
encouraged to comply in full with the information request by
close of business on that date.  Your response should be sent to:

                    E. Michael Thomas, Esq.
                    Environmental Protection Agency
                    Office of Regional Counsel
                    JFK Federal Building,, Room 2203
                    Boston, MA  02203

If you have any questions on this matter, please call me or
Attorney James T. Owens, III at (617) 223-0400.

Sincerely,
E. Michael Thomas, Attorney
Office of Regional Counsel

cc:  Paul Ware, Esq. Chairman, Silresim Generators Negotiating
     Subcommittee Director, EPA Office of Waste Programs
        Enforcement
     Douglas Farnsworth, Esq., EPA Office of Enforcement and
        Compliance Monitoring
     Lloyd Guerci, Esq., U.S. Department of Justice
     Lee Breckenridge, Esq., Massachusetts Office of the
        Attorney General
                   -RETYPED FROM THE ORIGINAL-

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                                         OSWER Directive #  9930.0-1 a


                        November 15, 1985
MEMORANDUM

SUBJECT:  Implementation of EPA Criminal Enforcement Strategy for
          RCRA Interim Status Facilities.

FROM:     Gene A. Lucero, Director
          Office of Waste Programs Enforcement

          Thomas P. Gallagher/ Director
          National Enforcement Investigations Center

TO:       Waste Management Division Directors, Regions I-X


Introduction

     EPA has designated RCRA enforcement, including compliance
with the November 8, 1985 interim status certification deadline,
as a high priority enforcement initiative.  As you know, several
guidance documents have been issued which emphasize the
importance of criminal enforcement in cases involving interim
status facilities that fail to comply with RCRA
certification/closure requirements.  [These include the Loss of
Interim Status Enforcement Strategy (October 16, 1985); Interim
Status ...  Notice of Implementation and Enforcement Policy, 50
Fed.  Reg. 38946 (September 25, 1985); RCRA Enforcement Division
(OWPE-OSWER) Guidance - Loss of Interim Status Provision for Land
Disposal Facilities (September 10, 1985); EPA-OSWER FY 1986 RCRA
Implementation Plan (July 1, 1985)].  These policies clearly
state that the Agency intends to vigorously prosecute those
facilities with clear criminal violations.

     For EPA's criminal enforcement strategy to succeed, close
coordination by NEIC/OCI Special Agents in Charge with the
Regional Waste Management Division is essential.  We understand
that you office will be identifying those facilities with clear
violations based upon inventories of known facilities, responses
to RCRA Section 3007 letters mailed in or about late October,
1985 pursuant to the Loss of Interim Status Enforcement Strategy
and inspection results.  To ensure national consistency in the
conduct of criminal investigations of interim status facilities,
NEIC and OWPE will focus on the investigation of obvious,
egregious violators.


                     "Retyped From The Original"

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                               -2-       OSWER Directive #  9930.0-1 a

OWPE-NEIC/OCI Implementation of EPA CriminalEnforcement Strategy

     OWPE-NEIC/OCI's implementation of the Agency's strategy
consists of three elements:  identifying and targeting facilities
with potential criminal violations; verifying that targeted
facilities have received their RCRA Section 3007 letters and that
their responses, if any, have been accounted for; and conducting
on-site inspections of targeted facilities.
A.   Identifying/Targeting Facilities with Violations:

     All Special/Resident Agents in Charge will be initiating
     immediate communications with regional program offices so
     that land disposal facilities/units in the following
     categories can be identified  and targeted for enforcement:

     (1)  Those that have not certified compliance and/or have
          not submitted a part B Permit application yet continued
          to introduce (treat, store or dispose of) hazardous
          waste into land disposal facilities after November 8,
          1985;

     (2)  Those that falsely certified compliance because they
          have not complied with either ground-water monitoring
          or financial responsibility requirements (e.g.,  have
          made no effort to comply);

     (3)  Those that have falsely certified compliance because
          they made only cosmetic efforts to comply (e.g., have
          installed ground-water monitoring wells that appear to
          be operational but in fact are inoperative).

     Facilities that are targeted for enforcement should include,
     to the extent possible, a mix of large and small
     owner/operators, including both on-site and commercial
     facilities.  We will attempt one/two investigations per
     Region.  Since these categories are also the most
     appropriate for civil enforcement, seeking to enjoin
     immediately introduction of hazardous waste into such units,
     close coordination with the Regional Counsels is necessary
     where there is a potential for civil or parallel
     proceedings.

     NEIC/OCI will focus on investigating facilities which failed
     to certify but continued operations regardless.   These
     facilities will be distinguished from facilities that
     partially certified (e.g., as to some land disposal units
     but not all).  Similar emphasis will be given to cases which
     involve false certifications, where the owner/operator did
     not approach  achieving compliance.


                     "Retyped From The Original"

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                               -3-       OSWER Directive #  9930.0-1 a

     Potential targets of criminal investigations and
     prosecutions may attempt to mitigate their liability and the
     apparent willfulness of their conduct.  Defenses that rely
     upon correspondence with EPA or a State or the presence of
     monitoring wells that fail to meet technical requirements
     may complicate criminal prosecutions.  In such cases, legal
     advice should be sought from the criminal enforcement
     attorney in your Office of Regional Counsel or from the HQ
     Office of Criminal Enforcement.

B.   Verifying Receipt of RCRA Section 3007 Letters:

     In all cases, we will need to verify that the RCRA Section
     3007 letter described above was received by the facility in
     question without contacting the facility.  Any response to
     the Section 3007 letter by a targeted facility will be
     reviewed carefully.  These letters will enable us to more
     readily establish that the facility operator had actual
     knowledge of the regulatory requirements and responses to
     the letters also will be instrumental in cases involving
     false certifications.  If receipt of the Section 3007 letter
     cannot be demonstrated, the facility will not be included in
     our initial investigative effort, unless there are false
     certifications of compliance that can be documented
     independently.

C.   Inspection of Interim Status Facilities:

     Commencing in early December, NEIC will provide resources
     for technical inspections at facilities that have been
     targeted.  These inspections will be closely coordinated
     with the NEIC Special Agents so that once on-site
     inspections reveal evidence of criminal activity, the agents
     will be prepared to respond immediately, to obtain search
     warrants, and to otherwise fully investigate the matter.

     Although the criminal remedy may be selected in a particular
     case, if that facility has failed to certify compliance
     and/or submit a part B permit application and is continuing
     to operate, a parallel civil injunction against continued
     introduction of hazardous waste into land disposal units may
     be sought.  Such parallel actions should be coordinated
     through the Office of Regional Counsel, and must receive the
     concurrence of the HQ Office of Criminal Enforcement.

     We anticipate establishing an effective liaison with your
office to ensure that the Agency can rely upon our joint efforts
in initiating these criminal investigations.  You can expect to
be contacted in the near future by the Special Resident Agent in


                     "Retyped From The Original"

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                               -4-       OSWER Directive # 9930.0-1 a

Charge regarding this initiative.  We look forward to  a
productive relationship in enforcing these crucial RCRA
provisions.
cc:  Richard H. Mays, Senior Enforcement Counsel, OECM  (LE-134E)
     Frederick Stiehl, Associate Enforcement Counsel for
       Hazardous Waste Enforcement  (LE-134S)
     Terrell E. Hunt, Director, Office of Criminal Enforcement
       and Special Litigation  (LE-134E)
     Randall Lutz, Director, Office of Criminal Enforcement
       (LE-134C)
     Regional Counsel, Regions I-X
     Special Agent in Charge, Regions I-X
     Jim Prange, Director of Criminal Investigations, NEIC
     David Buente, DOJ
     Judson Starr, DOJ
                     "Retyped From The Original11

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      3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     y                WASHINGTON, D.C. 20460
                           DEC I  6
                                                          Off ire of
                                                        ENFOBCEMRNf AND
                                                      COMPLIANCE MONtTQHINC
MEMORANDUM

SUBJECT:  Guidance on Determining a Violator's   *
          Ability to Pay a Civil Penalty

FROM:     Thomas L. Adams, Jr.  -^X. ^^•M-V  *V
          Assistant Adminstrator for             \^
            Enforcement and Compliance Monitoring

TO:  .     Assistant Administrators
          Regional Administrators
 I.    PURPOSE

      This guidance  amplifies  the  discussion  in  the Uniform
 Civil Penalty  Policy on how to adjust a penalty target  figure
 when  a violator claims paying.a civil penalty would cause
 extreme financial hardship.   This guidance was  developed to
 meet  the commitment made in the Uniform Civil Penalty Policy
 issued February 16, 1984, and in response to Regional Office
 requests for amplification of the "Framework for Statute-
 Specific Approaches to Penalty Assessments"  (GM-22).
II.  APPLICABILITY

     This guidance applies to the calculation of civil
penalties under medium-specific policies issued in accordance
with the Uniform Civil Penalty Policy that EPA imposes on:

     1.  For-profit publicly or closely held entities; and
                                                      /
     2.  For-profit entities owned by not-for-profit entities.

     This guidance does not apply to:

     1.  The calculation of civil penalties that EPA imposes
on municipalities and other not-for-profit entities; or

     2.  A violator who files for bankruptcy or is in bankruptcy
proceedings after EPA initiates the enforcement action.

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                              -2-

 III.  SCOPE

      This guidance  only gives a general  evaluation  of  the
 financial health of a violator and  the possible  effects of
 paying a civil penalty for the purpose of settlement
 negotiations.  It describes when to apply the ability  to pay
 factor and provides a methodology for applying the  factor
 using a computer program, ABEL.

     The guidance does not prescribe the amount  by  which EPA
 may reduce a civil  penalty if the ability to p«y factor is
 applied.  The methodology in  this guidance will  not calculate
 a  specific dollar amount that a violator can afford in civil
 penalties nor does  it provide a way to predict whether paying
 a  certain amount for a civil  penalty will cause  an  already
 financially troubled firm to  go out of business.

     For an ability to pay analysis, EPA needs specific financial
 information from a  violator (see section V).  EPA includes the
 financial data in a litigation report only when  the data are
 requested by the Department of Justice or offered by the violator.


 IV.  THE ABILITY TO PAY FACTOR

     Untfer the Uniform Civil  Penalty Policy, EPA may consider
 using the ability to pay factor to adjust a civil penalty
 when the assessment of a civil penalty may result in extreme
 financial hardship.  Financial hardship cannot be expressed
 in absolute terms.   Any limitation on a violator's ability
 to pay depends on how soon the payments must be made and
 what the violator has to give up to make the payments.   A
 violator has several options for paying a civil penalty:

     1.  Use cash on hand;

     2.  Sell assets;

     3.  Increase debt by commercial borrowing;

     4.  Increase equity by selling stock;
                                                       )
     5.  Apply toward a civil penalty for a period of time
what would otherwise be distributed as profit;  or

     6.  Use internally-generated future cash flows by  deferring
or eliminating some planned future investments.

     Each of these options  will affect a for-profit violator's
operations to some  degree.   EPA must decide  whether to  adjust

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                              -3-
 a  proposed  penalty amount  and  by  how much,  taking into account
 the  gravity of the violation and  other criteria in medium-
 specific  guidance.
V.    INFORMATION  TO  DETERMINE ABILITY TO PAY

      If  ability to pay  is  at issue,  EPA may request  from a
violator any  financial  information  the Agency needs  to evaluate
the  violator's claim of extreme  financial hardship.   A violator
who  raises  the issue has the burden of providing ^information
to demonstrate extreme  financial hardship.

      Financial information to request from  for-profit entities
may  include the most recent three to five years  of:

      1.   Tax  returns;

      2.   Balance  sheets;

      3.   Income statements;

      4.   Statements  of  changes in financial position;

      5.   Statements  of  operations;

      6.   Retained earnings statements;

      7.   Loan applications, financing agreements,
security agreements;

      8.   Annual reports; or

      9.   Business services, such  as  Compustat, Dun and
Bradstreet, or Value Line.

      Tax returns  are the most complete  and  in  the most  consis-
tent  form for analysis.  Tax returns  also provide financial
information in a  format  for direct input  into ABEL.  Annual
reports  are the most difficult to analyze and may require
the assistance of a  financial analyst.

     When requesting information informally or through
interrogatories or discovery,  EPA should ask for three  to
five years of tax returns along with all other financial
information that a violator regularly maintains as business
records.  If a violator refuses  to give EPA the information
to evaluate the violator's ability to pay, EPA should seek
the full calculated penalty amount under the assumption that
the violator can  pay.

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VI.  CONFIDENTIALITY OF FINANCIAL  INFORMATION

     A violator  can claim  confidentiality  for  financial
information  submitted to EPA.   In  accordance with the regu-
lations on confidential business information,  40 CFR 2.203,
EPA must give notice to a  violator that the violator may
assert a business confidentiality  claim.   EPA's notice must
contain the  information required in 40 CFR 2.203.  The notice
must include a statement that if the violator  submits financial
information  without a confidentiality claim, EPA may release
the information  without further notice to  the Violator.

     The violator can make a claim of confidentiality for
financial information in a cover letter accompanying the
information.  Information  in published annual  reports would
not be entitled  to confidential treatment.
VII. APPLYING THE ABILITY TO PAY FACTOR

     Under the terms of a consent decree, a violator pays a
civil penalty in addition to making any capital investment
necessary to come into compliance.  EPA considers the costs
of attaining compliance when applying the ability to pay factor
to a civil penalty calculation.
        v *
     EPA determines whether to apply the ability to pay
factor using a four-step process:

     1.  Determine, if-possible, whether a violator plans to
claim extreme financial hardship;

     2.  Determine whether criteria in the Uniform Civil
Penalty Policy and medium-specific guidance require consideration
of ability to pay;

     3.  Evaluate the overall financial health of a violator's
operations by analyzing financial information provided by a
violator or from other sources, such as business services; and

     4.  Project the probabilities of a violator having future
internally-generated cash flows to evaluate how paying a proposed
civil penalty may affect a violator's financial decisions.
VIII. FINANCIAL COMPUTER PROGRAM

     EPA's computer program, ABEL, assists in evaluating the
financial health of for-profit entities, based on the estimated
strength of internally-generated cash flows.  ABEL uses financial
information on a violator to evaluate the overall financial
health of a violator (step 3 above).  The program uses standard

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                             -5-

financial ratios to evaluate a violator's ability to borrow
money and pay current and long-term operating expenses.

     ABEL also projects the probable availability of
future internally-generated cash flows to evaluate some of a
violator's options for paying a civil penalty (step 4 above).
EPA is developing a user's manual to provide self instruction
in the use of ABEL in addition to the documentation and help
aids in the computer program.

     Exhibit 1 is a hypothetical use of ABEL to evaluate a
violator's financial health.  If the ABEL analyst indicates
that a violator may not be able to finance a civil penalty
with internally-generated cash flows, EPA should check all
available financial information for other possible sources
of cash flows for paying a civil penalty.

     For example, in corporate tax returns, item 26 of
Schedule A (cost of goods sold) sets forth deductions for
entertaining, advertising, and professional dues.  Schedule E
shows the compensation of officers.  In Schedule L (balance
sheets), item 8 sets forth investments that may include
certificates of deposit or money market funds.  These types
of assets and expenses do not directly affect operations and
may vary considerably from year to year without adversely
affecting the violator's operations.  Because a civil penalty
should be viewed as a one-time expense,  these kinds of assets
and expenses could be sources of cash for a civil penalty.

     Using the sources of financial information from the example
above,  liquid assets such as certificates of deposit and
money market funds could be used to pay a penalty.   Expenses
for advertising,  entertaining,  or professional dues could be
reduced for a short period to pay a civil penalty.   A corporate
officer might even be willing to take less compensation for
a short period.   A combination of options like these may
produce enough cash flow to pay a civil penalty without
causing the violator extreme financial hardship in  meeting
operating expenses.
Attachment

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                          EXHIBIT 1

Assumption that Violator is Financially Healthy

     Assume that EPA has calculated an economic benefit for
Company X of $140,000 and a gravity component of $110,000 for
a total proposed penalty of $250,000.  EPA presents the
proposed penalty after several negotiation sessions, and the
CEO for Company X then claims that the company cannot afford
to pay that much.  In support of the claim, the CEO produces
accounting statements showing that the firm paid no income
taxes for the previous three years and had less than $100,000
in net income for those years.

     EPA requests tax returns and other financial- information
for the most recent three years of Company X.  EPA enters the
tax return information in ABEL and receives the output in
Attachment A.  The Phase 1 analysis from ABEL is not dispositive
of the issue, so EPA performs a Phase 2 analysis.

     The Phase 2 analysis indicates that Company X can finance
a civil penalty of $250,000 from internally-generated cash flows,
even after planning for $400,000 in pollution control investments
and $50,000 for annual O&M expenses.  The table in Phase 2
shows a 99 percent probability that Company X will have future
cash flows with a net present value of $370,061 available to
pay a civil penalty.

Assumption that Violator Is Not Financially Healthy

     Assume again that EPA has calculated a total penalty amount
of $250,000.  Company Z claims extreme financial hardship.  If
the ABEL analysis indicates that Company Z would have little
probability of generating $250,000 in cash flows during the
next five years, EPA would go back to the financial data
supplied by the violator and look for items that may indicate
a source of cash, including loans outstanding to corporate
officers, entertainment expense deductions, company cars or
airplanes, amount of compensation for corporate officers,
compensation for relatives of corporate officers who do not
have clearly defined duties.

     If the ABEL Phase 1 analysis indicates that Company Z
may have additional debt capacity (debt/equity ratio),  EPA
would look in the tax returns for the amount of long term
debt the violator is carrying and analyze any loan applications
the violator submitted in response to EPA's request for
financial information.  Frequently, firms can borrow additional
money' for operations and free up cash flow to pay civil
penalties.

     Even a firm on the verge of bankruptcy may choose to
settle an enforcement action with a civil penalty provision in
the consent decree.  EPA should always seek some civil penalty.
ABEL and other financial analysis provide a range of penalty
amounts for the purpose of settlement negotiations.

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                                                       ATTACHMENT A

      DATA  FOR ABEL  EXAMPLE

      ANALYSIS DATE:  NOVEMBER  24,  1986

      DEBT  EQUITY  RATIOS

1985  0.58  A RATIO  LESS  THAN 1.5  INDICATES  THE  FIRM MAY  HAVE
            ADDITIONAL  DEBT  CAPACITY

1984  2.91  A RATIO  GREATER  THAN 1.5  INDICATES THE  FIRM MAY  HAVE
            DIFFICULTY  BORROWING

1983  1.59  A RATIO  GREATER  THAN 1.5  INDICATES THE  FIRM MAY  HAVE
            DIFFICULTY  BORROWING

PLEASE ENTER A CARRIAGE RETURN  TO  CONTINUE


      CURRENT RATIOS

1985  1.10  A RATIO  LESS  THAN 2.0  MAY INDICATE LIQUIDITY  PROBLEMS

1984  1.20  A RATIO  LESS  THAN 2.0  MAY INDICATE LIQUIDITY  PROBLEMS

1983  1.03  A RATIO  LESS  THAN 2.0  MAY INDICATE LIQUIDITY  PROBLEMS

PLEASE ENTER A CARRIAGE RETURN  TO  CONTINUE


      BEAVER'S RATIOS

1985  0.22  A RATIO  GREATER  THAN 0.20 INDICATES  HEALTHY SOLVENCY

1984  0.20  A RATIO  BETWEEN  0.10 AND  0.20 IS INDETERMINATE

1983  0.30  A RATIO GREATER  THAN 0.20 INDICATES  HEALTHY SOLVENCY

PLEASE ENTER A CARRIAGE RETURN  TO  CONTINUE


      TIMES INTEREST EARNED

1985  1.02  A RATIO LESS  THAN 2.0 MAY INDICATE SOLVENCY PROBLEMS

1984  1.64  A RATIO LESS  THAN 2.0 MAY INDICATE SOLVENCY PROBLEMS

1983  1.30  A RATIO LESS  THAN 2.0 MAY INDICATE SOLVENCY PROBLEMS

PLEASE ENTER A CARRIAGE RETURN  TO CONTINUE
                    -RETYPED FROM THE ORIGINAL-

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          ABEL INTERPRETS THE OVERALL RESULTS OF THE FINANCIAL
          RATIOS AS FOLLOWS:

          ALTHOUGH THE FIRM MAY FACE CURRENT CASH (OR LIQUIDITY)
          CONSTRAINTS, ITS LONG-TERM PROSPECTS ARE GOOD AND IT
          SHOULD BE ABLE TO FINANCE PENALTIES AND INVESTMENTS.  A
          PHASE TWO ANALYSIS IS RECOMMENDED.

          ABEL NOTES THAT THE FIRM'S MOST RECENT DEBT-EQUITY RATIO
          IS SUBSTANTIALLY BETTER THAN ITS HISTORIC AVERAGE.

          ABEL NOTES THAT THE FIRM'S MOST RECENT TIMES INTEREST
          EARNED IS SUBSTANTIALLY POORER THAN ITS HISTORIC
          AVERAGE.

          DO YOU WISH TO CONTINUE WITH THE PHASE TWO ANALYSIS
          (Y OR N)?
          DO YOU WISH TO ANALYZE A CIVIL PENALTY
          INVESTMENT (I)?
(P)  OR A NEW
250000
200000
1985
          PLEASE INPUT THE INITIAL PROPOSED SETTLEMENT PENALTY
          AMOUNT IN CURRENT DOLLARS (E.G., 5000); IF THERE IS NO
          TARGETED PENALTY, ENTER 0.
          BEFORE PROCEEDING WITH THE CIVIL PENALTY ANALYSIS, ABEL
          WILL REQUIRE CERTAIN ADDITIONAL INFORMATION REGARDING
          ANY INVESTMENTS WHICH MAY BE REQUIRED IN ORDER FOR THE
          FIRM TO ACHIEVE COMPLIANCE.

          ENTER THE DEPRECIABLE CAPITAL COST OF THE NEW INVESTMENT
          (E.G., 1000.00); IF THERE IS NO NEW INVESTMENT, ENTER 0)
          PLEASE ENTER WHAT YEAR DOLLARS THIS IS EXPRESSED IN
          (E.G., 1984)
          ENTER ANY NON-DEPRECIABLE, NON-TAX DEDUCTIBLE COSTS
          ASSOCIATED WITH THE NEW INVESTMENT. IF THERE IS NO COST
          THAT MEETS THIS REQUIREMENT PLEASE ENTER 0.
100000
                   -RETYPED FROM THE  ORIGINAL-

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                               -  3  -
1985
100000
1985
50000
1985
N
N
          PLEASE ENTER WHAT YEAR DOLLARS THIS IS EXPRESSED IN
          (E.G., 1984)
          ENTER ANY NON-DEPRECIABLE, BUT TAX-DEDUCTIBLE COSTS
          ASSOCIATED WITH THE NEW INVESTMENT.  IF THERE IS NO COST
          THAT MEETS THIS REQUIREMENT PLEASE ENTER 0.
          PLEASE ENTER WHAT YEAR DOLLARS THIS IS EXPRESSED IN
          (E.G., 1984)
          ENTER THE ANNUAL O&M COST OF THE NEW INVESTMENT.  IF
          THERE IS NO O&M COST, ENTER 0
          PLEASE ENTER WHAT YEAR DOLLARS THIS IS EXPRESSED IN
          (E.G., 1984)
          THE FOLLOWING STANDARD VALUES ARE USED IN THIS SECTION
          OF ABEL:
          1.  REINVESTMENT RATE =0.0
          2.  NOMINAL DISCOUNT RATE = 13.69%
          3.  INFLATION RATE = 4.41%
          4.  MARGINAL INCOME TAX RATE = 50.00%
          5.  INVESTMENT TAX CREDIT = 10.00%

          DO YOU WISH TO HAVE THESE ITEMS EXPLAINED (Y OR N)?
          DO YOU WISH TO CHANGE ANY OF THESE INPUTS  (Y OR N)?
                    -RETYPED FROM THE ORIGINAL-

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                     - 4 -
ABEL IS READY TO PROVIDE OUTPUT.  YOU HAVE THE CHOICE OF
THREE OUTPUT OPTIONS:

1.  PRINT ONLY THE POSSIBILITY OF THE PRESENT VALUE OF
    THE FIRM'S FIVE YEAR PROJECTED CASH FLOW EXCEEDING
    EITHER AN INITIAL PROPOSED SETTLEMENT PENALTY OR A
    REQUIRED INVESTMENT.

2.  PRINT A TABLE SHOWING THE NET AVAILABLE CASH FLOW
    WITH AN ANALYSIS OF THE TABLE.

3.  PRINT A DETAILED TABLE SHOWING THE COMPONENTS OF THE
    FIRM'S CASH FLOWS.  THIS OPTION MAY BE HELPFUL TO
    FINANCIAL ANALYSIS BUT IS NOT RECOMMENDED FOR MOST
    USERS.

PLEASE ENTER YOUR CHOICE (1, 2, OR 3).
THERE IS A 99.9% CHANCE THAT THE FIRM CAN FINANCE THE
PROPOSED SETTLEMENT PENALTY OF $250,000.00 BASED ON THE
STRENGTH OF INTERNALLY GENERATED CASH FLOWS FOR THE NEXT
FIVE YEARS.  THE ANALYSIS AT THIS POINT DOES NOT
DEMONSTRATE CONCLUSIVELY THE FIRM'S ABILITY TO PAY THE
PROPOSED PENALTY.  TO MAKE A DETERMINATION, ONE MUST
LOOK AT THE FIRM'S OTHER OPTIONS, INCLUDING INCREASING
EQUITY, SELLING ASSETS, OR LEVERAGING UNLEVERED ASSETS.

ABEL IS READY TO BEGIN OUTPUT.  IF YOU WISH, PLEASE
POSITION YOUR PRINTER TO THE START OF A NEW PAGE.
PLEASE ENTER A CARRIAGE RETURN TO CONTINUE
         -RETYPED FROM THE ORIGINAL-

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                               - 5 -


          DATA FOR ABEL EXAMPLE

          ANALYSIS DATE:  NOVEMBER  24, 1986

                             NET PRESENT  VALUE        EQUIVALENT
          PROBABILITY            AVAILABLE           ANNUAL CHARGE

              50.0               716944.31             280891.31

              60.0               679230.25             266115.37

              70.0               638832.69             250288.00

              80.0               591428.81             231715.62

              90.0               525838.50             206018.06

              95.0               471726.56             184817.56

              99.0               370061.81             144986.37

          THE ABOVE DATA ARE PRESENTED IN CURRENT-YEAR DOLLARS

          PLEASE ENTER A CARRIAGE RETURN TO CONTINUE
          THIS TABLE SHOWS THE PROBABILITY THAT THE VIOLATOR CAN
          FINANCE CIVIL PENALTIES OF A GIVEN AMOUNT.  FOR EXAMPLE,
          THERE IS A 95.0% CHANCE OF FINANCING A LUMP SUM PENALTY
          OF UP TO $471,726.56 BASED ON THE STRENGTHS OF PROJECTED
          INTERNALLY GENERATED CASH FLOWS.  THIS IS EQUIVALENT TO
          ALLOWING THE FIRM TO MAKE THREE EQUAL ANNUAL PAYMENTS OF
          $ 184,817.56.  THE ANALYSIS AT THIS POINT DOES NOT
          DEMONSTRATE CONCLUSIVELY THE FIRM'S ABILITY TO PAY THE
          PROPOSED PENALTY.  TO MAKE A DETERMINATION, ONE MUST
          LOOK AT THE FIRM'S OTHER OPTIONS, INCLUDING INCREASING
          EQUITY, SELLING ASSETS, OR LEVERAGING UNLEVERED ASSETS.

          DO YOU WISH TO PERFORM THE PHASE TWO ANALYSIS FOR THIS
          CASE AGAIN (Y OR N)?
N

          DO YOU WISH TO ANALYZE ANOTHER CASE (Y OR N)?
N
                    -RETYPED FROM THE  ORIGINAL-

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        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             NGTON. D.C. 2i

                             SEP 2 I 1987
    V                 WASHINGTON. D.C. 20460
% ****
                                                           OFFICE Of
                                                         ENf ORCEMF.NT AMD
                                                        COMPLIANCE MONITOHING
MEMORANDUM

SUBJECT:  Guidance on the Use of Stipulated Penalties  in Hazardous
          Waste Consent Decrees

FROM:     Thomas L. Adams, Jr.   -AV-^^^ U •  JS&OL^* Y^~
          Assistant                "^^^^"^              ^
TO:       Regional Administrators, Regions I-X
          Regional Counsels, Regions I-X
          Waste Management Division Directors, Regions  I-X

     I have attached the final guidance addressing the  use of
stipulated penalties in civil judicial settlements under CERCLA
and RCRA Section 7003.   This document reflects comments which were
received from the Office of Waste Programs Enforcement  (OWPE), the
Department of Justice (DOJ), and various Regional offices.

     This guidance does not apply to administrative orders, such
as RI/FS orders.  In addition, to complement  this guidance, the
Agency is considering additional guidance to  provide positive
incentives for defendants to expedite completion of work under
consent decrees.

     I appreciate your assistance in the preparation of this
guidance.

Attachment

cc:   J. Winston Porter, Assistant Administrator for Solid Waste
        and Emergency Response
      Gene A. Lucero, Director, Office of Waste Programs Enforcement
      Roger J. Marzulla, Acting Assistant Attorney General, Land
        and Natural Resources Division, Department of Justice
      David T. Buente,  Chief, Environmental Enforcement Section,
        U.S. Department of Justice

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  GUIDANCE ON THE USE OF STIPULATED PENALTIES

                       IN

        HAZARDOUS WASTE CONSENT DECREES
                   SEP 2 I 1987
 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Enforcement and Compliance Monitoring
                      1987

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                       TABLE OF CONTENTS

          Guidance on the Use of Stipulated Penalties
               in Hazardous Waste Consent Decrees

                                                   Page

I.    INTRODUCTION                                    1

II.   GUIDANCE                                        2
     A.   Use of Stipulated Penalties
         1.  General Rule                             2
         2.  When Penalties May Be Excused
            or Delayed                               4
            a.  Force Majeure Event                  4
            b.  Dispute Resolution Period            5
            c.  Period of Correction by
                Defendant                            6
            d.  Missed Interim Deadlines             6
            e.  Grace Period                         6

     B.   Amount of Stipulated Penalties
         1.  General Rule                             7
         2.  Escalating Penalty                       8
         3.  Sharing Penalties with the State         9

     C.   Collection of Stipulated Penalties
         1.  General Rule                             9
         2.  Procedure for Collecting Penalties      10
         3.  Payment of Penalties                    10

     D.   Use of Other Remedies                      11

     E.   Purpose and Use of this Guidance           12

     APPENDIX - Model Stipulated Penalties Provisions
                              -i-

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 I.    INTRODUCTION

      This document provides guidance on the use of stipulated

 penalties in hazardous waste judicial consent decrees.  Stipulated

 penalties are fixed sums of money that a defendant agrees to pay

 for violating the terms of a decree.  Such penalties are an

 effective enforcement tool for encouraging compliance with a

 consent decree.

      This guidance applies to consent decrees under the

 Comprehensive Environmental Response, Compensation, and Liability
                                      i
 Act of 1980 (CERCLA), 42 U.S.C. S 9601 £t s.6^. , as amended, and

 Section 7003 of the Resource Conservation and Recovery Act of

 1976  (RCRA) , 42 U.S.C. § 6973, supplements existing guidance]/

 issued by the United States Environmental Protection Agency (EPA),

 and incorporates recent Agency experiences in negotiating and

 overseeing consent decrees.  The Agency strongly encourages the

 use of stipulated penalty provisions in consent decrees.  It also
                                             »
 supports the use of contempt penalties, statutory penalties and

 injunctive relief as additional sanctions for the violation of  '

 consent decrees.
1/  See "Drafting Consent Decrees in Hazardous Waste Imminent
Hazard Cases" (Office of Enforcement and Compliance Monitoring
(OECM), Office of Solid Waste and Emergency Response (OSWER),
May 1, 1985), "Guidance for Drafting Judicial Consent Decrees"
(OECM, October 19, 1983), "Division of Penalties with State and
Local Governments" (OECM, October 30, 1985), "Remittance of Fines
and Civil Penalties" (OECM, April 15, 1985) and the Superfund
Amendments and Reauthorization Act of 1986.

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                             - 2 -

     While the concept of stipulated penalties also has rele-
vance for administrative orders, distinctions between such
orders and consent decrees may necessitate some differences in
precise application.  Guidance on use of stipulated penalties
in administrative orders will be provided separately.
II.  GUIDANCE
A.   Use of Stipulated Penalties
     1.  General Rule
     In the past, it has been OECM policy to include stipulated
penalties in most consent decrees.  See "Guidance for Drafting
Judicial Consent Decrees" at 22.  Moreover, the Superfund
Amendments and Reauthorization Act of 1986 (SARA) requires that
consent decrees which provide for remedial action^/ contain
stipulated penalties.  Section 121(e)(2) of SARA provides that:
   ...Each consent decree shall also contain stipulated
   penalties for violations of the decree in an amount
   not to exceed $25,000 per day, which may be enforced
   by either the President or the State.  Suoh stipulated
   penalties shall not be construed to impair or affect
   the authority of the court to order compliance with
   the specific terms of any such decree.  (Emphasis added).
However, Section 121 does not explicitly require that every
requirement of a consent decree have a stipulated penalty
attached to it.
£/ Although Section 121 deals with "remedial" actions, it is
~~  recommended that stipulated penalties be included in consent
decrees for removals as well.

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                             - 3 -

     Section 122(1) also permits additional penalty sanctions
for violations of the requirements of a consent decree.   Sec-
tion 122(1) of SARA provides as follows:
          (1) CIVIL PENALTIES - A potentially responsible
          party which is a party to an administrative
          order or consent decree entered pursuant to an
          agreement under this section or section 120
          (relating to Federal facilities) or which is
          a party to an agreement under section 120
          and which fails or refuses to comply with
          any term or condition of the order, decree
          or other agreement shall be subject to a
          civil penalty in accordance with section 109.
Thus, in the context of a CERCLA consent decree with mandated
stipulated penalties, both the stipulated penalties contained
in the consent decree and the Section 122(1) penalties may be
assessed for violations of the terms of the decree.  However,
in limited circumstances, where the stipulated daily penalty
amounts are sufficiently high to effectively deter noncompliance
with the decree, the Agency may consider waiving Section 122(1)
penalties.  Such penalties nonetheless may be'sought for any
violations to which no stipulated penalty attaches.
     Stipulated penalties are seldom applicable to noncompli-
ance with every requirement of a decree.  Most often they are
applicable to compliance schedules, performance standards, and
reporting requirements.  The types of violations for which
stipulated penalties should be required will necessarily depend
on the value the Agency places on the activity to be performed
and the importance of timely performance.

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                              - 4  -

      Even consent decrees which primarily involve a "cash out"
 (i.e., where  the defendant  pays a fixed sum of money to absolve
 himself of his remedial obligations) warrant the inclusion
 of  stipulated penalties.  For example, if a defendant agrees to
 pay his cash  out share in installments, stipulated penalties
 should be used to penalize  late payments.  If a case arises in
 which the defendant must perform  certain tasks in addition to
 cashing out (such as providing site access or security), stipu-
 lated penalties should be imposed to ensure that the defendant
 performs those tasks.
 2.   When Penalties May Be  Excused Or Delayed
     Usually  stipulated penalties should begin to accrue after
 the date on which complete  performance of a particular task is
 due.  Stipulated penalties  will not necessarily accrue, or the
 accrual of such penalties may be  stayed or waived, however,
 during designated periods or by the occurrence of certain
                                             >
 events.
     a. Force Majeure Event^/
     One of the most common reasons for the noncollection of
 stipulated penalties is the occurrence of a force majeure
 event.  A force majeure event is one which is beyond the control
 of the defendant and provides the defendant with an affirmative
£/  Model force majeure language is forthcoming as an appendix
    hereto.

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                             - 5 -

defense Co a charge of noncotnpliance.  Since penalties do not
accrue during this period, the definition of a force majeure
event should be narrowly drawn and the burden placed on the
defendant to show that a force majeure event has occurred.  In
any event, neither increased costs nor financial difficulty
should constitute a force majeure event.
     b. Dispute Resolution Period
     To avoid creating incentives to dispute consent decree
obligations, stipulated penalties generally should accrue for
any nonperformance occurring during the period of dispute.
However, for limited types of disputes, EPA may agree to waive
the accrual of penalties during the dispute resolution period.
For example, consent decrees often permit the Agency to require
that additional work be performed beyond that specifically
provided for in the work plan.  Where the defendants become
aware of substantial "mid-course corrections" after the decree
is signed, it may be appropriate to forego stipulated penalties
during any legitimate dispute related to the additional work
sought by EPA.
     Stipulated penalties will not be collected if the defendant
wins the dispute.  In addition, in appropriate circumstances
the Agency may use its discretion not to collect stipulated
penalties, in whole or in part, which have accrued during the
dispute resolution period.

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                             - 6 -

     c. Period of Correction by Defendant
     A stipulated penalties provision may indicate that penalties
will accrue until the violation is corrected by the defendant.
To minimize uncertainties and foster timely and full compliance,
such a statement should specify that penalties will accrue
through the last day of correction, as determined by the Agency.
rather than cease to accrue on the day the defendant begins to
correct the violation.
     d. Missed Interim Deadlines
     Some decrees provide that penalties for interim deadline
violations will not be sought if the defendant meets the final
completion date.  Since in many instances the final deadline is
the most important, the penalties for violations of interim
milestones may be waived in some cases.  It should be clear to
the defendant, however, that if the final deadline is missed,
the penalties for interim deadline violations will be sought in
                                             *
addition to those which would accrue after the final deadline.
The "Guidance for Drafting Judicial Consent Decrees" notes that
interim deadline penalties may be collected up front and placed
into an escrow account., to be returned to the defendant in the
event the final compliance deadline is met.  Id. at 24.
     e. Grace Period
     Some prior decrees provided for a fixed period immediately
following notification of a violation in which the defendant
was given the opportunity to explain his noncompliance and/or

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                             - 7 -

correct it and during which stipulated penalties would not
accrue.  The length of such grace periods has ranged from 3 to
30 days.  However, by requiring that every consent decree
contain stipulated penalties, Congress has endorsed a strong
preference for strict compliance with the terms of a decree.
While the Agency does not endorse the use of grace periods, if
a violation is expeditiously resolved the Agency may use its
discretion not to seek stipulated penalties.
B.   Amount of Stipulated Penalties
1.   General Rule
     Since stipulated penalties are intended to ensure compliance,
they should be sufficient to provide economic incentives to the
defendant to comply with the terms of the consent decree in a
timely fashion.  The penalty should not be set so low that the
defendant would prefer to pay the'penalty rather than perform
the required activity.*/  Therefore, stipulated penalties should
generally be set at a level designed to exceed the amount of
the estimated savings due to delay.  In setting the amount, the
Agency should also take into consideration the gravity of the
violation and the degree of harm or danger to the public or
environment which might result from the violation.
4/ Actual performance is required regardless of the payment
"~  of penalties.  The Agency reserves the right to seek injunc-
tive relief, modify the decree, or seek other remedies in such
instances.

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                             - 8 -

     Each stipulated penalties provision should .state a fixed
amount per day to be imposed.  This "sum certain" puts the
defendant on notice of the potential extent of his obligation
before a violation occurs.£/  The "undetermined amount" approach
                                                      «
(i.e., "defendant shall pay up to $5000/day") should not be used
since it makes the amount of the penalty subject to further
resolution.  The "undetermined amount" may destroy the economy
of using stipulated penalties since the parties must then
resolve the ultimate amount.
2.   Escalating Penalty
     Consent decrees should provide that the per diem amount of
the penalty will increase with incremental increases in the
period of noncompliance.  For example, a fixed penalty of
$5,000 per day might increase to $10,000 per day after the 15th
day of noncompliance, and $15,000 per day after the 30th day.
Escalating penalties will give the defendant ,added incentive to
come into compliance, and it is recommended that they be used
as a general rule.
£/ To the extent that EPA reserves its rights to seek penal-
   ties under SARA S 109 or civil contempt orders, however,
the "sum certain" argument is really only an indication of
the minimum amount for which a consent decree violator may
be liable.

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                             - 9 -


3.   Sharing Penalties with the State6/

     Generally, civil penalties may be shared with a State if

the State has actively participated in the litigation, actively

sought such penalties, and State law provides independent

authority for the State to seek civil penalties.^/  In addition,

     [t]he penalties should be divided in a proposed
     consent decree based on the level of partici-
     pation and the penalty assessment authority of
     the state or locality....[T]he division should
     reflect a fair apportionment based on the tech-
     nical and legal contributions of the partici-
     pants, within the limits of each participant's
     statutory entitlement to penalties.

"Division of Penalties with State and Local Governments" at 3.

Any agreement to share penalties with a State must be described

in the consent decree.  "Division of Penalties with State and

Local Governments" at 2.

C.   Collection of Stipulated Penalties

1.   General Rule

     Since Agency policy encourages aggressive post-settlement

enforcement, it is essential to the integrity of the enforce-

ment program that stipulated penalties be collected.  Every
£/ Note that Section 121(e)(2) of SARA gives States the author-
   ity to enforce the stipulated penalties section of consent
decrees.

~U Penalty division is a matter for discussion only between
~~  the governmental parties, and it is inappropriate for the
defendant to participate in such discussions.  "Division of
Penalties with State and Local Governments" (OECM, October 30,
1985) at 3.

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                             - 10 -

effort shall be made to collect stipulated penalties both to
deter future noncompliance by defendants and to maintain the
Agency's enforcement credibility.  The Agency thus will not
hesitate to initiate judicial actions to enforce the stipulated
penalties provision of consent decrees.
2.   Procedure for Collecting Penalties
     Forfeiture is the best method of collecting penalties and
should be provided for in the decree.  Under this procedure,
upon notice of a violation^/ the defendant will have a stated  .
number of days to pay the penalty or to move the issue into
dispute resolution.
     Consent decrees should not contain a limitations period
for demanding stipulated penalties which results in the waiver
of penalties that are not demanded within a specified period of
time.
3.   Payment of Penalties
     The stipulated penalties section should'indicate to whom
monies are payable.  This is particularly important for actions
brought under CERCLA, since the "Superfund" is partially replen-
ished by monies paid under that statute.  Although monies
collected pursuant to RCRA generally are paid to the "Treasurer
of the United States," stipulated penalties collected pursuant
8/ Penalties should begin to accrue on the day on which the vio-
~~  lation actually occurs and not when the Agency later discovers
it or gives notice to the defendant.

-------
                             - 11  -

to CERCLA violations are to be made payable to the "Hazardous
Substances Superfund."£/  All penalties should be paid by certified
check, contain the complete address of the defendant,  include
the site identification number if  there is one, and reference
the case name and civil action number.
D.   Use of Other Remedies
     Collection of stipulated penalties is not the sole remedy
for violations of a decree.  There may be times when the Agency
will seek additional remedies, such as the court's equitable
contempt powers or the collection  of additional penalties under
SARA or other applicable authorities.  See, e.g., SARA § 109.
Thus, to preserve the Agency's rights, each section on stipulated
penalties should state that these penalties are "in addition to,
and not in lieu of" the Agency's right to other sanctions for
violations of the decree.^/
9/ This is supported by the guidance memorandum on "Remittance
~"  of Fines and Civil Penalties" (OECM, April 15, 1985) which
indicates that "all Superfund billings" should go into a lock-
box bank specifically designated for Superfund monies.  In
addition, since Section 107(c)(3) of CERCLA directs that puni-
tive damages go into the Superfund, our view is that CERCLA
stipulated penalties should be deposited there as well.
   The address for the CERCLA lockbox is:
                      EPA - Superfund
                      P.O. Box 371003M
                      Pittsburgh, PA  15251
IP/ Subject, of course, to any waiver of Section 122(1) penal-
    ties (see discussion at p. 3).

-------
                             - 12 -

E.  Purpose and Use of This Guidance
     This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees
of the United States Environmental Protection Agency.   They
do not constitute rulemaking by the Agency and may not be
relied upon to create a right or a benefit, substantive or
procedural, enforceable at law or in equity, by any person.
The Agency may take action at variance with this guidance or
its internal implementing procedures.

-------
                            APPENDIX


            MODEL STIPULATED PENALTIES PROVISIONS1^/


                   	.  STIPULATED PENALTIES

     1.  Defendant shall pay stipulated penalties in the amounts
set forth in paragraph 9 to the United States [and/or the State
of 	] for failure to comply with [sections_	 of] this
Consent Decree, unless excused under paragraph     ("Force
Majeure").   Compliance by Defendant shall include completion of
an activity under this decree or a plan approved under this
decree or any matter under this decree in an acceptable manner
and within the specified time schedules in and approved under
this Decree.  [If Defendant fails to meet [specified] interim
deadlines,  but meets the final completion date for the work to
be performed herein, the penalties for missed interim deadlines
are excused].  Any modifications of the time for performance
pursuant to section	 ("Modifications") shall be in writing.

     2.  All penalties begin to accrue on the day that complete
performance is due or a violation occurs, and continue to
accrue through the final day of correction of the noncompliance.
Nothing herein shall prevent the simultaneous accrual of sep-
arate penalties for separate violations of this Decree.

     3.  Following Plaintiff's determination that Defendant has
failed to comply with the requirements of this Decree, Plain-
tiff shall give Defendant written notification of the same and
describe the noncompliance.  Said notice shall also indicate
the amount of penalties due.

     4.  All penalties owed to the United States [or State]
under this section shall be payable within 30 days of receipt
of the notification of noncompliance, unless defendant invokes
the dispute resolution procedures under section 	.  Penalties
shall accrue from the date of violation regardless of whether
EPA [or the State] has notified Defendant of a violation.
Interest shall begin to accrue on the unpaid balance at the end
of the 30-day period.  Such penalties shall be paid by certified
check to ["Treasurer of the United States" for RCRA penalties, or
"Treasurer of the State of X", or to the "Hazardous Substances
Superfund" for CERCLA penalties] and shall contain Defendant's
complete and correct address, the site name, [the site spill
identifier number (SSID)], and the civil action number.  All
    Bracketed provisions are optional.

-------
                              A-2
checks shall be nailed to [the appropriate Federal lockbox bank
or State postal address].

     5.  Neither the filing of a petition to resolve a dispute
nor the payment of penalties shall alter in any way Defendant's
obligation to complete the performance required hereunder.

     6.  Defendant may dispute Plaintiff's right to the stated
amount of penalties by invoking the dispute resolution procedures
under section	 herein.  [Penalties shall accrue but need not
be paid during the dispute resolution period.  If the District
Court becomes involved in the resolution of the dispute, the
period of dispute shall end upon the rendering of a decision by
the District Court regardless of whether any party appeals such
decision].  If Defendant does not prevail upon resolution,
Plaintiff has the right to collect all penalties which accrued
prior to and during the period of dispute. [In the event of an
appeal, such penalties shall be placed into an escrow account
until a decision has been rendered by the final court of appeal].
If Defendant prevails upon resolution, no penalties shall be
payable.

     7.  No penalties shall accrue for violations of this
Decree caused by events beyond the control of Defendant as
identified in Section 	 herein ("Force Majeure)"]12/.  Defen-
dant has the burden of proving force majeure or compliance,with
this Decree.

     8.  If Defendant fails to pay stipulated penalties,
Plaintiff may institute proceedings to collect the penalties.
However, nothing in this section shall be construed as prohib-
iting, altering, or in any way limiting the ability of Plaintiff
to seek any other remedies or sanctions available by virtue of
Defendant's violation of this Decree or of the statutes and
regulations upon which it is based.

     9.  The following stipulated penalties shall be payable
per violation per day to the United States [and/or State] for
any noncompliance identified in subparagraph 1 above13/;
!£/ With the exception of stipulated penalties clauses in
    consent decrees providing solely for cash payments, most
decrees will include force majeure clauses.

1 3/ Please note that the penalty amounts set out above are only
    examples, and the amounts may vary with each individual
case.

-------
                              A-3

            [  Amount/Day      Period of Noncompliance
              $ 5,000         1st thru 14th day
              $10,000         15th thru 30th day
              $15,000         31st day and  beyond      ]
    10.  No payments made under this section shall be tax  deduc-
tible.
    11.  This section shall remain in full  force and effect for
the term of this Decree.

-------
    Section 3
Corrective Action

-------
                                                      CO


CORRECTIVE  ACTION                                    O
                                                      •-3
                                                      M
                                                      O
                                                      z


                                                      U)

-------
              Section 3 - Corrective Action - Table  of Contents

          (Documents that appear in their entirety in this Section of the Compendium)
 TITLE

 DIRECTIVE
NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
$mi88®8K

 TITLE


 DIRECTIVE  NO.

 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
TITLE

DIRECTIVE
NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE
OTHER
RELEVANT
SECTIONS
TITLE

DIRECTIVE
NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
TITLE

DIRECTIVE
NO.
DATE EFFECTIVE/
ISSUED
SOURCE

OTHER
RELEVANT
SECTIONS
Interpretation of Section 3008(h) of the Solid Waste Disposal Act

9901.1

12/16/85

OSWER/OECM

Administrative Orders/Administrative Authorities
Interim Status


Guidance Concerning Corrective Action for Prior and Continuing Releases, Underground
Injection Control Program Guidance #45 (Interim)


04/09/86

ODW

Permitting
        National RCRA Corrective Action Strategy
        10/03/86

        OWPE
        OSW

        Interim Status
        Federal/State Relations
Region III Issues on §3004(u) Authority

9481.00-8

03/31/87

OSW
Guidance for Public Involvement in RCRA Section 3008(h) Actions

9901.3

05/05/87

OWPE

Interim Status

-------
              Section 3 - Corrective Action - Table of  Contents
          (Documents that appear in their entirety in this Section of the Compendium)
TITLE

DIRECTIVE
            NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
TITLE

DIRECTIVE
            NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
TITLE

DIRECTIVE
            NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
MM8B88S

 TITLE


 DIRECTIVE  NO.

 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
TITLE

DIRECTIVE
            NO.
 DATE  EFFECTIVE/
 ISSUED
 SOURCE
 OTHER
 RELEVANT
 SECTIONS
 Criteria for Eliminating Headquarters Concurrence on RCRA Section 3008(h) Orders

 9940.3
 06/26/87

 OSWER

 Administrative Orders/Administrative Authorities
 Interim Status
 Model Section 3008(h) Administrative Order on Consent

 9902.5
 01/19/88

 OWPE

 Administrative Orders/Administrative Authorities
 Use of Section 3008(h) Orders or Post-Closure Permits at Closing Facilities

 9502.00-7

 03/08/88

 OSWER

 Interim Status
 Permitting
^ssii^^Msss;

 Issuance of and Administrative Hearings on RCRA §3008(h) Corrective Action Orders
 for Hazardous Waste Management


 04/13/88
                   Administrative Orders/Administrative Authorities
                   Interim Status
                                                                    v,-, -,v,x» -. sv. %%K, -. •. x
                                                                      •>. •.•.•.«, S svss
 RCRA Corrective Action Plan

 9902.3
 06/01/88

 OWPE
 OSW
 Permitting

-------
              Section 3  - Corrective Action - Table of Contents

          (Documents that appear in their entirety in this Section of the Compendium)
 TITLE

 DIRECTIVE  NO.

 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
SS8JS«M;i

 TITLE

 DIRECTIVE  NO.

 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
$&$$$&$ffi$

 TITLE


 DIRECTIVE  NO.

 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
$&$$$&$$&

 TITLE
 DIRECTIVE  NO.

 DATE  EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
                   RCRA Section 3008(h) Corrective Action Interim Measures

                   9902.4

                   06/01/88

                   OWPE/OSW

                   Administrative Orders/Administrative Authorities
                   Model 3008(h) Unilateral Order (Interim Final)


                   01/23/89

                   OWPE

                   Administrative Orders/Administrative Authorities
                   Interim Status
                   Favorable D.C. Circuit Decision Regarding Ability of EPA to Regulate Wastes Disposed Prior
                   to Being Listed as Hazardous and Wastes Found in Contaminated Media


                   03/22/89

                   OECM
                   Letter from Jonathan 2. Cannon, Acting Assistant Administrator, to Thomas C. Jorling,
                   Commissioner of NY Dept. of Environ. Conservation, Re:  Regulatory Status Under RCRA of
                   Environmental Media Contaminated with RCRA-Listed Hazardous Waste


                   06/19/89

                   OSWER
TITLE

DIRECTIVE
            NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
Guidance on Administrative Records for RCRA Section 3008(h) Actions

9940.4

07/06/89

OWPE
OECM

Administrative Orders/Administrative Authorities
Interim Status
Settlement

-------
             Section 3 - Corrective Action  - Table  of Contents

         (Documents that appear in their entirety in  this Section of the Compendium)
TITLE             Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste
                  Management Facilities

DIRECTIVE  NO.

DATE EFFECTIVE/   07/27/90
ISSUED
SOURCE

OTHER
RELEVANT
SECTIONS^              .^^_,,^,^,^^^vww™,


TITLE             Furthering the Use of Innovative Treatment Technologies in OSWER Programs

DIRECTIVE  NO:    9380.0-17

DATE EFFECTIVE/   06/10/91
ISSUED
SOURCE           OSWER

OTHER
RELEVANT
SECTIONS

-------
   Section 3 -  Corrective Action - Cross References
 (Documents that are referenced under Corrective Action but appear in the
 Primary Section indicated)
 TITLE            Applicability of Land Disposal Restrictions to RCRA and CERCLA Ground Water
                  Treatment Reinjection -- Superfund Management Review: Recommendation No. 26

 DIRECTIVE NO.
 SOURCE         OSWER
 PRIMARY         Ground Water
 SECTION
 TITLE            Enforcement Actions Under RCRA and CERCLA at Federal Facilities

 DIRECTIVE NO.  9992 0
 SOURCE         OSWER
 PRIMARY         Federal Facilities
 SECTION
^^^^^^^^^^^^^^^^^i™,»»^Uss,S^    - -
 TITLE            Ground Water Monitoring at Clean Closing Surface Impoundment and Waste Pile
                  Units

 DIRECTIVE NO.  9476.00-14
 SOURCE         OSWER
 PRIMARY         Ground Water
 SECTION

 TITLE            Guidance on the Use and Issuance of Administrative Orders Under Section 7003 of
                  RCRA

 DIRECTIVE NO.  9940.2
 SOURCE         OECM/OSWER
 PRIMARY         Administrative Orders/Administrative Authorities
 SECTION
^^«s^^^
 TITLE            Inspection Authority Under Section 3007 of RCRA


 DIRECTIVE NO.  9938.0
 SOURCE         OWPE
 PRIMARY         Administrative Orders/Administrative Authorities
 SECTION

-------
   Section 3 -  Corrective Action - Cross  References
(Documents that are referenced under Corrective Action but appear in the
Primary Section indicated)
TITLE            Issuance of Administrative Orders Under Section 3013 of RCRA


DIRECTIVE  NO.  99*0.1
SOURCE         OECM/OSWER
PRIMARY         Administrative Orders/Administrative Authorities
SECTION
TITLE            RCRA Ground Water Monitoring Compliance Order Guidance


DIRECTIVE NO.  9931.1
SOURCE         OWPE
PRIMARY         Ground Water
SECTION
TITLE            RCRA Regulatory Status of Contaminated Ground Water


DIRECTIVE NO.   9481.00-6
SOURCE         OSW
PRIMARY         Ground Water
SECTION

TITLE            Status of Contaminated Ground Water and Limitations on Disposal and Reuse
DIRECTIVE NO.
SOURCE         OSWER
PRIMARY         Ground Water
SECTION

-------
..SB;
       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON. DC 20460
                         DEC  I 6 1985
MEMORANDUM
SUBJECT:  Interpretation of Section 3008(h)  of the Solid
          Waste. Disposal Act
FROM:     J.£/winston Porter, Assistant Administrator
          Office of Solid wa^te and Emergency Response

          Cou~rtrie'y~"M\ rrice,' Assistant Administrator
          Office of Enforcement and Compliance Monitoring

TO:       Regional Administrators
          Regional Counsels
          Regional Waste Management Division Directors
          Director, National Enforcement Investigation Center

     As part of our effort to support case development activities
undertaken by United States Environmental Protection Agency
personnel, we are transmitting to you guidance on the use of
Section 3008(h), one of the corrective action authorities added
to the Solid Waste Disposal Act by the Hazardous and Solid Waste
Amendments of 1984.  As you are aware, Section 3008(h) allows the
Agency to take enforcement action to require corrective action or
any other response necessary to protect human health or the
environment when a release is identified at an interim status
hazardous waste treatment, storage or disposal facility.  Because
the authority is broad, both with respect to the kinds of environ-
mental problems that can be addressed and the actions that the
Agency may compel, we have produced the attached document to
provide initial guidance on the interpretation of the terms of
the provision and to describe administrative requirements.  The
document will be revised as case law and Agency policy develop.
In addition, the Office of Solid Waste and Emergency Response
intends to develop technical guidance on various types of response
measures and the circumstances in which they might be appropriate.

     In view of the need to issue RCRA permits and to ensure that
the substantial number of  interim status facilities expected to
cease operation in the near future are closed in an environmentally
sound manner, we encourage you to use the interim status corrective
action authority as appropriate to supplement the closure and
permitting processes.  Questions or comments on this document or
the use of Section 3008(h) authority  in general can be addressed to
Gene A. Lucero, Director of the Office of Waste Programs Enforcement
(FTS 382-4814, WH-527) or  Fred Stiehl, Associate Enforcement
Counsel for Waste  (FTS 382-3050, LE-134S).

Attachment

-------
                                            OSWER Directive 9901.1
             RCRA SECTION 3008(h)




THE INTERIM STATUS CORRECTIVE ACTION AUTHORITY




              DECEMBER 16, 1985

-------
I.  INTRODUCTION

     The Hazardous and Solid Waste Amendments of 1984  have  substantially

expanded the scope of the RCRA hazardous waste management program.  One of

the most significant provisions is the interim status  corrective action

authority, which allows EPA to take enforcement action to compel response

measures when the Agency determines that there is or has been a release of

hazardous waste at a RCRA interim status facility.  Prior to the 1984

Amendments, EPA could require remedial action at interim status facilities

by, inter alia, (1) using RCRA §7003 or CERCLA §106 authorities if  an  imminent

and substantial endangerment may have been presented,  or (2) when significant

ground-water contamination was detected, calling in Part B  of the RCRA permit

application and requiring corrective action as a condition  of the permit.  The

Amendments added Section 3008(h) to deal directly with environmental problems

by requiring clean-up at facilities that have operated or are operating  subject

to RCRA interim status requirements.

     The purpose of this document is to provide preliminary guidelines on the

scope of Section 3008(h) and to summarize appropriate procedures.   The document

will be revised as case law and Agency policy develop.  Other relevant RCRA

guidances that may be consulted include:

     0 Final Revised Guidance on the Use and Issuance of Administrative  Orders
       under Section 7003 of RCRA, Office of Enforcement and Compliance  Monitoring
       and Office of Solid Waste and Emergency Response - September,  1984.

     0 Issuance of Administrative Orders under Section 3013 of RCRA,  Office of
       Enforcement and Compliance Monitoring and Office of Solid Waste and
       Emergency Response - September, 1984.

     0 Draft Guidance on Corrective Action for Continuing Releases, Office
       of Solid Waste and Emergency Response - February, 1985.

     0 Final RCRA Ground-Water Monitoring Compliance Order Guidance, Office
       of Solid Waste and Emergency Response - August, 1985.

-------
                                     -2-


      0  Draft RCRA Ground-Water Monitoring Technical  Enforcement Guidance
        Document,  Office of Solid Waste  and Emergency Response - August, 1985.

      0  Draft RCRA Preliminary Assessment/Site  Investigation Guidance,  Office
        of  Solid Waste  and Emergency Response - August, 1985.


 II.   DELEGATIONS  OF AUTHORITY

      On April 16, 1985, the Administrator signed delegations enabling the Regional

 Administrators, the Assistant Administrator for Solid Waste and Emergency Response

 and  the Assistant Administrator for Enforcement and  Compliance Monitoring to

 exercise Section  3008(h) authority.  There are three new delegations, 8-31, 32

 and  33.  The first enables the Regional Administrator or the Assistant Administrator

 for  Solid Waste and Emergency Response to determine  that there is or has been a

 release of hazardous waste at or from a RCRA interim status facility.  The second

 and  third delegate the authority to issue orders and sign consent agreements.

 The  authority to  refer civil judicial actions  is found in Delegation 8-10.

      Because Section 3008(h) is quite broad, both with respect to the types of

 environmental problems that may be addressed and the actions that EPA may compel,

 delegation of Section 3008(h) authority is subject to limitations.  To issue an

 administrative order or sign a consent agreement, the Regions must obtain advance

 concurrence  from  the Director, Office of Waste Programs Enforcement, Office of

 Solid Waste  and Emergency Response and must notify the Associate Enforcement

 Counsel for Waste, Office of Enforcement and Compliance Monitoring.  Until the

Agency as a whole gains experience in using the new  authority, this requirement

 is necessary  to ensure that sound precedent is established and national program

priorities are addressed.  The Office of Waste Programs Enforcement intends to

waive advance  concurrence, however, for those  Regions that demonstrate sufficient

experience in using Section 3008(h) as indicated by  the number and quality of

§3008(h) orders submitted for review in the next six months.  Civil judicial

actions will  be handled in accordance with existing  procedures for referrals.

-------
                                      -3-
     To expedite §3008(h) actions, the Reqions should establish procedures for

drafting and reviewing orders and referrals and clearly delineate the roles

and responsibilities of Regional RCRA enforcement and program personnel (including

CERCLA personnel as necessary) and the Office of Regional Counsel in those

processes.  Draft orders should be sent to the Chief, Compliance and Implementation

Branch, RCRA Enforcement Division, Office of Waste Programs Enforcement.

     Headquarters is committed to conducting timely review of §3008(h) orders.

To avoid the delays associated with discussion and review of rough drafts, we

ask that orders be in "near final" form when they are submitted.  Generally,

the orders will be examined to determine whether (1) the elements of proof are

adequately defined and documented, (2) the response to be compelled is practicable

and environmentally sound, and (3) the action supports national RCRA program goals.

Written comments or concurrence will be provided to the Regions within ten working

days of receipt.


III.  SCOPE OF SECTION 3008(h)

Section 3008(h) provides:

     " (1)  Whenever on the basis of any information the Administrator
            determines that there is or has been a release of hazardous
            waste into the environment from a facility authorized to
            operate under Section 3005(e) of this subtitle, the Administrator
            may issue an order requiring corrective action or such other
            response measure as he deems necessary to protect human health
            or the environment, or the Administrator may commence a civil
            action in the United States district court in the district in
            which the facility is located for appropriate relief, including
            a temporary or permanent injunction.

       (2)  Any order issued under this subsection may include a suspension
            or revocation of authorization to operate under Section 3005(e)
            of this subtitle, shall state with reasonable specificity the
            nature of the required corrective action or other response
            measure, and shall specify a time for compliance.  If any
            person named in an order fails to comply with the order, the
            Administrator may assess, and such a person shall be liable to
            the United States for, a civil penalty in an amount not to exceed
            $25,000 for each day of noncompliance with the order."

-------
                                     -4-






     To exercise the interim status corrective action authority, the Agency



must first have information that there is or has been a release of hazardous



waste to the environment at or from an interim status facility.  Second, the



corrective action or other response measure, in the judgment of the Agency,



must be necessary to protect human health or the environment.  Key terms are



discussed below in greater detail.





"Whenever on the basis of any information the Administrator determines ..."



     The opening clause of Section 3008(h) authorizes the Agency to make the



determination that there is or has been a release of hazardous waste into the



environment on the basis of 'any information1.  Appropriate information can be



obtained from a variety of sources, including data from laboratory analyses of



soil, air, surface water or ground water samples, observations recorded during



inspections, photographs, and facts obtained from facility records.



     The reference to a determination by the Administrator should be considered



in the context of the term 'any information'.  To satisfy any requirement



imposed by the statute, an order should contain a specific determination.  A



civil referral should also be based on a written determination that there is



or has been a release.





 " ...that there is or has been a release...into the environment..."



     The trigger for issuing §3008(h) orders and initiating civil referrals




is the existence of information that there is or has been a release, which is



a lower threshold than the showing of 'substantial hazard' under RCRA Section



3013 or 'imminent and substantial endangerment1 under RCRA Section 7003 or CERCLA



Section 106.  While the statute does not define the term  'release1, the Agency



believes that, given the broad remedial purpose of Section 3008(h), the term



should encompass at least as much as the definition of release under CERCLA.



See 42 U.S.C. §9601(22).  Therefore a release is any spilling, leaking, pumping,

-------
                                     -5-


pouring, emitting, emptying, discharging, injecting,  escaping,  leaching,  dunping

or disposing into the environment.  The exemptions described in the CERCIA definition

are considered inapplicable or inappropriate for RCRA purposes, however,  and are not

included in the RCRA. definition.

     The term 'environment1 is also broad.  The legislative history for

Section 3008(h), which discusses use of the authority to respond to releases

to various environmental media, makes it clear that Section 3008{h) is not

limited to a particular medium.  H. Rep. No. 1133, 98th Gong., 2d Sess. 111-112

(1984).  The Agency will use Section 3008(h) to address releases to surface

waters, groundwater, land surface or subsurface strata and air.

     It is not necessary to have actual sampling data to show a release.  An

inspector may find other evidence that a release has occurred, such as a broken

dike at a surface impoundment.  Less obvious indications of release might also

be adequate to make the determination.  For example, the Agency could have

sufficient information on the contents of a land disposal unit, the design and

operating characteristics of the unit, and the hydrogeology of the area  in

which the unit is located to conclude that there.has been a release to groundwater.

     In addition to on-site information gathering undertaken specifically to

support a §3008(h) action, other sources  that may provide information on

releases include:

       0 Inspection Reports.

       0 RCRA Part A and Part B permit applications.

       0 Responses to RCRA §3007  information requests.

       0 Information obtained  through RCRA S3013 orders.

       0 Notifications  required by CERCLA §103.

       0 Information-gathering activities conducted  under CERCLA $104.

        0 Informants' tips  or citizens'  complaints  corroborated by supporting
          information.

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                                     -6-
     A determination  that  there  is or has been a release does not require that



 specific amounts of hazardous waste or hazardous constituents be found in



 the  environment.  Quantities or  concentrations of hazardous wastes or hazardous



 constituents should be considered when ordering interim or complete corrective



 actions, however, because  response actions compelled by the Agency must be



 necessary to protect  human health or the environment.






 "...of  hazardous waste..."



     In contrast to many Subtitle C provisions, the language of Section 3008(h)



 refers  to "hazardous waste" rather than "hazardous waste identified or listed



 under Subtitle C".  The Agency believes that the omission of a reference to



wastes  listed or identified at 40 CFR Part 261 was deliberate, and Congress



did  not intend to limit Section 3008(h) only to materials meeting the regulatory



definition of hazardous waste.  The Conference Report specifically endorses the



use  of  corrective action orders to respond to releases of hazardous constituents.



H. Rep. No. 1133, 98th Cong., 2d Sess. Ill (1984).   The legislative history also



 indicates that the new authority should be at least as broad as the corrective



action  authority in the federal RCRA permit program.  Id. at 111-112.  Those



regulations address both hazardous waste and hazardous constituents.  Moreover,



Section 3004(u), the  'Continuing Releases' provision requiring clean-up of




releases from any solid waste management unit at a treatment, storage or



disposal facility seeking a RCRA permit, applies to releases of hazardous



constituents as well as releases of listed and characteristic wastes.  H. Rep.



No.  198, 98th Cong., 1st Sess. 60 (1983).  Therefore, Section 3008(h) may also



be used to compel response measures for releases of hazardous constituents



from hazardous or solid waste.

-------
                                     -7-
      "Hazardous constituents" are  the substances listed in Appendix VIII to



 40 CFR Part 261.  H. Rep. No. 198, 98th Cong., 1st Sess. 60-61  (1983).



 According to the legislative history for Section 3004(u), which is read in con-



 junction with Section 3008(h), the term also  includes Appendix VIII hazardous



 constituents released from solid waste and hazardous constituents that are reaction



 by-products.  S. Rep. No. 284, 98th Cong., 1st Sess. 32 (1983).  It should be



 noted that the legislative history for the new underground storage tank provisions



 states that Section 3008 is not applicable to underground storage tanks regulated



 under Subtitle I.  Such releases may be addressed by Section 7002 and Section



 7003  authorities, however.  H. Rep. No. 1133, 98th Cong., 2d Sess. 127 (1984).



 Section 3008(h) remains applicable to releases from underground tanks containing



 hazardous or solid waste subject to Subtitle  C provisions.






 "...from a facility..."



      For interim status corrective action purposes, EPA intends to employ the



 definition of 'facility1 adopted by the Agency in the corrective action



 program for releases from permitted facilities.  The preamble to the permitting



 requirements for land disposal facilities indicates that the term "facility1



 refers to ..."the broadest extent of EPA's area jurisdiction under Section



 3004  of RCRA...[meaning] the entire site that is under the control of the



owner or operator engaged in hazardous waste management." 47 PR 32288-89



 (July 26, 1982).  See also the Final Codification Rule.  50 PR 28712 (July 15,



 1985).  Therefore, the definition of facility encompasses all contiguous property



under the owner or operator's control.



     The permit program, as amended by Section 3004(u), requires corrective action



for releases of hazardous waste and hazardous constituents from solid waste



management units at a facility.  EPA interprets 'solid waste management unit'

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                                     -8-
to include any discernable unit used for waste management.  See 50 FR 28712



(July 15, 1985).  Since the legislative history describes the interim status



corrective action authority as a "supplement" to permitting authority and



indicates that the interim status authority should be at least as broad as



the permit authority, Section 3008(h) clearly authorizes EPA to require corrective



action for any release of hazardous waste from discernable waste management



units.  The Agency's authority to use Section 3008(h) to address releases from



solid waste management units as well as hazardous waste management units is



discussed in the Final Codification Rule.  50 FR 28716 (July 15, 1985).



     The language of Section 3008(h), however, suggests that Congress did not



intend to limit EPA's authority to releases from discernable units.  Unlike



Section 3004(u), Section 3008(h) broadly authorizes corrective action for



any release from a "facility".  It does not require the Ajency to find that



a release originated in a discernable waste management "unit".



     Ihe legislative history supports this interpretation.  Prior to enactment



of Section 3008(h), the RCRA regulations required corrective action for releases



to groundwater from permitted 'regulated units' (surface impoundments, waste



piles, landfills and land treatment areas that received Subtitle C hazardous



waste after a specified date).  40 CFR 264.100 and 40 CFR 264.90.  Congress



criticized this approach as too slow and too limited, however, and created



the interim status corrective action authority to "deal directly with an



ongoing environmental problem at interim status facilities."  H. Rep. No. 1133,



98th Cong., 2d Sess. 110-112 (1984).  Moreover, Congress clearly did not intend



the authority to be limited to the scope of the existing permit program.  For



instance, the legislative history lists several examples of releases outside



the regulatory program for which a §3008(h) action is appropriate, including

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                                     -9-





releases from waste management units not required to undertake corrective



action or otherwise exempt from RCRA regulations and releases, such as air



emissions, to environmental media other than groundwater.  Id. at 112.



     The text of the statute, the broad remedial purpose, and the clear intent



to authorize action beyond the scope of the permit regulations support the



position that Section 3008(h) authorizes EPA to address all types of releases



of hazardous waste within a facility.  As discussed previously, the term



'hazardous waste1 encompasses 'hazardous constituents'  from both hazardous and



solid waste.



     Section 3008(h) will also be used to address releases that have migrated



from the facility.  New Section 3004(v), which provides that EPA may issue



orders requiring corrective action for releases that have crossed the facility



boundary if the permission of the owner of the affected property can be obtained,



supports the Agency's interpretation that such releases are subject to action



under Section 3008(h).  See also the Final Codification Rule. 50 PR 28716



(July 15, 1985).



     In a §3008(h) order or judicial referral, Agency personnel should describe



hazardous and solid waste management units within the boundary of the facility



and hazardous and solid wastes (and associated hazardous constituents) managed by



the facility in addition to information indicating that a release has occurred.



Since Section 3008(h) unequivocally authorizes EPA to address releases from



units, the order or complaint should establish some link between the hazardous



constituents in a release and the hazardous or solid wastes in waste management



units where possible.  For example, the findings of fact might state  that the



facility treats, stores or disposes of certain listed Subtitle C wastes, that



those wastes were listed because they contain the hazardous constituents cited



in Appendix VII to 40 CFR Part 261 and that some or all of those constituents



have been found in the environment, thereby indicating a release.

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                                     -10-
"...authorized to operate under Section 3005(e)..."



     This clause encompasses several classes of hazardous waste treatment,



storage and disposal facilities.  First, facilities that have met each



requirement for obtaining interim status in a timely manner are subject to



Section 3008(h).  With respect to those facilities brought into the hazardous



waste management system when the Phase I RCRA rules went into effect, to establish



interim status EPA must demonstrate that: (1) the facility was in existence on



November 19, 1980, and? (2) the owner or operator complied with the requirements



of Section 3010(a), regarding notification of hazardous waste activity, and;



(3) the owner or operator submitted a Part A application in accordance with 40



CFR 270.10.  As to those facilities in existence on the date of regulatory or



statutory changes that render the facility subject to the requirement to obtain



a permit under Section 3005, to establish interim status the Agency must demonstrate



(1) that the facility was in existence on the appropriate date and (2) submitted



a Part A permit application in accordance with the requirements of 40 CFR 270.10.



If a statutory or regulatory change requires notification under Section 3010,



EPA must also establish that the facility submitted the notification.



     Second, Section 3008(h) applies to facilities that treat, store, or dispose



of hazardous waste, but have not actually obtained interim status because the



owner or operator did not fully comply with the requirements to submit a Section



3010 notification and/or a Part A.  Such facilities have been allowed to operate



in accordance with a formal enforcement action or an Interim Status Compliance



Letter requiring compliance with Part 265 standards.  Furthermore, the owners



or operators are not relieved of the duty to apply for and obtain a final RCRA



permit.  See e.g., the notice of implementation and enforcement policy for loss



of interim status under Section 3005(e), 50 FR 38947-48 (September 25, 1985).

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                                     -11-
The Agency believes that Congress  intended the interim status corrective action



authority to apply to such  facilities.  The legislative history for Section



3008(h) supports this position by making it clear that the authority can be



used  to address releases from units that do not have  interim status, such as



wastewater treatment  tanks.  H. Rep. No. 1133, 98th Cong., 2d Sess. 112 (1984).



      Third,  EPA considers Section  3008(h) to be applicable not only to owners



or operators of facilities  in the  above two categories but also to units or



facilities at which active  operations have ceased and interim status has been



terminated pursuant to 40 CFR Part 124 or Sections 3005(c) and 3005(e)(2) of



RCRA.  Section 3008(h) specifically provides that the interim status corrective



action orders may include a suspension or revocation of the authority to operate



under interim status, as well as any other response necessary to protect human



health or the environment.  Consequently, a corrective measures program can



be imposed under Section 3008(h), even if a facility's interim status has been



taken away as a result of an interim status corrective action order.  The



Agency also  believes  that Section 3008(h) can be used to compel responses to



releases at  facilities that lost interim status prior to a §3008(h) action.



This approach is consistent with Congressional intent to assure that



significant  environmental problems are addressed at facilities that treat,



store or dispose of hazardous waste but do not have a final RCRA operating or



post-closure permit.  H. Rep. No. 1133, 98th Cong., 2d Sess.  110-112 (1984).



     Where a State is authorized to administer the RCRA program, the require-



ments for obtaining the State's equivalent to interim status may differ from



those of the federal program.  In authorized States that do not duplicate the



federal procedures, hazardous waste treatment, storage and disposal facilities



that have not been granted or denied a final RCRA permit are generally considered



interim status facilities.  Land disposal facilities that were issued State permits

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                                     -12-
after November 8, 1984 but have not yet received the federal portion of the

permit applicable to continuing releases under Section 3004(u)  are treated for

purposes of this guidance in the same manner as interim status facilities.

Similarly, hazardous waste underground injection wells that did not receive a

UIC permit prior to that date will also be treated in the same manner as interim

status facilities.  See the notice of implementation and enforcement policy for

loss of interim status under Section 3005(e).  50 FR 38947 (September 25, 1985).


"...Corrective action or such other response measure as he deems necessary
to protect human health or the environment ..."

     Prior to the Hazardous and Solid Waste Amendments of 1984, the term

"corrective action", in the RCRA regulatory context, referred to removal or

treatment in place of Appendix VIII hazardous constituents in groundwater.

40 CFR 264.100.  Section 3008(h) is not restricted to remedial action for

ground-water contamination, however.  The statutory language and the legislative

history indicate that a wide range of responses to releases to all media from

waste management activities may be compelled.  Financial assurance for any

response measure may also be required.

     The authority can be used to require implementation of one or more stages

of a clean-up program, such as:

     0 Containment, stabilization or  removal of the source of contamination,

     0 Studies to characterize the nature and extent of contamination and to
       assess exposure and health and environmental effects,

     0 Identification and evaluation  of  remedies,

     0 Design and construction of  the chosen remedy,

     0 Implementation of the remedy,  and

     0 Monitoring to determine the effectiveness  of the  remedy.

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                                      -13-





     For exanple, a §3008(h) order might require that the owner or operator



conduct a study to characterize the nature and extent of contamination, then



select a remedy and submit a corrective action plan to EPA.  The Agency and the



owner or operator would then confer on the plan and amend the order to reflect ai



modifications.  H. Rep. No. 1133, 98th Cong., 2d Sess., 111 (1984).  Because a



study on the nature and extent of contamination and the selection and design of



a remedy may require a significant amount of time, Section 3008(h) should be



employed to require interim measures as necessary to protect human health and



the environment prior to completion of the study and selection of a remedy.



Examples of interim remedies that could be compelled include removal of the



waste or containment of the source of the contamination by lining a unit or



erecting dikes.  In some instances, preliminary pumping and treating of affected



groundwater may be appropriate.



     While the information needed to make a determination that there is or has



been a release is minimal, more information may be needed to justify a specific



interim or full remedy.  The Administrator can require "corrective action or



such other response measures as he deems necessary to protect human health or



the environment.11  To show that a response may be necessary to protect human



health or the environment, the present or potential threat posed by the release



should be described.  The Agency may consider a variety of factors, including



the quantity of hazardous waste; the nature and concentration of hazardous



constituents or other hazardous properties exhibited by the waste; the facility's



waste management practices; potential exposure pathways; transport and environmental



fate of hazardous constituents; humans or environmental receptors that might be



exposed; the effects of exposure, and; any other appropriate factors.  To compel



corrective action investigations or studies, only a general threat to human



health or the environment needs to be identified.

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                                      -14-
IV.  ADMINISTRATIVE ACTIONS



     Under Section 3008(h), the Agency can issue administrative orders or



continence a civil judicial action.  The decision to pursue an administrative



or judicial remedy must be made on a case-by-case basis since each approach



has advantages and disadvantages.  An administrative order, for instance, can



usually be issued quickly, while preparation for a judicial action may be more



time-consuming and must be referred to the Department of Justice.  On the



other hand, a judicial order or consent decree can be enforced readily since



the court already has jurisdiction of the matter.



     EPA may issue a §3008(h) administrative order to require corrective



action or any response necessary to protect human health or the environment.



The order may include a suspension or revocation of authorization to operate.



If any person named in the order fails to comply with the order, the Agency



may impose a civil penalty not to exceed $25,000 for each day of noncorapliance.





Notice to States



     Section 3008(h) does not require that States be given notice of an impending



action.  To ensure that the Agency is fully informed of relevant facts and, in



view of the Federal/State relationship, consultation with the State should



usually precede an EPA action.  To avoid misunderstandings, reasonable notice



should be given to the State when an action is taken.  The notice should include



the location and a description of the facility, the names and addresses of the



owners and operators, the conditions requiring a response and a description of



the action that EPA will require.

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                                      -15-


 Elanents of Orders

     Because  it is  the focal point  in all proceedings subsequent to its issuance,

 the  initial order must be as complete as possible.  Failure to develop an

 adequate document may  have  adverse  consequences  if the Agency seeks judicial

 enforcement.  All §3008(h)  orders should contain the following general elements:

     0 A statement  of  the statutory basis for the order.

     0 Factual  allegations  showing  that there is or has been (1) a release  (2)
       of hazardous waste or hazardous constituents (3) into the environment
       (4) at or from  an interim status facility.  Facts indicating that the
       response is  necessary to protect human health or the environment should
       also be  presented.

     0 A determination, based on the factual allegations, that there is or
       has been a release of hazardous waste or  hazardous constituents to
     .  the environment from an interim status facility.

     0 An order that clearly identifies the tasks to be performed, and a schedule
       of compliance accompanied by appropriate  reporting and approval requirements.

     0 A statement  informing the respondent that he has a right to request
       a hearing within 30  days of  issuance concerning any material fact in
       the order or the terms of the order.

     0 A notice of  opportunity for  an informal settlement conference.  It
       is the Agency's policy to encourage settlement of §3008(h) actions
       through  informal discussions.  The respondent should be cautioned, however,
       that a request  for a conference does not  affect the 30 day period for
       requesting a hearing.

     0  A statement  that EPA may assess penalties not to exceed $25,000 per
       day of non-compliance with the order.

     It may be  appropriate  to include a provision for stipulated penalties  in

orders on consent.  Such a  provision, however, should be drafted to make it

clear that the  stipulated penalty is not EPA's sole remedy and that Agency has

not waived its  statutory authority  to assess penalties under Section 3008(h)(2).

It is recommended that  the  Regions  pursue judicial referrals to impose penalties

for noncompliance with a §3008(h) administrative order rather than issuing

a subsequent order  for penalties.

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                                      -16-
     Releases from liability and covenants not to sue may be sought by parties



negotiating §3008(h) orders.  These provisions terminate or seriously impair



the Federal Government's right of action against a party.  In general, the



interim CERCLA Settlement Policy (December 5, 1984) may be followed.  Releases



generally will not be appropriate, however, where the extent of contamination,



the reliability of the remedy or long-term operation and maintenance requirements



are uncertain.  If provided, they should be narrowly drawn.  In addition, EPA



personnel should exercise particular care in drafting such provisions to ensure



that they do not restrict the operation and enforcement of the on-going RCRA



regulatory program.  Moreover, the order should also contain a provision reserving



the Agency's right to take additional action under RCRA and other laws.  For



example, EPA should reserve the right to expend and recover funds under CERCLA;



to bring imminent and substantial endangerment actions under RCRA §7003 and



CERCLA §106; to assess penalties for violations of and require compliance with



RCRA requirements under §3008(a); to address releases other than those identified



in the order; to require further action as necessary to respond to the releases'



addressed in the order, and; to take action against nonparties if appropriate.





Hearing Requirement



     To issue a unilateral §3008(h) order, EPA must comply with the requirements




of Section 3008(b) with respect to an opportunity for a hearing.  130 Cong. Hec.



S9175 (daily ed. July 25, 1984).  Although procedures for §3008(a) administrative



actions have been established by regulation  (See 40 CFR Part 22), those regulations



are not legally applicable to §3008(h) actions.  Hearing procedures for §3008(h)



actions are under development.  Until formal guidance is available, a Region



that intends to issue a unilateral order should contact  the Office of Waste



Programs Enforcement, Office of Solid Waste and Emergency Response.

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                                      -17-


Development and Preservation of the Administrative Record

     §3008(h) orders might be reviewed in administrative or judicial proceedings,

Therefore, it is essential that information required by the statute and all

other relevant information or documents obtained by the Agency be compiled in

an administrative record, preserved and readily retrievable.  The EPA official

initiating the action should maintain a file that contains the following:

     0 EPA investigative records, such as inspection reports, sampling and
       analytical data, copies of business records, photographs, etc.;

     0 Reports and internal Agency documents used in generating or supporting
       the enforcement action, including expert witness statements;

     0 Copies of all documents filed with the Regional Hearing Clerk or the
       Presiding Officer;

     0 Copies of all relevant correspondence between EPA and the respondent;

     0 Written records of conferences and telephone conversations between
       EPA and the respondents, and;

     0 Copies of all correspondence between EPA and State or other federal
       agencies pertaining to the enforcement action.

V. CIVIL JUDICIAL ACTIONS

     Under Section 3008(h), EPA may initiate civil judicial action to compel

appropriate relief, including a temporary or permanent injunction, or to

enforce a §3008(h) administrative order.  As noted previously, the decision

to pursue administrative or judicial remedies will be made on a case-by-

case basis.  Generally, however, a civil judicial action may be preferable

to issuance of an administrative order in the following types of situations:

       0 A person is not likely to comply with an order or has failed to
         comply with a §3008(h) order.

       0 A person's conduct must be stopped  immediately to prevent irreparable
         injury, loss or damage to human health or the environment.

       0 Long-term, complex and costly response measures will be  required.
         (Because compliance problems are more likely to arise during
         implementation of these actions than while  carrying out  a simple,
         short-term action, it may be better to have the matter already
         before the court for ease of enforcement.)

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                                    -18-
Other factors that could be considered include the value of a favorable decision



as precedent and the need to deter noncompliance by other potential targets for



EPA enforcement action under Section 3008(h).



     A request to file a civil judicial action must be referred by the Assistant



Administrator for Enforcement and Compliance Monitoring to the Department of



of Justice.  The procedures that Agency personnel should follow to develop a



referral and support litigation are described in the RCRA/CERCLA Case Management



Handbook (August, 1984) and the RCRA Compliance/Enforcement Guidance Manual



(September, 1984).





VI. USE OF SECTION 3008(h) IN RELATION TO PERMITTING, CLOSURE AND OTHER AUTHORITIES



RCRA Permits



     The pre-HSWA regulations applicable to corrective action at permitted facilities



deal only with a remedial program for treatment in place or removal of groundwater



contaminated by a release from a 'regulated unit1.  (Prior to HSWA, the term



"regulated unit' meant a surface impoundment, landfill, land treatment unit or



waste pile that operated after January 26,  1983.  Enactment of new Section 3005(i),



which provides that the Part 264 groundwater monitoring, unsaturated zone monitoring



and corrective action requirements are applicable at the time of permitting to



landfills, surface impoundments, waste piles and land treatment units that received



Subtitle C hazardous wastes after July 26,  1982, necessitated a corresponding change



in the definition of regulated unit).  Enactment of Section 3004(u) enlarged the



universe of units subject to corrective action at RCRA facilities by requiring



that a facility seeking a RCRA permit address all releases of hazardous waste



and hazardous constituents at any hazardous or solid waste management unit.

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                                      -19-
In addition to increasing the number and kinds of units subject to corrective



action, EPA will use the Section 3004(u) authority to address releases to air,



land and surface waters as well as to groundwater.  Furthermore, Section 3004(v)



allows EPA to require corrective action beyond the facility boundary where



necessary to protect human health and the environment unless the facility



owner or operator is unable to obtain permi3sion from the owner of the affected



property.



     Permitting can be a lengthy process.  Therefore, the interim status



corrective action authority should be used to address significant environ-



mental problems prior to issuance of the permit.  With respect to 'regulated



units', which cannot be permitted until the facility is in compliance with



Part 270 requirements to assess ground-water contamination and develop a



corrective action plan if necessary, Section 3008(h) may be particularly useful



for compelling activities not addressed by the Part 265 and Part 270 regulations.



For instance, interim corrective action measures could be required prior to



permit issuance.  For releases from solid waste management units and hazardous



waste management units other than 'regulated units', Section 3008(h) may be



used to compel interim measures, studies to characterize the nature and extent



of contamination and the threat posed by the release, selection of remedy and



design, construction and implementation of the remedy.



     If an interim status facility is seeking an operating permit or will be



required to obtain a post-closure permit, any §3008{h) action at that facility



should be designed to meet the needs of the permitting process to the extent



possible.  If all necessary steps in a corrective measures program will not be



completed prior to issuance of a permit, compliance schedules in the order



should be developed so that they can be readily  incorporated in the permit.

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                                      -20-
RCRA Closures
     EPA believes that the interim status corrective action authority will
be useful  in assuring environmentally sound closures of RCRA hazardous waste
management units.  Section 3008(h) may be used to supplement the interim status
closure regulations.  Approval of a closure plan does not limit the Agency's
ability to use Section 3008(h), as well as other applicable corrective action
authorities, to deal with releases of hazardous waste or hazardous constituents.
In view of the number of interim status closures anticipated as a result of
new statutory and regulatory requirements, the Regions are encouraged to
employ the interim status corrective action authority to assure that RCRA
hazardous  waste management units are closed in a manner that properly protects
human health and the environment.

Other Enforcement Authorities
     Because of the broad scope of Section 3008(h) and the variety of activities
that can be compelled, the interim status corrective action authority may be
employed in conjunction with other enforcement authorities, although it may be
appropriate to issue separate,concurrent orders due to differing hearing
requirements.  For example, where a violation is associated with a release of
hazardous waste or hazardous constituents, a Section 3008(a) action should be
used to require conpliance with the regulation and assess penalties while a
Section 3008(h) action could be employed to compel response actions that go
beyond regulatory requirements.  Section 3013, which allows the Agency to
compel owners or operators of treatment, storage or disposal facilities to
conduct certain types of studies, may be used when the presence of hazardous
waste may present a substantial threat but EPA does not have sufficient
information to make a determination that there is or has been a release.

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                                      -21-
     With regard to imminent and substantial endangerment actions, the legis-



lative history makes it clear that enactment of Section 3008(h)  does not



alter the Agency's interpretation of Section 7003.  H.  Rep.  No.  1133, 98th Cong.,



2d Sess. Ill (1984).  RCRA §7003 or CERCLA §106 actions are appropriate if



conditions at an interim status facility may present an imminent and substantial



endangerment and the Agency needs to move quickly to address the problem.   The



'imminent hazard1 provisions of RCRA and CERCLA may be especially helpful  if



the Agency wishes to take action against responsible parties other than or in



addition to the current owner or operator.





VII.  RESERVATION



     The policies and procedures set forth herein and the internal office



procedures adopted pursuant hereto are intended solely for the guidance



of United States Environmental Protection Agency personnel.   These policies and



procedures are not intended to, do not, and may not be relied upon to create a



right or benefit, substantive or procedural, enforceable at law by a party to



litigation with the United States.  The Agency reserves the right to take any



action alleged to be at variance with these policies and procedures or that is



not in compliance with internal office procedures that may be adopted pursuant



to these materials.

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                                             OSWER Directive No. 9902.8


                             April 9, 1986


MEMORANDUM


SUBJECT:   Interim Guidance Concerning Corrective Action
           for Prior and Continuing Releases - Underground
           Injection Control Program Guidance #45

FROM:      Michael B. Cook, Director
           Office of Drinking Water

TO:        Water Division Directors
           Water Supply Branch/Section Chiefs
           UIC Representatives
           Regions I-X



I.    Overview.

      This  guidance describes  how the Agency  intends  to  implement  the
corrective action requirements in §3004 of RCRA  (§206 of the HSWA) for
injection wells.  Because hazardous waste injection wells must be
authorized by both RCRA and the Safe Drinking Water Act, the Agency's
approach is extremely complex.  Indeed, in most cases, the actual
implementation of this guidance will require you to coordinate closely
with the appropriate staff in the Waste Management Division to assure
that the requirement is implemented effectively.  In addition, Agency
policy on some issues has not been made final and further guidance
will be needed.  Nevertheless, this guidance will explain the major
policies and the areas of responsibilities associated with corrective
action.

      In  this  section, we present  a broad  overview of the major
elements and policy decisions surrounding corrective action for
injection wells.  The discussions in sections II through XII address
these elements in greater detail.

1.    Authorization.

      •     A hazardous waste injection well must be authorized by both
           RCRA and the SDWA.

      •     A UIC permit issued after November 8, 1984 is a RCRA permit-
           by-rule only when corrective action requirements for all
           SWMUs are  satisfied.   In this case,  the well has
           authorization by "permit"  under both RCRA and SDWA.  The
           Agency will use this approach primarily where a UIC well is
           the only unit subject to RCRA at a site.
                                              Retyped From The Original

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                                  -2-

      •     In most other instances,  a UIC permit will address
           corrective action for the well only.  In this case,  the well
           has authorization by permit for SDWA and it maintains
           interim status under RCRA (provided it is otherwise in
           compliance with interim status requirements).

2.    A  special  case:   Primacy  States/Federal  Permits  issued  after
      November 8,  1984,  without  Corrective Action Requirements.	

      •     A  "rider permit" containing Federally enforceable corrective
           action requirements will be required for any Federal permit
           issued after November 8,  1984, which does not contain
           corrective action requirements.

      •     A  "rider permit" will also be issued for State permits until
           such time as a State has been delegated authority to
           administer §3004(u).

      •     No State has been granted such authority to date.

3.    Implementation.

      •     As a general rule, corrective action requirements for the
           well will be applied through the UIC permit.

      •     The Water Division will implement .§3004(u) for wells; the
           Waste Management Division will do so for other units.

II.   This  Guidance  Explains  How the Agency  Intends  to Implement the
      Corrective Action Requirements of  the  Hazardous  and Solid Waste
      Amendments (HSWA)  When  Permitting  Class  I Injection Wells.	

      Section 206  of the Hazardous and Solid Waste Amendments (HSWA) of
1984 requires corrective action for all releases of hazardous waste or
hazardous constituents at any solid waste management unit before a
permit under  Subtitle C of the Resource Conservation and Recovery Act
(RCRA) may be issued.  This requirement was discussed in detail in the
final rule codifying the HSWA.  See 50 Fed.  Reg. 28702, 28711-28716
(July 15, 1985).  Class I wells injecting hazardous waste require
permits under Subtitle C of RCRA, and therefore, must comply with
corrective action requirements.  This guidance explains how these
requirements  affect UIC permitting activities for Class I wells.

III.  Corrective Action Requirements Must Be Applied to All Solid
      Waste Management  Units.	

      Section 206  of HSWA provides that:

      "Standards promulgated  under this  section shall  require,  and a
      permit  issued  after the date of enactment of the Hazardous and
      Solid Waste  Amendments  of  1984 by  the  Administrator or  a  State
      shall require,  corrective  action for all releases of hazardous
      waste or constituents from any solid waste management unit at a
      treatment, storage or disposal facility  seeking a permit  under


                                              Retyped From The Original

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                                  -3-

      this subtitle,  regardless  of the time at  which waste  was  placed
      in such unit.   Permits issued under  section 3005  shall  contain
      schedules of compliance for such corrective action (where such
      corrective action cannot be completed prior to issuance of the
      permit)  and assurances of  financial  responsibility for  completing
      such corrective action."

This provision  is applicable to all RCRA permits issued after November
8, 1984,  including RCRA permits-by-rule.

      The new corrective action  provision  affects all solid waste
management units  (SWMU) which are within the property boundaries of a
RCRA facility.  SWMUs are defined as any waste management unit at a
facility  from which hazardous constituents might migrate, irrespective
of whether the  units were intended for the management of solid or
hazardous wastes.  SWMUs include landfills, surface  impoundments,
waste piles, tanks, waste handling areas,  storage areas, incinerators,
and injection wells.  Each  facility seeking a RCRA permit must  (a)
identify  all solid waste management units at the facility;  (b)  submit
information enabling EPA to  determine whether there  have been releases
of hazardous wastes or constituents that have occurred or are likely
to have occurred  from these  units;  (c) demonstrate financial assurance
for the estimated cost of corrective action; and  (d) perform
corrective action for releases where necessary to protect human health
and the environment.  See Final Codification Rule, 50 Fed.  Reg, at
28711 to  28716.  This provision applies to inactive  and closed solid
waste management units at such facilities, as well as to the operating
units subject to permitting.

IV.   Coordinate the  Corrective  Action Requirement with Permitting
      Activities.	

      Class I wells that are used to inject hazardous waste must have
authorization under both the Safe Drinking Water Act (SDWA) and RCRA.
A well has SDWA authorization either through a UIC permit  (see 40 CFR
144 Subpart D)  or authorization by rule (see 40 CFR  144 Subpart C).  A
well has RCRA authorization  by either:  (a) qualifying for and
maintaining RCRA interim status;  (b) obtaining a UIC permit and
meeting the requirements for a RCRA permit-by-rule established in 40
CFR 270.60(b)(as amended July 15, 1985); or (c) obtaining a RCRA Part
B permit  for all units including the operating well.

      Until November  8,  1984, Class  I  hazardous waste wells permitted
pursuant to the UIC program  had both a UIC permit and a permit-by-rule
under RCRA (see 40 CFR 270.60(b)).  The permit-by-rule established
conditions only for that part of the facility covered by the UIC
permit -- i.e., the injection well unit from the well head down,
including the tubular goods  and the injection zone.   Any surface
hazardous waste management unit associated with the well required a
separate RCRA permit.

      However,  under  the Final Codification Rule  for the HSWA,  EPA will
only issue new RCRA permits-by-rule which include schedules of
compliance for corrective action for all SWMUs (unless the owner or


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operator has completed such corrective action prior to issuance of the
RCRA permit).  Amendments to the permit-by-rule regulation prohibit a
UIC well from obtaining a RCRA permit-by-rule until the owner or
operator submits schedules for corrective action for all SWMUs. See 40
CFR 278.60(b)(3) promulgated at 50 Fed. Reg. 28702, 28752  (July 15,
1985).

      Because Class I wells  and surface hazardous waste units are  on
different permitting  schedules, there are significant questions
concerning the timing and implementation of the corrective action
requirement.  The  general problem involves a Class I well and other
hazardous waste units in a RCRA facility which has RCRA interim
status.  The following examples illustrate EPA's permitting procedure
for the corrective action requirement.

1.   Well  at a  RCRA interim status  facility  obtaining a  UIC  permit.

     This  category also  includes wells with  UIC authorization by  rule.
In these cases, the well owner or operator should obtain a UIC permit
which addresses corrective action for prior and continuing releases
from the well and  the injection zone.  The well is authorized under
the SDWA by the UIC permit and under RCRA by maintaining interim
status^/ (provided the owner or operator has complied with certain
other requirements such as the certification required by §3005(e)  of
RCRA).

      In these circumstances, the UIC permit  will be  the  vehicle for
implementing corrective action requirements for the well.  Corrective
action for the remaining SWMUs will be addressed when the facility
submits a RCRA Part B permit application (or possibly an interim
status corrective  action order is issued under §3008(h)).  When
corrective action  has been addressed for all SWMUs at the facility,
the UIC well will  be deemed to have a RCRA permit-by-rule until such
time as the UIC permit expires.

2.   Well  is the only unit  at  the facility recruiring a RCRA  permit.

     Where the well  is the  only hazardous waste management unit at the
facility subject to a RCRA permit requirement,  the owner or operator
must obtain a UIC  permit which meets the corrective action
requirements of RCRA for all SWMUs at the facility.  The UIC permit is
then deemed to be  a RCRA permit-by-rule.  See 40 CFR 270.60(b)(3),
     ±/ Under the State law in a State authorized to administer the UIC
or RCRA program  the  issuance of a UIC permit may  terminate the well's
RCRA  interim  status.   Regional  program  staff should request  that the
Office of Regional Counsel determine whether a UIC permit may be issued
in a  UIC  primacy State without  terminating the  well's  interim status.
A Class I hazardous waste  injection  well  operates  in violation of RCRA
if it has neither a RCRA permit  (individual or by rule) nor RCRA interim
status.
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                                  -5-

promulgated at  50 Fed. Reg. 28702, 28752  (July 15, 1985).  The
information about SWMUs other than the well, should be submitted with
the UIC permit  application.  Regional Water Supply Branch staff should
coordinate with Regional RCRA staff to enable them to address
corrective action for SWMUs other than the well.

3.    Surface facility obtains  a RCRA Part B permit prior to  the
      well obtaining a UIC permit.	

      In this situation the RCRA Part B permit  for the surface facility
must  address corrective action  for all SWMUs - including the hazardous
waste injection well.  The corrective action information for the well
described in section VIII of this memo should be  submitted as part of
the Part  B application.  The Waste Management Division should
coordinate with the Water Supply Branch to develop corrective action
requirements for releases from  the well.

4.    Renewal of UIC permit for  the well prior  to issuing a
      RCRA Part  B permit  for the surface facility.	

      This category  involves permit renewal for operating wells  with a
UIC permit and  RCRA permit-by-rule issued prior to November 8, 1984.
There is  a very limited number  of UIC facilities  that might be in this
category.  Agency policy is evolving, and the appropriate treatment
for such  units  will be the subject of a later guidance.

V.    Use of  a Rider Permit  to Apply  Corrective Action Requirements.

      Any State  with RCRA  permitting  authority  or UIC  primacy  must  also
receive specific authorization  to administer the  corrective action
requirements of RCRA.  In many  cases, this will require the State to
adopt  legislation which provides authority to require corrective
action before such authorization would be granted to the State.  As of
this  time, no State has received this authorization.   Absent such
delegation, even though the State applies corrective action
requirements, it does not satisfy the HSWA and the permit is not a
valid RCRA permit.  Section 227 of HSWA [RCRA §3006(c)(4)] gives EPA
"authority in such a State  [without HSWA authorization] to issue or
deny  permits or these portions  of permits affected by the requirements
and prohibitions established by the HSWA."

      The Agency will  implement  the RCRA corrective action requirement
in primacy States through the use of a joint Federal-State permit.
The Federal portion, termed a "rider permit," will address the RCRA
requirements that the State cannot address.  Until a State receives
authorization to administer all applicable sections of HSWA,  only the
combination of  a State permit and a Federal permit constitutes a valid
RCRA permit.

      It  is EPA  policy  that  State and Federal portions  of the  RCRA
permit issue simultaneously (See Reauthorization  Statutory
Interpretation  #5 (RSI) signed April 8, 1985).   States that issue UIC
permits which do not have Federal rider permits issued concurrently
should be aware that the State UIC permits will fulfill State law but


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they will not be RCRA permits; such wells will maintain interim status
(unless State law terminates interim status) and the permit
requirements will constitute interim status requirements.  See 40 CFR
144.1 (a) (UIC requirements for hazardous waste injection wells are
RCRA requirements).

     EPA will assign  a  high priority to  these  facilities,  so  that  the
Federal portion of the permit (requiring corrective action) can be
issued as soon as possible, or a rapid determination can be made that
corrective action is unnecessary.  Such an approach will provide RCRA
authorization,  but for future permit actions,  States and EPA should.
plan on simultaneous issuance of the State and Federal portions of the
RCRA permit.  EPA Regional Offices and the States are encouraged to
work out cooperative agreements wherever the "rider permit" is to be
used.

     In States where  the  Federal  RCRA  and.UIC  programs  are Federally
administered, the joint permit is not needed.   EPA will incorporate
the section 3004(u) corrective action requirements into the Class I
permit  (and any necessary RCRA permit).

     Suggested language for the  Federal  portion  of  the  UIC permit  is
being developed.   As a general rule, we will require the Preliminary
Assessment and Site Investigation to be completed prior to issuing a
UIC permit.  Indeed, in some cases, the information contained in a UIC
permit application will he sufficient to move to the remedial
investigation stage in the permit.  (See also section IX, compliance
schedules).  The language will contain a clause specifically allowing
a permit modification if more action is necessary in order to address
a release to the environment.   This boilerplate when available, may
also be incorporated into EPA permits in Direct Implementation States.
In all cases in which a compliance schedule is used for corrective
action, financial responsibility for completing the corrective action-
must be addressed.  Financial responsibility will be the subject of
further guidance.

VI.  Re-opener Clause.

     All Class I  hazardous well  UIC permits issued  after November  8,
1984, should include a re-opener clause.  This clause allows the
Federal or State permitting authority to change permit conditions, if
necessary,  to reflect the banning of any hazardous waste from the deep
well injection pursuant to HSWA §§201 (f) and (g)  (3004 (f) and  (g) of
RCRA).   A ban on deep well injection of certain hazardous waste
through regulations operates regardless of whether the UIC permit
reflects this ban or not,  since a UIC permit is a shield only for the
purpose of the SDWA.  See 40 CFR 144.35.  Thus, the purpose of this
re-opener clause is simply to. maintain consistency between the SDWA
and RCRA authorization.

VII. Definition of  Release.

     The agency  is  interpreting  the term "release"  broadly.   Similar
to the CERCLA definition,  release will include any spilling, leaking,


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                                  -7-

pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the environment.  The
discharge of hazardous waste or constituents into the injection zone
of a permitted or authorized Class I hazardous waste injection well is
not a release for the purpose of this guidance.

VIII.  Implementation of Corrective Action for Injection Wells to
       Apply to Releases from the Well and the Injection Zone.	

       The RCRA corrective action requirements for the well and
injection zone will be carried out in three stages:

       1)  Preliminary Assessment/Site Investigation - to identify
           releases and to assess the need for corrective action

       2)  Remedial Investigation - to determine the nature and extent
           of contamination and to identify appropriate response
           measures

       3)  Selection and Performance of Corrective Action - the
           corrective action plan may be placed on a schedule of
           compliance and be made a condition of the permit.

Stage 1 is the preliminary assessment/site investigation
This is a "desk-top" evaluation similar to the CERCLA "Preliminary
Assessment/Site Investigation."  During this stage, the investigator
will review information supplied by operators and gathered from State
files.  As a practical matter, the permit application will contain the
information necessary to conduct the PA/SI stages of an investigation
and much of the information'needed to conduct the remedial
investigation.  The information to be considered will include but not
be limited to:

       a)  available hydrologic data and all available ground-water and
           soil testing or monitoring data or related information
       b)  any citizen complaints on file
       c)  public hearing records
       d)  compliance history
       e)  well records, including:  results of monitoring the annulus
           pressure, and injection flow rate, volume, and pressure;
           records of injection fluid characteristics and composition
       f)  all mechanical integrity test results
       g)  the completed permit application
       h)  any other helpful information from State, local, or Federal
           agencies, environmental groups,  industry or any other
           interested party.

       If all the information is complete and it fully demonstrates a
well has been operated properly and has a good mechanical integrity
record  (or if the well is new) and there have been no releases, then
the well passes the preliminary assessment and no further
investigation is necessary.  If, however, there is some evidence of a
release or a lack of information on which to base a determination, a
site inspection and further-investigation in stage 2 will be required.


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                                  -8-

       In assessing whether the information is adequate, two factors
are important.  First, is the information continuous, i.e., are there
significant periods for which monitoring information can not be
reviewed?  Second, is the information sufficiently detailed, i.e., can
the operator provide continuous annulus pressure, data on mechanical
integrity testing, and records of any two of the following:  flow
rate, pressure, or volume?

       The stage 2 remedial investigation will begin with a full
mechanical integrity test designed to find and pinpoint any leaks.  If
the well passes the test, it can be assumed that no releases are
occurring. (Note: mechanical integrity tests will be performed as part
of the UIC permitting activities).  If well records or other
information indicate a likely release, but the well has been repaired
to regain mechanical integrity, the Regional Administrator nonetheless
may require the installation of ground-water monitoring wells.  This
would determine the extent of the release if the repaired leak was
located at a point which would have allowed fluids to enter an
underground source of drinking water  (USDW).  If the well fails the
test, then remedial action on the well should be performed and the
well retested.  In determining what corrective action is necessary,
the investigator should consider the following: the age of the well,
well construction, depth of the injection zone, separation of
injection zone and lowest USDW, area of review, waste characteristics
and quantity, the depth of release, the local environment and the
proximity of human populations.  If necessary to determine the extent
of a release, the Regional Administrator may require the installation
of ground-water monitoring wells.  After the release has been
identified and the permitting authority has confirmed the need to
perform corrective action, plans of corrective action should be
developed and submitted to the Water Supply Branch for review.
Remedial investigations to characterize the nature and extent of
releases can be carried out under a schedule of compliance as part of
a permit.

       During stage 3,  a plan for corrective action is selected and
carried out.   The corrective action may be carried out under a
schedule of compliance that is part of a permit.  The operator must
make a demonstration of adequate financial responsibility to complete
the corrective action.   Such demonstration should be made at the time
the remedy has been identified.

IX.    Use of Compliance Schedules for Injection Wells.

       One of the more controversial aspects of §3004(u)  has been how
and when to use compliance schedules in implementing corrective action
requirements.  Agency policy on this matter is still evolving; the
final Codification Rule at 50 Fed.  Reg,  pp 28714 - 28715,  provided an
explanation of how the Agency interpreted Congressional intent.  The
general framework established in that discussion remains valid.

       In this section we will briefly outline that discussion and
explain how,  within the framework established, we intend to use
compliance schedules for injection wells.


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                                  -9-

       Corrective action can be viewed as a process which includes
determining whether a leak has occurred, defining the extent of the
release, developing appropriate remedial action plans, conducting the
clean up, and performing follow-up monitoring.  The main issue
surrounding the use of compliance schedules has been the extent of
corrective action that must be completed before a permit containing a
compliance schedule may be issued.  If we look at the cleanup
activities in the conventional CERCLA framework the basic steps are:

       •   Preliminary Assessments/Site Investigations
       •   Remedial Investigation/Feasibility Study
       •   Implementation and follow-up activities.

       There are two approaches when issuing permits containing
compliance schedules: one applicable to "regulated units''^./ and the
other to SWMUs.  The general Agency policy is that a permit containing
a compliance schedule for ground-water releases from a regulated unit
can only address construction, operation and maintenance, and
post-response monitoring.  Permits containing compliance schedules for
SWMUs, however, may include the preliminary stages of the corrective
action process.

       Although injection wells are SWMUs, we intend to limit the use
of compliance schedules in UIC permits.  The technology used in
injection wells is sufficiently different to warrant this approach.
Unlike land disposal units, in general it is reasonably easy to
determine whether a release has occurred from a well when good records
are available.  If appropriate testing was performed, the location of
any past leak can also be ascertained relatively easily.  The records
necessary to make this determination include mechanical integrity
tests and operating data (discussed in more detail in section VIII).

       Since this data is available as part of a UIC permit
application, it is usually not necessary to allow permits to contain
compliance schedules beginning at the preliminary assessment stage.
More typically, by the time a well is permitted it can be determined
whether a leak may have occurred.  Thus, as a general rule UIC permits
should not be issued until a PA and (if necessary) an SI has been
completed, or a finding has been made that corrective action is not
necessary.

       Compliance schedules in UIC permits should begin with the
development of remedial investigation plans.  In some circumstances,
data may not be complete and the permit writer will not be able to
establish whether a release has or has not occurred.

(A permit must not be issued for a well that is known to be leaking.
Section 146.13 requires that all wells have mechanical integrity prior
to receiving a permit.)   In these instances, it may be appropriate to
     2.7 A "regulated" unit is defined as a landfill, surface impoundment,
waste pile  or  land treatment unit that  received  hazardous  waste after
July 26, 1982.

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                                  -10-

formulate a compliance schedule that seeks to provide such
information.

X.     Notification to Class I HW Operators.

       Notice should be sent to each Class I  HW injection well
operator who did not receive a final UIC permit prior to November 8,
1984.  This notice should provide a general explanation of our policy
on corrective action requirements, and should note that additional
information must be submitted in order to satisfy the requirement.
(See RSI #3 and the proposed regulations under §270.14(d)).  We
recommend that, in most cases, applicants who have already submitted
their Class I permit applications should be given about 45 days to
submit this information.  Failure to submit this data could be grounds
for permit denial.  The Regions may also wish to cite 40 CFR 144.27,
which allows the Regional Administrator to establish a date after
which an operator's authorization to inject will terminate unless the
information requested is submitted on time.

XI.    What Is Appropriate Corrective Action?

       In accordance with the legislative history of the HSWA, EPA
will require corrective action at all sites where necessary to protect
human health and the environment.  See 40 CFR 264.101, Final
Codification Rule, 50 Fed. Reg, at 28713.  In the case of injection
wells, a release could possibly occur into a USDW or into a non-USDW.
Because the standard for cleanup under §3004(u) of RCRA is protection
of human health and the environment, releases from injection wells
into non-USDWs may be subject to corrective action requirements.  In
the case of a release into a non-USDW which would not pose a threat to
either human health or the environment, corrective action to clean up
the wastes may not be necessary beyond repair of the well.  Of course,
a release to a non-USDW in certain cases may endanger a USDW, human
health or the environment.  In such cases, corrective action would be
required.  The corrective action should remove these threats.

XII.   Financial Responsibility.

       Congress has directed EPA to require financial assurance for
the costs of completing any corrective action.  This is especially
important when the corrective action is carried out under a schedule
of compliance.

       The owner or operator must demonstrate financial assurance for
the costs of completing any corrective action once the corrective
measures and estimates of costs have been identified.  The acceptable
mechanisms for showing adequate finances are:

       a)  Financial test
       b)  Letter of Credit
       c)  Trust Funds
       d)  State-Required Mechanisms
       e)  Surety Bonds Guaranteeing Performance
       f)  Combinations of the above.


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The mechanisms shall remain in effect until EPA deems the corrective
measures successful.

XIII.  Distribution and Use of this Guidance.

       Regional Offices should use this guidance in administering UIC
programs where EPA has primary enforcement responsibility.  Further,
Regional Offices should make this guidance available to States with
primacy and those States working towards primacy and advise the State
director that these interpretations represent EPA policy.

XIV.   Filing Instructions.

       This guidance should be filed as Underground Injection Control
Program Guidance No. 45.

XV.  Action Responsibility.

For further information on this guidance contact:

Thomas E. Belk
U.S. EPA
Office of Drinking Water (WH-550)
401 M Street, S.W.
Washington, D.C. 20460
(202) 382-5530
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  NATIONAL RCRA CORRECTIVE ACTION STRATEGY






               October  3,  1986
    U.S. Environmental Protection Agency



Office of Solid Waste and Emergency Response

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             NATIONAL RCRA  CORRECTIVE ACTION STRATEGY





I.  INTRODUCTION



    The Hazardous and Solid Waste Amendments of 1984 (HSWA)



greatly expanded authorities under the Resource Conservation and



Recovery Act (RCRA) for requiring corrective action for releases



of hazardous wastes and constituents at facilities that manage-



hazardous wastes.  Section 3004(u) of HSWA requires corrective



action for releases of hazardous wastes or constituents from any



solid waste management unit at a storage, treatment or disposal



facility that is seeking or otherwise subject to a RCRA permit.



Section 3004(u) also requires that these permits contain



assurances of financial responsibility for complying with



corrective action.  Moreover, section 3004(v)  authorizes EPA to



require corrective action beyond the facility boundary.  Section



3008(h). of HSWA authorizes the Environmental Protection Agency



(EPA)  to require corrective action or other necessary response



measures whenever it is determined on the basis of any



information that there is or has been a release of hazardous



wastes or constituents from a facility authorized to operate



under Section 3005(e) of RCRA.



    This strategy is intended to inform Regions, States, the



regulated community and the public how the Agency plans to



approach implementation of the corrective action program.  This



section introduces the HSWA corrective action authorities and



discusses the universe of RCRA facilities subject to these



requirements.  Section II discusses the basic technical process



that applies generally to any corrective action.  Section III



discusses how the Agency will approach the corrective action




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                               -2-



program,  including establishing priorities, and factors



influencing management of corrective action.  Section IV



discusses the EPA-State partnership in achieving corrective



action goals.  At the end of each section or subsection there are



lists of  guidance documents for the RCRA corrective action



program that have been issued to date and planned documents and



the current target dates for their issue.  Also included are the



training  courses that are planned for each component of the



program.  Under each item a contact person is provided who can



answer inquiries about the topic.  Appendix 1 lists guidance



issued by other programs that may be useful in implementing the



corrective action program.



    The success of the RCRA corrective action program depends on



the cooperation between the States, EPA, regulated community and



the public.  Of critical importance is early involvement of the



affected  public in the corrective action process.   EPA intends to



develop a corrective action public participation program that



provides  information on the facility to the public, gives them an



opportunity to make their views known to EPA or the State and



that provides for consideration of their views in-the



decisionmaking process.



    These new corrective action authorities greatly expand EPA's



ability to ensure that RCRA facility owners and operators correct



releases  at their facilities that may pose a threat to human



health and the environment.  The new 3004(u)  authority applies to



facilities subject to RCRA permits.  This includes operating



permits for new and existing facilities and post closure permits






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                               -3-



for land disposal facilities.  At facilities that received RCRA



permits prior to November 8, 1984, corrective action requirements



will be imposed upon issuance of a new permit once the current



permit expires or is reopened.



    The scope of the 3004(u) authority is largely defined by its



key terms.  It requires that permits impose corrective action for



releases of hazardous wastes or constituents which pose a threat



to human health and the environment, from any solid waste



management unit (SWMU) at a storage, treatment or disposal



facility seeking a RCRA permit.  To understand the scope of this



authority it is necessary to understand the key terms of the



statutory provision.



    The term "release" is defined in the Final Codification Rule



(July 15, 1985) to include any spilling, leaking, pouring,



emitting, emptying, discharging, injecting, escaping, leaching,



dumping or disposing into the environment.  While similar to the



CERCLA definition, it excludes discharges of hazardous wastes or



constituents to the injection zone of a UIC permitted Class I



injection well.  It can also include releases that are authorized



or otherwise permitted under other environmental statutes.



    The term "solid waste management unit" is also explained in



the Final Codification Rule (July 15, 1985).  It includes any



discernable waste management unit from which hazardous



constituents may migrate, irrespective of whether the unit was



intended for the management of solid or hazardous wastes.  The



following types of units are therefore included in the definition



of SWMUs:  landfills, surface impoundments, waste piles, land






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                               -4-



treatment units, incinerators, injection wells,  tanks (including



90 day accumulation tanks),  container storage areas and transfer



stations.  In addition to these types of units,  certain areas



associated with production processes at facilities which have



become contaminated as a result of routine, systematic and



deliberate releases of wastes, or hazardous constituents from



wastes, are also considered to be solid waste management units.



A product may become a waste if it is abandoned or discarded.



    Some questions have been raised regarding the application of



the concept of "solid waste management unit" to other types of



contamination at facilities, such as spills, leakage from product



storage, and releases from production processes that are not



routine, systematic and deliberate.  Such releases are not con-



sidered to be solid waste management units.  As explained in the



Final Codification Rule (50 FR 28712), one-time spills of wastes



or constituents are considered subject to §3004(u) corrective



action only if the spill occurred from a solid waste management



unit.  A spill which cannot be linked to a discernible solid



waste management unit is not of itself a solid waste management



unit.  Likewise, leakage from product storage and other types of



releases associated with production processes would not be



considered solid waste management units, unless those releases



were routine, systematic and deliberate.



    The term "facility" includes all contiguous property under



the control of an owner or operator at which the units subject to



the permitting are located.
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                               -5-
    Section 3008(h), the enforcement corrective action authority,
also vests broad discretion with the Agency to compel corrective
action.  This authority has been interpreted to authorize the
Agency to compel corrective measures or other actions necessary
to protect human health or the environment whenever the
Administrator determines, based on any information, that there is
or has been a release of hazardous wastes or constituents from an
interim status RCRA facility.  The key terms in this provision
are interpreted in a December 16, 1985 EPA memorandum entitled
"Interpretation of Section 3008(h) of the Solid Waste Disposal
Act." The terms release and facility are interpreted as they are
for Section 3004(u).  Appropriate information upon which to
conclude there may have been a release for purposes of section
3008(h) include, but are not limited to the following: data from
laboratory analyses (from soil, air, surface water or ground
water samples), observations recorded during inspections,
photographs and information obtained from facility records.
    It should be noted that the §3008(h) authority is not
confined to addressing releases from solid waste management
units.  It is the Agency's position that the coverage of the
types of releases which can be addressed under §3008(h) is
somewhat different in scope than that of §3004(u).  In situations
where a §3008(h) action has been initiated at a facility to
address releases that are not from solid waste management units,
and where a permit is subsequently issued to the facility, the
Agency intends that those actions will be continued under the
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permit, under the authority of RCRA section 3005(c)(3).  Comment
is requested on this proposed approach.
    Not only are these RCRA corrective action authorities broad,
but the universe of RCRA facilities to which they potentially
apply is diverse.  Among the types of RCRA facilities that can
present environmental problems are land disposal, treatment and
storage facilities.  Corrective action requirements apply to
these facilities regardless of whether they are continuing waste
management operations or closing these operations.  Moreover,
these requirements apply regardless of whether a facility or part
of .it is subject to an action under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
(CERCLA or Superfund).
    The RCRA facilities subject to corrective action are also
diverse in that there are varying amounts of existing information
available on them.  For example, in some cases there will be
extensive information available on the regulated unit (and
possibly the solid waste management units) from previous
enforcement 'actions, the Part A and B applications, inspection
reports, etc.  In others, very little information-may be
available, thus increasing the initial information gathering
burden.  At some facilities there will be extensive and complex
corrective action required, while at others little or no action
may be necessary.
    Federal facilities are subject to RCRA corrective action
requirements.  At this time EPA is working with other Federal
agencies to determine how best to manage the corrective action

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                                -7-



program  for  the  Federal  establishment.  This effort  is dealing



with  several issues,  including  how to define facility ownership



in  light of  the  structure  of many agencies, and how  to coordinate



the RCRA and CERCLA corrective  action programs.



    In developing  the corrective action program it is EPA's



intent to recognize the  diversity of the universe subject to



corrective action  and to adopt  a system for managing the program



which provides sufficient  flexibility to ensure that corrective



measures necessary to protect human health and the environment



are taken expeditiously.



    In order to  establish  a consistent and well-defined program



for implementing the  new RCRA corrective action mandate, the



Agency intends to  develop  a comprehensive regulatory framework to



define both  procedural and substantive requirements  for the



program.   This major  rulemaking will provide the regulated



community and other parties the opportunity to participate in the



decisionmaking process for setting standards for the program.



Regulations  will also provide a solid legal foundation to enforce



these standards.   Proposed regulations are tentatively expected



to  be issued in  the Fall of 1987.



    Among the most important decisions which must be made in



implementing corrective  actions at actual facilities is the



determination of when corrective action is required,  and when it



is  completed.  Standards for these "how clean is clean" decisions



will be a major component  of the rulemaking effort described



above.  The Agency intends to develop guidelines for determining



when corrective actions will be "triggered."  "Target" levels






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                               -8-

will be established to define the objectives to be reached by

corrective actions.  It is the Agency's current intention to set

these target levels using health and environmental based goals,

within the limits of feasible technology.

    The fundamental objectives of the RCRA corrective action

program are essentially similar to those of CERCLA.  Because some

RCRA facilities can be expected to ultimately become Superfund

sites (some RCRA facilities actually have CERCLA-mandated actions

already underway),  there is need to maintain consistency between

the two programs in making response decisions.  Whenever

feasible, the Agency will design corrective action policies and

guidelines so as to foster consistency.  It must be recognized,

however, that there are statutory and programmatic differences

between the RCRA and CERCLA programs which the Agency must

consider in formulating the RCRA corrective action program.  As

the RCRA program is developed through policy, guidance and

regulation, one of the Agency's primary objectives will be to

maintain consistency with CERCLA, while tailoring the program to

meet the specific needs and objectives of RCRA.

GUIDANCE;

Guidance on use of Section 3008(h); December 16, 1985;
Contact: Ginny Steiner (202)475-9329

Agency Interpretation of 3004(u): Corrective Action for
Continuing Releases; draft issued 1/30/85; Contact: Dave Fagan
(202) 382-4740

TRAINING:

Seminars on use of 3008(h) and soon to be issued procedures are
tentatively planned for FY 87 for EPA Regional personnel.
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                               -9-



II. THE CORRECTIVE ACTION PROCESS



    This section outlines the basic technical steps that will be



taken to identify potential releases,  characterize them and



select and undertake appropriate response actions.  Understanding



these basic steps is central to implementing the corrective



action process outlined in section III of this strategy.  These



steps apply to corrective action secured through a permit or



completed through an enforcement order.



    Specific policies, guidelines and regulations on various



aspects of this process will be issued over the next several



years.  This section provides the basic framework against which



these guidances will be developed.  It should be understood,



however, that these steps may vary in detail or be eliminated



altogether depending on the individual facility situation.



Examples of situations in which this may occur are outlined in



section III below.  The stages of a corrective action are



illustrated in Figure 1.  Figure 1 shows the steps of the



corrective action process and also identifies the appropriate



roles of the regulatory agency and the facility owner/operator in



the various steps.



    A.  RCRA Facility Assessment (RFA):



    The first step in any corrective action is the assessment of



the facility to identify actual and potential releases from RCRA



regulated units and other solid waste management units.  The



objective of this assessment is to determine whether there is



sufficient evidence of a release to require the owner/operator to



undertake additional investigations (a RCRA facility






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                               -10-



investigation) to characterize the nature, extent and rate of



migration of contaminant releases of concern.  For cases of



likely releases, the RCRA Facility Investigation will include



release verification procedures.  Information gathered in the RFA



should be used in developing a sound scope of work for a full



remedial investigation.  The RFA is intended to focus on



investigating releases and potential releases from identifiable



solid waste management units.  It is not the Agency's intention



that RFAs routinely examine facilities' entire production,



handling and storage areas and activities.
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                              -11-
                            FIGURE 1

       RCRA CONTINUING RELEASES CORRECTIVE ACTION PROCESS
Regulatory Agency performs RCRA facility assessment (RFA) with
o/o cooperation where appropriate to:

•  Identify solid waste management units (SWMUs) and collect
   existing information on contaminant releases.

•  Identify releases needing further investigation.	
Regulatory Agency specifies permit conditions or issues
enforcement order to facility owner or operator to:

•  Perform investigations on releases of concern; and/or

•  Implement interim corrective measures.
Facility Owner or Operator performs RCRA facility investigation
(RFI) to characterize the nature, extent and rate of migration
for releases of concern and/or implements interim corrective
measures.
   Regulatory Agency evaluates results of RFI and
   determines need for corrective measures. (CM)
   Owner or Operator proposes appropriate CM when required by
   regulatory agency.	
   Regulatory Agency evaluates CM proposal and specifies
   appropriate CM.	
   Owner or Operator demonstrates financial assurance, and
   designs, constructs, operates, maintains and monitors the
   CM.
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                               -12-



However, when conducting RFAs investigators may become aware of



other types of releases (e.g., product releases)  or sources of



contamination not related to solid waste management units, but



which merit further investigation and characterization by the



owner/operator.  Likewise, certain areas at facilities that are



not solid waste management units may be identified as likely to



be causing serious environmental problems, but about which little



or no actual evidence of contamination is available; such



situations may merit preliminary, RFA-type investigations to be



conducted by owner/operators to verify releases.



    As explained previously, releases which are not linked to



solid waste management.units may be addressed using §3008(h) or



other enforcement authorities.  It is the Agency's intention that



when issuing a permit to a facility, the permit schedule of



compliance may also, as necessary, require owner/operators to



address releases that are not linked to solid waste management



units, under the authority provided in RCRA section 3005(c)(3).



EPA specifically invites comment on this proposed approach.



    The scope of an RFA may vary from facility to facility.  In



most cases it is preferable to address all the solid waste



management units at the facility in the RFA.  This is especially



true when dealing with a facility in which units are closely



related and subsequent investigations will be more efficiently



performed by addressing the entire facility.  However, it may be



permissible to perform an RFA for a particular unit or units in



advance of the rest of the facility.  This could occur,  for



example, when there is an immediate threat that needs to be






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                              -13-
addressed.  The RFA is performed by EPA or the State and can
include use of sampling data gathered by the owner/operator of
the facility.  However, if there is any problem with
owner/operator participation in the RFA (timeliness, reliability
etc.)  EPA or the State will perform the entire RFA.
    B.  Interim Measures;
    These are corrective measures that may be taken at any point
in the corrective measures process to abate threats.  These
actions are generally short term actions responding to immediate
threats, such as actual or potential exposure to hazardous wastes
or constituents, drinking water contamination, threats of fire
and explosion, and other situations posing similar threats.
Normally, minimum study and planning is necessary for interim
measures.  Interim measures can be quite effective in abating
immediate problems and in keeping existing problems from
worsening while studies are being completed.  Interim measures
can be particularly useful in dealing with facilities that are
economically marginal and which may only be able to complete part
of their RCRA corrective action obligations.
    C.  RCRA Facility Investigation (RFI):
    The purpose of a RCRA Facility Investigation is to gather
data sufficient to fully characterize the nature, extent and rate
of migration of contaminant releases identified in the RFA.  Of
paramount importance to the RFI is that it provide sufficient
data to determine appropriate response actions (i.e. appropriate
corrective measures or document that no action is needed).  The
RFI is performed by the facility owner/operator pursuant to an

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                               -14-

enforcement order or a permit schedule of compliance.  EPA or the

State oversees this activity.

    D.  Corrective Measures Study and Selection of the
        Appropriate Measures

    After the RCRA Facility Investigation is completed the

owner/operator must identify the appropriate corrective measures

and recommend them to EPA or the State.  EPA or the State will

then review the recommendation, provide the public an opportunity

to review and comment on the proposed action and select the final

measures.

    The owner/operator must conduct a corrective measures study

to assure that the proposed measures will be effective in

correcting threats posed by releases.  Depending on the facility

situation, this study may include actions to control the source

of the contamination (by preventing or mitigating the continued

migration of contamination, by removing, stabilizing and/or

containing the contaminants) and/or actions to abate problems

posed by the migration of substances from their original source

into the environment.

    In some cases it will be possible for the owner/operator to

analyze and present to the Agency or State only a single

alternative that meets public health and environmental

requirements.   This should be done when EPA or the State agree

that the alternative the owner/operator is proposing to analyze

is likely to effectively achieve corrective action goals,

including health and environmental requirements and is

technically sound.  In other cases, however, it may be necessary

to analyze more than one alternative to determine the appropriate

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                               -15-



response measure.   For example, offsite or onsite alternatives



may be considered or there may be a difference of opinion as to



whether a particular alternative the owner/operator proposes to



analyze would be reliable or effective in abating threats



expeditiously.  In such cases, EPA or the State should require



the analysis of several alternatives to ensure that appropriate



response measures are completed on a timely basis and that



response is not delayed by a sequential analysis of a series of



alternatives.



    The owner/operator must demonstrate that the response action



proposed effectively abates the threats to human health and the



environment posed by the release(s).  This requires the



owner/operator to analyze the alternative or alternatives in



detail sufficient to show that the recommended measures are



effective in abating the threats posed by the release.  To do so



the owner/operator must assess the alternative or alternatives in



terms of its technical feasibility (including reliability and



requirements for long term operation and maintenance), its



ability to meet public health protection requirements, its



ability to protect the environment and any adverse environmental



effects of the measures.  The owner/operator also should consider



any institutional constraints to implementation of the measures,



such as offsite capacity problems and potential public



opposition.



    EPA has not yet completed guidelines on this phase of the



RCRA corrective action program.  RCRA final remedies will,



however,  be required to meet applicable health and environmental






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                               -16-
standards promulgated under RCRA and other laws.  At regulated
units, groundwater releases are subject to the groundwater
protection standards.  The groundwater protection standard
consists of the following: (1) for any constituents listed in
Table 1 of 40 CFR 264.94, the respective value given in that
table (MCL) if the background level of the constituent is below
that given in Table 1; (2) the background level of that
constituent in the groundwater; or (3) an approved Alternate
Concentration Limit (ACL) where approval will be based on
criteria set forth in 40 CFR 264.94(b).  The Agency plans to
issue guidance on ACLs during FY 1987.  The Agency is currently
assessing the appropriate technical approach to take to problems
that cannot be addressed by existing standards.  One alternative
is to establish appropriate health based standards on a case by
case basis.
    EPA or the State will evaluate the owner/operator's
recommendation and approve or disapprove it.  The financial
assurance demonstration will also be reviewed at this time.  The
views of the public on the proposed measures will be considered
by the State and EPA in making these decisions.
    E.  Corrective Measures Implementation
    After EPA or the State selects the remedy, the owner/operator
will design and construct the selected response action.  After
construction the appropriate measures needed to operate, maintain
and monitor the remedy will be taken by the owner/operator.
These activities will be required by permit condition or order,
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                              -17-

and will be performed by the owner/operator with oversight by EPA

or the State.

    Effecting remedies (or interim measures)  at facilities that

do not have RCRA permits will, in some cases, involve creation of

new treatment, storage or disposal units.   Rather than going

through the actual process of issuing RCRA permits to such new

units, which could substantially delay implementation of the

remedy, the Agency is considering using enforcement authorities

and closure plan regulatory authorities to allow those units to

be constructed and operated without a formal RCRA permit.  EPA

may need to amend existing regulations to provide for this

proposed approach.  Such new units would nevertheless generally

be required to comply with applicable Part 264 technical

standards, and appropriate public review and comment would be

provided for.  If such new units are created at a permitted

facility, the normal permit modification process would be

followed.  Comment is specifically solicited on this proposed

approach.



GUIDANCE;

RCRA Facility Assessment Guidance; Draft:  8/5/85 Final: Target—
October, 1986.  For further information contact: Dave Fagan  (202)
382-4740

RCRA Facility Investigation Guidance; Draft: Target—
December, 1986.  For further information contact: Art Day-(202)
382-4680

Corrective Action Plan (model scope of work for CA): Target—
September, 1986.  For further information contact: Mark
Gilbertson (202) 382-4849

Interim Measures Guidance; Final: Target—September, 1986
For further information contact: Jackie Moya  (202) 382-3122

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                               -18-

Corrective Measures Guidance; Target—Draft-Spring, 1987
For further information contact:  Art Day (202) 382-4680

Guidance on Alternate Concentration Limits:  Target:
November, 1986.  For further information contact: Vernon Myers
(202) 382-4495

Implementation of RCRA Facility Assessments; From: J. Winston
Porter.  To: Hazardous Waste Division Directors, Regions I-X,
August 21, 1986

TRAINING: RFA training was delivered to EPA Regions and States
during April-September 1986.
III.  MANAGING THE CORRECTIVE ACTION PROGRAM

    EPA and the States are responsible for management of the

corrective action program.  The steps in a corrective action will

be imposed through permit conditions or through enforcement

orders.  In general, a permit may be issued with a schedule of

compliance for an RFI and Corrective Measures study.  After EPA

or State approval of the appropriate corrective measures, the

permit will be modified to provide a schedule of compliance for

design, implementation and operation and maintenance.  This

modification will be considered a major modification to the

permit, and will, therefore, provide for additional public

involvement.  Likewise, enforcement orders should-be phased with

one order being issued for the RCRA facility investigation and

corrective measures studies and another for the implementation

steps after approval of the corrective measures.  The Agency is

currently developing a policy on involvement of the public in

Enforcement corrective actions.  Owner/operators of facilities at

which the corrective action process will be implemented over time
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                               -19-



will also be encouraged to develop their own community



involvement and education programs.



    In the case of both permits and enforcement, negotiations



with the owner/operator on the scope of the initial studies and



remedy implementation will be necessary.  Depending on the status



of a particular facility, Regions and States may choose to use



permit schedules of compliance to secure some stages of



corrective action and enforcement action for other stages.  Where



orders are used in advance of permit conditions, the schedule of



compliance may later be incorporated into the permit.



Subsections A. and B. below give some examples of how Regions and



States can use enforcement and permitting corrective action



authorities in a complementary fashion.  These management choices



are shown in Figure 2.. In general, permitting authorities should



be used when the owner/operator is cooperative.  When the



owner/operator is recalcitrant, enforcement actions should be



pursued.



    Priorities for corrective action are established in the



annual RCRA Implementation Plan (RIP).  The Agency's general



approach to assigning priorities for corrective action is to



focus the resources available to the program on those facilities



which pose the greatest overall threat to human health and the



environment.  In order to implement this general policy, the



Agency has tentatively decided to target a limited number of



facilities to be dealt with intensively, rather than attempting



to implement the process simultaneously at all facilities subject



to corrective action requirements.  Regions, in conjunction with






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                               -20-



the States will, through the Facility Management Planning



process, identify a limited number of facilities in the Region



for priority attention in initiating and following through in the



corrective action process.  These priority facilities will be



targeted to receive intensive EPA/State oversight, with



sufficient resources allocated for the technical, administrative



and enforcement support necessary to effectively and



expeditiously effect corrective action for those facilities.  EPA



recognizes that focusing the program's resources on a limited



number of higher priority facilities will require that lower



priority facilities which nevertheless may have substantial



environmental concerns will be dealt with less aggressively in



following through the corrective action process.  For such



facilities, compliance schedules may be drawn over longer time



frames, and/or less intensive review given of owner/operator



generated reports and data.  Likewise, at some facilities with



multiple sources of contamination, the releases which pose the



greatest immediate threat to human health and the environment may



be given priority attention, with the remainder of the facility



dealt with as a lower priority.  EPA invites comment on this




proposed method of prioritizing for the corrective action



program.



    As discussed above, the progression of any particular



facility through the corrective action process may vary due to



the status of the facility.  The following subsections describe



considerations that may be relevant when managing a corrective
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                               -21-
action at facilities seeking operating permits and at facilities
that are closing waste management operations.
A.  Facilities seeking operating permits.
    Prior to issuance of an operating permit the EPA or State
should undertake a RCRA Facility Assessment covering the entire
facility to determine whether there may be releases from units at
the facility.  RFAs on units being addressed by the permit should
be completed prior to permit issuance.
    At land disposal facilities, current regulations require that
corrective action for groundwater releases at regulated units be
identified and designed prior to permit issuance.  This is not a
requirement for regulated treatment units, such as incinerators
and storage units.  EPA is examining the land disposal
regulations at this time to determine whether modification should
be made to allow permitting following the determination that a
release exists, but in advance of design of the corrective
action.
    At a facility seeking an operating permit, all corrective
action steps subsequent to the RFA should be compelled through a
schedule of compliance in an operating permit when feasible and
appropriate.  EPA's ultimate goal is to ensure that all permits
have enforceable schedules of compliance for corrective action
activities.  If necessary, enforcement orders can be used in
advance of permit issuance to compel corrective action in
response to immediate threats or to get corrective action
investigation activities underway at a facility that is not near
enough to permit issuance to use a schedule of compliance in the

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                               -22-



permit to secure corrective action.  The use of the order ensures



that there are enforceable requirements in place.  This approach



can be useful as the 1988 deadline for land disposal permit



issuance approaches.  Not all land disposal permits will be at



the same stage at the same time.  In order to keep the land



disposal facilities moving toward 1988 permit issuance Regions



and States should consider supplementing permit activities by



using enforcement orders to support corrective action needs



during permit processing.



    The choice of using an order or permit to secure various



steps of corrective action at facilities seeking permits should



be made a part of the Facility Management Planning Process.  In



this process Regions and States should consider whether it is



likely that the facility will remain in the operating universe or



is likely not to receive an operating permit.  If the facility



is not likely to receive an operating permit it may be



appropriate to initially consider the use of an enforcement order



to secure initial steps of corrective action in advance of permit



denial and closure.



B.  Closing Facilities



    Facilities that are closing their waste management operations



present a somewhat more complicated corrective action management



problem than those that are seeking operating permits.  Some



closing facilities which are subject to post-closure permit



requirements (i.e., land disposal facilities which received



wastes after July 26,  1982)  may investigate and complete all



corrective measures under the post-closure permit.  Other






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                               -23-



facility owner/operators will be unwilling or unable to undertake



required closure and corrective measures and will ultimately



become facilities that must be dealt with under CERCLA or other



authorities.



    As with the operating universe, the first step in taking a



corrective action at a closing facility is for EPA or the State



to perform a RCRA facility assessment to identify actual or



potential releases from the facility.  While the RFA provides an



idea on the scope of investigation that may be necessary at a



facility, it does not give EPA or the State any idea of whether a



facility will have the financial ability to perform the necessary



investigations or take appropriate response actions.  One option



is to assess the financial status of the facility early in the



corrective action process to determine the ability of the



owner/operator to take necessary response actions.  During FY



1987 the Agency will be examining how to treat economically



marginal facilities and whether financial assessments can be a



useful tool in this process.  Such an assessment can assist in



determining the best approach to take to secure corrective action



by the owner/operator including use of CERCLA authorities.  EPA



is currently examining tools that could be used in making these



determinations.  Using the results of the RFA, the financial



assessment (if appropriate) and other available information on



the facility, a decision on the best approach to corrective



action can be made.   The facility management planning process



should be used to determine the appropriate management approach



to the closing facility.






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                               -24-

    Several approaches can be taken to securing corrective action

depending on the situation at the individual facility.   The

following authorities can be used individually or in combination

with each other:

    1.  Post closure permit call in and/or issuance: The post

        closure permit application can be called in to secure

        additional information (part 270) from the owner/operator

        on the physical situation at the facility.   A  3008(a)

        order can be used to compel submission of any information

        that is missing or deficient in the post closure permit

        application.  Once secured, this information can be used

        to support issuance of a 3008(h) order to compel

        corrective measures or to support post closure permit

        issuance.  The RCRA program is focusing upon closure of

        regulated units via the closure plan approval process and

        the issuance of enforcement orders or post-closure

        permits to secure corrective action at environmentally

        significant facilities.  Enforcement orders can later be

        incorporated into post closure permits when appropriate

        to do so.

    2.  3008fh) orders; Many facilities in the closing universe

        requiring corrective measures should be addressed through

        3008(h) orders.  This is particularly true for those
       A separate post closure permit call in is not necessary at
a facility  that submitted a  permit application  (in  response to
call)  and  then  decided  to close  before receiving an  operating
permit.  Since the post closure permit application requirements are
a subset  of those required  for an  operating  permit, it  is not
necessary to initiate a separate call  and experience the resulting
six months delay before enforcing Part 270 requirements.

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                       -25-



facilities that are likely to cease operations before



fulfilling post closure obligations.  Environmentally



significant closing facilities are priority candidates



for 3008(h) orders in FY 87.  Use of a 3008(h) order to



address closing facilities has several advantages.  When



an order is used at a facility that is in an uncertain



financial state, it provides an opportunity to document



whether the facility owner is able to fulfill obligations



under the order or whether it is likely to become a site



that must be dealt with under CERCLA authorities.  In



this respect it acts as a bridge to CERCLA.  Moreover, if



it becomes apparent that the facility can complete its



obligations under RCRA, the provisions of the order can



later be incorporated into the post-closure permit along



with any additional requirements necessary to complete



corrective action obligations.



        At many facilities in the closing universe it



will be difficult to determine initially whether the



company will have sufficient financial resources to take



all the appropriate corrective measures.  In such



situations emphasis should be placed initially on



compelling interim measures at the facility to abate the



most immediate problems and RCRA facility investigation



to the extent feasible.  Where it is apparent that the



owner/operator is not financially viable and may be a



candidate for CERCLA action, corrective action



requirements should be tailored to achieve as much as






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                           -26-



    possible before the owner/operator is no longer able to



    pay for the cleanup or other associated costs.   If an



    owner/operator has the financial resources to take



    appropriate actions and refuses to do so,  judicial action



    should be pursued.



3.  CERCLA response;  When a facility is clearly not able to



    fulfill its corrective action obligations, action should



    be taken as soon as possible to determine whether it



    should be managed under the CERCLA program.   For example,



    a facility that is bankrupt is a prime candidate for



    referral to the CERCLA program.  Several options are



    available under CERCLA for dealing with the facilities.



    In the majority of cases where the owner is insolvent,  or



    efforts to secure action under RCRA have been



    unsuccessful,  CERCLA section 104 action may be  more



    appropriate due to the lack of viable responsible



    parties.  Under section 104 a fund-financed removal may



    be pursued if  the criteria outlined in the National



    Contingency Plan are met (see 40 CFR 300).  In  general



    these criteria encompass more serious threats.   Fund-



    financed remedial action can be pursued at facilities



    that are listed on the National Priorities List.   The EPA



    has recently issued final criteria for listing  RCRA



    facilities on  the NPL and has proposed additional



    criteria for listing these facilities (see 51 FR 21054



    and 51 FR 21109,  June 10,  1986).
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                               -27-



    In addition to the authorities outlined above, the closure



plan can also be a valuable tool to secure corrective action at



closing facilities.  Many of the activities taken to close a



regulated unit are steps toward completion of a corrective



measure.  Accordingly, closure plan development, approval and



implementation should be closely coordinated with corrective



action activities at closing facilities.  Further details on how



to coordinate these activities is included in Section IV below.







IV. FEDERAL STATE PARTNERSHIP IN THE CORRECTIVE ACTION PROGRAM



    As a program delegated in phases, RCRA has always required



close coordination between EPA and the States.  With the advent



of broad-based corrective action authorities, an effective



Federal/State partnership is even more important.  Because the



Agency's new corrective action responsibilities derive from the



HSWA amendments, the Federal Government has responsibility for



implementing the new authorities until States are specifically



authorized for corrective action.  Consequently, until States are



authorized for the new §3004(u) authority, all permits



incorporating corrective action will have to be issued jointly by



EPA and the State.  Likewise, only the Federal Government is



expressly authorized to issue §3008(h) orders requiring investi-



gation and clean up at interim status facilities.  States,



however, may have similar authorities under their own laws.



    EPA intends to give States a considerable opportunity to



participate in the corrective action process prior to official



authorization.  Through their closure regulations, for example,






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                               -28-

States can compel facilities to undertake various activities to

mitigate or eliminate threats to public health or the environment

(e.g., waste removal, soil decontamination, capping).  Many

States also have authority to compel investigation or clean up

through non-RCRA enforcement authorities such as public nuisance

law, State water laws, or State Superfunds.  Use of these

authorities is encouraged at RCRA facilities provided that States

use their own authorities to achieve equivalent response as

required by RCRA.

    Given the varying authorities and responsibilities of Federal

and State governments prior to full authorization, joint

Federal/State planning will be particularly crucial to program

implementation.  Regions and States should use the Facility

Management Planning process to decide on a facility-specific

basis the timing of various corrective action initiatives, which

authority(ies) should be used to compel the initiative, and which

agency will take responsibility for implementing and overseeing

the action.  Where non-RCRA State authorities are used to compel

corrective action activities, EPA will have ultimate

responsibility for ensuring that the activities mandated are

consistent with and equivalent to the standards imposed by HSWA.
GUIDANCE:   RCRA Reauthorization and Joint Permitting In
            Authorized States, July 1, 1985
V.   REQUEST FOR COMMENT

    EPA invites comments on the general features of this draft

strategy, as well as on the specific issues and policies which



                   -RETYPED FROM THE ORIGINAL-

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                               -29-

are expressed as part of the strategy.  Comments should be

directed to:
                  Matt Hale
                  Chief, Permits Branch (WH-563)
                  Office of Solid Waste
                  U.S. Environmental Protection Agency
                  Washington, D.C.  20460
                   -RETYPED FROM THE ORIGINALr-

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                                                       9481.00-8

MEMORANDUM                                        March 31, 1987

SUBJECT:  Region III Issues on Section 3004(u) Authority

FROM:     Marcia E. Williams, Director
          Office of Solid Waste

TO:       Robert L. Allen, Chief
          Waste Management Branch, Region III

     This memorandum is intended to respond to your memorandum of
February 5, 1987, in which you raised several issues relating to
the extent and nature of the corrective action authority under
RCRA section 3004(u).

     The first issue that you raised dealt with whether or not
property that is owned and used by an owner/operator for waste
disposal, but which is not contiguous to the facility at which
the regulated hazardous waste management units are located, can
be considered to be part of that facility, for purposes of
implementing corrective action under §3004(u).  As explained in
the July 15, 1985 codification rule, the term "facility" is meant
to extend to all contiguous property under the control of the
owner/operator.  Since the property which you describe is
separated from the facility property by land that is not under
the control of the owner or operator, it cannot be considered
"contiguous," and therefore cannot be addressed as part of the
facility under §3004(u).  Since this property is being used for
waste disposal, however, enforcement authorities under RCRA
(e.g., §7003) or other statutes may be used as appropriate to
address environmental problems that may be occurring from that
waste management operation.

     The second issue which you raised involves process
collection sewers,  and whether they can be considered to be solid
waste management units  (SWMUs).   Process collection sewers are
typically designed and operated as a system of piping into which
wastes and waste waters from production processes and other
process-related activities are introduced, and which usually flow
to a wastewater treatment system.  We believe that there may be
sound policy and legal reasons for considering process collection
sewers to be SWMUs.  However, we also recognize that such sewers
do not perfectly fit the RCRA program's traditional concept of a
waste management unit.  Considering the substantial potential
impacts of defining process collection sewers to be a type of
SWMU, it is our intention to resolve this issue through the
regulatory process.  The comprehensive §3004(u) rulemaking, which
is scheduled for proposal later this calendar year, will
specifically address the question of how to treat process
collection sewers under the corrective action program.  We will
therefore be able to base the Agency's final decision on a more
through consideration of the technical, legal and other
implications of the issue.
                   -RETYPED FROM THE ORIGINAL-

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                               -2-                     9481.00-8

     The third issue in your memorandum deals with the question
of the extent to which the §3004(u) authority can be used to
address potential or future releases at a facility.  It has been
the Agency's interpretation that the §3004(u) authority does
extend to addressing releases which occur in the future; i.e.,
after a permit has been issued.  To the extent that releases
occur or become known after a permit is issued, corrective action
for such releases can be compelled, as necessary, under §3004(u).
Further, in some situations, it may be appropriate to use
§3004(u) to require an owner/operator to install certain
monitoring devices at a unit, even though no releases have yet
occurred from the unit.  Such a requirement should be imposed,
however, only where there is reasonably strong evidence
indicating that such releases are likely during the term of the
permit.  The example that you cited in your memorandum involving
buried drums that are deteriorating and thus are likely to
release would seem to be a good example of the type of situation
where a type of "detection monitoring" system could be
appropriate.  We do not envision,  however, using the §3004(u)
authority to require owner/operators to install devices or take
measures to protect against accidental releases  (such as your
example of installing steel posts around a container storage
area).   We do not believe that Congress intended this provision
to be used to protect against all contingencies where releases
could occur.

     Your fourth question had to do with the applicability of
§3004(u) to new facilities that are to be built on property where
solid waste management units are located, and more specifically,
where only a portion of the facility is to be leased to a new
operator.  As explained in the July 15, 1985 codification rule,
the facility is the entire property under the control of the
owner or operator.  Therefore, in issuing a permit for the new
facility, corrective action for any SWMU at the facility—
including the unleased portion—must be addressed.  The
requirement to conduct any necessary corrective action at the
facility, be it on the leased or unleased land, will be
implemented through a permit jointly issued to the owner and
operator.

     If you have any further question on these issues, please
contact Dave Ragan at FTS 982-4740.
                   -RETYPED FROM THE ORIGINAL-

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                                                       uuCY DIRECTIVE NO.
            UNITED STATES ENVIRONMENTAL PROTECTION
                       WASHINGTON, D.C 20460
                                                        OFFICE OF
    Ol inrrr                                     SOLID WASTE AND EMERGENCY RESPONSE
MAR 31 I98T


 MEMORANDUM

 SUBJECT:  Region III Issues on Section 3004(u) Authority

 FROM:      Marcia E. Williams, Director
           Office of Solid Waste

 TO:        Robert L. Allen, Chief
           Waste Management Branch, Region III


      This memorandum is intended to respond to your memorandum of
 February 5,  1987,  in which you raised several issues relating to
 the  extent and nature of the corrective action authority under
 RCRA section 3004(u).

      The first issue that you raised dealt with whether or not
 property that is owned and used by an owner/operator for waste
 disposal, but which is not contiguous to the facility at which the
 regulated hazardous waste management units are located, can be
 considered to be part of that facility, for purposes of implementing
 corrective action under §3004(u).  As explained in the July 15,
 1985 codification rule, the term "facility" is meant to extend to
 all  contiguous property under the control of the owner/operator.
 Since the property which you describe is separated from the facility
 property by land that is not under the control of the owner or
 operator, it cannot be considered "contiguous," and therefore cannot
 be addressed as part of the facility under §3004(u).  Since this
 property is being used for waste disposal, however, enforcement
 authorities under RCRA(e.g. §7003) or other statutes may be used as
 appropriate to address environmental problems that may be occurring
 from that waste management operation.

      The second issue which you raised involves process collection
 sewers,  and whether they can be considered to be solid waste
 management units (SWMUs).  Process collection sewers are typically
 designed and operated as a system of piping into which wastes and
 waste waters from production processes and other process-related
 activities are introduced, and which usually flow to a wastewater
 treatment system.   We believe that there may be sound policy and
 legal reasons for considering process collection sewers to be
 SWMUs.  However, we also recognize that such sewers do not per-
 fectly fit the RCRA program's traditional concept of a waste
 management unit.  Considering the substantial potential impacts

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                               - 2 -


of defining process collection sewers to be a type of SWMU, it is
our  intention  to  resolve  this issue through the regulatory process.
The  comprehensive §3004(u) rulemaking, which is scheduled for pro-
posal  later this  calendar year, will specifically address the
question of how to treat  process collection sewers under the cor-
rective action program.   We will therefore be able to base the
Agency's final decision on a more thorough consideration of the
technical, legal  and other implications of the issue.

     The third issue in your memorandum deals with the question of
the  extent to  which the §3004(u) authority can be used to address
potential or future releases at a facility.  It has been the Agency's
interpretation that the §3004(u) authority does extend to addressing
releases which occur in the future; i.e., after a permit has been
issued.  To the extent that releases occur or become known after a
permit is issued, corrective action for such releases can be
compelled, as  necessary,  under §3004(u).  Further, in some situations,
it may be appropriate to  use §3004(u) to require an owner/operator
to install certain monitoring devices at a unit, even though no
releases have  yet occurred from the unit.  Such a requirement should
be imposed, however, only where there is reasonably strong evidence
indicating that such releases are likely during the term of the
permit.  The example that you cited in your memorandum involving
buried drums that are deteriorating and thus are likely to release
would seem to  be a good example of the type of situation where a
type of "detection monitoring" system could be appropriate.
We do not envision, however, using the §3004(u) authority to
require owner/operators to install devices or take measures to
protect against accidental releases (such as your example of
installing steel posts around a container storage area).  We do not
believe that Congress intended this provision to be used to protect
against all contingencies where releases could occur.

     Your fourth question had to do with the applicability of
§3004(u) to new facilities that are to be built on property where
solid waste management units are located, and more specifically,
where only a portion of the facility is to be leased to a new
operator.  As  explained in the July 15, 1985 codification rule, the
facility is the entire property under the control of the owner or
operator.  Therefore, in  issuing a permit for the new facility,
corrective action for any SWMU at the facility—including the
unleased portion—must be addressed.  The requirement to conduct
any necessary  corrective  action at the facility, be it on the
leased or unleased land,  will be implemented through a permit
jointly issued to the owner and operator.

     If you have any further questions on these issues, please
contact Dave Pagan at FTS 382-4740.

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             ft*»on M - •» 4 WMM «•
                                     . P*.
Permitting Authority Under Section 3004(u) of HSWA         DATE*  fiEB  5  J987
                ' //
              _--
Robert t.' Allen, Chief
Waste Management Branch (3HW30)

Marcia E. Williams, Director
Office of Solid Waste (WH-562)
     In the process of conducting RCRA Facility Assessments and HSWA
Corrective Action Permits, several issues relating to the extent of
EPA authority under Section 3004(u) of HSWA have surfaced.  There
already has been general discussion on some of these issues at both the
Region and at Headquarters.  However, in order to include enforceable
requirements in Corrective Action Permits, definitive national policies
need to be established by EPA Headquarters.  Your response to the
following issues will direct our decisions on the Corrective Action
Permits being prepared by Region III.

        1.  Under what circumstances, if any, can nonadjacent property
            be considered as part of the facility?  The definition of
            "facility" in Part 260 uses the term "all contiguous land".
            The Issue is whether or not this definition can be extended
            to nearby property that is owned by the facility, and is or
            has been used for the management of solid waste generated
            at the facility.  Since Section 3b of the HSWA Preamble
            (50 Fed. Reg. 28712 (July 15, 1985)) further describes
            a "facility" as "... the entire site that is under the
            control of the owner or operator engaged in hazardous
            waste management", the inclusion of nearby nonadjacent
            property may be appropriate.  The particular case under
            consideration involves a landfill area that is owned by
            the facility, but is separated from the facility by a
            strip of land under other ownership.  The landfill has
            been and la currently being used for the disposal of
            solid waste that is generated at the facility.  No other
            use of the landfill property is apparent.  A clear defini-
            tion of "contiguous" would help clarify the confusion.

        2.  Is a process collection sewer a solid waste management
            unit (SWMU)?  Although it was suggested that process
            collection sewers be considered SWMUs during a RCRA
            Facility Assessment (RFA) training course given in
            Region 3, recent debate over this issue has been less
            clear.  Several industrial facilities in the permitting
            process have voiced strong objections to including process
            sewers in the RFA or the Corrective Action Permit.  Unless

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            process sewers are explicitly included in the definition
            of SWMUs, we can expect resistance to investigations of
            the systems and appeals to permits that include corrective
            action for the systems.

        3.  Under what circumstances, if any, can a permit require
            action to prevent potential future releases?  There have
            been discussions that under Section 3004(u) we do not
            have the authority to require facilities to take measures
            to prevent potential future releases.  Rather, our authority
            is limited to investigating and correcting releases that
            have already occurred.

            Two different types of potential future releases are of concern.
            The first case involves accidental releases at unprotected solid
            waste management units.  Steps to prevent such accidental releases
            could be as simple as Installing steel posts around an accumulation
            drum or repairing a secondary containment dike and/or pad around
            a tank, or as extensive as requiring flood-proofing of units
            located within the 100-year flood limit.

            The second case Involves the Investigation of potential future
            releases from prior disposal actions.  For instance, buried
            drums that are currently in fair structural condition may
            not be releasing stored material at the time of the RCRA
            Facility Investigation (RFI).  These drums, however, could
            deteriorate over time and release their contents in the
            future.  In such a case, short-term monitoring for releases
            to the ground water would not show potential future releases.
            A more direct method of investigation would be needed to
            assess the potential for future releases, such as uncovering
            and inspecting a sampling of drums.  As an alternative,
            long-term ground-water "detection" monitoring could be required
            in cases where adequate sampling would be Impractical.

        4.  What corrective action requirements apply to a new facility
            built on property containing closed hazardous waste management
            units?  The particular site In question was used for the treat-
            ment and disposal of hazardous waste.  It was closed in accordance
            with Part 265 standards In 1982; however, ground-water monitoring
            and cap maintenance have been required by the State regulatory
            agency.  The proposed new facility plans to lease a portion of the
            property and  construct a commercial storage and treatment facility.
            Could corrective action be required for the unleased portion of the
            facility by either the lessee or the property owner if the new
            facility is permitted?

     A timely response to these questions would be appreciated.  If you need
additional details on these issues, please call me at 597-0980 or John Humphries
at 597-0320.

 cc:  RCRA Branch Chiefs, Region  I, II, and  IV-X

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                                                       9901.3
MEMORANDUM                                        May 5, 1987

SUBJECT:  Guidance for Public Involvement In RCRA Section 3008(h)
          Actions

FROM:     J. Winston Porter
          Assistant Administrator

TO:       ADDRESSEES


     EPA is committed to providing meaningful opportunity to the
public to be informed of and participate in decisions that affect
them and their communities.  This memorandum provides guidance on
public involvement actions taken under Section 3008(h) of the
Resource Conservation and Recovery Act (RCRA).

     It is highly likely that corrective action activities, which
differ from normal operations at a facility, will generate public
concern.  The nature of the problem and the visibility of
corrective action activities are two reasons for EPA to involve
the public during the corrective action process.  If the public is
informed early, and allowed to be involved in the decisionmaking,
it is less likely that there will be opposition to the decisions
that are made.  Also, valuable information can be obtained from
concerned citizens who may know the site and facility's history.

     Section 3008(h), the interim status corrective action
authority, allows EPA to take enforcement action to require
clean-up at a RCRA interim status facility when the Agency has
information that there has been a release of hazardous waste or
hazardous constituents.  We anticipate that the cleanup program
under Section 3008(h) will frequently be implemented with two
orders.  The first order would require the owner or operator to
conduct a study to characterize the nature and extent of
contamination, and to develop a remedy or alternative remedies as
needed.  Once a remedy has been selected, a second order would
require design, construction, and implementation of that remedy.


MINIMUM PUBLIC INVOLVEMENT REQUIREMENTS

     Although there will be many situations where such additional
public involvement will be necessary, I would like to emphasize
that there are minimum requirements for all 3008(h) orders,
whether on consent or unilateral.  Following the respondent's
submission of its report on the RCRA Facility Investigation and
Corrective Measures Study, the Agency will develop a proposed plan
for corrective measures, or make the decision that no corrective
measures are necessary.  The Agency shall then  (1) publish a
notice and brief analysis of the proposed plan for corrective
                    -RETYPED FROM THE  ORIGINAL-

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                               - 2 -                   9901.3

measures, or  of  its decision that no corrective measures are
necessary, and make such  information available to the public, and
 (2) provide a reasonable  opportunity (ordinarily 30-45 days) for
submission of written comments  and, if the Regional Administrator
deems  it appropriate, a public  meeting on the plan.  If the
Regional Administrator denies a request for a public meeting, he
shall  explain his decision  in writing.

     The Agency  shall, as necessary, modify its proposed plan for
corrective measures on the  basis of written and oral comments
received.  Prior to issuance of the initial order for corrective
measures the  Agency shall prepare a responsiveness summary
indicating whether and why  it has accepted or rejected any
significant comments.  Following finalization of the order for
corrective measures but before  implementation of corrective
measures, notice of the final plan for corrective measures shall
be published  and the plan shall be made available to the public.

     Where, in the interest of  protecting human health and the
environment,  it  is important that interim corrective measures be
implemented quickly, the  public will have no advance opportunity
for written or oral comments.   Here, EPA will simply provide
substantially contemporaneous notice to the public of interim
measures being implemented.

EXPANDED PUBLIC  INVOLVEMENT MAY BE NECESSARY

     The degree  of public involvement in a corrective action
program will  be  determined  by the amount of public interest in the
site,  the actual or potential hazard to human health or the
environment and  the type  of clean-up action that will be
undertaken.   In  general,  if the Agency has identified releases and
determined that  they require investigation, the public should be
informed that studies are underway.  The Region may also want to
hold additional  public meetings if there is a lot of interest in
the facility.  The public should be made aware of significant
technical issues at the site.  There will be occasions where
affected citizens can make  valuable contributions to remedy
selection through participation in technical discussions with
owners or operators and government representatives.

     We strongly urge the use of a public involvement plan for
sites  in which there is likely to be significant public interest.
At appropriate points during the process,  fact sheets can be
developed that should both  inform the public and allay fears that
could  surface if no substantive knowledge were made available.   A
public involvement plan tailored to each site can also be very
helpful.  You may refer to  Community Relations in Superfund: A
Handbook. March  1986,  and Public Involvement Guidance in the
Permitting Program,  March 1986,  Directive 9500.01,  for further
information on public involvement techniques and process.   The
regional RCRA public involvement coordinator can also offer
valuable information and  assistance.

     There are limitations  on the release or discussion of certain
                   -RETYPED  FROM  THE  ORIGINAL-

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                               -  3  -                    9901.3

information during the §3008(h) enforcement process.  This is
especially true during negotiations.   The confidentiality of
statements made during the course of negotiations must be
maintained.  Our goal during negotiations is to encourage frank
discussion of all issues, and try to resolve differences.  Public
disclosure of this information would jeopardize the success of the
negotiations.  Disclosures of strengths and weaknesses of a case,
information that is privileged and protected under the law,
enforcement strategy and timing would also jeopardize the
government's enforcement position.  If a case in referred to the
Department of Justice to initiate litigation, further constraints
may be placed upon public involvement.  In this situation, the
scope of public involvement should be discussed with the lead DOJ
attorney.

     Coordination among EPA and/or State personnel is very
important.  At some sites, RCRA Permits and Enforcement Personnel
and Superfund will be involved, and a coordinated approach will
serve the Agency and the public best.  In order to establish a
network whereby information can be exchanged, I would like each
region to appoint a coordinator for public involvement in §3008(h)
orders.  This person may be from either your public involvement or
enforcement staffs.  Please call Jackie Tenusak of my staff at FTS
475-8729 with the name of your contact.

     Thank you for your attention to this matter.  Please do not
hesitate to call me, or any of our public involvement staff, if
you have questions.
                   -RETYPED  FROM THE ORIGINAL-

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                               -  4  -                    9901.3
ADDRESSEES

Regional Hazardous Waste Management Division Directors,
Regions I-X

RCRA Enforcement Section Chiefs
Regions I-X

RCRA Enforcement Branch Chiefs
Regions I-X

Public Involvement/Community Relations Coordinators
Regions I-X

cc:  Pamela Garrow, OWPE
     Olga Corey, OWPE
     Vanessa Musgrave, OSW
     Melissa Friedland, OERR
                    -RETYPED FROM THE ORIGINAL-

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   !        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

   f                    WASHINGTON, D.C. 20460                9Q^P  7
                                                          ' / ^ O ^ J



                                JUN 26 1987


                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM


SUBJECT:  Criteria  for  Elimination  of Headquarters' Concurrence
          on  SelectedxRC^A ,§3008(h) Orders
FROM:     J.^Winston Porter
          Assistant Administrator

TO:       Regional Administrators
          Regions I - X

     Regional Administrators may issue Administrative Orders
(both consent and unilateral) under RCRA  §3008(h) pursuant to
Delegation 8-32, dated March 6, 1986, "Administrative Enforcement
Corrective Action Authority:  Issuance of Orders and Signing
of Corrective Consent Agreements".  However, under the current
delegation for  §3008(h), Regional Administrators must obtain
the advance concurrence of the Assistant  Administrator for
Solid Waste and Emergency Response [which has been redelegated
to the Director, Office of Waste Programs Enforcement (OWPE)]
before exercising the authority to issue  §3008(h) orders.

     In order to complete full delegation, we have developed
criteria for eliminating the Headquarters' concurrence requirement-
for individual  Regions.  In developing the criteria, we  incorporated
the key elements outlined in the §3008(h) model order, the
Corrective Action Plan and the Interim Measures Guidance document.
We have also reviewed past criteria used  to determine delegation
of the authority for RCRA §3008(a), consulted with the Office
of Enforcement  and Compliance Monitoring, and considered Regional
comment on draft criteria.

     For waiver of Headquarters' concurrence on consent  orders,
the Region Bust have issued four consent  orders of acceptable
technical and legal quality.  Waiver of Headquarters' concurrence
for unilateral  orders will require the issuance of four  quality
orders (consent plus unilateral) of which at least two must
have been unilaterals.  The specific quality criteria are
attached.

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                                                       9940,3


     Once concurrence has been waived, Headquarters will still
 maintain a 21 day consultation role for the §3008(h) orders
 which involve cases of national significance (high visibility or
 precedent setting cases), federal facilities,  commercial land
 disposal facilities, commercial incinerators,  and the corrective
 measures decision.  We are retaining this consultation role on
 the federal facilities to ensure national consistency in light
 of recent congressional and agency concerns and on the commercials
 to assure consistent implementation of the off-site disposal
 requirements of §121 of SARA.

     In order to ensure consistency with Superfund's selection
 of remedy decisions, I would also like to maintain the consulta-
 tion role on all corrective measures decisions regardless of
 whether the decision comes at some point during the existing
 order requiring the RFI/CMS or is embodied in a separate, new
 order.  Please submit these decisions to the RCRA Enforcement
 Division Director for review prior to notifying the owner/operator
 of the final decision.  We will be issuing guidance on the
 selection of corrective measures in the future.

     When the 21 day consultation is in effect, the Region should
 submit the order or corrective measures decision to Headquarters
 for review.  If Headquarters does not raise issues during the
 consultation period, then agreement can be assumed and the Region
 may issue the order or decision.  Should there be a disagree-
 ment and Headquarters and Regional staff cannot come to resolu-
 tion,  then I will discuss the outstanding issues directly with
 you.

     I anticipate waiving Headquarters' consultation for the
 categories mentioned above as further program experience is
 gained.

Attachment

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                                                        9940<3
        CRITERIA FOR ELIMINATING HQ' s CONCURRENCE ON RCRA
                        §3008(h) ORDERS
The factors to be considered in making the determination to
eliminate HQ's concurrence on Section 3008(h) orders
will be related to quantity and quality of the orders submitted
to Headquarters for concurrence.  Regarding quantity, Regions
must develop, obtain Headquarter's concurrence, and issue four
(4) quality consent orders.  Waiver of Headquarter's concurrence
on unilaterals will require the preparation and issuance of
four quality orders (consent plus unilateral) of which at
least two must be unilaterals.   Regarding quality, Headquarters
will consider the underlying technical development,  findings
of fact, the general procedural and legal provisions and the
relief being sought (particularly the scopes of work).  The
Corrective Action Plan (CAP), the §3008(h) model order and the
Interim Measures Guidance provide the points of reference for
these criteria.

Specifically, as shown in the model order, the findings of fact
should clearly define the release and identify the potential
threat to human health or the environment.  Also, as shown in
the model order/ the general procedural and legal provisions
should: provide for record keeping and reporting; identify
points at which EPA will review and approve/disapprove plans,
activities, etc.; specify conflict resolution procedures for
plan approval or modification;  provide for EPA's access to the
facility while activity is being conducted; specify penalties
for failure to comply with the §3008(h) order; and address
public involvement.

As discussed in the Corrective Action Plan, the scopes of work
for the relief should: ensure that any interim measures identify
all tasks necessary to mitigate any immediate threat to human
health and the environment; set forth clearly and in detail
the scope and elements of the RCRA Facility Investigation  (RFI)
work plans, site investigations, data (including sampling)
collection and analysis, reports, etc.; ensure that  the
Corrective Measures Study (CMS) provides for an  initial screening
and evaluation of alternative(s), draft CMS, etc; and ensure that
Corrective Measures Implementation (CMI) provides for the
implementation of the selected corrective actions in sufficient
detail.

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                                             OSWER Directive No. 9902.5
                            *  CONFIDENTIAL  *
                             UNITED STATES


                    ENVIRONMENTAL PROTECTION AGENCY


                            REGION [NUMBER]
IN THE MATTER OF:

[Name of Owner/Operator]

[Name, Address and
EPA I.D. # of Facility],

RESPONDENT.
ADMINISTRATIVE ORDER ON CONSENT

U.S. EPA Docket No.
     [Number]
                                      Proceeding under Section
                                      3008(h) of the Resource
                                      Conservation and Recovery
                                      Act, as amended, 42 U.S.C.
                                      §6928(h).
[All Orders should include provisions dealing with Jurisdiction,
Findings of Fact, Conclusions of Law and Determinations, and the
requirements of the Order itself.  It is a utmost importance that you
develop an administrative record that will support the facts alleged
in the Order.  Each of these provisions will vary from Order to Order
as discussed below.]

                            I.   JURISDICTION

This Administrative Order on Consent ("Consent Order") is issued
pursuant to the authority vested in the Administrator of the United
States Environmental Protection Agency  ("EPA") by Section 3008(h) of
the Solid Waste Disposal Act, commonly referred to as the Resource
Conservation and Recovery Act of 1976 ("RCRA"), as amended by the
Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §6928(h).  The
authority vested in the Administrator has been delegated to the
Regional Administrators by EPA Delegation Nos. 8-31 and 8-32 dated
April 16, 1985, and has been further delegated by the Regional
Administrator for Region  [Number} to [Title].
                                              Retyped From The Original

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                                                                 9902.5
                                  -2-


     This  Consent  Order  is  issued to [corporate/individual name]
["Respondent"], the owner/operator of [Name and address of Facility]
["Facility"].  Respondent consents to and agrees not to contest EPA's
jurisdiction to issue this Consent Order and to enforce its terms.
Further, Respondent will not contest EPA's jurisdiction to: compel
compliance with this Order in any subsequent enforcement proceedings,
either administrative or judicial; require Respondent's full or
interim compliance with the terms of this Consent Order; or impose
sanctions for violations of this Consent Order.

                          II.   PARTIES  BOUND

     1,  This Consent Order shall apply to and be binding upon
Respondent and its officers, directors,  employees, agents, successors
and assigns, and upon all persons, independent contractors,
contractors, and consultants acting under or for Respondent.

     2.  No change in ownership or corporate or partnership status
relating to the Facility will in any way alter Respondent's
responsibility under this Consent Order.

     3.  Respondent shall provide a copy of this Consent Order to all
contractors, subcontractors, laboratories, and consultants retained to
conduct or monitor any portion of the work performed pursuant to this
Consent Order within one (1) week of the effective date of this
Consent Order or date of such retention, and shall condition all such
contracts on compliance with the terms of this Consent Order.

     4.  Respondent shall give notice of this Consent Order to any
successor in interest prior to transfer of ownership or operation of
the Facility and shall notify EPA within  [number]  days prior to such
transfer.

                       III.   STATEMENT OF  PURPOSE


      [NOTE:  This  section should clearly state  the objectives  of  this
     Consent Order.]

     In entering  into  this  Consent  Order,  the  mutual  objectives  of  EPA
and [Corporate/individual name] are: [Describe objective of Order,
e.g.,  (1) to perform interim Measures (IM) at  ["Facility"] to relieve
threats to human health or the environment, (2) to perform a RCRA
Facility Investigation (RFI) to determine fully the nature and extent
of any release of hazardous waste and hazardous constituents at or
from the hazardous waste management facility in [location]; (3) to
perform a Corrective Measure Study  (CMS) to identify and evaluate
alternatives for the corrective action necessary to prevent or
mitigate any migration or releases of hazardous wastes or hazardous
constituents at or from the Facility; and  (4)  to implement the
corrective measure or measures selected by EPA at  ["Facility"]].
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                                                                 9902.5
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                         IV.  FINDINGS OF FACT

      1.  Respondent is a company doing business in the State of
 [State] and is a person as defined in section 1004(15) of RCRA, 42
U.S.C. §6903(15), and	  [cite appropriate State statute
and/or regulation if the State has been authorized pursuant to RCRA
Section 3006].

      2.  Respondent is [a generator and] an owner and/or operator of a
hazardous waste management facility located at  [location].  Respondent
engaged in [treatment, storage, or disposal] of hazardous waste at the
Facility subject to interim status requirements [40 CFR Part 265]
 [and, if the  State has been authorized pursuant to RCRA Section 3006,
as those terms are defined in appropriate state regulations].
 [Specify type of operation--landfill, incinerator etc.].

      3.  Respondent owned and/or operated its Facility as a hazardous
waste management facility on and after November 19, 1980 (or the date
of any statutory or regulatory change rendering the facility subject
to the requirement to obtain a RCRA permit), the applicable date which
renders facilities subject to interim status requirements or the
requirement to have a permit under §§3004 and 3005 of RCRA, 42 U.S.C.
§§6924, 6925.

      4.  Pursuant to Section 3010 of RCRA, 42 U.S.C. §6930, Respondent
notified EPA  of its hazardous waste activity.  In its notification
dated [date], Respondent identified itself as a [generator of
hazardous waste and/or an owner/operator of a treatment, storage,
and/or disposal facility for hazardous waste].

      5.  In its [Name of Facility submission/notification or Part A
permit application] dated [date], Respondent identified itself as
handling the  following hazardous wastes at the Facility:

      [NOTE:   The Order should  identify  the  hazardous waste handled at
      the  facility, as well  as  the hazardous waste  management units and
      solid waste management units.   This  information  should help to
      establish a connection between  the Respondent's  activity  and the
      release  of hazardous waste/constituents.   Where possible,  specify
      waste codes that are contributing  directly to the  releases
      documented in the Findings  of Fact.   Examples of where this
      information might be obtained are: a Part  A,  Part  B,  Exposure
      Information Report, Inspection  Report,  RFA, etc.]

Example

      (a)    Hazardous wastes exhibiting the characteristics of
ignitability, corrosivity,  reactivity or EP toxicity identified at 40
CFR §261.20-§261.24;  (D001-D017)

      (b)    Hazardous wastes from non-specific sources identified at
40 CFR §261.31;  (F001-F028)


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      (c)    Hazardous wastes from specific sources identified at 40
CFR §261.32; (K001-K106)

      (d)    Commercial chemical products, manufacturing chemical
intermediates,  off-specification commercial chemical products, or
manufacturing chemical intermediates identified at 40 CFR §261.33(e);
(P001-P123); and

      (e)    Commercial chemical products, manufacturing chemical
intermediates,  off-specification commercial chemical products, or
manufacturing chemical intermediates identified at 40 CFR §261.33(f)
(U001.U249).

      6.  Respondent's Facility includes:

         [NOTE:  Describe location and units regulated under RCRA
         Subtitle C and other Solid Waste Management Units generally.
         Note lack of liners on land disposal units.  Attach a copy of
         a facility map from Permit application if available.  Focus
         on and provide more detail on the unit(s) where a release has
         occurred and which are the specific subjects of this Consent
         Order.  Include material relating to:

            •  Size of facility
               Facility layout - legible map/schematic may be
               appropriate with ground-water monitoring wells
               indicated
               Number and type of units and operating status
               Specific current and past uses of different units
               Specific wastes received or handled at specific units
               Geological conditions
               Ground-water flow conditions.]

      7.  Documentation of Release

         [NOTE:  After having described the facility, it is necessary
         to establish and document that a release of hazardous wastes
         or hazardous constituents into the environment has occurred.
         In addition, there needs to be a discussion that supports the
         premise of the Order that the response as described and
         required in Section IV below, is necessary to protect human
         health or the environment.]

      Sources of  release information can be:

         [NOTE:  Be sure to cite your references properly]

            •  Results of an inspection  (RFA, CME, CEI);
            •  Company submittal of a ground-water assessment report;
            •  Other data/information submitted by Respondent  (e.g.,
               Part B submittal, exposure information report) or
               developed by EPA  (e.g., sampling analyses);


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                                                                 9902.5
                                  -5-
               Knowledge of disposal into units not designed,
               constructed or operated to prevent releases;  and
               Data collected by company pursuant to prior EPA or
               State enforcement action.
Example
     Ground-water monitoring wells have been installed at Respondent's
Facility.  Respondent has identified wells [number/identification
code] as being up-gradient from [describe disposal unit/s].
Respondent has identified wells [number/identification code]  as being
down-gradient from [describe disposal unit].   Samples of ground water
from these wells have been analyzed to determine contamination of
ground water.  Samples were collected by EPA personnel from ground-
water monitoring wells, #8, #16, #24, #32.  The results were as
follows:

      Well #        Sampling Date       Organics       Coneentration

         8           Aug. 14, 1985         Phenol          4,000 ppm

        16          Aug. 17, 1985         Phenol          2,000 ppm

        24          Sept. 9, 1985         Phenol          3,200 ppm

        32          Sept. 9, 1985         Phenol .         1,000 ppm

      [NOTE:   The chart should  be  concise,  although multiple  charts can
     be used if sufficient  information  is available.  Only applicable
     data  needed to  support the Order should be included, some of
     which could be  an attachment to the  Order.   Information such  as
     chain of custody sheets,  log analysis reports, QA/QC reports
     should not be attached to the Order  or referenced.  However,
     these forms should be identified and maintained  in the
     administrative  record,

     Data  other than ground-water data, e.g.,  soil and surface water
     should be used  if available.  Such data should provide
     information comparable to that  provided in the above table, i.e.,
     medium sampled,  location  and dates of sampling,  the substances
     found,  and their concentrations.   Further, Respondent's results
     can be used in  lieu of or in addition to  EPA's  if they  support
     the Agency's case and are deemed reliable.

     Circumstantial  evidence may  also be  used  to  support the finding
     that  there is a release.   Such  evidence includes historical
     treatment, storage or disposal  practices, the nature and design
     of storage or disposal areas, and/or company admissions.]
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                                                                 9902.5
                                  -6-


      8.  Hazardous wastes and/or hazardous constituents may further
migrate from the Facility into the environment in the following
pathways:

      [NOTE:  Often,  little hydrogeologic  data  is  available prior  to the
      RFI/CMS study.   If this  information is available,  you may want to
      link the release of hazardous wastes or  hazardous  constituents to
      human or environmental concerns.   It is  important  to define
      migration pathways, noting  and  distinguishing  between actual  and
      potential receptors - human, wildlife, vegetation,  etc.]

      9.  The hazardous wastes and/or hazardous constituents identified
in paragraph seven above (may) pose(s) a threat to human health and
the environment.  [describe carcinogenic/toxic characteristics].

      [NOTE:   The Order is further strengthened by,  and  should  include,
      a  description  of the toxic, carcinogenic, and  hazardous
      properties of  the contaminants.   The Order  should  include health
      effects documentation, if available.  In particular,  if the Order
      requires extensive activities  (e.g.,  removal of materials or
      closure of units),  then  the documentation of health effects and
      migration pathways must  support the more extensive activity
      required.  An  endangerment  assessment is not needed to support
      the  issuance of  this Order].

      10.    Respondent's Facility is located  [Describe residences,
aquifers, domestic water supplies,  river/lake used for recreational
purposes, wells [including number and type of use],  fragile
environment, etc.  and their distance and location with respect to the
facility].

          [NOTE:  Health and environmental concerns are very broad and
         include aquifers that may be used in the future.]

      11.    Releases from Respondent's Facility  (are likely to/have)
migrate(d) toward [Describe present and future potential and actual
receptors].

               V.   CONCLUSIONS OF LAW AND DETERMINATIONS

      Based on the Findings of Fact set out above, and after
consideration of the administrative record, the Regional Administrator
[or Division Director, if delegated]  EPA Region  [Number], had made the
following conclusions of law and determinations:

      1.  Respondent is a "person" within the meaning of Section
1004(15) of RCRA,  42 U.S.C.  §6903(15);

      2.  Respondent is/was  the owner or operator of a facility that
has operated or is operating subject to §3005(e)  of RCRA, 42 U.S.C.
§6925(e).
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                                                                 9902.5
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      3.  Certain wastes and constituents thereof found at the Facility
are hazardous wastes or hazardous constituents thereof as defined by
§1004(5) of RCRA, 42 U.S.C. §6903(5).  These are also hazardous wastes
or hazardous constituents within the meaning of §3001 of RCRA, 42
U.S.C. §6921 and 40 C.F.R. Part 261.

      4.  There is or has been a release of hazardous wastes and/or
hazardous constituents into the environment from Respondent's
Facility.

    .  5.  The actions required by this Consent Order are necessary to
protect human health or the environment.

                       VI.  WORK TO BE PERFORMED

      [NOTE:   This  is  an  example which should be modified  as
      appropriate depending upon the situation  at  the  facility.   The
      suggested method for organizing and  developing the  "Work To Be
      Performed"  section  of the  Order is to provide a  scope of work  or
      a series of scopes  of work describing the requirements  for  the
      Interim Measures, RCRA  Facility Investigation, Corrective
      Measures Study and/or Corrective Measures Implementation.   These
      scope(s)  of work should be referenced in  the Consent Order  and
      appended to same.   If sufficient resources and information  about
      the facility  exists,  an alternative  and preferable approach is to
      negotiate detailed,  facility-specific workplan(s) with  the
      respondent  and to attach the workplan(s)  rather  than the scope(s)
      of  work to  the Order.

         See the RCRA Corrective Action Interim Measures,  Interim
      Final,  OSWER  Directive  Number  9902.4, June 10, 1987  and RCRA
      Corrective  Action Plan  (CAP),  Interim Final,  OSWER Directive
      Number  9902.3, November 14, 1986 for detailed guidance  and  model
      language for  developing these  scope(s) of work.

         It is important to clearly describe what the Respondent must
      do;  have a  detailed compliance schedule  (specify calendar or
      working days)  with  milestones  so that there  are  no unnecessary
      disputes.]

      Pursuant to §3008(h)  of RCRA,  42 U.S.C. §6928(h), Respondent
agrees and is hereby ordered to perform the following acts in the
manner and by the dates specified herein.  All work undertaken pursuant
to this Consent Order shall be performed in a manner consistent with,
at a minimum:  the attached Scope[s] of Work;  the  [EPA-approved
Interim Measures Workplan, RCRA Facility Investigation Workplan,
Corrective Measures Implementation Program Plan,  and all other Work-
plans]; RCRA and its implementing regulations;  and applicable EPA
guidance documents.  Relevant EPA guidance should be identified by
name, number and date in the Consent Order.  Relevant guidance may
include, but is not limited to,  the  "RCRA Facility Investigation  (RFI)
Guidance" (EPA 530/SW-87-001),  "RCRA Ground-water Monitoring Technical


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                                                                 9902.5
Enforcement Guidance Document" (OSWER Directive 9950.1, September
1986), "Test Methods for Evaluating Solid Waste" (SW-846, November
1986) and "Construction Quality Assurance for Hazardous Waste Land
Disposal Facilities" (EPA 530/SW-85-031, July 1986).]

                         INTERIM MEASURES (IM)

      [NOTE:  There  are  three  basic  strategies that can be used to
      develop Interim Measures provisions  for the Consent Order:
      a.  compel the Respondent to immediately implement specific
         actions (use paragraph 1);  or
      b.  require the submission of plan(s) to be implemented upon EPA
         approval or modification (use paragraph 2,  3  and 4); and
      c.  require the Respondent to notify EPA when any situation
         occurs which may require Interim Measures and reserve EPA's
         rights to compel the implementation of Interim Measures (use
         paragraphs 5,  3 and 4).
      One  or more of the strategies  will be  appropriate at a  facility
      depending on the immediacy  and magnitude of the  threat  to human
      health and the environment,  the  nature of  the appropriate
      corrective action,  the implication of  deferring  the corrective
      action, and the ability  of  the Respondent  to perform the work.

      1.  The Respondent shall perform the Interim Measures in a manner
consistent with the IM Scope of Work and schedule contained in
Attachment [number]  to this Consent Order, which is incorporated by.
reference as if fully set forth herein.  The Interim Measures to be
undertaken by the Respondent at the facility shall include:   [e.g. As
of the effective date of this Consent Order the Respondent shall cease
to place any material in surface impoundment Z.   The Respondent shall
close surface impoundment Z in accordance with the schedules and
provisions contained in the EPA approved closure plan  for surface
impoundment Z.]  The Interim Measures shall be implemented in
accordance with, at a minimum, RCRA, its implementing  regulations, and
relevant EPA guidance documents.   Relevant guidance may include, but
is not limited to:   [Relevant EPA guidance should be identified by
name, number and date in the Order].

      2.  Within [number] days of the effective date of this Consent
Order, Respondent shall submit to EPA an IM Workplan for the
implementation of Interim Measures  ["IM Workplan"].  The IM Workplan
is subject to approval by EPA and shall be performed in a manner
consistent with the IM Scope of Work in Attachment [number]  to this
Consent Order,  which is incorporated as if fully set forth herein.
The IM Workplan shall be developed  in accordance with, at a minimum,
RCRA, its implementing regulations,  and relevant EPA guidance
documents.  Relevant guidance may include, but is not  limited to:
[Relevant EPA guidance should be identified by name,  number and date
in the Order].

      3.  The IM Workplan shall ensure that the Interim Measures are
designed to mitigate a current or potential threat(s)   to human health


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                                                                 9902.5
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or the environment and are consistent with and integrated into any
long term solution at the facility.  The IM Workplan shall document
the procedures to be used by the Respondent for the implementation of
Interim Measures and shall include, but not be limited to: the
objectives of the Interim Measures; design, construction, operation,
monitoring and maintenance requirements; and detailed schedules.

      [NOTE:   The model  IM Scopes of  Work provided  as appendices  to  the
      RCRA Corrective Action  Interim  Measures guidance  should be
      modified based on  facility-specific information so  as to  foster
      timely  action by the Respondent.]

      4.  In accordance with Attachment  [number] herein, the IM
Workplan shall include:  Interim Measures Objectives; a Health and
Safety Plan;  a Public Involvement Plan  [Note:   this is referenced as
the "Community Relations Plan" in the RCRA Corrective Action Interim
Measures guidance];  a Data Collection Quality Assurance Plan;  a Data
Management Plan; Design Plans and Specifications; a Operation and
Maintenance Plan;  a Project Schedule; an Interim Measure Construction
Quality Assurance Plan;  and Reporting Requirements.

      5.  In the event the Respondent identifies a current or potential
threat to human health or the environment,  the Respondent shall
immediately notify EPA orally and in writing within [number]  days,
summarizing the immediacy and magnitude of the potential threat to
human health or the environment.  Within [number] days of notifying
EPA, the Respondent shall submit to EPA an IM Workplan for approval
that identifies Interim Measures which mitigate this threat and are
consistent With and integrated into any long term solution at the
Facility.

                   RCRA FACILITY INVESTIGATION (RFI)

      [NOTE:   The model  RFI Scope of  Work provided  in the RCRA
      Corrective Action  Plan  should be  modified based on  facility
      specific-conditions  so  as  to  foster timely, concise and accurate
      submissions by the Respondent.]

      6.  Within [number] days of the effective date of this Consent
Order, Respondent shall submit to EPA an RFI Workplan for a RCRA
Facility Investigation  ["RFI Workplan"].  The RFI workplan is subject
to approval by EPA and shall be performed in a manner consistent with
the RFI Scope of Work contained in Attachment  [number].  Attachment
[number] to this Consent Order is incorporated by reference as if
fully set forth herein.   The RFI Workplan shall be developed in
accordance with, at a minimum, RCRA, its implementing regulations, and
relevant EPA guidance documents.  Relevant EPA guidance may include,
but is not limited to:  [Relevant guidance should be identified by
name, date and number in the Order.]

      7.  The RFI Workplan shall be designed to define the presence,
magnitude,  extent,  direction, and rate  of movement of any hazardous


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                                  -10-


wastes or hazardous constituents within and beyond the Facility
boundary.  The RFI Workplan  shall document the procedures the
Respondent shall use  to conduct those  investivations necessary to:  (1)
characterize the potential pathways of contaminant migration;  (2)
characterize the source(s) of contamination;  (3) define the degree  and
extent of contamination;  (4) identify  actual  or potential receptors;
and  (5) support the development of alternatives from which a
corrective measure will be selected by EPA.   A specific schedule for
implementation of all activities shall be included in the RFI
Workplan.

      8.  In accordance with  the provisions of Attachment  [number]
herein, the RFI Workplan  shall include:  (1) a Project Management Plan;
(2) a Data Collection Quality Assurance Plan;  (3) a Data Management
Plan;  (4) a Health and Safety Plan; and  (5) a Public Involvement Plan
[Note: This is referenced as the "Community Relations Plan" in the
RCRA Corrective Action Plan].

                    CORRECTIVE MEASURES STUDY (CMS)

      .9.  Upon completion  of  the RCRA Facility Investigation, the
Respondent shall conduct  a Corrective Measure Study in accordance with
the CMS Scope of Work in  Attachment [number].  Attachment [number]  to
this Consent Order is incorporated by reference as if fully set forth
herein.

      [NOTE:   In  certain situations,  it may  be appropriate to  require
      the Respondent  to  submit  a  CMS Workplan  prior to performing  the
      Corrective  Measure Study, to  assure  that the  work will progress
      in a  timely,  efficient  manner.   This provision was not  included
      in the RCRA Corrective  Action Plan.]

               CORRECTIVE MEASURES IMPLEMENTATION  (CMI)

      [NOTE:   If  CMI  is  covered in  this Consent Order, you should  use
      the following paragraphs, numbers 10 and 11.  If, however,
      corrective  measures  implementation  is  not covered in this Consent
      Order, you  should  include this as a  separate  section and use  the
      following language:   Upon EPA's  selection of  the corrective
      measure, if Respondent  has  complied  with the  terms.of this
      Consent  Order,  EPA shall provide a  [number] day period  for
      negotiation of  an  administrative order on consent  (or a  judicial
      consent  decree)  for  implementation of  the selected corrective
      measure.]

      10.    Within [number] days of Respondent's receipt of
notification of EPA's selection of the corrective measure, Respondent
shall submit to EPA a Corrective Measures Implementation Program Plan
["CMI Program Plan"].  The CMI Program Plan is subject to approval by
EPA and shall be performed in a manner consistent with the CMI Scope
of Work contained in Attachment [number].  Attachment [number] to this
Consent Order is incorporated by reference as if fully set forth


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herein.  The CMI Program Plan shall be developed in accordance with,
at a minimum, RCRA, its implementing  regulations, and relevant EPA
guidance documents.  Relevant EPA guidance may include, but is not
limited to:   [Relevant guidance should be identified by name, date and
number in the Order].

      11.    The CMI Program Plan shall be designed to facilitate the
design, construction, operation, maintenance and monitoring of
corrective measure at the Facility.   In accordance with Attachment
[number] herein, the CMI Program Plan shall also include:   (1) a
Program Management Plan; (2) a Community Relations Plan;  (3) Design
Plans and Specifications;  (4) an Operation and Maintenance Plan;  (5) a
Cost Estimate;  (6) a Project Schedule;  (7) a Health and Safety Plan;
and  (8) a Construction Quality Assurance Plan.

              SUBMISSIONS/AGENCY APPROVAL/ADDITIONAL WORK

      [NOTE:   Paragraphs  12  through 18 cover  the  submission to and
      approval by  the Agency of  workplans  and preliminary  and final
      reports,  submission of progress  reports,  standards the Respondent
      must meet in the performance  of  work, and the Agency's right to
      approve/disapprove of  work that  is performed.   It  is important to
      clearly  describe what  the  Respondent must do; have a detailed
      compliance schedule with milestones  so  that  there  are no
      unnecessary  disputes.]

      12.    Within [number] days of approval/disapproval or
modification by EPA of any  [Workplan(s) or Program] Plan,  Respondent
shall commence work and implement the tasks required by the
Workplan(s)  or Program Plan submitted pursuant to the scope(s) of Work
contained in Attachment [number], in  accordance with the standards,
specifications and schedule stated in the Workplan(s) or Program Plan
as approved or modified by EPA.

      13.    Beginning with the month  following the effective date of
this Consent Order, Respondent shall  provide EPA with progress reports
for  [specify frequency,  i.e., each month on the tenth day of the
following month].  The progress reports shall conform to requirements
in relevant Scope(s)  of Work contained in Attachment [Number].  [Note:
Model language for this provision is  included in the RCRA Corrective
Action Plan.]

      14.    Respondent shall provide  draft and final [insert, as
appropriate: Interim Measures, RCRA Facility Investigation, Corrective
Measure Study and Corrective Measure  Implementation]  reports to EPA in
accordance with the schedule contained in this Consent Order and its
attachments.

      15.    EPA will review all draft or final reports,  and notify
Respondent in writing of EPA's approval/disapproval or modification of
the report or any part thereof.   In the event of any disapproval,  EPA
shall specify in writing the deficiencies and reasons for such


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disapproval.  Within [number] days of the receipt of EPA's disapproval
of any report, Respondent shall amend and submit a revised report.
EPA approved reports shall be deemed incorporated into and part of
this Consent Order.

      16.    [Number] copies of all documents, including Workplan(s),
Program Plan(s), preliminary and final reports,  progress reports, and
other correspondence to be submitted pursuant to this Consent Order
shall be hand delivered or sent by certified mail, return receipt
requested, to the Project Coordinator designated pursuant to Section
[Number] of this Consent Order.

      17.    All work performed pursuant to this Consent Order shall be
under the direction and supervision of a professional engineer or
geologist with expertise in hazardous waste site cleanup.  On or
before the effective date of this Consent Order, Respondent shall
notify EPA in writing of the name, title, and qualifications of the
engineer or geologist,  and of any contractors or subcontractors and
their personnel to be used in carrying out the terms of this Consent
Order.

      [NOTE:   Under  certain circumstances, new findings may  indicate
      that  additional work must be done to protect human  health and the
      environment. ]

      18.    EPA may determine that certain tasks, including
investigatory work or engineering evaluation, are necessary in
addition to the tasks and deliverables included in the [Insert
appropriate plan: e.g., IM Workplan, the RFI Workplan, the CMI Program
Plan] when new findings indicate that such additional work is
necessary.  EPA shall request in writing that Respondent perform the
additional work in this situation and shall specify the basis and
reasons for EPA's determination that the additional work is necessary.
Within  [Number] days after the receipt of such request, Respondent
shall have the opportunity to meet with EPA to discuss the additional
work EPA has requested.  Thereafter, Respondent shall perform the
additional work EPA has requested according to an EPA approved
Workplan.  All additional work performed by Respondent under this
paragraph shall be performed in a manner consistent with this Consent
Order.

                        VII.   QUALITY ASSURANCE

      Throughout  all  sample collections and  analysis  activities,
Respondent shall use EPA-approved quality assurance, quality control,
and chain-of-custody procedures as specified in the approved [insert,
as appropriate, Workplans and Program Plans, Scope(s) of work].  In
addition, Respondent shall:

      1.  Ensure that laboratories used by Respondent for analyses
perform such analyses according to the EPA methods included in  "Test
Methods for Evaluating Solid Waste  (SW-846,  November 1986) or other


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methods deemed satisfactory to EPA.  If methods other than EPA methods
are to be used, Respondent shall submit all protocols to be used for
analyses to EPA for approval within [Number] days prior to the
commencement of analyses.

      2.  Ensure that laboratories used by Respondent for analyses
participate in a quality assurance/quality control program equivalent
to that which is followed by EPA.  As part of such a program, and upon
request by EPA, such laboratories shall perform analyses of samples
provided by EPA to demonstrate the quality of the analytical data.

                VIII.  PUBLIC COMMENT AND PARTICIPATION

      [NOTE:   Public  participation is required  after  the CMS  has  been
      submitted and the Agency  has proposed that  a particular
      corrective measure  be  implemented.   At that time, before
      implementation  of the  corrective  measure, the public  shall  be
      given  an opportunity to comment on what the Agency has  proposed.
      Changes  in the  corrective measure may be  made after consideration
      of public comment.  The Agency must  issue a responsiveness
      summary.   If  the  public is  interested,  a  public meeting may be
      held.  Additional public  involvement activities may be  necessary,
      based  on site-specific circumstances.   See  Directive  9901.3
      "Guidance for Public Involvement  In  RCRA  Section  3008(h)
      Actions."]

      1.  Upon approval by EPA of a Corrective Measure Study Final
Report, EPA shall make both the RCRA Facility Investigation Final
Report (or summary of report)  and the Corrective Measure Study Final
Report (or summary of report)  and a summary of EPA's proposed
corrective measure and EPA's justification  for proposing selection of
that corrective measure available to the public  for review and comment
for at least twenty-one  (21) days.

      2.  Following the public review and comment period,  EPA shall
notify Respondent of the corrective measure selected by EPA.  If the
corrective measure recommended in the Corrective Measure Study Final
Report is not the corrective measure selected by EPA after
consideration of public comments, EPA shall inform Respondent in
writing of the reasons for such decision,  and the Respondent shall
modify the RFI/CMS based upon public comment if directed to do so by
EPA.

      3.  The Administrative Record supporting the selection of the
corrective measure will be available for public review at  [place] from
[time].

                   IX.   ON-SITE  AND OFF-SITE ACCESS

      [NOTE:   Provisions  requiring the  Respondent to  give EPA and its
      designated representatives  access to the  site and to  relevant
      records  must  be included  in the Order.  Such provisions should


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      also set forth,  as deemed necessary,  the Respondent's
      responsibilities with respect  to  gaining access  to  third party
      property.   Documentation of efforts  to obtain access to  adjoining
      properties should be included  as  a task in the Workplan  if  off-
      site activities  are necessary  for completion of  any tasks
      required pursuant to the Order.   Failure to obtain  access will
      change the scope of the Workplan.  The following composite
      provision incorporates most of the relevant requirements.]

      1.  EPA and/or any  EPA representative are authorized to enter and
freely move about all property at the Facility during the effective
dates of this Consent Order for the purposes of, inter alia:
interviewing Facility personnel and contractors; inspecting records,
operating logs, and contracts related to the Facility; reviewing the
progress of the Respondent in carrying out the terms of this Consent
Order; conducting such tests, sampling or monitoring as EPA or its
Project Coordinator deem necessary;  using a camera, sound recording,
or other documentary type equipment; and verifying the reports and
data submitted to EPA by the Respondent.  The Respondent shall permit
such persons to inspect  and copy all records, files, photographs,
documents, and other writings, including all sampling and monitoring
data, that pertain to work undertaken pursuant to this Consent Order.
The respondent shall comply with all approved health and safety plans.

      2.  To the extent that work required by this Consent Order,  or by
any approved  [insert as  appropriate:  Scope(s) of work, Program Plan,
Workplan] prepared pursuant hereto,  must be done on property not owned
or controlled by Respondent, Respondent shall use its best efforts to
obtain site access agreements from the present owner(s) of such
property within [number] days of approval of any  [Workplan]  for which
site access is required.  Best efforts as used in this paragraph shall
include, at a minimum, a certified letter from Respondent to the
present owners of such property requesting access agreements to permit
Respondent and EPA and its authorized representatives to access such
property.  Any such access agreement shall be incorporated by
reference into this Consent Order.  In the event that agreements for
access are not obtained within [number] days of the effective date of
this Consent Order, Respondent shall notify EPA in writing within
[number] days thereafter regarding both the efforts undertaken to
obtain access and its failure to obtain such agreements...

      3.  Nothing in this section limits or otherwise affects EPA's
right of access and entry pursuant to applicable law,  including RCRA
and CERCLA.

              X.  SAMPLING AND DATA/DOCUMENT AVAILABILITY

      [Site-specific sampling  and analysis  requirements must be
      included in the  Order.   The following is a  sample provision.]

      1.  The Respondent shall submit to EPA the results of  all
sampling and/or tests or other data  generated by, or on behalf of the


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Respondent,  in accordance with the requirements of this Consent Order
and  its attachments.

      2.  Respondent shall notify EPA  at least  [Number] days before
engaging in  any  field activities, such as well drilling, installation
of equipment, or sampling.  At the request of EPA, Respondent shall
provide or allow EPA or  its authorized representative to take split
samples of all samples collected by Respondent pursuant to this
Consent Order.   Similarly, at the request of Respondent, EPA shall
allow Respondent or its  authorized representatives to take split or
duplicate samples of all samples collected by EPA under this Consent
Order.  EPA  will notify  Respondent at least  [Number] days before
conducting any sampling  under this Consent Order.

      3.  Respondent may  assert a business confidentiality claim
covering all or  part of  any information submitted to EPA pursuant to
this Consent Order.  Any assertion of confidentiality shall be
adequately substantiated by Respondent when the assertion is made.
Information  determined to be confidential by EPA shall be disclosed
only to the  extent permitted by 40 CFR Part 2.  If no such
confidentiality  claim accompanies the information when it is submitted
to EPA, it may be made available to the public by EPA without further
notice to the Respondent.  Respondent agrees not to assert any
confidentiality  claim with regard to  any physical or analytical data.

                        XI.   RECORD  PRESERVATION

      Respondent  agrees  that  it  shall  preserve,  during the pendency  of
this Consent Order and for a minimum  of (at least 6 years)  years after
its termination,  all data, records and documents in its possession or
in the possession of its divisions,  officers, directors, employees,
agents, contractors, successors and assigns which relate in any way to
this Consent Order or to hazardous waste management and/or disposal at
the Facility.  After [number] years, Respondent shall make such
records available to EPA for inspection or shall provide copies of any
such records to  EPA.  Respondent shall notify EPA 30 days prior to the
destruction  of any such  records, and  shall provide EPA with the
opportunity  to take possession of any such records.

                       XII.  PROJECT COORDINATOR

      1.  On  or before the effective date of this Consent Order, EPA
and Respondent shall each designate a Project Coordinator.   Respondent
shall notify EPA in writing of the Project Coordinator it has
selected.  Each  Project  Coordinator shall be responsible for
overseeing the implementation of this Consent Order.  The EPA Project
Coordinator  will be EPA's designated representative at the Facility.
All communications between Respondent and EPA, and all documents,
reports,  approvals, and  other correspondence concerning the activities
performed pursuant to the terms and conditions of this Consent Order,
shall be directed through the Project Coordinators.
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      2.  The parties agree to provide at least [Number]  days written
notice prior to changing Project Coordinators.

      3.  If EPA determines that activities in compliance or
noncompliance with this Consent Order,  have caused or may cause a
release of hazardous waste, hazardous constituent, or a pollutant or
contaminant, or a threat to the public health or to the environment,
EPA may order Respondent to stop further implementation of this
Consent Order for such period of time as may be needed to abate any
such release or threat and/or to undertake any action which EPA
determines is necessary to abate such release or threat.

      4.  The absence of the EPA Project Coordinator from the Facility
shall not be cause for the stoppage of work.

                          XIII.  NOTIFICATION

      Unless  otherwise  specified,  reports,  correspondence,  approvals,
disapprovals, notices or other submissions relating to or required
under this Consent Order shall be in writing and shall be sent to:

 1.    [Number] copies  of all         2.    Documents to be submitted
 documents to be submitted to the    to  the Respondent  should be  sent
 U.S. EPA should be sent to:          to:

 [EPA Project Coordinator]  US EPA,    [Facility Project  Officer]
 Region (Number)                      Address
 Address
            XIV.   DELAY IN PERFORMANCE/STIPULATED PENALTIES

      [NOTE:  This provision  includes both  stipulated  and statutory
      penalties.  Provisions  covering stipulated penalties may vary  in
      dollar  amounts  and time  frame depending upon the circumstances.
      Different stipulated  penalty amounts  may be  set  for different
      type  of requirements  under  the Order,  with the amount  related  to
      the importance  of the task.  Stipulated amounts  should include
      escalators  as the length of non-compliance time  continues.   The
      following is a  sample provision.]

      1.  Unless there has been a written modification of a compliance
date by EPA, or excusable delay as defined under the  "Force Majeure
and Excusable Delay," provision,  in the event Respondent fails to meet
any requirement set forth in the Consent Order,  Respondent shall pay
stipulated penalties as set forth below.  Compliance by Respondent
shall include completion of an activity under this Order or a plan
approved under this Order or any matter under this Order in an
acceptable manner and within the-specified time schedules in and
approved under this Order.

a.     For failure to  commence  work as prescribed in this Consent Order:
      [$] per day for one to  seven days of  delay,  and  [$]  per day  for
      each  day of delay, thereafter;
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b.    For  failure  to  submit any preliminary and final reports, at the
      time required pursuant  to this Consent Order:  [$] per day for the
      first one  to seven  days of delay, and  [$] per  day for each day of
      delay,  thereafter;

c.    For  failure  to  submit progress reports, at the time required
      pursuant to  this  Consent Order:  [$] per day  for the first one to
      seven days of delay and [$]  per day for each day of delay,
      thereafter;

d.    For  failure  to  submit other  deliverables required by this Consent
      Order:  [$] for  the  first one to seven days,  and  [$] for each
      seven-day  delay,  or part thereof, thereafter;

e.    For  other  failure to comply  with provisions  of this Consent Order
      after notice by EPA of  non-compliance:  ($) for the first one to
      seven days,  and {$)  for each seven-day delay,  or part thereof,
      thereof.

      2.  All penalties shall begin to accrue on the date that complete
performance  is due or a violation occurs,  and shall continue to accrue
through the  final day or correction of the noncompliance.   Nothing
herein shall prevent the simultaneous accrual of separate penalties
for separate violations of this Order.

      3.  All penalties owed to EPA under this Section shall be due
within thirty (30) days of receipt of notification of noncompliance.
Such notification shall describe the noncompliance and shall indicate
the amount of penalties due.   Interest shall begin to accrue on the
unpaid balance at the end of the thirty-day period.

      4.  All penalties shall be made payable by certified or cashier's
check to the Treasurer of the United States of America and shall be
remitted to:

         Regional Hearing Clerk
         U.S. Environmental Protection Agency,
          [Insert appropriate lockbox depository address for RCRA
         payments]

All payments shall reference the name of the Facility, the
Respondent's name and address, and the EPA docket number of this
action.  Copies of the transmittal of payment shall be sent
simultaneously to the EPA Project Coordinator.

      5.  Respondent may dispute EPA's right to the stated amount of
penalties by invoking the dispute resolution procedures under Section
[Number] of  this Consent Order.   If Respondent does not prevail upon
resolution of the dispute, EPA has the right to collect all penalties
which accrued prior to and during the period of dispute.  If
Respondent prevails upon resolution of the dispute, no penalties shall
be payable.


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      6. Neither the  filing of a petition to resolve a dispute nor the
payment of penalties  shall alter in any way Respondent's obligation to
complete the performance  required hereunder.

      7. The stipulated penalties set  forth in this Section do not
preclude EPA from pursuing any other remedies or sanctions which may
be  available to EPA by reason of Respondent's failure to comply with
any of  the requirements of this Consent Order.

                        XV.  DISPUTE RESOLUTION

      1. If Respondent disagrees, in whole or in part, with any EPA
disapproval or modification or other decision or directive made by EPA
pursuant to this Consent  Order, Respondent shall notify EPA in writing
of  its  objections and the basis therefor within  [Number] calendar days
of  receipt of EPA's disapproval, decision or directive.  Said notice
shall set forth the specific points of the dispute, the position
Respondent is maintaining should be adopted as consistent with the
requirements of this  Consent Order, the basis for Respondent's
position and any matters  which it considers necessary for EPA's
determination.  Within ten (10) business days of EPA's receipt of such
written notice, EPA shall provide to Respondent its decision on the
pending dispute which shall be binding upon both parties to this
Consent Order.

      2. The existence of a dispute as defined herein, and EPA's
consideration of such matters as placed into dispute shall not excuse,
toll or suspend any compliance obligation or deadline required
pursuant to this Consent  Order during the pendency of the dispute
resolution process.

      3. Notwithstanding  any other provisions of this Consent Order,
no  action or decision by  EPA,  including without limitation decisions
of  the  Regional Administrator or [his/her designate],  Region [ ],
pursuant to this Consent  Order shall constitute final agency action
giving -rise to any rights to judicial review prior to EPA's initiation
of  judicial action to compel Respondent's compliance with the
mandate(s)  of this order.

                XVI.  FORCE MAJEURE AND EXCUSABLE DELAY  •

      [NOTE:  Provisions  excusing the  Respondent  from compliance
     with the performance schedule upon occurrence  of events
     beyond the Respondent's control  (force majeure) are common
     and may be included  in the Order  to facilitate negotiations.
     The following paragraph is an example of such  a provision.]

     1.  Respondent shall perform the requirements of this Consent
Order within the time limits set forth herein,  unless the performance
is prevented or delayed by events which constitute a force maleure.
Respondent  shall have the burden of proving such a force maleure.   A
force majeure is defined as any event arising from causes not


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 foreseeable and beyond  the control of Respondent which could not be
 overcome by due diligence and which delays or prevents performance by
 a date  required by  this Consent Order.  Such events do not include
 increased costs of  performance, changed economic circumstances, normal
 precipitation events, or failure to obtain federal, state or local
 permits.

      2. Respondent shall notify EPA  in writing within [Number] days
 after it becomes aware  of events which Respondent knows or should know
 constitute a force  majeure.  Such notice shall estimate the
 anticipated length  of delay, including necessary demobilization and
 remobilization, its cause, measures taken or to be taken to minimize
 the delay, and an estimated time table for implementation of these
 measures.  Failure  to comply with the notice provision of this section
 shall constitute a  waiver of Respondent's right to assert a force
 maj eure.

      3. If EPA determines that the delay has been or will be caused
 by circumstances not foreseeable and beyond Respondent's control,
 which could not have been overcome by due diligence, the time for
 performance for that element of the relevant [insert as appropriate:
 Program Plan Scope(s) of Work, Work Plan] may be extended, upon EPA
 approval, for a period  equal to the delay resulting from such
 circumstances.  This shall be accomplished through an amendment to
 this Consent Order  pursuant to Section [Number].  Such an extension
 does not alter the  schedule for performance or completion of other
 tasks required by any [Work Plan] unless these are also specifically
 altered by amendment of the Consent Order.  In the event that EPA and
 Respondent cannot agree that any delay or failure has been or will be
 caused by circumstances not reasonably foreseeable and beyond the
 control of Respondent,  which could not have been overcome by due
 diligence, or if there  is no agreement on the length of the extension,
 the dispute shall be resolved in accordance with the Dispute
 Resolution provisions of Section [Number] of this Consent Order.

                      XVII.   RESERVATION  OF RIGHTS

      [NOTE:  To ensure  abatement of  the  threats posed by  site
      conditions, EPA's  right  to  take  action  in the  future  or to
      require the Respondent  to take  appropriate future action
      should be preserved as much as possible.  For  example, the
      Respondent may satisfactorily perform the actions required
      of it by the Order, but  those actions may prove ultimately
      to be insufficient to remedy the problem.  To  address such
      instances, the Agency must  reserve  its  right to institute
      legal action.   The following is  a sample provision.]

      1.  EPA expressly  reserves all rights and defenses that it may
have, including the right both to disapprove of work performed by
Respondent pursuant to  this Order and to request that Respondent
perform tasks in addition to those stated in the [Insert as
appropriate:  Work Plan,  Scope(s)  of Work, Program Plan].


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      2.  EPA hereby reserves all of its statutory and regulatory
powers, authorities, rights, remedies,  both legal and equitable, which
may pertain to Respondent's failure to comply with any of the
requirements of this Consent Order, including without limitation the
assessment of penalties under §3008{h)(2)  of RCRA, 42 U.S.C.
6928(h)(2).  This Consent Order shall not  be construed as a covenant
not to sue, release, waiver or limitation of any rights, remedies,
powers and/or authorities, civil or criminal, which EPA has under
RCRA, CERCLA, or any other statutory, regulatory or common law
enforcement authority of the United States.

      3.  Compliance by Respondent with the terms of this Consent Order
shall not relieve Respondent of its obligations to comply with RCRA or
any other applicable local, State or federal laws and regulations.

      4.  The entry of this Consent Order and Respondent's consent to
comply shall not limit or otherwise preclude the Agency from taking
additional enforcement action pursuant to §3008(h) should the Agency
determine that such actions are warranted.

      5.  This Consent Order is not intended to be nor shall it be
construed as a permit.  This Consent Order does not relieve Respondent
of any obligation to obtain and comply with any local, state or
federal permits.

      6.  EPA reserves the right to perform any portion of the work
consented to herein or any additional site characterization,
feasibility study, and response/corrective actions as it deems
necessary to protect public health and the environment.  EPA may
exercise its authority under CERCLA to undertake removal actions or
remedial actions at any time.  In any event, EPA reserves its right to
seek reimbursement from Respondent for such additional costs incurred
by the United States.  Notwithstanding compliance with the terms of
this Consent Order, Respondent is not released from liability, if any,
for the costs of any response actions taken by EPA.

                          XVIII.  OTHER CLAIMS

      Nothing in this  Consent  Order shall  constitute  or  be  construed as
a release from any claim, cause of action or demand in law or equity
against any person, firm, partnership,  or corporation for any
liability it may have arising out of or relating in any way to the
generation, storage, treatment, handling,  transportation, release, or
disposal of any hazardous constituents, hazardous substances,
hazardous wastes, pollutants, or contaminants found at, taken to, or
taken from the Facility.

                      XIX.  OTHER APPLICABLE LAWS

      All  actions required to  be  taken  pursuant  to this  Consent  Order
shall be undertaken in accordance with the requirements of all
applicable local, state, and federal laws and regulations.  Respondent


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shall obtain or cause its representatives to obtain all permits and
approvals necessary under such laws and regulations.

          XX.   INDEMNIFICATION OF  THE UNITED  STATES  GOVERNMENT

      Respondent  agrees  to indemnify and save and hold  harmless  the
United States Government, its agencies, departments, agents, and
employees, from any and all claims or causes of action arising from or
on account of acts for omissions of Respondent or its agents,
independent contractors, receivers, trustees, and assigns in carrying
out activities required by this Consent Order.  This indemnification
shall not be construed in any way as affecting or limiting the rights
or obligations of Respondent or the United States under their various
contracts.

                     XXI.   FINANCIAL RESPONSIBILITY

      [NOTE:   To  ensure  that  required corrective actions  are
      successfully  completed  by the Respondent, EPA  may require
      the  establishment  of some form of  financial assurance.  If
      the  respondent  proves unable or unwilling to undertake the
      actions  prescribed in the Order,  the Agency will  then  have
      access to funds with which to undertake the required action.
      The  financial assurance may  take  one or more of several
      forms depending on a number  of factors,  including the
      reliability and the financial security  of the  Respondent.
      These forms of  financial assurance may  include a  performance
      or surety bond,  liability insurance, an escrow performance
      guarantee account,  letter of credit or  a trust fund.]

                     XXII.  SUBSEQUENT  MODIFICATION

      1.  This Consent Order may only be amended by mutual agreement of
EPA and Respondent.  Such amendments shall be in writing, shall be
signed by both parties,  shall have as their effective date the date on
which they are signed by EPA, and shall be incorporated into this
Consent Order.

      2.  Any reports, plans,  specifications,  schedules, and
attachments required by this Consent Order are,  upon written approval
by EPA, incorporated into this Consent Order.  Any non-compliance with
such EPA-approved reports, plans,  specifications,  schedules, and
attachments shall be considered a violation of this Consent Order and
shall subject Respondent to the stipulated penalty provisions included
in Section [Number] of this Consent Order.

      3.  No informal advice,  guidance,  suggestions,  or comments by EPA
regarding reports,  plans, specifications, schedules, and any other
writing submitted by Respondent will be construed as relieving
Respondent of its obligation to obtain written approval,  if  and when
required by this Consent Order.
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                          XXIII.   SEVERABILITY

      If any provision or authority of this Consent Order or the
application of this Consent Order to any party or  circumstances is
held by any judicial  or  administrative authority to be invalid, the
application of such provisions to other parties or circumstances and
the remainder of the  Consent Order shall remain in force and shall not
be affected thereby.

                  XXIV.  TERMINATION AND SATISFACTION

      The provisions  of this Consent  Order  shall be deemed satisfied
upon Respondent's receipt of written notice from EPA that Respondent
has demonstrated, to  the satisfaction of EPA, that the terms of this
Consent Order, including any additional tasks determined by EPA to be
required pursuant to  this Consent Order, or any continuing obligation
or promises  (e.g., Record Retention, Reservation of Rights] have been
satisfactorily completed.

                          XXV.  EFFECTIVE DATE

      The effective date of  this  Consent Order shall  be the date on
which it is signed by EPA.  Because this Order was entered with the
consent of both parties, Respondent waives its right to request a
public hearing pursuant  to Section 3008(b)  of RCRA, 42 U.S.C.
§6928(b).


IT IS SO AGREED AND ORDERED:
DATE:	  BY:
                                  [RESPONDENT]
DATE:	 	  	 	  	    BY:
                                  [NAME AND TITLE OF REGIONAL
                                  ADMINISTRATOR OR DELEGATEE]
                                  UNITED STATES ENVIRONMENTAL
                                  PROTECTION AGENCY, REGION  [NUMBER]
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                                          OSWER Directive No. 9502.00-7
MEMORANDUM

SUBJECT:   Use of §3008(h) Orders or Post-Closure Permits At Closing
           Facilities

FROM:      J. Winston Porter, Assistant Administrator

TO:        Regional Administrators, Regions I-X


SUMMARY

      The purpose of this memorandum is  to clarify the use  of  §3008(h)
orders and post-closure permits to address corrective action at
closing  interim  status facilities.  The first part of this memo
briefly  reviews  the authorities and their applicability.  The second
part of  this memo presents considerations that may be used in making
your decision on whether to use a §3008(h) order or a post-closure
permit with §3004(u) and §3004(v) conditions.

I.    BACKGROUND

      Many closing RCRA  facilities require corrective  action to
mitigate potential threats to human health and the environment.
Correct  action at environmentally significant closing facilities
should be completed as expeditiously as possible.*  Two principal
authorities can be used to compel corrective action at these
facilities:  §3008(h) orders and post-closure permits."  Questions
have arisen regarding which authority to use.  In particular,  advice
has been sought on when to use a post-closure permit instead of
§3008(h) order to compel corrective action at interim status
facilities or facilities that have lost interim status.
     * The Environmental Priorities Initiative (EPI) provides a priority-
setting  mechanism   for   identifying   and  evaluating  environmentally
significant facilities.

       Two other RCRA corrective action authorities,  §3013 and §7003, may
also be  available.    Additionally,  Superfund  authorities  may  also  be
applicable.  Furthermore, these authorities may be used in combination.

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                                  -2-
A.  Section 3008(h)

      Section  3008(h)  authorizes  EPA  to  issue corrective action
administrative orders and to initiate civil actions for facilities
currently under interim status, facilities that once had interim
status, or facilities that should have had interim status.  A §3008(h)
order may be issued whether the facility is operating (prior to
receiving a permit), is closing,  or is closed.

      Section  3008(h)  orders may  address releases or potential releases
to all media.   EPA may use these orders to require study or cleanup
actions where the Agency has made the determination that there is or
has been a release of hazardous waste or hazardous constituents into
the environment from a facility.   (Guidance on the interpretation of
§3008(h) is provided in a December 16, 1985 memorandum from J. Winston
Porter.)

B.  Section 3004(u)

      Section  3004(u)  requires  every  treatment,  storage  or disposal
facility that is seeking a RCRA permit after November 8, 1984 to
undertake corrective action for releases of hazardous waste or
hazardous constituents form solid waste management units  (SWMUs),
regardless of when the waste was placed in the unit involved.  Section
3004(u) allows the use of schedules of compliance in the permit to
accomplish corrective action.

C.  Post-Closure Permits

      Post-closure  permits  are  required  for any  landfill,  waste pile,
surface impoundment, or land treatment unit which received waste after
July 26, 1982, or which ceased the receipt of wastes prior to July 26,
1982 but did not certify closure until after January 26, 1983.
However, a post-closure permit is not required if the unit closes by
removal under standards equivalent to §264 standards.*   Post-closure
permits are also not required for treatment and storage units,
although under the new tank regulations (51 FR 25422),  post-closure
permits may be required.  For treatment and storage units, we
recommend that a RCRA Facility Assessment  (RFA) be completed and a
§3008(h) order be issued, if necessary, before the operating permit is
denied.
       Interim status units that closed by removal after January 26, 1983
under  Part  265  Standards are subject  to post-closure responsibilities
unless such units demonstrate that  the  facility meets the  closure by
removal  standards of Part  264.    (See December 1,  1987,  52  FR 45788
amending 40 C.F.R. §270.l(c)).

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                                          OSWER Directive No.  9502.00-7
                                  -3-
      Under  current  regulations post-closure permits are required even
where a facility has closed under interim status and a §3008(h)  order
has been issued to address corrective action.   The terms of any
§3008(h) order may,  of course, be made part of the post-closure
permit, as appropriate.

II.   Considerations  in Selecting  §3008(h)  Orders or Post-Closure
      Permits

      As discussed above,  there are  situations  in which only one
authority is applicable.  For example, for units not subject to post-
closure care (e.g.,  interim status treatment and storage facilities or
facilities with surface impoundments that have clean closed according
to Part 264 standards), §3008(h)  orders are the appropriate corrective
action authority.  In many cases,  however, either authority may be
used; e.g., interim status land disposal facilities subject to the
post-closure care requirements.

      Since  §3008(h)  and §3004(u)  provide  overlapping  authority in
terms of the scope and type of cleanup actions which may be required
of interim status facility owner/operators, when a choice is available
we leave the decision to the Regions to determine whether to use a
3008(h) order or §3004(u) conditions in an operating or post-closure
permit.  The following considerations are offered to assist you in
deciding,  on a case-by-case basis, how to proceed.

      •  A post-closure permit may be an easier approach than a
§3008(h) order in the case of a willing owner/operator.  A §3008(h)
order/judicial action may be the preferable first step where the
owner/operator is uncooperative,  or where there is disagreement with
the Agency or uncertainty over the scope of activities to be
conducted.  (Some regions have found that the owner/operator may
prefer a post-closure permit instead of a §3008(h) order because of
the perceived stigma attached to an enforcement order.)

      •   In situations which will  require long-term oversight,  it  may
be more appropriate to determine at the outset to use a post-closure
permit instead of issuing a §3008(h) order.  Permits are designed to
address long-term activities.  Enforcement authorities, which may
involve judicial action and approvals, are less well-suited for
activities requiring long-term oversight.  (Of course, as noted above
the cooperativeness of the owner/operator will influence this
decision.)
                                              Retyped From The Original

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                                          OSWER Directive No. 9502.00-7
                                  -4-
      •   A §3008(h)  order may be more appropriate where a prompt action
is necessary and where a post-closure permit is not soon scheduled to
be issued.*  This  is because §3008(h)  orders allow more flexibility in
both timing and scope than permits.  For example, a §3008(h) order
could focus only on the specific cleanup requiring immediate attention
without having to address post-closure care or corrective action
elsewhere on the facility.  Conversely, a post-closure permit must
address, to the extent necessary, releases from all SWMUs as well as
post-closure care activities.

      •   A §3008(h)  order may be more appropriate than a post-closure
permit where there is concern that releases are coming from sources
other than SWMUs.   The language of section 3008(h) refers to releases
from facilities.  This may be broader language than that in section
3004(u) which refers to releases from SWMUs.

CONCLUSION

      These considerations  should be  evaluated  and weighed in  any
decision on which corrective action authority should be used.   The
Agency's objective for closing facilities is to minimize the post-
closure release of hazardous wastes and hazardous constituents into
the environment and to address corrective action for existing or
potential releases at the time of closure.  The post-closure permit
provides a coordinated one-step mechanism for addressing corrective
action at the entire facility together with post-closure care for
regulated units.  In the long-run, therefore, we anticipate that post-
closure permits should serve as the routine mechanism for the majority
of corrective actions at closing land disposal facilities.  Under
current regulations, use of §3008(h)  will not obviate the need to
issue a post-closure permit, unless closure by removal takes place and
satisfies Part 264 standards, as required under the new rules
promulgated at 52  FR 45788. . Hence, complementary use of both a
§3008(h) order and a post-closure permit (with or without additional
§3004(u) conditions added)  remains an important option.
       If an  imminent and  substantial endangerment  to  health or  the
environment  exists,  a §7003 order may be appropriate.

                                              Retyped From The Original

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12256
Federal Register  /  Vol. 53,  No. 71  /  Wednesday, April  13, 1988 / Rules  and Regulations
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 22 and 24

[FRL-3315-9]

Issuance of and Administrative
Hearings on RCRA Section 3008(h)
Corrective Action Orders for
Hazardous Waste Management
Facilities

AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.

SUMMARY: This rule establishes
procedures which are to govern the
conduct of administrative hearings
requested, pursuant to section 3008(b) of
the Solid Waste Disposal Act, as
amended by the Resource Conservation
and Recovery Act (RCRA), by recipients
of interim status corrective action orders
issued under authority contained in
section 3008(h) of RCRA.
EFFECTIVE DATE: This rule becomes
effective on April 13,1988.
FOR FURTHER INFORMATION CONTACT:
Steve Botts, Mail Code LE-134S, Office
of Enforcement and Compliance
Monitoring, Waste Division, U.S.
Environmental Protection  Agency, 401 M
Street SW., Washington, DC 20460,
Phone (202) 382-5787.
SUPPLEMENTARY INFORMATION:

I. Authority
  Today's final rule baa been issued
under authority of sections. 2002 and
3008 of RCRA, as. amended by the
Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. 6912 and
6928.

II. Background
  In 1984 Congress enacted the
Hazardous and Solid Waste
Amendments (HSWA) to RCRA.
Included in 3008(h) of RCRA, as
amended, was new authority for EPA to
issue orders requiring corrective action
or such other response measures as the
Agency deems necessary to protect
human health and the environment to
interim status facilities treating, storing,
or disposing of hazardous waste, at
which releases of hazardous waste or
constituents occur. Under section
3008(b) of RCRA  a 3008(h) order
becomes final and effective unless
within 30 days of service of the order,
the recipient requests a hearing. Today
EPA promulgates a final rule containing
procedures which govern the issuance of
RCRA section 3008[h) orders and, with
certain exceptions noted in § 24.01 of
the rule, the conduct of administrative
                            hearings requested b;< the recipients of
                            such orders.
                              A proposed version of this rule was
                            published in the Federal Register on
                            August 6,1987, along with an invitation
                            to interested members of the public to
                            comment on the proposed rule. The
                            proposed rule established a two-tiered
                            set  of procedures for administrative
                            hearings on 3008(h) orders. These
                            procedures contemplate hearings
                            generally less formal than the full
                            adjudicatory hearings currently required
                            by 40 CFR Part 22 (Part 22) on
                            compliance orders issued pursuant to
                            RCRA section 3008(a). Where the initial
                            3008(h) order in question directs
                            respondent to undertake (1) studies of
                            the nature and extent of releases of
                            hazardous waste/constituents or (2)
                            studies of the available alternatives for
                            remediating such releases, either alone
                            or in conjunction with certain limited
                            interim corrective measures, the
                            procedures appearing in Subpart Bof
                            the rule are to govern the conduct of the
                            hearing. Where the initial 3008(hj order
                            requires respondent to undertake
                            specified corrective measures (other
                            than certain limited interim corrective
                            measures alluded to above), either alone
                            or in conjunction with investigatory
                            studies, the procedures appearing in
                            Subpart C of the rule are controlling.
                            The Subpart B and C procedures are
                            similar. However, the Subpart C
                            procedures make more formal provision
                            than the Subpart B procedures for
                            submission of evidence/argument before
                            and at a hearing and afford respondent
                            an opportunity (not available under
                            Subpart B) to pose written questions on
                            disputed factual matters to the EPA
                            office issuing the initial order.

                            ni.  Major Revisions to the Rule
                              A number of comments on the
                            proposed rule were received front
                            representatives of the regulated
                            community, trade associations, and
                            environmental interest groups. While
                            the basic approach and structure of the
                            rule remains unaltered, the public
                            comments have prompted EPA to make
                            several important changes in the
                            language of the rule. Perhaps the most
                            significant change entailed adoption of
                            an explicit requirement that the entire
                            administrative record underlying the
                            initial order be made available in the
                            appropriate EPA Regional or
                            Headquarters office for inspection by
                            respondent (and the public) as of the
                            date the initial order is served. While
                            this requirement had already been
                            incorporated into guidance issued by the
                            Agency, the proposed rule left the
                            impression that the-administrative
                            record was not to be made available for
review until the hearing. The final rul.;
also makss clear that the administrative
record must contain all information
considered by the Agency in the proci,--;-
of developing the order, regardless of
whether the information does or does
not support the conclusions reached and
relief sought by the Agency in the order.
  Other important revisions have been
made in the rule. For example, the fin:il
rule now affords the parties an
opportunity to comment on the
recommended decision of the Presiding
Officer. Although  the  hearings provided
for in this rule are not required by
statute to be "on the record," will be
informal in nature, and hence are not
subject to the requirements of the
Administrative Procedure Act (APA),
the decision to allow  the parties to
comment on the recommended decision
comports generally with the practice
required under section 557 of the APA
and is calculated to eliminate errors in
Agency decisionmaking by insuring that
the parties are given the chance to
identify possible errors in the
recommended decision and bring them
to the Agency's attention before a fin;il
decision is issued.
  Additional changes in the rule maciu
in response to public  comment include
elimination of the requirement that
respondent make all factual
representations in the proceeding by
affidavit, inclusion of a prohibition on
ex parte discussions between the
Presiding Officer and  the parties, and
adoption of language  designed to further
ensure the neutrality of the Presiding
Officer. Further details on these and
other revisions in  the  rule are contained
in the summary of and responses to the
public comments which follow (See IV
of the Preamble).
  In addition to changes made in
response to public comment the Agency
has made two technical changes in the
regulations. First, a provision has been
added requiring the respondent to
briefly indicate in its response to the
initial order the basis upon which it
disputes any given factual or legal
determination or relief provision in the
order. This was done  principally to
ensure that in a Subpart B proceeding,
where respondent chooses not to file
pre-hearing submissions, the Agency
would have some  notice prior to hearing
of the reasons why respondent is
challenging the order. Secondly, a
provision has been inserted which
would allow the Presiding Officer in a
Subpart B hearing to pose questions to
representatives of either party. This was
done to correct an inadvertent omission
in the proposed rule and to clarify the
Presiding Officer's authority to pursue

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           Federal Register /  Vol. 53,  No. 71 /  Wednesday. April 13, 1988 / Rules  and  Regulations     12257
 lugul or factual issues which the parties
 have not fully developed at the hearing.

 IV. Responses to Comments
 Nued for Full Adjudicator}' Hearings
  1. Comment: In order to satisfy the
 requirements of procedural due process
 full adjudicatory hearings are required
 on orders issued under RCRA section
 3008(h) seeking to compel a respondent
 to either undertake investigations or
 implement corrective measures. This is
 true because such orders will place
 substantial property interests at stake
 and will raise issues of material fact
 (e.g., regarding existence of a release,
 need for specified corrective measures,
 fate and transport of contaminants,
 hydrogeology at the site, etc.), which can
 only be resolved through discovery and
 cross-examination of witnesses. The
 suggestion in the preamble to the
 proposed rule that issues of material
 fact will not generally be presented in
 hearings on 3008(h) orders is false and  is
 contradicted by the statement elsewhere
 in the preamble that "legal, policy, and
 technical issues" will be presented in
 such hearings. In weighing (as it did in
 the preamble to the proposed rule) the
 factors set forth in Matthews v.
 Eldridge, 424 U.S. 319 (1976) (which
 establish how much process is due a
 respondent in an administrative hearing)
 it is inappropriate for EPA to place
 considerations of convenience to  the
 Agency above the need to provide o full
 iind fair hearing to respondent.
  Response: As noted in the preamble  to
 the proposed rule the question of
 whether due process demands full
 adjudicatory hearings on 3008(h) orders
 requires the Agency to weigh the  factors
 cited in Matthews v. Eldridge. As here
 pertinent, those factors are, on the one
 hand, EPA's interest in avoiding (1)  the
 resource outlay and (2) delay in
 providing response to releases of
 hazardous waste/constituents
 necessitated by preparation for and
 participation in full adjudicatory
 hearings and, on the other, (1) the costs
 to respondent of undertaking corrective
action  and (2) the risks that respondent
 might be forced to unnecessarily incur
 such costs because the rules
 promulgated here today do not contain
adequate provision for the resolution of
 those factual disputes, which are  likely
 lo arise at hearing.
  Looking first at the potential burden
 on and risks to respondent, EPA notes
 that the costs of corrective action to be
 imposed on respondent can be expected
 to range from the relatively minor costs
associated with implementation of
certain corrective measures (e.g.,
erection of a fence around the
contamination) or small studies of the
nature and extent of contamination
produced by limited releases of
hazardous waste/constituents to the
very high costs (which will sometimes
be measured in the millions of dollars)
of implementing technically complex
remedies at highly contaminated sites.
  As commenters have pointed out and
the Agency acknowledged in the
preamble to the proposed rule,  EPA
anticipates that 3008(h) proceedings will
certainly present some factual issues for
resolution. However, EPA believes that
3008(h) cases will present fewer factual
issues  than the typical case involving an
RCRA section 3008(a) compliance order,
where  questions as to whether  certain
events or violations occurred, the timing
of such events/violations, the
seriousness of the violation, the
economic benefit to respondent of the
violation, etc. are routinely raised. More
importantly, EPA believes that  the
factual disputes arising in the course of
n 3008(h) proceeding will relate almost
entirely to technical (or policy)  matters
of just  the type highlighted by
commenters (e.g, has a release of
hazardous waste/constituents occurred?
Are the corrective measures proposed
by EPA warranted? Where has
contamination migrated? Is EPA's
characterization of hydrogeological
conditions at the site accurate?). In
resolving such technical disputes there
will be little need to establish witness
veracity or credibility through
observation of a witness's demeanor on
cross-examination. On the contrary, we
believe, and the structure of these rules
is premised on our belief, that such
technical questions can just as  easily
(perhaps more effectively) be resolved
through analysis of the administrative
record  and the written submissions and
oral statements of the parties. By the
same token, formal discovery will not be
necessary because, as explained later.
respondent will have access to  the
entire administrative record (exclusive
of certain privileged materials)
underlying the Agency's order.
  Turning now to the Agency's  interest
in expediting cleanups and minimizing
the costs it incurs in participating in
3008(h) proceedings, EPA notes first
that, in order to protect human health
and the environment, cleanups
compelled pursuant  to RCRA section
300S(h) will often have to be expedited
in just the way that "removal" actions
(and less often "remedial" actions)
conducted pursuant  to the provisions of
the Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, as amended (CERCLA). are
expedited. Lengthy administrative
proceedings, which include extensive
discovery and cross-examination, are
not only unnecessary from a due
process standpoint; they are also
incompatible with the need to
accomplish cleanups quickly before
contamination spreads or adverse
health/environmental impacts occur.
  EPA also anticipates that the resource
burden that would otherwise be
imposed on the Agency by the need to
prepare for and participate in full
adjudicatory hearings will be
substantially eased by adoption and use
of the instant hearing procedures. In the
full adjudicatory hearings held on RCRA
section 3008(a) orders, EPA must often
produce expert witnesses (e.g.,
lexicologists] hydrogeologists. financial
analysts) and Agency employees to
testify as to how inspections were
conducted, records compiled and other
similar matters. These witnesses must
be paid to travel to hearings, must be
prepared for hearing, and will be lost for
other useful purposes during the period
when they must be available for
hearing. The attorneys representing the
Agency in such adjudicatory hearings
must devote considerable time to
preparing, witnesses, preparing direct
and cross-examination, and other
activities not  required for the informal
hearings provided for herein. Similar
travel, witness, hearing preparation, and
related costs would be required if the
Agency were to provide a Part 22
hearing to the recipient of a 3008(h)
order. It is projected that roughly half of
the cost to the Agency of participating in
full adjudicatory hearings will be saved
by holding hearings under the
procedures we promulgate today. These
projections are based not only on
Agency experience with RCRA and
other administrative hearings conducted
pursuant to Part 22 but also on Agency
experience under CERCLA. Recent
amendments to CERCLA permit  the
Agency to submit the administrative
record supporting the Agency's remedy
selection decisions to a court in lieu of
presenting the stream of Agency
employees and experts needed to
substantiate such remedy selection
decisions in the past. The savings in
litigation costs to the Agency from
adoption of this new procedure have
been substantial—on the order of 50
percent or more of previous totals.
  Accordingly, it is not simply
considerations of convenience to the
Agency that have prompted us to adopt
less formal hearing procedures for
3008(h) proceedings. Rather, that
decision was based on (1) the nred to
respond quickly to releases of
hazardous waste/constituents, (2) the

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Federal  Register  /  Vol. 53, No.  71 / Wednesday,  April 13, 1988  /  Rules and Regulations
fuel that the costs to the Agency of
adopting formal adjudicatory
procedures would be such as to
significantly impair the Agency's ability
to enforce the provisions of RCRA
section 3000(h), and (3) our conviction
that the factual issues presented in such
proceedings will be technical in nature
and hence susceptible to resolution
through the written procedures and
informal hearing provided for under the
rules.
  2. Comment: The language of and
legislative history surrounding RCRA
section 3008(h) require that the same
kind of hearing be held on RCRA section
2008(a) and 3008(h) orders. The
statement in RCRA section 3008(b) that
the Agency may issue subpoenas for the
attendance of witnesses and production
of documents and may promulgate
discovery procedures indicates that
Congress intended that full adjudicatory
hearings would be held on all 3008
orders.
  Response: The plain language  of
section 3008(b) requires nothing  more
than a "public hearing." The only
relevant piece of legislative history is
the statement of Senator Chafee,
sponsor of the new languge in HSWA
amending 2008(b), that "that procedures
set forth in subsection (b) [of section
2008] are made applicable to orders
issued under [section 2008(h)[." This
statement does not (as commenters
suggest) refer to the Part 22 hearing
procedures promulgated by EPA
pursuant to authority contained  in
section 3008(b) but rather merely
indicates that those procedures in
3008(b) making orders final unless
within 30 days of issuance respondent
requests a hearing have been extended
to 3008(h) orders as well as 3008(a)
orders.
  As to the suggestion that Congress
intended full adjudicatory hearings, it
should be sufficient to point out  that
Congress said in 3008(b) that the Agency
"may" promulgate discovery rules,
clearly suggesting that hearing which
did not contain this feature most
commonly associated with adjudicatory
hearings would also be acceptable.
Since subpoenas are routinely employed
in legislative as well as adjudicatory
hearings, the affirmation (in section
3008(b)) of the Agency's right to  issue
subpoenas also in no way implies a
Congressional preference for full
adjudicatory hearings. Thus, EPA
continues to believe that the less formal
procedure promulgated today is  fully
consistent with the statutory language  of
section of section 3008 and
Congressional intent.
  3. Comment: Given the  potentially
high  cost of conducting a  remedial
                            investigation and implementing interim
                            corrective measures, there is no basis
                            for affording respondent less process in
                            Subpart B ("study order") hearings than
                            in Subpart C ("remedy order") hearings.
                              Response: The changes made in
                            response to  comments narrow the
                            differences between Subpart B and C
                            hearings. The principal remaining
                            distinction is that the Subpart C
                            procedures permit respondent to pose
                            written questions to EPA, whereas the
                            Subpart B procedures do not. The
                            Subpart C procedures also require the
                            filing of certain pre-hearing submissions,
                            while the Subpart B procedures make
                            this optional. The Subpart B respondent
                            is thus allowed fewer opportunities than
                            the Subpart C respondent to ask
                            questions relating to material factual
                            issues and the explore the basis for the
                            order.
                              EPA believes this distinction is
                            warranted because  at the stage of a
                            3008(h) proceeding at which a remedial
                            investigation or interim corrective
                            measures are ordered there is generally
                            very little known about the nature and
                            extent of contamination at the facility
                            and thus very little for the parties to
                            argue over. Factual  disputes at this stage
                            can be expected to focus on the question
                            of whether a release has occurred. By
                            the same token an Agency order
                            directing a respondent to undertake  a
                            Corrective Measures Study (which will •
                            simply explore  and  compare remedial
                            alternatives) is  expected to raise few
                            issues of fact. The opportunities
                            afforded respondent to review the order
                            and administrative record, make written
                            pre-hearing  submissions, request an
                            informal settlement conference at which
                            the basis for the Agency order can be
                            explored in  some depth, make oral
                            presentations at hearing, and (with the
                            Presiding Officer's permission) pose
                            questions to the Agency's
                            representative(s)  at hearing should in
                            combination be sufficient to (1)
                            thoroughly inform respondent as to the
                            basis of the Agency's order, and (2)
                            permit respondent to respond in detail
                            to the factual and legal arguments which
                            underlie the Agency's order. Also, EPA
                            expects that the orders which will be the
                            subject of a Subpart B hearing will
                            ordinarily have a less significant impact
                            on respondent's property interests than
                            the remedial orders subject to the
                            Subpart C procedures.
                            fury Trial
                              4. Comment: The  recent Supreme
                            Court decision in Tull v. United States,
                            95 L. Ed. 2d  365 (1987) requires that
                            respondent be afforded a jury trial in
                            any proceeding in which a civil penalty
                            is sought.
  Response: Footnote 4 to the opinion of
the court in Tull reads as follows: "The
court has also considered the practical
limitations of a jury trial and its
functional compatibility with
proceedings outside traditional courts of
law in holding that the Seventh
Amendment is not applicable to
administrative proceedings." Id at 373,
n.4. Accordingly, the decision in Tull has
no bearing on the requirement in the .
rule that hearings on 3008(h) orders
seeking penalties be held under the
existing hearing procedures contained in
Part 22.

Issuance of the Initial Order

  5. Comment: The rules should spell
out more clearly which EPA official will
issue the initial 3008(h) order.
  Response: The unspoken but apparent
concern of the commenter is that a low-
level Agency official acting without
proper review might be permitted under
the rules to issue an initial 3008(h) order.
The pertinent Agency RCRA delegation
(No. 8-32) empowers  the Regional
Administrator and Assistant
Administrator for Solid Waste and
Emergency Response to issue initial
3008(h) orders and allows these
individuals to redelegate that authority.
Given the fact that authority conferred
on Regional Administrators to issue
RCRA section 3008(h) orders has
uniformly been reposed (by
redelegation) in individuals at or above
the Hazardous Waste Division Director
level, we believe that there  is no cause
for concern that Regional
Administrators or the Assistant
Administrator will redelegate authority
to issue corrective action orders to low-
level Agency officials. Accordingly, we
have decided that the actual designation
of the official who will issue initial
3008(h) orders should continue to be left
in the rules, as it is in the pertinent '
Agency delegation, to the Regional
Administrators and the Assistant
Administrator for Solid Waste and
Emergency Response. This approach
comports with that now followed in the
Part 22 hearing procedures.

Service of Orders. Decisions, Rulings.
and Documents
  6. Comment: In order to eliminate the
possibility that orders, decisions, or
other documents might be served on
low-level corporate officials, the rules
should require that service be made
upon that representative of respondent
designated to receive service of process.
not simply on respondent's
"representative."
  Response: The rules as revised follow
the Part 22 procedure, under which

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            Federal Register / Vol. 53, No. 71  / Wednesday, April  13, 1988 / Rules and  Regulations     12259
 service is to be made upon respondent,
 h'S representative, or, in the case of a
 corporation, partnership, or
 unincorporated association,  upon an
 officer, partner, managing or general
 agent, or other person authorized by
 appointment or Federal or State law to
 receive service of process.
 Choice of Hearing Procedures
   7. CommentfThe rules should employ
 a clearer standard for determining when
 hearings on 3008(h) orders directing
 respondent to undertake studies and
 interim corrective measures  are to be
 held under the Subpart B or Subpart C
 procedures. The respondent  should have
 input into the decision as to which
 hearing procedures are to be utilized.
  Response: The rules currently provide
 that hearings on orders requiring
 respondent to undertake studies and
 interim corrective measures are to be
 held under the Subpart B procedures, if
 such interim measures are neither costly
 nor technically complex and are needed
 to protect human  health and the
 environment prior to development of a
 permanent remedy. The thought behind
 adoption of this standard was that a
 hearing which would otherwise be
 conducted under the Subpart B
 procedures should not be required to be
 held under the more time-consuming
 and formal Subpart C procedures,
 merely because the order in question
 directed respondent to implement
 certain limited corrective measures
 which did not place major property
 interests at stake  and were not fraught
 with complex technical questions for
 which the Subpart C procedures would
 be more appropriate. EPA continues to
 believe that these criteria provide the
 appropriate basis for determining which
 hearing procedures to employ. The fact
 that these criteria require the
 decisionmaker to  make occasional
 subjective judgments is not in itself
 grounds for abandoning or modifying the
 criteria.
  In order to answer the commenter's
 concern that respondent have a role in
 the selection of the proper hearing
 procedures, the rules have been
 amended (1) to require that the Agency
 indicate in the initial order which
 hearing procedures it believes to be
 appropriate and the reasons therefore,
 and  (2) to permit respondent  to provide
 its views on this question with its
 response to the initial order and request
 for hearing. The Presiding Officer can
 then weigh the positions of both parties
 in deciding which procedures to employ.
The Presiding Officer can inform the
parties which hearing procedures will be
 used at the same time that he transmits
 to them information concerning the date,
 time, location, and agenda for the
 hearing.
 Deadlines Established in the Rule
  8. Comment: The deadlines
 established in the rule (and in particular
 the provision which permits EPA
 responses to written questions to come
 in as late as 7 days before hearing) do
 not afford respondent adequate time to
 prepare for a hearing.
  Response: The time frames within
 which respondent must prepare its case
 do not seem unduly tight. Respondent
 does not even have to request a hearing
 for 30 days after service of the initial
 order. Respondent thus has 30 days plus
 the period between receipt of its hearing
 request and the hearing date to prepare
 for hearing. If the Presiding  Officer
 determines that respondent's ability to
 prepare is unfairly prejudiced by any
 deadline other than that for requesting a
 hearing or by the fact that EPA
 responses to written questions will come
 in too late to permit proper review and
 response by respondent before hearing,
 the rules permit the Presiding Officer to
 adjust the pre-hearing schedule
 accordingly or postpone the hearing
 date.
  9. Comment: The rules should be
 changed so as to permit, where good
 cause is shown, extensions in the time
 period within which a hearing must be
 requested.
  Response: Since RCRA section 3008(b)
 provides that orders issued under
 section 3008 shall become final unless
 no later than 30 days from service
 respondent requests a hearing, the
 Agency  is not at liberty to extend this
 particular deadline.

 Qualifications of the Presiding Officer
  10. Comment:The rules should require
 that the  Presiding Officer always be an
 Administrative Law Judge or at least an
 attorney and should contain additional
 guarantees of the neutrality of the
 Presiding Officer. The rules  as drafted
 are unfair in that they would permit an
 EPA enforcement attorney (including
 one with intimate prior contact with a
 proceeding short of drafting the initial
 order) to serve as the Presiding Officer
 in either a Subpart B or C hearing.
  Response: In view of (1) the fact  that
 the Presiding Officer will be called upon
 to prepare a recommended decision
which, in the case where it is adopted
and signed by the Regional
Administrator, may in effect constitute
 the Agency's final decision,  and (2) the
need to ensure for purposes of appeal
that the  final decision accurately
reflects the legal and factual basis  for
 the Agency's decision, EPA has on
reconsideration revised the rule to
require that the Presiding Officer in a
Subpart B hearing be an attorney. EPA
believes that an attorney would
generally be more effective and
comfortable than  a non-attorney both
ruling and drafting decisions on legal
issues and conducting a hearing, albeit
and informal one.
  To  further ensure the neutrality of the
Presiding Officer in both Subpart B and
C hearings, the rule has been revised to
require that the Presiding Officer always
be an individual with no prior
connection to the  case before him. The
Agency has determined  that a decision
to require that only non-enforcement
attorneys serve as Presiding Officers is
precluded by the fact that many EPA
Regional offices employ no attorneys
who do not have enforcement
responsibilities. Expected cost savings
would bu negated if the Agency were
required to pay the travel and
subsistence costs  necessary to make
non-enforcement attorneys from
Headquarters or Regions employing
them  available where they were needed
as Presiding Officers. EPA does not,  in
any event, regard  prior involvement in
any enforcement work as grounds for
disqualifying an individual from sen-ing
as a hearing officer.
  The Agency's decision to employ
Agency attorneys rather than
Administrative Law Judges as hearing
officers is based in part on resource
concerns but is principally grounded on
our belief that Administrative Law
Judges, whose experience is in
conducting formal adjudicatory
hearings, are not needed to preside over
the informal hearings contemplated by
these  rules.

Use of Affidavits
  11. Comment: The rules are unfair in
that they require respondent to submit
all factual representations by affidavit
but impose no such requirement on EPA.
  Response: EPA agrees and has
stricken from the rules those provisions
requiring respondent to make factual
representations by affidavit. We have
instead adopted the procedure specified
in the Part 22 procedures, under which
the  original of any pleading, letter, or
other  document (other than exhibits)
must be signed by the party offering it or
his representative. This signature is held
to constitute a representation by the
signer that he has  read the document
and that to the best of his knowledge,
information, and belief the statements
made  therein are true. It  should
nevertheless be noted that, whenever a
party  makes factual representations in a
document, the weight to be accorded
that evidence may be affected by the

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122HO     Federal Register /  Vol.  53,  No. 71  /  Wednesday, April  13,  1908 / Rules and Regulations
fact that no knowledgeable source has
attested to the accuracy of or basis for
that factual representation.
Discovery
  12. Comment: It is unfair that, while
EPA has the right to elicit information
from respondent under RCRA section
3007, respondent has no right to
discovery under the proposed rules.
  Response: Respondent may (with the
Presiding Officer's permission) pose
written questions to EPA prior to a
Subpart C hearing  and oral questions to
EPA representatives at a Subpart B
hearing. Respondent also has access to
the entire administrative record from the
time an initial order is issued forward.  It
is on the basis of information contained
in the administrative record that EPA
will have framed the initial order. The
rules also required EPA to indicate  in an
initial order the legal authority and
factual basis upon  which the order is
premised. EPA believes that the above-
cited features of the rules will ensure
that respondent understands EPA's
theory of the case and has access to all
relevant information upon which EPA
relied in developing the order. In these
circumstances we believe that  further
discovery is unnecessary. To permit
formal discovery (additional   -
interrogatories, depositions, requests for
admission, etc.) as requested would be
to extend  the time frame for the pre-
hearing process dramatically and the
scope of discovery beyond what is now
provided for in the formal adjudicatory
procedures contained in Part 22.
  3007 is comparable to many other
provisions in the law which confer on
agencies charged with enforcing the law
authority to gather information relating :
to potential violations of the law.
Without such authority many violations
of RCRA would go unidentified. We
regard the fact that EPA has been given
a statutory tool to enable it to enforce
the law as irrelevant to a decision as to
whether due process or other
considerations require that respondent
be permitted to engage in additional
discovery in 3008(h) administrative
proceedings.
  13. Comment: The proscription in. the
rules on written questions relating to
matters of "policy" and "privileged
internal communications" is
inappropriate, since these terms are
undefined and questions relating to the
application of policy to the specific facts
of a case will often be critical to the
dispute.
  .Response: The underlying rationale
for the proscription in the rule on
"policy" questions  was that written
questions only serve a useful function
(from the standpoint of satisfying due
process requirements) when they relate
to disputed matters of fact. After further
consideration, however, we are
persuaded that, as commenters suggest,
there may be situations in which .
questions as to the application of policy
to certain facts may be appropriate. We
have therefore removed the ban on
policy questions from the rule.
  The prohibition on questions relating
to "privileged internal communications"
is designed to protect from disclosure
information which the Agency would
not under applicable law  be required or
permitted to release in response to a
request for information made pursuant
to the Freedom of Information Act
(FOIA). Such information will most
often include, but is not limited to, trade
secrets, attorney-client communications.
attorney work product, and deliberative
materials. Because such material is
protected from disclosure, questions on
such issues will not be permitted. The
scope of this limitation is  not undefined,
since it reflects the extensive case law
concerning these exemptions under
FOIA.
  14. Comment: The rules should
require, not just permit, the Presiding
Officer to direct EPA to respond to
written questions propounded under the
Subpart C procedures, if he determines
that this is "required for full disclosure
and adequate resolution of the facts."
  Response: Because it was inartfully
drafted, the language of the proposed
rule left the impression that the
Presiding Officer could find that
responses to written questions were
required for full disclosure and adequate
resolution of the facts but could
nevertheless decline  to order responses
to such questions. The offending       :.
language has been revised so as to
dispel this impression.
  15. Comment: The Subpart C
procedure for posing written questions
to the Agency will not provide
respondent with adequate discovery,
because experience with interrogatories
indicates that responses to written
questions are often incomplete.
  Response: In a case where the
Presiding Officer determines that EPA's
responses to written questions are •
incomplete, he may exercise (1) the
authority he has always had in § 24.14(e)
of the proposed rule to compel the
Agency "to submit additional
information in whatever form he deems
appropriate", (2) the authority he has to
ask questions under § 24.15(a) of the rule
to compel a fuller response from the
Agency's representative(s) at hearing, or
(3) new authority inserted into § 24,14(e)
to require that the Agency (or both   .
parties) submit post-hearing briefs on
issues which  have not been fully
developed as of the close of the hearing.
We believe the cited provisions of the
rule can be invoked as needed by the
Presiding Officer to ensure that the
Agency provides a full response to any
proper question.

Conduct of the Hearing
  16. Comment: The Presiding Officer
should be required to serve the hearing
agenda on the parties prior to hearing.
  Response: Both the Subpart B and
Subpart C procedures  have been
rewritten to require that the Presiding
Officer provide the parties with a
hearing agenda at the  time at which he
announces to them the date,  time, and
location of the hearing.
  17. Comment: The hearing  procedures
are deficient in that they do not require
knowledgeable witnesses from both
sides to be present.
  Response: While the rules  do not
accord the parties the  right to cross-
examine the opposition's
representatives and thus do not
contemplate that "witnesses",  as that
term applies to full adjudicatory  •.''•
hearings, would attend the hearing, the
rules do allow the Presiding Officer and
(with his permission) the parties in a
Subpart B hearing to pose questions to a
party's representative(s) at hearing. In
recognition of this fact the rules have
been revised to explicitly require what
was only implicit in the proposed rule—
that each party must be represented at
hearing by a representative(s) capable
of responding to questions and
articulating that party's position on the
law and facts of the case.
  18. Comment: The fact that the rules
permit a tape recording of a hearing in
lieu of a transcript is problematical in
that tape recordings are  usually of poor
quality and make identification of the
speaker difficult.
  Response: Although a
stenographically transcribed record of a
hearing may, generally speaking, be
more reliable than a tape recording, we
nevertheless believe that a tape
recording will provide an adequate
record of the hearing and that, in light of
the additional cost to the Agency of
providing for stenographically
transcribed records, the  decision to
permit tape recordings is justified.

Administrative Record
  19. Comment: The rules should require
that the entire administrative record
underlying an order (including materials
which do and do not support the
Agency's theory of the case and  .
remedial decisions) be served upon or
made available to respondent upon
service of the initial order. The rules

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           Federal Register / Vol.  53. No. 71 / Wednesday.  April 13.  1908 / Rules and Regulations      12261
 currently suggest that only that portion
 of the administrative record supporting
 the order is to be made available and
 then not until the hearing is held. EPA
 should certify  the completeness of the
 administrative record.
  Response: As explained above, the
 rule has been revised to accommodate
 this comment by explicitly requiring that
 the entire administrative record be made
 available for review in the appropriate
 Regional (or Headquarters) office as of
 the date of service of the initial order.
 The administrative record should
 include all information (excluding
 privileged material) considered by the
 Agency in the  process of developing and
 issuing the  order, including material
 which does not support the Agency's
 view of the case  and remedial decisions.
 We believe that it would place an undue
 administrative and financial burden on
 the Agency to  copy and serve on the
 respondent the entire administrative
 record, which may often consist of
 thousands of pages of information. Since
 the rules require  that the entire
 administrative record be made available
 for inspection, we believe it would be _-
 redundant to have an Agency official
 certify the completeness of the
 administrative record.
 Burden and Standard of Proof
  20. Comment- By depriving respondent
 of access to the administrative record
 until hearing and by failing to require
 that the initial  order contain an
 explanation of the basis upon which it
 was issued, the rules force respondent
 to guess at  the Agency's theory of the
 case and effectively transfer the burden
 to respondent to  demonstrate that a
 release of hazardous-waste has not
 occurred and that the ordered corrective
 action is not necessary to protect human
 health and the environment.
  Response: Guidance issued to the
 Regions on February 19,1987, directs the
 EPA Regional office issuing an initial
 order to make  the administrative record
 underlying the order available for
 review in the appropriate Regional
 office as of the date the initial order is
 served. By way of clarifying the
Agency's intentions in this regard, this
requirement from guidance has, as  .
 noted, been incorporated into the rule.
The rule has also been revised to
 explicitly require that the Agency
 disclose in the initial order the legal and
 factual bases upon which the order was
 issued.
  21. Comment: Rather than simply
demonstrating, as the proposed rule now
requires, that there is "adequate
support", in the record for the order, EPA
should have to prove by a
preponderance of the evidence that a
release occurred and that the required
corrective action is necessary to protect
human health and the environment.
  Response: While EPA believes that
"adequate support" is a comparable
standard, we believe that
"preponderance of the evidence" carries
a more widely understood meaning.
Accordingly, EPA has amended the rule
to require that the Presiding Officer
recommend that the order be withdrawn
or modified and issued in a form
supported by the record, whenever he
finds any relief provision in the order is
not supported by a preponderance of the
evidence in the record.
Decisional Process
  22. Comment: The rule should be
revised to prohibit ex parte contacts
entirely.
  Response: The decision was made in
the proposed rule to permit ex parte
contacts because it was thought  that the
Presiding Officer should have the ability
to contact either party for clarification
of their positions or to obtain answers to
questions about difficult technical  or
legal matters. On further consideration
the Agency has concluded that the
proper way for the Presiding Officer to
obtain answers to such questions is by
convening the parties for a status
conference or teleconference. This is a
slightly more cumbersome procedure but
one calculated to remove even the
appearance of undue influence which '
might arise in the case of an ex parte
contact.
  The rule has been revised to prohibit
ex parte discussion of the case between
the Presiding Officer and any of the
parties. We have retained language from
the proposed rule which would require
that, in the event that ex parte contact
between the Presiding Officer and  a
party occurs, the opposing party be
provided with a summary of the
communication and an opportunity to
comment on matters which were the
subject of the ex parte communication.
This approach comports generally  with
that followed in Part 22.
  23. Comment: The final order and any
summary of the hearing prepared by the
Presiding Officer should contain a
statement as to the legal and factual
basis upon which the order was issued.
  Response: Commenter's concern here
appears to be that a" final order could
not properly be appealed into Federal
court, if the legal and factual basis for
the order was not. known. As indicated
above, the rules have been modified to
explicitly require that the initial order
contain a statement as to the legal and
factual basis upon which the order was
issued. Thus, if an initial order becomes
final by virtue  of the fact that no hearing
is requested within 30 days of service,
the final order will contain a statement
of the legal and factual basis upon
which it was ordered.
  The proposed rule already required
that any recommended decision
prepared by the Presiding Officer
provide support from information
contained in the record or adduced at
hearing for any  decision to affirm,
modify, or withdraw the initial order.
This language has been retained. Thus,
if the Regional Administrator signs the
recommended decision, the final
decision will contain a justification (that
prepared by the Presiding Officer) for
such final decision. The rules have also
been modified to explicitly require that,
where the Regional Administrator
modifies the recommended decision of
the Presiding Officer, he ensure that the
final decision indicate the legal and
factual basis for the decision as
modified.
  While the rules require the order to be
modified before issuance as a  final
order so as to comport with a final
decision modifying the initial order, it is
not contemplated that the portion of the
body of the order containing a
justification for the order would
necessarily have to be modified. That
justification for issuance of the final
order (to  the extent it is important to
know it for purposes of an appeal into
Federal court) should be contained in
the final decision.
  24. Comment: The rule should require
that the hearing summary prepared by
the Presiding Officer more completely
address the positions and arguments of
both parties, not just those of
respondent.
  Response: The provision in question
(§ 24.12(a)) only establishes minimum
requirements for the hearing summary.
Since  § 24.02 has been amended to
require that the Agency articulate in the
initial order the legal and factual basis
for the initial order, we believe that at
the time the hearing summary is
prepared the Agency's views will
generally already be a matter of record.
To the extent that this is not the case the
summary should also address  EPA's
positions.
  The recommended decision, which the
Presiding Officer is required to prepare,
must still address all arguments raised
by respondent and provide support for
any recommendation to affirm, modify,
or withdraw .the order. In preparing this
statement the Presiding Officer must
necessarily address material aspects of
EPA's position in the case to the extent
required to explain why respondent's
arguments have been accepted or

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12262     Federal  Register / Vol. 53. No. 71  / Wednesday,  April 13,  1988 / Rules and Regulations
rejected and why EPA's order should be
affirmed, modified, or withdrawn.
  25. Comment: Respondent and EPA
should each be served with a copy of
the Presiding Officer's recommended
decision and should have the
opportunity to comment on the
recommended decision before the
Regional Administrator issues a final
decision.
  Response: Since (1) the proposed
change allows the parties a final
opportunity to identify, and the Regional
Administrator a last chance to hear from
the parties about, factual and legal
errors in the recommended decision, and
(2) the procedures do not allow an
administrative appeal from the Regional
Administrator's final decision and thus
contain no other mechanism for
discovering or reversing error, EPA has
amended the rules to provide that the
recommended decision be served on the
parties and that the parties be given 3
weeks from service to comment on the
recommended decision.

Public Participation
  26. Comment: The rules should make
provision for public participation in
hearings. The public should receive
notice of the hearing request and should
have rights virtually coextensive with
respondent's to present evidence and
argument before, at, and after the
hearing.
  Response: Guidance issued by the
Agency accords the publitjthe right to  .
participate prior to hearing-ih remedy
selection, which is the critical issued
and matter of greatest public concern in
a RCRA 3008(h) proceeding. The public
will be given an opportunity to comment
on the proposed plan for corrective
measures developed by EPA after
completion of the RCRA Facility
Investigation and Corrective Measures
Study and will receive notice of the
Agency's final plan for corrective
measures prior to implementation. EPA
believes that to permit additional public
participation in the hearing process
would be redundant and inconsistent
with the Agency's objective of
streamlining the hearing.

Specificity of the Rules   '      • '•'••••
  27. Comment: The Part 22 hearing
procedures are superior to the proposed
procedures in that they spell out the
details of the hearing more precisely and
leave less to the discretion of the
Presiding Officer. The Part 22
procedures are sufficiently flexible to
allow for an abbreviated hearing if, in
fact, the 3008(h) proceeding in question
involves only a few factual issues.
  Response: The proposed procedures
have intentionally left more to the
discretion of the Presiding Officer than
Part 22 does, so as to permit a flexible
approach to hearings on orders which
may request relief ranging from small
studies of limited  spills or inexpensive
interim corrective measures (e.g.,
erection of a fence or warning signs), on
the one hand, to complex and expensive
remedies, on the other. The procedures
as amended are nevertheless specific
enough to ensure that, regardless of the
costs or complexity of the requested
relief, respondent is afforded (1) an
opportunity to learn the legal and
factual basis upon which the order was
issues, (2) a hearing before a neutral
hearing officer, and (3) the opportunity
to present its views on relevant factual
and legal issues.
  The formalized  hearing procedures
contained in Part 22 would require that,
even in the most straightforward cases
involving requests for the most limited
corrective actions, certain expensive,
time consuming, and unnecessary
procedural minimums be observed.
These include but are not limited to (1) a
hearing before an Administrative Law
Judge, (2) a written transcript, (3) a
formal complaint and answer meeting
certain specific requirements, (4) oral
examination of witnesses (at least to the
extent that any issue  of material fact is
presented), (5) filing of post-hearing
briefs, and (6) many means by which
issuance of an administratively final
decision may be delayed, including a
motion to reopen the hearing, appeal of
the final decision to the Administrator
(Chief Judicial Officer) and a motion to
reconsider the final order. Part 22 also
establishes procedures for discovery,
prehearing conferences, and
intervention and generally contemplates
a more extended hearing process than
that provided for in the instant rule.
Observance of the Part 22 procedural
requirements would inevitably impair
the Agency's ability to compel a rapid
response to releases of hazardous waste
and constituents under 3008(h).
V. Regulatory Analyses
A. Executive Order No. 12291
  Under Executive Order No.'12291, the
Agency must judge whether a regulation
is "major" and thus subject to the
requirement to prepare a Regulatory
Impact Analysis. The notice published
today is not major because the rule will
not result in an effect on the economy of
$100 million or more,  will not result in
increased costs or prices, will not have
significant adverse effects on
competition, employment, investment,
productivity, and innovation, and will
not significantly disrupt domestic or
export markets. Therefore, the Agency
has not prepared a Regulatory Impact
Analysis under the Executive Order.
  This regulation was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order No. 12291.

B. Regulatory Flexibility Analysis

  Pursuant to the Regulatory Flexibility
Act 5 U.S.C. 601 et seq., whenever an
agency is required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effect of the rule on small entities (i.e.,
small businesses, small organizations,
and small governmental jurisdictions).
This analysis is unnecessary, however,
if the agency's administrator certifies
that the rule will not have a significant
economic effect on a substantial number
of small entities.
  EPA has examined the tide's potential
effects on small entities as required by
the Regulatory Flexibility Act This
proposed rule establishes hearing
procedures and has no significant
economic impact on a substantial'
number of small entities. EPA  certifies
that today's final rule will not have a
significant economic effect on a
substantial number of small entities.

VI. Effective Date of the Rule

  Since the instant rule is manifestly
one with which the regulated community
does not need six months (or, for that
matter, any time) to come into-
compliance, see 42. U.S.C. 6930(b)(l), it
will take effect immediately. By making
the rule effective immediately EPA
intends to eliminate any confusion
which might otherwise exist as to what
procedures to follow in hearings on any
such orders.

List of Subjects

40 CFR Part 22

  Administrative practice and
procedure, Hazardous materials,'
Penalties, Waste treatment disoosal.

40CFRPart24

  Administrative practice ana
procedure. Corrective action. Hazardous
materials. Penalties, Revocation of
operating authority.
  Dated: April 5.1988.
Lee M. Thomas,
Administrator.
  For the reasons set out in the
Preamble, Title 40 of the Code of Federal
Regulations is amended as follows:

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           Federal Register  / Vol. 53. No.  711 / Wednesday. April 13. iatl8 / Rules and Regulations     12263
PART 22— CONSOLIDATED RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AND THE
REVOCATION OR SUSPENSION OF
PERMITS

  1. The authority citation for Part 22
continues to read as follows:
  Authority: 15 U.S.C. sec. 2615: 42 U.S.C.
st-cs. 7545 and 7601; 7U.S.C. sees. 1360) and
(w); 33 U.S.C. sees. 1415 and 1418; 42 U.S.C
S.T.S. 6912. 6928. and6991(ef.

  2. Section 22.01 is amended by
revising paragraph. (a)(4f to read as
follows:

$ 22.01  Scope of these rules.
  (a)  •  ' •
  (4) The issuance of a compliance
order, the issuance of a corrective action
i Tiler, the suspension or revocation of
authority to operate pursuant to section
:uX)5(e) of the Solid Waste Disposal Act.
or the assessment of any civil penalty
under sections 3008 and 9006 of the
Solid Waste Disposal Act, as amended
(42 U.S.C. 6928 and 6991(e)J, except as
provided in 40 CFR Parts 24 and 124.
•      ••**..

  3. New Part 24 is added to read as
follows:

PART 24— RULES GOVERNING
ISSUANCE OF AND ADMINISTRATIVE
HEARINGS ON INTERIM STATUS
CORRECTIVE ACTION ORDERS

Subpart  A — General
24.01  Scope of these rules.
24.02  Issuance of initial orders; definition of
    final orders and orders on consent.
24.03  Maintenance of docket and official
    record.
24.04  Filing and service of orders, decisions,.
    and documents.
24.05  Response to  the initial order request
24X16  Designation of Presiding Officer.
24.07  Informal settlement conference.
24.08  Selection of appropriate hearing
    procedures.
Subpart B — Hearings on Orders Requiring
Investigations or Studies
24.09  Qualifications of Presiding Officer; ex
    parte discussion of the proceeding.
24.10  Scheduling the hearing; pre-hearing
    submissions by respondent.
24.11  Hearing: oral presentations and
    written submissions by the parties.
24.12  Summary of hearing; Presiding
    Officer's recommendation.
Subpart C — Hearings on Orders Requiring
Corrective Measures
24.13  Qualifications of Presiding Officer ex
    parte discussion of the proceeding.
24.14  Scheduling the hearing; pre-hearing
    submissions by the parties.
24.15  Hearing; oral presentations and
    written submissions by the parties.
24.16  Transcript or recording of hearing.
24.17  Presiding Officer's recommendation.
Subpart D—Post-Hearing Procedures
24.18  Final decision.
24.19  Final order.
24.20  Final agency action.
  Authority: 42 U.S.C. sections 6912, 0928.

Subpart A—General

§24.01 Scope of these rules.
  (a) These rules establish procedures
governing issuance'of administrative
orders for corrective action pursuant to
section 3008(h) of the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act (the Act), and conduct of
administrative hearings on such orders,
except as specified in § 24.01(b) below.
  (b) The hearing procedures appearing
at 40 CFR Part 22 govern administrative
hearings on any order issued pursuant to
section 3008(h) of the Act which:
  (1) Is contained within an
administrative order that includes
claims under section 3008(a) of the Act
or
  (2) Includes a suspension or
revocation of authorization to operate
under section 3005(e) of the Act; or
  (3) Seeks penalties under section
3008(h}(2) of the Act for non-compliance
with a section 3008(h) order.
  (c) Questions arising at any stage of
the proceeding which are not addressed
in these rules shall be resolved at the
discretion of the Regional Administrator
or Presiding Officer, as appropriate.

§ 24.02 Issuance of Initial orders;
definition of final orders and orders on
consent.
  (a) An administrative action under
section 3008(h) of the Act shall be
commenced by issuance of an  •
administrative order. When, the order is
issued unilaterally, the otder shall be
referred to as an initial administrative
order and may be referenced as a
proceeding under section 3008(h). When
the order has become effective, either
after issuance of a  final'order following
a final decision by  the Regional
Administrator, or after thirty days from.
issuance if no hearing is requested, the
order shall be referred to as a final
administrative order. Where the order is
agreed toby the-parties, the order shall
be denominated as a final'
administrative order on consent.
  (b) The initial administrative order
shall be executed by an authorized
official of EPA (petitioner), other than
the Regional Administrator or the
Assistant Administrator for the Office of
Solid Waste and Emergency Response.
For orders issued by EPA Headquarters.
rather than by a Regional office, all
references in these procedures to the
Regional Administrator shall be
understood to be to the Assistant
Administrator for Solid Waste and
Emergency Response or his delegatee.
  (c) The initial administrative orjier
shall contain:
  (1) A reference to the-legal authority
pursuant to which the order is issued,
  (2) A concise statement of the factual
basis, upon which the order is issued,.
and
  (3J Notification of respondent's right
to request a hearing with respect to any
issue  of material fact or the
appropriateness of the proposed
corrective action.

». 24.03  Maintenance of docket and official
record.
  (a) A Clerk shall be designated by the
Regional Administrator to receive all
initial orders, final orders, decisions,
responses, memoranda, and documents
regarding the order and to maintain the
official record and dbckef.
  (b) On or before the date  the initial
order is served on respondent the EPA
office issuing the order shall deliver to
the Clerk (a copy of) the administrative
record supporting the findings of fact,
determinations of law, and  relief sought
in the initial administrative order. This
record shall include all relevant
documents and oral information (which
has been reduced to writing), which  the
Agency considered in the process of
developing and issuing the order.
exclusive of privileged internal
communications. The administrative
record delivered to the Clerk must have
an index and be available for review (n
the appropriate Agency Regional or
Headquarters office during  normal
business hours after the order is issued.

§ 24.04 . Filing and service of  orders,
decisions, and documents.
  (a) Filing of .orders, decisions, and
documents. The original and one copy of
the initial administrative order, the
recommended decision of the Presiding
Officer, the final decision and the final
administrative order, and one copy of
the administrative, record and an index
thereto must be filed with the Clerk
designated for section 3008(h) orders. In
addition, all memoranda and documents
submitted in the proceeding shall be
field with the Clerk.
  (b) Service of orders, decisions, anef
rulings.  The Clerk (or m-the case of the
initial administrative order, any other
designated EPA employee)  shall arrange
for the effectuation of service of the
initial administrative order, the

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12264     Federal Register /  Vol.  53,  No. 71  / Wednesday,  April 13, 1988 /  Rules and Regulations
recommended decision of the Presiding
Officer, the final decision, and final
administrative order. Service of a copy
of the initial administrative order
together with a copy of these
procedures, the recommended decision
of the Presiding Officer, the final
decision, or a final administrative order,
shall be made personally or by certified
mail, return receipt requested or, if
personal service cannot be effectuated
or certified mail is returned refused or
unsigned, by regular mail, on the
respondent or his representative. The
Clerk shall serve other documents from
the Presiding Officer by regular mail.
  (c) Service of documents filed by the
parties. Service of all documents, filed
by the parties, shall be made by the
parties or their representatives on other
parties or their representatives and may
be regular mail, with the original filed
with the Clerk. The original of any
pleading, letter, or other document   .
(other than exhibits] shall be signed by
the party filing or by his counsel or other
representative. The signature constitutes
a representation by the signer that he
has read the pleading, letter, or other
document, that to the best of his
knowledge, information, and belief, the
statements made therein are true, and
that it is not interposed for delay.
  (d) Service in general. Service of
orders, decisions, .rulings, or documents
by either the Clerk or the parties shall,
in the case of a domestic or foreign
corporation, a partnership, or other
unincorporated association, which is
subject to suit under a common name,
be made, as prescribed in § 24.04 (b) and
(c), upon an officer, partner, managing or
general agent, or any person authorized
by appointment or by Federal or State
law to receive service of process.
  (e) Effective date of service. Service
of the initial administrative order and
final administrative order is complete
upon receipt by respondent (or the
respondent's agent, attorney,
representative or other person employed
by respondent and receiving such
service), personally or by certified mail.
or upon mailing by regular mail, if
personal service or service by certified
mail cannot be accomplished, in
accordance with § 24.04(b). Service of
all other pleadings and documents is
complete upon mailing, except  as
provided in §§ 24.10(b) anov24.14(e).

§ 24.05  Response to the Initial order;
request for hearing.
  (a) The initial administrative order
becomes a final administrative order
thirty (30) days after service of the
order, unless the respondent files with
the Clerk within thirty (30) days after
service of the order, a response to the
initial order and requests a hearing.
  (b) The response to the initial order
and request for a hearing must be in
writing and mailed to, or personally
served on. the Clerk of the Regional
office which issued the order.
  (c) The response to the initial order
shall specify each factual or legal
determination, or relief provision in the
initial order the respondent disputes and
shall briefly indicate the basis upon
which it disputes such determination or
provision.
  (d) Respondent may include with its
response to the initial order and request
for a hearing a statement indicating
whether it believes the Subpart B or
Subpart C hearing procedures should be
employed for the requested hearing and
the reason(s) therefore.

§ 24.06 Designation of Presiding Officer.
  Upon receipt of a request for a
hearing, the Regional Administrator
shall designate a Presiding Officer to
conduct the hearing and preside over
the proceedings.

§ 24.07 Informal settlement conference.
  The respondent may request an
informal  settlement conference at any
time by contacting the appropriate EPA
employee, as specified in the initial
administrative order. A request for an
informal  conference will not affect the
respondent's obligations to timely
request a hearing. Whether or not the
respondent requests  a hearing, the
parties may confer informally
concerning any aspect of the order. The
respondent and respondent's
representatives shall generally be
allowed the opportunity at an informal
conference to discuss with the
appropriate Agency technical and legal
personnel all aspects of  the order, and in
particular the basis for the
determination that a release has
occurred and the appropriateness of the
ordered corrective action.

§ 24.08  Selection of appropriate hearing
procedures.
  If the initial order directs the
respondent—
  (a) To undertake only  a RCRA Facility
Investigation and/or Corrective
Measures Study, which may include
monitoring, surveys,  testing, information
gathering, analyses, and/or studies
(including studies designed to develop
recommendations for appropriate
corrective measures), or
  (b) To undertake such investigations
and/or studies and interim corrective
measures, and if such interim corrective
measures are neither costly nor
technically complex and are necessary
to protect human health and the
environment prior to development of a
permanent remedy,
the hearing procedures set forth in
Subpart B of this part shall be employed
for any requested hearing. If the
respondent seeks a hearing on an order
directing that corrective measures or
such corrective measures together with
investigations/studies be undertaken,
the hearing procedures set forth in
Subpart C of this part shall be
employed. The procedures contained in
Subparts A and D of this part shall be
followed regardless of whether the
initial order directs respondent to
undertake an investigation or implement
corrective measures.

Subpart B—Hearings on Orders
Requiring Investigations or Studies

§ 24.09  Qualifications of Presiding Officer;
ex parte discussion of the proceeding.
  The Presiding Officer shall be either
the Regional Judicial Officer (as
described in 40 CFR 22.04(b)j or another
attorney employed by the Agency, who
has had no prior connectioffwith the
case, including the performance of any
investigative or prosecuting functions.
At no time after issuance of the initial
administrative order and prior to
issuance of the final order shall the
Regional Administrator, Presiding
Officer, or any person who will advise
these officials in the decision on the
case, discuss ex parte the merits of the
proceeding with any interested person
outside the Agency, with any Agency
staff member who performs a
prosecutorial or investigative function in
such proceeding or a factually related
proceeding, or with any representative
of such person. If, after issuance of the
initial order and prior to issuance of the
final order, the Regional Administrator,
Presiding Officer, or any person who
will advise these officials in the decision
on the case receives from or on behalf of
any party in an ex parte communication
information which is relevant to the
decision on the case and to which other
parties have not had an opportunity to
respond, a summary of such information
shall be served on all other parties, who
shall have an opportunity to reply to
same within ten (10) days of service of
the summary.

§ 24.10  Scheduling the hearing; pre-
hearlng submissions by respondent
  (a) Date and time for hearing. The
Presiding Officer shall establish the
date, time, location, and agenda for the
requested public hearing and transmit
this information to the parties. Subject
to § 24.10(c), the hearing shall be

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           Federal Register  /  Vol. 53.  No. 71 /  Wednesday. April 13. 1988 / Rules  and  Regulations     12265
 scheduled and held within Ihirty (30)
 days of the Agency's receipt of the
 request for a public hearing.
  (b) Pre-hearing submissions by
 respondent. At any time up to five (5]
 business days before the hearing
 respondent may, but is not required to,
 submit for inclusion in the
 administrative record information and
 argument supporting respondent's
 positions on the facts, law and relief, as
 each relates to the order in question. A
 copy of any information or argument
 submitted by respondent shall be served
 such that the Clerk and petitioner
 receive same at least five (5) business
 days before hearing.
  (c) Postponment of hearing. The
 Presiding Officer may grant an
 extension of time for the conduct of the
 hearing upon written request of either
 party, for good cause shown, and after
 consideration of any prejudice to other
 parties. The Presiding Officer may not
 extend the date by which the request for
 hearing is due under § 24.05(a).
  (d) Location of hearing. The hearing
 shall be held in the city in which the
 relevant EPA Regional Office is located,
 unless the Presiding Officer determines
 that there is good cause to hold it in
 another location.

 § 24.11  Hearing; oral presentations and
 written submissions by the parties.
  The Presiding Officer shall conduct
 the hearing in a fair and impartial way,
 taking action as needed to avoid
 unnecessary delay, exclude redundant
 material and maintain order during the
 proceedings. Representatives of EPA
 shall introduce the administrative record
 and be prepared to summarize the basis
 for  the order. .The respondent shall have
 a reasonable opportunity to address
 relevant issues and present  its views
 through legal counsel or technical
 advisors. The Presiding Officer may also
 allow technical and legal discussions .
 and interchanges between the parties,
 including responses to questions to the
 extent deemed appropriate. It is not the
 Agency's intent to provide EPA or
 respondent an opportunity to engage in
 direct examination or cross-examination
 of witnesses. The Presiding  Officer may
 address questions to the respondent's or
 EPA's representative(s) during the ,
 hearing. Each party shall insure that a
 representative(s) is (are) present at the
 hearing, who is (are) capable of
 responding to questions and articulating
 that party's position on the law and
 fuels at issue. Where respondent can
 demonstrate that through no fault of its
 own certain documents supportive of its
position could not have been submitted
before hearing in accordance with the
requirements of § 24.10(b), it may submit
such documents at the hearing.
Otherwise no new documentary support
may be submitted at hearing. The
Presiding Officer may upon request
grant petitioner leave to respond to
submissions made by respondent
pursuant to this section or § 24.10[b).
The Presiding Officer shall have the
discretion to order either party to submit
additional information (including but not
limited to posthearing briefs on
undeveloped factual, technical, or legal
matters) in whatever form he deems
appropriate either at or after the    - •
hearing.

§ 24.12 Summary of hearing; Presiding
Officer's recommendation.
  (a) As soon as practicable after the
conclusion of the hearing a written
summary of the proceeding shall be
prepared. This summary shall, at a
minimum, identify:
  (1) The dates of and known attendees
at the hearing; and
  (2) The bases upon which the
respondent contested the terms of the
order.

The summary must be signed by the
Presiding Officer.
  (b) The Presiding Officer will evaluate
the entire administrative record and, on
the basis of that review and the
representations of EPA and respondent
at the hearing, shall prepare and file a
recommended decision with the
Regional Administrator. The
recommended decision must address all
material issues of fact or law properly
raised by respondent, and must
recommend that the order be modified,
withdrawn or issued without
modification. The recommended
decision must provide an explanation
with citation to material contained in
the record for any decision to modify a
term of the order, to issue the order
without change, or to withdraw the
order. The recommended decision shall
be based on the administrative record. If
the Presiding Officer finds that any
contested relief provision in the order is
not supported by a preponderance of the
evidence in the record, the Presiding
Officer shall recommend that the order
be modified and issued on terms that
are supported by the record or
withdrawn.
  (c) At any  time within twenty-one (21)
days of service of the recommended
decision on the parties, the parties may
file comments on the recommended
decision with the Clerk. The Clerk shall
promptly transmit any such comments •
received to the Regional Administrator
for his consideration in reaching a final
decision.
Subpart C—Hearings on Orders
Requiring Corrective Measures

§ 24.13  Qualifications of Presiding Officer;
ex parte discussion of the proceeding.
  (a) Qualifications of Presiding Officer.
The Presiding Officer shall be either the
Regional Judicial Officer (as described
in 40 CFR 22.04(b)) of another attorney
employed by the Agency, who has had
no prior connection with the case,
including the performance of any
investigative or prosecuting functions.
  (b)Ex parte discussion of the
proceeding. At no time after issuance of
the initial administrative order and prior
to issuance of the final order shall the
Regional Administrator, Presiding
Officer, or any person who will advise
these officials in the decision on the
case, discuss ex parte the merits of the
proceeding with any interested person
outside the Agency, with any Agency
staff member who performs a
prosecutorial or investigative function in
such proceeding or a factually related
proceeding, or with any representative
of such person.  If, after issuance of the
initial order and prior to issuance of the
final order, the Regional Administrator,
Presiding Officer, or any person who   .
will advise these officials in the decision
o.n the  case receives from or on behalf of
any party in an ex parte communication
information which is relevant to the
decision on the case and to which other
parties have not had an opportunity to
respond, a  summary of such information
shall be served  on all other parties, who
shall have an opportunity to reply to
same within ten (10) days of service of
the summary.

§ 24.14   Scheduling the hearing; pre-
hearing submissions by the parties.
  (a) The Presiding Officer shall
establish an expeditious schedule for:
  (1) The submission by respondent of a
memorandum, with appropriate
affidavits and exhibits, stating and
supporting  respondent's  position on the
facts, law and relief, specifying the
bases upon and manner in which such
determinations  or relief provisions, if
erroneous,  require modification or
withdrawal of the order:
  (2) Submission of a response by EPA;
and
  (3) A public hearing.
Subject to § 24.14(b), a hearing shall be
scheduled within 45 days of the order
setting the  schedule. The Presiding
Officer shall establish the date, time,
location and agenda for  the hearing and
shall transmit this information to the
parties along with the schedule for the
hearing.

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12266     Federal
Register / Vol. 53, No.  71 / Wednesday,  April 13.  1988 / Rules and  Regulations
  (b) Postponement of the hearing. The
Presiding Officer, as appropriate, may
grant an extension of time for the filing
of any document, other than a request  •
for a Hearing under § 24.05(a), or may
grant an extension of time for the
conduct of the hearing, upon written
request of either party, for good cause
shown and after consideration of any
prejudice to other parties.
  (c) Respondent's pre-hearing
submission. In accordance with the
schedule set by the Presiding Officer,
the respondent shall Tile a memorandum
stating and supporting respondent's
position on the facts, law and relief. The
memorandum must identify each factual
allegation and all issues regarding the
appropriateness of the terms of the relief
in the initial order that respondent
contests and for which respondent
requests a hearing. The memorandum
must clearly state respondent's position
with respect to each such issue.
Respondent must also include any
proposals for modification of the order.
The memorandum shall also present any
arguments on the legal conclusions
contained in the order.
  (d) Written questions to EPA. The
respondent may file a request with the
Presiding Officer for permission to
submit written questions to the EPA
Regional Office issuing the order
concerning issues of material fact in the
order.
  (1) Requests shall be accompanied by
the proposed questions. In most
instances, no more than twenty-five (25)
questions, including subquestions and
subparts, may be posed. The request
and questions must be submitted to the
Presiding Officer at least twenty-one
(21) days before the hearing.
  (2) The Presiding Officer may direct
EPA to respond to such questions as he
designates. In deciding whether or not to
direct the Agency to respond to written
questions the Presiding Officer should   .
consider whether such responses are
required for full disclosure and adequate
resolution of the facts. No questions
shall be allowed regarding privileged
internal communications. The Presiding
Officer shall grant, deny, or modify such
requests expeditiously. If a request is
granted the Presiding Officer may  revise
questions and may limit the number and
scope of questions. Questions may be
deleted or revised in the discretion of
the Presiding Officer for reasons, which
may include the fact that he finds the
questions to be irrelevant, redundant,
unnecessary, or an undue burden on the
Agency. The Presiding Officer shall
transmit the questions as submitted or
as modified to EPA. EPA shall respond
to the questions within fourteen (14)     -
calendar days of service of the
                    questions by the Presiding Officer,
                    unless an extension is granted.
                      {e) Submission of additional
                    information. The Presiding Officer shall
                    have the discretion to order either party
                    to submit additional information
                    (including but not limited to post-hearing
                    briefs on undeveloped factual, technical,
                    or legal matters) in whatever form he
                    deems appropriate either before, at, or
                    after the hearing. The Presiding Officer
                    may issue subpoenas for the attendance
                    and testimony of persons and the
                    production of relevant papers, books
                    and documents. Since these hearing
                    procedures provide elsewhere that the
                    parties are not to engage in direct or
                    cross-examination of witnesses, the
                    subpoena power is to serve only as an
                    adjunct to the Presiding Officer's
                    authority to ask questions and otherwise
                    take steps to clarify factual matters
                    which are in dispute. Upon request of
                    the respondent the Presiding Officer
                    may, in his discretion, allow submittal
                    by the respondent of additional
                    information in support of its claim, if it
                    is received by the Clerk and petitioner
                    at least five (5) business days before the
                    hearing.
                      (f) Location of hearing. The hearing
                    shall be held in the city  in which the.
                    relevant EPA Regional Office is located,
                    unless the Presiding Officer determines
                    that there is good cause to hold it in
                    another location.

                    §24.15  Hearing; oral presentations and
                    written submissions by the parties.
                      (a) The Presiding Officer shall conduct
                    the  hearing in a fair and impartial
                    manner, take action to avoid
                    unnecessary delay in the disposition of
                    the  proceedings, and maintain order.
                    The Presiding Officer shall permit oral
                    statements on behalf of the respondent
                    and EPA. The Presiding Officer may
                    address questions to the respondent's or
                    the  EPA's representative(s) during the
                    hearing. Each party shall ensure that a
                    representative(s) is (are) present at the
                    hearing, who is (are) capable of
                    responding to questions and articulating
                    that party's position on  the law and
                    facts at issue. Apart from questions by
                    the  Presiding Officer, no direct
                    examination or cross-examination shall
                    be allowed.
                      (b) Upon commencement of the
                    hearing, a representative of EPA shall
                    introduce the order and record
                    supporting issuance of the order, and
                    summarize  the basis for the order. The
                    respondent may respond to the
                    administrative record and offer any
                    facts, statements, explanations or
                    document?  which bear on any issue for
                    which the hearing has been requested.
                    Any such presentation by respondent
may include new documents only to the
extent that respondent can demonstrate
that, through no fault of its own. such
documents could not have been
submitted before hearing in accordance
with the requirements of § 24.14 (c) and
(e). The Agency may then present
matters solely in rebuttal to matters
previously presented by the respondent.
The Presiding Officer may allow the
respondent to respond to any such
rebuttal submitted. The Presiding
Officer may exclude repetitive or
irrelevant matter. The Presiding Officer
may upon request grant petitioner leave
to respond to submissions made by
respondent pursuant to this paragraph
or § 24.14(e).

§ 24.16 Transcript or recording of hearing.
  (a) The hearing shall be either
transcribed stenographically or tape
recorded. Upon written request, such
transcript or tape recording shall be
made available for inspection or
copying.
  (b) The transcript  or recording of the
hearing and all written submittals filed
with the Clerk by the parties subsequent
to initial issuance of the order including
post-hearing submissions will become
part of the administrative record for the
proceeding, for consideration by the
Presiding Officer and Regional
Administrator.

§ 24.17  Presiding Officer's
recommendation.
  (a) The Presiding Officer will, as soon
as practicable after  the conclusion of the
hearing, evaluate the entire
administrative record and, on the basis
of the administrative record, prepare
and file a recommended decision with
the Regional Administrator. The
recommended decision must address all
material issues of fact or law properly
raised by respondent, and must
recommend that the order be modified.
withdrawn or issued without
modification. The recommended
decision must provide an explanation.
with citation to material contained in
the record for any decision to modify a
term of the order, to issue the order
without change or to withdraw the
order. The recommended decision shall
be based on the administrative record. If
the Presiding Officer finds that any
contested relief provision in. the order is
not supported by a preponderance of the
evidence in the record, the Presiding
Officer shall recommend that the order
be modified and issued on terms that
are supported by the record, or
withdrawn,
   (b) At any time within twenty-one (21)
days  of service of the recommended

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           Federal Register / Vol. 53, No.  71 / Wednesday, April  13. 1988 / Rules and Regulations
                                                                        12267
decision on the parties, the parties may
file comments on the recommended
decision with the Clerk. The Clerk shall
promptly transmit any such comments
received to the Regional Administrator
for his consideration in reaching a final
decision.

Subpart D—Post-Hearing Procedures

§ 24.18  Final decision.
  As soon as practicable after receipt of
the recommended decision, the Regional
Administrator will either sign or modify
such recommended decision, and issue
it as a final decision. If the Regional
Administrator modifies the
recommended decision, he shall insure
that the final decision indicates the legal
and factual basis for the decision as
modified. The Regional Administrator's
decision shall be based on the
administrative record.

§ 24.19  Final order.
  If the Regional Administrator does not
adopt portions of the initial order, or
finds that modification of the order is
necessary, the signatory official on the
initial administrative order shall modify
the order in accordance with the terms
of the final decision and file and serve a
copy of the final administrative order. If
the Regional Administrator finds the
initial order appropriate as originally
issued, the final decision shall declare
the initial administrative order to be a
final order, effective upon service of the
final decision. If the Regional
Administrator declares that the initial
order must be withdrawn, the signatory
official on the initial administrative
order will file and serve a withdrawal of
the initial administrative order. This
may be done without prejudice.

§ 24.20 Final agency action.
  The final decision and the final
administrative order are final agency
actions that are effective on filing and
service. These actions are not
appealable to the Administrator.
[FR Doc. 88-7936 Filed 4-12-68; 8:45 am]
BILLING CODE 6560-SO-M

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              United States        Office of Solid Waste and  EPA-530-SW-88-028
              Environmental Protection  Emergency Response    OSWER Directive 9902.3
              Agency          Washington DC 20460    June 1988
&EPA       RCRA Corrective
              Action Plan

              Interim Final

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                                  EPA/530-SW-88-028
                                  OSWER Directive 9902.3
                                         June 1988
RCRA CORRECTIVE ACTION PLAN

             (Interim Final)
            Office of Solid Waste
      Office of Waste Programs Enforcement

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                      NOTICE

This document has been reviewed in accordance with
U.S. Environmental Protection Agency policy and
approved for publication.  Mention of trade names
or commercial products does not constitute endorse-
ment or recommendation for use.
                       11

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                                   Table of Contents


                                                                                   Page

Foreword     	    v

Acknowledgments  ...'	   vii

Introduction  	    1

RCRA Facility Investigation  	    4
 Task I:     Description of Current Conditions  	    4
 Task II:    Pre-lnvestigation Evaluation of Corrective
            Measure Technologies	    6
 Task III:    RFI Workplan Requirements .	    6
 Task IV:    Facility Investigation 	   10
 Task V:    Investigation Analysis 	   14
 Task VI:    Laboratory and Bench-Scale Studies   	   15
 Task VII:   Reports	:	   15

Corrective Measure Study   	   17
 Task VIII:   Identification and Development of the Corrective
            Measure Alternative or Alternatives  	   17
 Task IX:    Evaluation of the Corrective Measure
            Alternative or Alternatives	   18
 Task X:    Justification and Recommendation of the
            Corrective Measure or Measures  	:	   21
 Task XI:    Reports  	   21

Corrective Measure Implementation  	'.	  	   23
 Task XII:   Corrective Measure Implementation Program Plan 	   23
 Task XIII:   Corrective Measure Design  	   24
 Task XIV:   Corrective Measure Construction  	   26
 Task XV:   Reports  	   27
                                           in

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                                        Foreword
This document was issued by Gene A. Lucero, Director, Office of Waste Programs Enforcement,
and  Marcia  Williams, Director,  Office of Solid  Waste, on  November 14,  1986, as the RCRA
Corrective Action Plan Guidance (Interim Final), OSWER Directive 9902.3.

The  RCRA  Corrective  Action Plan  (CAP) will assist you  in development of Corrective Action
Orders  (§3008(h))  and corrective action requirements  in permit  applications  and  permits
(§3004(u)&(v)). The purpose of the CAP is to aid Regions and States in determining and directing
the specific work the owner/operator or respondent must perform, as part of a complete corrective
action program. The CAP should  be used as a technical framework during the  development of
Corrective Action Orders and corrective action permit requirements.

The CAP provides  a framework  for the development of a site-specific schedule of compliance to
be included  in a permit or a compliance schedule in  a  Corrective Action Order. It does so by
laying out scopes of work for the three essential phases of a complete corrective  action program.
These three  phases and their objectives are as follows:

    Phase I-    RCRA Facility Investigation (RFI) - to  evaluate thoroughly the nature and extent
                of  the release  of hazardous waste and  hazardous constituents and to gather
                necessary data to support the Corrective Measure Study.

    Phase II-    Corrective Measures Study  (CMS) - to  develop and  evaluate a  corrective
                measure  alternative or alternatives and  to recommend  the  final  corrective
                measure or measures.

    Phase III-   Corrective Measures Implementation (CMI)  -  to  design,  construct, operate,
                maintain and monitor the performance of the  corrective measure or measures
                selected.

The  CAP provides  an overall model for a corrective action compliance schedule. The scopes of
work contained in  the  CAP  should  not be considered "boilerplate," but rather as a "menu" of
possible activities to be required on a site-specific basis.  Only those tasks and reports necessary
and appropriate to  the specific situation should be required of the Owner/Operator [Respondent].
We also encourage the Regions to make available to the Owner/Operator [Respondent] existing
model  plans that are relevant to  RCRA  activities. For example, the "Occupational  Safety and
Health  Guidance Manual  for Hazardous Waste Site  Activities Operating  Safety  Guidelines"
contains a model that can be used for the Health and Safety Plan outlined in the CAP.

A RCRA Facility Assessment (RFA) will have  been conducted at the facilities that are to receive
permits, and for some facilities which are issued §3008(h) Orders. The results of the RFA should
be used as the basis for focusing  the RCRA Facility Investigation (RFI) compliance schedules for
individual sites,  and should  provide the necessary data for completion  of  the  "background
information" components of the CAP.

Finally,  we feel  it  is necessary to stress the importance of site-specific technical  detail in the
development of Corrective Action  orders and corrective action permit requirements. Each facility
has unique characteristics and circumstances affecting it that need to be incorporated  into any
requirements for corrective action. Without  this up-front detail,  many  owner/operators or
respondent will provide us with  submittals which lack the technical detail necessary to perform a
thorough corrective measure program. In addition to providing  a detailed scope of work, the
Agency should also propose a  site-specific time-frame for completion of the work.  Enforcement
of permit conditions or requests for relief in an Order is always easier when very  specific detail is

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included. Without a detailed schedule of compliance in a permit or a compliance schedule in a
Corrective Action Order, we can expect untimeliness in submittals and actions.

It was also intended that the model scopes of work in the CAP foster timely, concise submissions
by  Owner/Operators.  Therefore, when  modifying  these  scopes of work  with  site-specific
information, the scopes of work should  only  require  that  information which is necessary for the
subject facility, thereby minimizing the number and length of Owner/Operator submissions and our
review time.
                                           vi

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                                  Acknowledgments
This document was prepared by Mark Gilbertson. Anna Duncan and Peter Ornstein of the RCRA
Enforcement Division  in the Office of Waste Programs Enforcement. A special  thanks to Tony
Baney and Lloyd Guerci for their management support and the Office of Solid Waste and various
regional staff for their technical review and comments.
                                          VII

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Introduction
The  objective  of  a Corrective  Action Program  at  a
hazardous waste management facility is to  evaluate the
nature and extent of the  release of hazardous waste or
constituents;  to evaluate  facility  characteristics; and to
identify, develop, and  implement  the  appropriate
corrective measure or measures adequate to protect
human health and the environment. The following bullets
identify components necessary  to assure  a complete
corrective action program. It  should be recognized  that
the detail required in  each  of  these  steps will  vary
depending on the facilty and its complexity:

•   Locate   the  source(s)  of the  release(s)  of
    contaminants  (e.g. regulated units,  solid waste
    management units, and other-source areas)

•   Characterize the nature and  extent  of contamination
    both within  the facility boundaries and  migrating from
    the facility.  This would include defining the pathways
    and methods of migration of  the hazardous waste or
    constituents, including the media, extent,  direction,
    speed, complicating  factors  influencing movement,
    concentration profiles, etc.

•   Identify  areas  and populations  threatened by
    releases from the facility

•   Determine short and long term, present and potential
    threats of releases from the facility on human health
    and/or the environment

•   Identify  and  implement a  interim  measure  or
    measures to  abate  the  further  spread  of
    contaminants, control the  source of contamination, or
    otherwise control the releases themselves

•   Evaluate the overall integrity of containment structure
    and  activities  at  the site intended  for  long-term
    containment

•   Identify,  develop, and  implement  a corrective
    measure  or measures  to prevent and  remediate
    releases of hazardous waste  or constituents from the
    facility

•   Design a program to monitor the implementation,
    maintenance and performance of any  interim or final
    corrective measure(s) to  ensure  that human health
    and the environment are being protected

The purpose of the Corrective Action  Plan (CAP)is to aid
Regions  and  States in determining  and  directing  the
specific work the  owner/operator or respondent must
perform, as part of  a complete corrective action program.
The  Corrective Action  Plan  is a document specifically
intended to assist Regions and States in the development
of Corrective Action Orders  (§3008(h)) and  corrective
action  requirements in permit applications  and permits
(§3004(u)&(v)). It does so by laying out scopes of work for
the three essential phases of a complete corrective action
program which  can  be used  to formulate facility-specific
scopes  of  work for  an order or permit.  These  three
phases and their objectives are as follows:

    Phase I-    RCRA Facility  Investigation (RFI)  -  to
               evaluate  thoroughly  the  nature  and
               extent of the release of hazardous waste
               and hazardous constituents  and  to
               gather necessary  data  to  support  the
               Corrective Measure Study.

    Phase II-   Corrective Measures  Study (CMS) - to
               develop  and  evaluate  a  corrective
               measure alternative or alternatives and
               to  recommend  the  final  corrective
               measure or measures.

    Phase III-   Corrective Measures Implementation
               (CMI)  -  to design, construct, operate,
               maintain and monitor the  performance
               of the corrective measure or measures
               selected.

Users of the CAP should understand that it is designed to
identify  actions  that facility owner/operator or respondent
must take as part  of a corrective action program. It does
not identify the  steps that remain the responsibility of the
regulatory agency. To clarify this interaction between the
facility owner/operator or respondent, Figure 1 represents
the flowchart of owner/operator or respondent submittals
and Agency actions for the three phases of the CAP.

The CAP scopes  of  work should not  be  considered
"boilerplate." The  scopes of work in the CAP are models
and  must be modified, enhanced or  sections  deleted
based on site-specific  situations.  Information generated
from investigations such as RCRA  Facility Assessments
(RFAs)  should  be used to tailor the  scope of  work to
address facility-specific  situations.The  following  are
some   examples where   site-specifics  require
modification to the CAP model scopes of work.

•   If the contamination problem at a facility is merely a
    small soil   contamination  problem,  then the  CAP
    Should be scaled down accordingly.

•   In complicated contamination situations, the Health
    and Safety  Plan and Community Relations Plans may
    need  to be comprehensive.  However,  in simple
    contamination  situations,  these plans may be  very
    brief.

•   If site-specifics conditions require more detail than
    what has been scoped out in any particular section of
    the  CAP,   then the  CAP should be enhanced
    accordingly.

•   If there is sufficient information on  a site to preclude
    an  air  release, then  it would  not be  necessary to
    require the  owner/operator or respondent to perform
    an  air contamination characterization. The air

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           Figure 1.   RCRA Corrective Action Plan.
                                  Owner/Operator
                                     Respondent
        Agency

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contamination  characterization work  under the RFI
(Task IV, C, 4) should be deleted.

If interim measures  are underway, scheduled or
contemplated at a facility, then the Interim  Measures
section under the RFI (Task I, C) should be modified
to specifically reference the interim measures.
If possible, the CAP should focus the owner/operator
or respondent on specific solid  waste management
units and  other areas of interest, as well  as known
waste  management activity  areas  (i.e.,  waste
recycling units, wastewater treatment tanks).
If  only one corrective  measure alternative  is
appropriate for a given situation,  and it would not be

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    necessary to require the owner/operator or respond-
    ent to further investigate  the possibility of other
    corrective measure alternatives, then the scopes of
    work  (citations)  would be  modified to reflect  this
    situation.
Finally, it  is necessary to stress the importance  of site-
specific technical detail in the development of Corrective
Action Orders and corrective action permit requirements.
When  the scope of  work is  specific to the facility,  it is
easier to enforce. Each facility has unique characteristics
and circumstances  affecting  it  that  need  to  be
incorporated  into any requirements for corrective action.
Without this  many owner/operators or  respondents will
provide us with  submittals which  lack the  necessary
information to perform a corrective  measure program.  In
addition to providing an adequate  scope  of work, the
Agency should also  propose a site-specific  time-frame
for completion of the work.

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                            Scope of Work for a RCRA Facility Investigation (RFI)
                                                     at
                                           [Specify Facility Name]
Purpose

The  purpose of this  RCRA Facility  Investigation is  to
determine the nature and extent of releases of hazardous
waste or constituents  from regulated units, solid waste
management units, and other source areas at the facility
and to gather all necessary data to support the Corrective
Measures Study. The Owner/Operator [Respondent] shall
furnish all personnel, materials, and services necessary
for, or incidental to,  performing the  RCRA remedial
investigation at [specify facility name].

[NOTE: This scope of work is  intended to foster timely,
concise  submissions  by  Owner/Operators.  To  achieve
this goal, it is important when using the model scope of
work to consider facility specific conditions. This scope of
work should be modified as necessary to require only that
information necessary to  complete the RCRA  Facility
Investigation.]

Scope

The RCRA Facility Investigation consists of seven tasks:

    Task I:  Description of Current Conditions

            A.   Facility Background

            B.   Nature and Extent of Contamination

            C.   Implementation of Interim Measures

    Task II:  Pre-lnvestigation  Evaluation  of Corrective
            Measure Technologies

    Task III: RFI Workplan Requirements

            A.   Project Management Plan

            B.   Data  Collection Quality Assurance Plan

            C.   Data  Management Plan

            D.   Health and Safety Plan

            E.   Community Relations Plan

    Task IV: Facility Investigation

            A.   Environmental Setting

            B.   Source Characterization

            C.   Contamination Characterization
            D.  Potential Receptor Identification

    Task V:  Investigation Analysis

            A.  Data Analysis

            B.  Protection Standards

    Task VI: Laboratory and Bench-Scale Studies

    Task VII: Reports

            A.  Preliminary and Workplan

            B.  Progress

            C.  Draft and Final

Task I: Description of Current Conditions

The Owner/Operator [Respondent] shall submit for U.S.
EPA  approval  a  report  providing  the background
information pertinent to the facility,  contamination and
interim measures  as set forth below. The data gathered
during any  previous investigations  or  inspections and
other relevant data shall be included.

A.  Facility Background

    The  Owner/Operator's [Respondent's]  report  shall
    summarize  the  regional location, pertinent boundary
    features,  general  facility   physiography,
    hydrogeology, and historical use of the facility for the
    treatment, storage or disposal of solid and hazardous
    waste. The Owner/Operator's [Respondent's]  report
    shall include:

    f.  Map(s) depicting the following:

        a.  General geographic location;

        b.  Property  lines,  with the  owners of  all
            adjacent property clearly indicated;

        c.  Topography  and surface drainage (with  a
            contour interval of [number] feet and a scale
            of  1  inch  =  100 feet) depicting  all water-
            ways, wetlands, floodplains, water  features.
            drainage  patterns,  and  surface-water
            containment areas;

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        d.  All tanks, buildings, utilities,  paved areas,
           easements,  rights-of-way,  and other
           features;

        e.  All solid  or hazardous  waste  treatment,
           storage  or  disposal  areas active  after
           November 19, t980;

        f.  All known past  solid or hazardous waste
           treatment,  storage  or disposal areas
           regardless of  whether they were active on
           November 19, 1980;

        g.  All known past  and present product  and
           waste underground tanks or piping;

        h.  Surrounding  land  uses  (residential,
           commercial, agricultural, recreational); and

        i.  The location of  all  production  and ground-
           water monitoring wells. These wells shall be
           clearly labeled and ground and top of casing
           elevations and construction details included
           (these  elevations and  details may  be
           included as an attachment).

    All maps shall be consistent with the requirements
    set forth in 40 CFR §270.14 and be of sufficient detail
    and accuracy to locate  and report all current and
    future work performed at the site;

    2.   A history and description  of  ownership  and
        operation, solid and hazardous waste generation,
        treatment, storage and disposal activities at the
        facility;

    3.   Approximate dates or periods of past product
        and waste spills, identification of the materials
        spilled, the  amount  spilled, the  location where
        spilled, and a description of the response actions
        conducted (local, state, or federal response units
        or  private parties), including  any  inspection
        reports or technical reports generated as a result
        of the response;  and

    4.   A summary of  past  permits requested and/or
        received,  any enforcement actions   and  their
        subsequent  responses and a list of documents
        and studies prepared for the facility.

fi.  Nature and Extent of Contamination

    The Owner/Operator  [Respondent] shall prepare and
    submit for U.S.  EPA approval  a preliminary report
    describing the existing information on the  nature and
    extent of contamination.

    1.   The Owner/Operator's [Respondent's] report
        shall  summarize all possible source areas of
        contamination.  This, at a  minimum,  should'
        include  all  regulated  units,  solid waste
        management units, spill  areas,  and  other
        suspected  source areas of contamination. For
        each area,  the  Owner/Operator  [Respondent]
        shall identify the following:


        a.   Location  of unit/area (which shall  be
            depicted on a facility map);


        b.   Quantities of solid and hazardous wastes;


        c.   Hazardous  waste  or constituents, to the
            extent known; and


        d.   Identification of  areas where  additional
            information is necessary.


    2.   The Owner/Operator [Respondent] shall prepare
        an assessment  and description  of  the .existing
        degree and  extent of contamination. This should
        include:
        a.  Available  monitoring  data and  qualitative
           information on  locations and levels of
           contamination at the facility;


        b.  All potential migration pathways  including
           information  on  geology,  pedology,
           hydrogeology,  physiography,  hydrology,
           water quality,  meterology, and air  quality;
           and   -
       c.  The potential impact(s) on human health and
           the environment, including  demography,
           ground-water and surface-water  use, and
           land use.
C.  Implementation of Interim Measures


    The  Owner/Operator  [Respondent's] report shall
    document interim measures which were or are being
    undertaken at the facility. This shall include:


    1.   Objectives of the interim measures: how the
        measure is mitigating a potential threat to human
        health and the environment and/or is consistent
        with and integrated into any long term solution at
        the facility;


    2.   Design,  construction, operation,  and main-
        tenance requirements;


    3.   Schedules  for design,  construction  and
        monitoring; and

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    4.  Schedule for progress reports.


Task II: Pre-lnvestigation Evaluation of
Corrective Measure Technologies
Prior  to starting the  facility  investigation,  the
Owner/Operator  [Respondent]  shall submit to EPA a
report  that identifies the potential corrective  measure
technologies  that may be  used on-site or off-site  for
the containment, treatment, remediation, and/or disposal
of contamination. This report shall also identify any field
data that needs to be collected in the facility investigation
to facilitate  the  evaluation  and  selection  of the final
corrective measure or  measures  (e.g., compatibility  of
waste and construction  materials, information to evaluate
effectiveness, treatability of wastes, etc.).

Task III: RFI Workplan Requirements

The Owner/Operator [Respondent] shall  prepare a RCRA
Facility Investigation (RFI) Workplan. This RFI Workplan
shall include the development of several  plans, which
shall be prepared concurrently. During the RCRA Facility
Investigation, it may be  necessary to  revise the  RFI
Workplan to  increase or decrease the detail of information
collected to  accommodate the  facility specific  situation.
The RFI Workplan includes the following:

A.  Project Management Plan

    The  Owner/Operator  [Respondent]  shall prepare a
    Project  Management Plan  which  will  include a
    discussion of  the  technical  approach, schedules,
    budget,  and personnel.  The Project Management
    Plan will also include a description of qualifications of
    personnel  performing or directing the RFI,  including
    contractor personnel.  This plan shall also  document
    the  overall management approach to the  RCRA
    Facility Investigation.

B.  Data Collection Quality Assurance Plan

    The  Owner/Operator  [Respondent]  shall prepare a
    plan to  document  all monitoring procedures:
    sampling,  field measurements and  sample analysis
    performed during the investigation to characterize the
    environmental setting, source, and contamination, so
    as to ensure that all information, data and resulting
    decisions  are  technically sound, statistically valid,
    and properly documented.

    1.   Data Collection Strategy

        The strategy  section  of the   Data Collection
        Quality Assurance Plan shall include but not be
        limited to the following:
    a.  Description of the intended  uses for the
        data, and the  necessary level of precision
        and accuracy for these intended uses;

    b.  Description of  methods  and procedures to
        be used to assess the precision, accuracy
        and completeness of the measurement data;

    c.  Description of  the rationale used to assure
        that  the data  accurately  and  precisely
        represent a characteristic of a population,
        parameter variations at a sampling point, a
        process  condition  or  an  environmental
        condition. Examples of factors which shall
        be considered and discussed include:

        i)   Environmental conditions at the time of
            sampling;

        ii)   Number of sampling points;

       iii)   Representativeness of selected  media;
            and

       iv)   Representativeness of selected  analyt-
            ical parameters.

    d.  Description of the measures to be taken to
        assure  that the following data  sets can  be
        compared to each other:
        i)   RFI   data  generated  by  the
            Owner/Operator over some time period;

        ii)   RFI data  generated  by  an  outside
            laboratory or consultant  versus  data
            generated by the Owner/Operator;

       iii)   Data generated by separate consultants
            or laboratories; and

       iv)   Data generated by an outside consultant
            or laboratory over some time period.

        Details  relating  to  the  schedule  and
        information  to be  provided  in  quality
        assurance  reports.  The  reports  should
        include but not be  limited to:

        i)   Periodic assessment of  measurement
            data  accuracy,  precision,  and
            completeness;  '
e.
        ii)

       iii)

       iv)
        Results of performance audits;

        Results of system audits;
        Significant quality assurance  problems
        and recommended solutions; and
2.
    v)


Sampling
            Resolutions  of  previously  stated
            problems.

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The Sampling section  of  the  Data Collection
Quality Assurance Plan shall discuss:
       ix)   Field equipment  listing and sample
            containers;
a.  Selecting appropriate  sampling  locations,
    depths, etc.;

b.  Providing a statistically sufficient number of
    sampling sites;

c.  Measuring all necessary ancillary data;

d.  Determining  conditions  under  which
    sampling should be conducted;

e.  Determining which media are to be sampled
    (e.g., ground water, air, soil, sediment, etc.);

f.   Determining which parameters  are  to  be
    measured and where;

g.  Selecting the frequency of sampling  and
    length of sampling period;

h.  Selecting   the  types  of sample  (e.g.,
    composites vs. grabs)  and  number of
    samples to be collected;

i.   Measures  to  be taken  to  prevent
    contamination if the  sampling  equipment
    and cross  contamination between sampling
    points;

j.   Documenting field sampling operations and
    procedures, including:

    i)   Documentation  of  procedures for
        preparation of reagents  or supplies
        which  become an integral part of the
        sample  (e.g.,  filters,  and  adsorbing
        reagents);

    ii)   Procedures and forms for recording the
        exact   location   and   specific
        considerations  associated  with sample
        acquisition;

   iii)   Documentation of  specific sample
        preservation method;

   iv)   Calibration of field devices;

    v)   Collection of replicate samples;

   vi)   Submission of field-biased blanks,
        where appropriate;

  vii)   Potential interferences present  at the
        facility;

  viii)   Construction materials  and techniques,
        associated with monitoring  wells and
        piezometers;
       x)   Sampling order; and

       xi)   Decontamination procedures.

    k.   Selecting appropriate sample containers;

    I.   Sample preservation; and

    m.  Chain-of-custody, including:

        i)   Standardized  field tracking  reporting
            forms to establish sample custody in the
            field prior to and during shipment; and

        ii)   Pre-prepared sample  labels containing
            all  information necessary  for effective
            sample tracking.

3.   Field Measurements

    The  Field Measurements section  of  the  Data
    Collection Quality Assurance Plan shall discuss:

    a.   Selecting appropriate field measurement
        locations, depths, etc.;

    b.   Providing a statistically sufficient number  of
        field measurements;

    c.   Measuring all necessary ancillary data;

    d.   Determining conditions under .which  field
        measurements should be conducted;

    e.   Determining  which  media   are  to be
       addresssed  by  appropriate  field
       measurements (e.g., ground water, air, soil,
       sediment, etc.);

    f.  Determining which  parameters are to be
       measured and where;

    g.  Selecting  the  frequency  of  field
       measurements  and  length of  field
       measurements period; and

    h.  Documenting field  measurement operations
       and procedures, including:

        i)  Procedures and forms for recording raw
           data and the exact location, time, and
           facility-specific  considerations
           associated with the data acquisition;

       ii)  Calibration of field devices;

       iii)  Collection of replicate measurements;

       iv)  Submission  of  field-biased  blanks,
           where appropriate;

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       v)   Potential interferences present at the
            facility;

       vi)   Construction  materials and techniques
            associated  with  monitoring  wells  and
            piezometers use to collect field data;

      vii)   Field equipment listing;

      viii)   Order in which field measurements were
            made; and

       ix)   Decontamination procedures.

4.   Sample Analysis

    The  Sample Analysis  section  of  the  Data
    Collection Quality Assurance Plan  shall  specify
    the following:

    a.  Chain-of-custody  procedures,  including:

        i)   dentification of a responsible  party to
            act  as  sample  custodian  at  the
            laboratory facility authorized  to sign for
            incoming   field  samples,  obtain
            documents of shipment, and verify the
            data entered onto the sample custody
            records;

       ii)   Provision  for  a  laboratory  sample
            custody log  consisting  of  serially
            numbered  standard  lab-tracking  report
            sheets;  and
       iii)   Specification  of  laboratory  sample
            custody  procedures  for  sample
            handling, storage, and dispersement for
            analysis.

    b.   Sample  storage  procedures  and storage
        times;

    c.   Sample preparation methods;

    d.   Analytical procedures, including:       .,

        i)   Scope and application of the procedure;

        ii)   Sample matrix;

       iii)   Potential interferences;

       iv)   Precision and  accuracy  of  the
            methodology; and

        v)   Method detection limits.

    e.   Calibration procedures and frequency;

    f.   Data reduction, validation and reporting;
       g.  Internal quality control  checks,  laboratory
           performance  and  systems  audits  and
           frequency, including:

           i)   Method blank(s);

           ii)   Laboratory control sample(s);

           iii)   Calibration check sample(s);

           iv)   Replicate sample(s);

           v)   Matrix-spiked sample(s);

           vi)   "Blind" quality control sample(s);

          vii)   Control charts;

          viii)   Surrogate  samples;

           ix)   Zero and span gases; and

           x)   Reagent quality control checks.

           [A performance audit will be conducted by
           U.S. EPA on the laboratories selected by the
           Owner/Operator  [Respondent].  This  audit
           must be completed  and approved  prior to
           the facility investigation.]

       h.  Preventive maintenance  procedures  and
           schedules;

       i.   Corrective action  (for laboratory problems);
           and

       j.   Turnaround time.

C.  Data Management Plan

    The Owner/Operator [Respondent] shall develop and
    initiate a Data Management  Plan to document and
    track investigation data and results. This plan  shall
    identify and set up data documentation materials and
    procedures,  project file requirements, and  project-
    related progress  reporting  procedures  and
    documents. The plan shall also provide the format to
    be used to  present the raw  data and conclusions of
    the investigation.

    1.   Data Record

        The data record shall include the following:

        a.  Unique sample or field measurement code;

        b.  Sampling or field  measurement location and
           sample or measurement type;

        c.  Sampling or field measurement raw data;

        d. Laboratory analysis ID number;
                                                 8

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        e.   Property or component measured; and

        f.   Result of analysis (e.g., concentration).

    2.   Tabular Displays

        The following data shall be presented in tabular
        displays:

        a.   Unsorted (raw) data;

        b.   Results for each medium, or for each con-
            stituent monitored;

        c.   Data reduction for statistical analysis;

        d.   Sorting of data by  potential stratification
            factors (e.g., location,  soil layer,  topog-
            raphy); and

        e.   Summary data.

    3.   Graphical Displays

        The  following data  shall  be  presented  in
        graphical  formats (e.g., bar graphs, line graphs,
        area or  plan  maps, isopleth  plots,  cross-
        sectional  plots or transects, three dimensional
        graphs, etc.):

        a.   Display sampling location and sampling grid;

        b.   Indicate  boundaries  of sampling area, and
            areas where more data are required;

        c.   Displays  levels  of contamination at each
            sampling location;

        d.   Display  geographical extent of  contam-
            ination;

        e.   Display contamination levels, averages, and
            maxima;

        f.   Illustrate changes in concentration in relation
            to distance from the source, time, depth or
            other parameters; and

        g.   Indicate  features affecting  intramedia
            transport and show potential receptors.

C.  Health and Safety Plan

    The  Owner/Operator  [Respondent] shall prepare  a
    facility  Health and Safety Plan.

    1.   Major elements of the Health  and Safety Plan
        shall include:

        a.   Facility description including  availability of
            resources such as roads,  water supply.
            electricity and telephone service;
    b.   Description  of the  known  hazards  and
        evaluate the  risks  associated  with the
        incident and with each activity conducted;

    c.   A Listing of key  personnel and  alternates
        responsible  for  site safety, responses
        operations, and  for  protection of  public
        health;

    d.   Delineation of work area;

    e.   Description of levels of protection to be worn
        by personnel in work area;

    f.   Establishment  of procedures  to control site
        access;

    g.   Description  of decontamination procedures
        for personnel and equipment;

    h.   Establishment of  site  emergency  pro-
        cedures;

    i.   Emergency medical care for injuries and
        toxicological problems;

    j.   Description   of  requirements for  an
        environmental surveillance program;

    k.   Routine and  special  training required for
        responders; and

    I.   Establishment  of  procedures for  protecting
        workers from weather-related problems.

2.   The  Facility Health and Safety Plan shall be
    Consistent with:

    a.   NIOSH Occupational  Safety and   Health
        Guidance Manual for Hazardous Waste Site
        Activities (1985);

    b.   EPA Order  1440.1 - Respiratory Protection;

    c.   EPA  Order 1440.3 - Health  and  Safety
        Requirements  for  Employees  engaged  in
        Field Activities;

    d.   Facility Contingency Plan;

    e.   EPA  Standard Operating  Safety  Guide
        (1984);

    f.   OSHA regulations particularly in 29  CFR
        1910 and 1926;

    g.   State and local regulations; and

    h.   Other EPA guidance as provided.

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f .  Community Relations Plan
    The  Owner/Operator [Respondent] shall prepare a
    plan, for the dissemination  of  information to  the
    public regarding investigation activities and results.

Task IV: Facility Investigation

The  Owner/Operator  [Respondent] shall conduct those
investigations  necessary  to: characterize the facility
(Environmental  Setting);  define  the  source  (Source
Characterization); define  the degree and extent  of
contamination (Contamination  Characterization);  and
identify actual or  potential receptors.

The  investigations should  result  in data  of  adequate
technical  quality to  support the  development  and
evaluation  of  the corrective  measure alternative  or
alternatives during the Corrective Measures Study.

The site investigation activities shall  follow  the plans set
forth in  Task  III. All sampling  and analyses shall be
conducted in accordance with the Data Collection Quality
Assurance  Plan.  All  sampling locations  shall  be
documented in a log and identified on a detailed site
map.

A.  Environmental Setting
    The  Owner/Operator  [Respondent]  shall  collect
    information  to  supplement  and  verify  existing
    information  on  the environmental setting at  the
    facility.  The  Owner/Operator  [Respondent]  shall
    characterize the following.

    1.   Hydrogeology

        The Owner/Operator [Respondent]  shall conduct
        a program to evaluate hydrogeologic conditions
        at the facility.  This  program  shall provide  the
        following information:

        a.   A description  of the regional  and facility
            specific  geologic  and  hydrogeologic
            characteristics affecting ground-water  flow
            beneath the facility, including:

            i)   Regional  and  facility  specific
                stratigraphy:  description  of strata
                including strike and dip, identification of
                stratigraphic contacts;

           ii)   Structural  geology:  description of local
                and  regional structural features (e.g.,
                folding, faulting, tilting, jointing, etc.);

           iii)   Depositional history;

           iv)   Identification  and characterization  of
                areas  and amounts of recharge  and
                discharge;

           v)   Regional  and  facility  specific ground-
                water flow patterns; and
   vi)   Characterize seasonal variations in  the
        ground-water flow  regime.

b.  An analysis of any topographic features that
    might  influence  the  ground-water flow
    system. (Note: Stereographic  analysis  of
    aerial photographs  may aid in this analysis).

c.  Based  on field  data,  test, and  cores, a
    representative and accurate classification
    and  description  of the hydrogeologic units
    which  may  be  part of  the  migration
    pathways at the facility (i.e., the aquifers and
    any  intervening  saturated and  unsaturated
    units), including:

    i)   Hydraulic conductivity and  porosity
        (total and effective);

    ii)   Lithology, grain size,  sorting, degree of
        cementation;

   iii)   An  interpretation  of   hydraulic
        interconnections between  saturated
        zones; and

   iv)   The  attenuation  capacity  and
        mechanisms  of  the   natural earth
        materials (e.g., ion exchange capacity,
        organic carbon content,  mineral content
        etc.).

d.  Based on field studies and  cores, structural
    geology and  hydrogeologic cross  sections
    showing the  extent (depth, thickness, lateral
    extent) of hydrogeologic units which  may be
    part of the migration pathways identifying:

    i)   Sand  and   gravel   deposits   in
        unconsolidated deposits;

    ii)   Zones of fracturing  or channeling  in
        consolidated  or   unconsolidated
        deposits;

   iii)   Zones of higher permeability  or low
        permeability  that might  direct  and
        restrict the flow of contaminants;

   iv)   The  uppermost  aquifer: geologic
        formation, groiip of formations, or part of
        a formation  capable  of  yielding a
        significant amount  of ground water  to
        wells or springs; and

    v)   Water-bearing zones above the  first
        confining layer that  may  serve  as a
        pathway  for  contaminant  migration
        including perched zones of saturation.

e.  Based on  data obtained  from ground-water
    monitoring wells and piezometers  installed
                                                    10

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        upgradient and downgradient of the potential
        contaminant source,  a representative
        description  of water level or fluid  pressure
        monitoring including:

        i)   water  level  contour and/or  poten-
            tiometric maps;

        ii)   Hydrologic  cross  sections   showing
            vertical gradients;

       iii)   The flow system,  including the vertical
            and horizontal components of flow; and

       iv)   Any  temporal changes  in  hydraulic
            gradients, for example, due to tidal or
            seasonal influences.

    f.   A description of man-made  influences that
        may affect the hydrogeology  of  the site,
        identifying:

        i)   Active  and  inactive local  water-supply
            and  production  wells  with  an
            approximate schedule of pumping; and

        ii)   Man-made  hydraulic  structures
            (pipelines, french drains,  ditches,
            unlined  ponds,  septic  tanks, NPDES
            outfalls, retention areas, etc.).
2.  Soils
    The Owner/Operator [Respondent] shall conduct
    a program to characterize the soil and rock units
    above the  water  table  in  the  vicinity of the
    contaminant release(s).  Such  characterization
    shall include but not be  limited to, the following
    information:

    a.   SCS soil classification;

    b.   Surface soil distribution;

    c.   Soil profile, including ASTM classification of
        soils;

    d.   Transects of soil stratigraphy;

    e.   Hydraulic  conductivity (saturated and
        unsaturated);

    f.   Relative permeability;

    g.   Bulk density;

    h.   Porosity;

    i.   Soil sorptive capacity;

    j.   Cation exchange capacity (CEC);

    k.   Soil organic content;

    I.   Soil pH;
       m.  Particle size distribution;

       n.   Depth of water table;

       o.   Moisture content;

       p.   Effect of stratification on unsaturated flow;

       q.   Infiltration

       r.   Evapotranspiration;

       s.   Storage capacity;

       t.   Vertical flow rate; and

       u.   Mineral content.

3. Surface Water and Sediment

   The  Owner/Operator  [Respondent] shall  conduct a
   program to characterize  the surface-water bodies  in
   the vicinity of the facility. Such characterization shall
   include,  but. not be limited to, the following activities
   and information:

       a.   Description of the temporal and  permanent
           surface-water  bodies including:

           i)  For  lakes  and  estuaries:   location,
              elevation, surface  area, inflow, outflow,
              depth, temperature stratification,  and
              volume;

          ii)  For impoundments: location,  elevation,
              surface area, depth, volume, freeboard,
              and purpose of impoundment;

         iii)  For streams,  ditches, drains,  swamps
              and  channels:  location, elevation, flow,
              velocity,  depth,   width,  seasonal
              fluctuations, and  flooding  tendencies
              (i.e., 100 year event);

         iv)  Drainage patterns; and

          v)  Evapotranspiration.

       b.   Description of the chemistry of the natural
           surface water  and sediments. This includes
           determining the pH, total  dissolved solids,
           total  suspended solids, biological oxygen
           demand, alkalinity, conductivity,  dissolved
           oxygen  profiles,  nutrients  (NHa,  NOa"
          /NOa".   PC>4'3),  chemical   oxygen
          demand,  total  organic  carbon,  specific
          contaminant concentrations, etc.  .

      c.   Description of sediment characteristics  in-
          cluding:

           i)  Deposition area;

          ii)  Thickness profile; and
                                                 11

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           iii)   Physical and chemical parameters (e.g.,
                grain size, density,  organic  carbon
                content, ion exchange  capacity, pH,
                etc.).

    4.   Air

        The Owner/Operator [Respondent]  shall provide
        information  characterizing  the climate  in the
        vicinity  of  the facility.  Such  information shall
        include, but not be limited to:

        a.   A description of the following parameters:

            i)   Annual and monthly rainfall averages;

            ii)   Monthly temperature averages  and
                extremes;

           iii)   Wind speed and direction;

           iv)   Relative humidity/dew point;

            v)   Atmospheric pressure;

           vi)    Evaporation data;

          vii)   Development of inversions; and

          viii)   Climate extremes that  have been known
                to occur in the vicinity  of the facility,
                including frequency of occurrence.

        b.   A description of topographic and  manmade
            features which  affect air flow and  emission
            patterns, including:

            i)   Ridges, hills or mountain areas;

            ii)   Canyons or valleys;

           iii)   Surface water bodies (e.g., rivers, lakes,
                bays, etc.);

           iv)   Wind breaks and forests; and

            v)   Buildings.

0.  Source Characterization

    The Owner/Operator [Respondent]  shall collect
    analytical data to completely characterize the wastes
    and the areas  where  wastes  have been  placed,
    collected  or  removed  including: type;  quantity;
    physical form;  disposition (containment or  nature of
    deposits); and facility characteristics affecting release
    (e.g., facility security, and engineered barriers). This
    shall include quantification  of the  following specific
    characteristics, at each source area:

    1.   Unit/Disposal Area Characteristics:

        a.   Location of unit/disposal area;

        b.   Type of unit/disposal area;
    c.   Design features;

    d.   Operating practices (past and present);

    e.   Period of operation;

    f.   Age of unit/disposal area;

    g.   General physical conditions; and

    h.   Method used to close the unit/disposal area.

2.  Waste Characteristics:

    a.   Type of waste placed in the unit;

        i)   Hazardous classification  (e.g., flam-
            mable,  reactive,  corrosive, oxidizing or
            reducing agent);

        ii)   Quantity; and

       iii)   Chemical composition.

    b.   Physical and chemical characteristics;

        i)   Physical form (solid, liquid, gas);

        ii)   Physical description (e.g., powder,  oily
            sludge);

       iii)   Temperature;

       iv)   pH;

        v)   General chemical class (e.g., acid, base.
            solvent);

       vi)   Molecular weight

       vii)   Density;

      viii)   Boiling  point;

       ix)   Viscosity;

        x)   Solubility in water;

       xi)   Cohesiveness of the waste;

       xii)   Vapor pressure; and

      xiii)   Flash point.

    c.   Migration  and dispersal characteristics of the
        waste;
        i)   Sorption;

        ii)   Biodegradability, bioconcentration  bio-
            transformation;

       iii)   Photodegradation rates;

       iv)    Hydrolysis rates; and

        v)   Chemical transformations.
                                                       12

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    The Owner/Operator [Respondent] shall  document
    the procedures  used  in  making  the  above
    determinations.

C  Contamination Characterization
    The Owner/Operator [Respondent] shall  collect
    analytical  data on  ground-water,  soils,  surface
    water,  sediment, and subsurface gas contamination
    in  the  vicinity  of  the facility. This data shall be
    sufficient to define the extent, origin, direction, and
    rate of  movement of contaminant plumes. Data shall
    include time and  location  of  sampling,  media
    sampled, concentrations found, and conditions during
    sampling,  and the identity of  the  individuals
    performing  the  sampling   and analysis.  The
    Owner/Operator [Respondent] shall  address the
    following types of contamination at the facility:

    1.   Ground-water  Contamination

    The Owner/Operator [Respondent] shall  conduct  a
    Ground-water  Investigation  to  characterize any
    plumes of  contamination at the  facility. This
    investigation shall at a minimum provide the following
    information:

        a.   A  description of the  horizontal and  vertical
            extent of any  immiscible  or  dissolved
            plume(s) originating from the facility;

        b.   The horizontal and  vertical  direction  of
            contamination movement;

        c.   The velocity of contaminant movement;

        d.   The horizontal  and vertical concentration
            profiles of Appendix VIII constituents in the
            plume(s);

        e.   An evaluation  of factors influencing the
            plume movement; and

        f.    An extrapolation  of  future  contaminant
            movement.

        The Owner/Operator  [Respondent]  shall
        document  the procedures used  in making the
        above determinations  (e.g., well  design, well
        construction, geophysics,  modeling, etc.).

    2.   Soil Contamination

        The Owner/Operator [Respondent] shall conduct
        an  investigation  to   characterize  the
        contamination  of the  soil and rock units above
        the water table in the  vicinity of the contaminant
        release. The  investigation  shall  include the
        following information:

        a.   A description of the  vertical and horizontal
            extent of contamination.
    b.   A description  of contaminant and soil
        chemical properties within the contaminant
        source area and plume. This includes
        contaminant  solubility,  speciation,
        adsorption, teachability, exchange capacity,
        biodegradability, hydrolysis, photolysis,
        oxidation and other factors that might affect
      •  contaminant migration and transformation.

    c.   Specific contaminant concentrations.

    d.   The velocity and direction of contaminant
        movement.

    e.'  An extrapolation of  future  contaminant
        movement.

    The Owner/Operator  [Respondent]  shall
    document  the procedures used  in making the
    above determinations.

3.   Surface-Water and  Sediment Contamination

    The Owner/Operator [Respondent] shall  conduct
    a surface-water  investigation to characterize
    contamination in  surface-water bodies resulting
    from contaminant releases at the facility.

    The investigation shall include, but not be limited
    to, the following information:

    a.   A description of the  horizontal and vertical
        extent of any immisicible  or  dissolved
        plume(s) originating from the facility, and the
        extent of  contamination  in underlying
        sediments;

    b.   The horizontal  and vertical direction  of
        contaminant movement;

    c.   The contaminant velocity;

    d.   -An evaluation of the physical, biological and
        chemical  factors influencing contaminant
        movement;

    e.   An extrapolation  of future contaminant
        movement; and

    f.   A description  of the  chemistry  of the
        contaminated surface waters and sediments.
        This  includes  determining  the pH, total
        dissolved  solids,  specific  contaminant
        concentrations, etc.

    The Owner/Operator  [Respondent]  shall
    document  the procedures  used in  making the
    above determinations.
                                                    13

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    4.  Air Contamination

        The Owner/Operator [Respondent] shall conduct
        an investigation  to characterize  the  paniculate
        and gaseous contaminants  released into the
        atmosphere. This investigation shall provide the
        following information:

        a.   A description of  the  horizontal and  vertical
            direction  and  velocity  of contaminant
            movement;

        b.   The rate and amount of the release; and

        c.   The  chemical and physical composition of
            the  contaminants(s)  released,  including
            horizontal and vertical concentration profiles.

        The  Owner/Operator [Respondent]  shall
        document the  procedures used  in making the
        above determinations.

    5.  Subsurface Gas Contamination

        The Owner/Operator [Respondent] shall conduct
        an investigation to characterize subsurface gases
        emitted   from  buried  hazardous  waste  and
        hazardous constituents in the ground water. This
        investigation  shall  include  the  following
        information:

        a.  A description of the horizontal and  vertical
           extent of subsurface gases mitigation;

        b.  The  chemical composition  of the  gases
           being emitted;

        c.  The rate, amount, and density of the gases
           being emitted; and

        d.  Horizontal and vertical  concentration  profiles
           of the subsurface gases emitted.

        The  Owner/Operator [Respondent] shall
        document the procedures used in making the
        above determinations.

D.  Potential Receptors

    The Owner/Operator [Respondent] shall collect data
    describing the human populations and environmental
    systems that  are  susceptible  to contaminant
    exposure from  the  facility. Chemical  analysis  of
    biological samples may be needed.  Data on
    observable effects  in ecosystems  may also be
    obtained.  The  following  characteristics  shall be
    identified:

    1.  Local uses  and  possible future uses  of  ground
        water:
        a.  Type of  use (e.g.,  drinking water source:
            municipal  or  residential,  agricultural,
            domestic/non-potable,  and industrial); and

        b.  Location  of groundwater users  including
            wells and discharge areas.

    2.  Local uses and possible future  uses of surface
        waters draining the facility:

        a.  Domestic and municipal  (e.g., potable  and
            lawn/gardening watering);

        b.  Recreational (e.g., swimming, fishing);

        c.  Agricultural;

        d.  Industrial; and

        e.  Environmental (e.g.. fish and wildlife
            propagation).

    3.  Human  use of  or access to the  facility  and
        adjacent lands, including but not  limited to:

        a.  Recreation;

        b.  Hunting;

        c.  Residential;

        d.  Commercial;

        e.  Zoning; and

        f.   Relationship between  population  locations
            and prevailing wind direction.

    4.  A description of the biota in surface water bodies
        on, adjacent to, or affected  by the facility.

    5.  A description of the ecology  overlying  and
        adjacent to the facility.

    6.  A demographic profile of the people  who use or
        have access to the facility and adjacent land,
        including, but not limited to:  age; sex;  and
        sensitive subgroups.

    7.  A description  of any  endangered or threatened
        species near the facility.

Task V: Investigation Analysis

The Owner/Operator  [Respondent] shall  prepare an
analysis and summary of all facility investigations  and
their results. The objective of this task  shall be to ensure
that the investigation data are  sufficient  in quality (e.g.,
quality assurance procedures have been followed)  and
quantity  to describe   the   nature  and  extent  of
contamination, potential threat to human health and/or the
environment,  and to support  the   Corrective  Measures
Study.
                                                    14

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A.  Data Analysis
    The  Owner/Operator [Respondent] shall analyze all
    facility  investigation  data  outlined in  Task IV  and
    prepare  a report  on the  type and extent of
    contamination at the facility  including  sources  and
    migration pathways. The  report shall describe the
    extent of contamination  (qualitative/quantitative) in
    relation to background levels indicative for the area.

B.  Protection Standards [where applicable]
    1.   Ground-water  Protection  Standards

        For  regulated  units  the  Owner/Operator
        [Respondent] shall  provide information to
        support the Agency's selection/development of
        Ground-water  Protection Standards for all of the
        Appendix VIII  constituents found  in the ground-
        water during the  Facility Investigation (Task IV).

        a.  The Groundwater  Protection Standards shall
           consist of:

           i)  For any constituents listed in Table  1 of
               40  CFR 264.94, the respective  value
               given  in  that  table  (MCL) if  the
               background level of  the constituent is
               below the given in Table 1; or

           ii)  The background level of that constituent
               in the groundwater; or

           iii)  A U.S.  EPA  approved  Alternate
               Concentration Limit (ACL).

        b.  Information  to  support the Agency's
           subsequent  selection  of  Alternate
           Concentration Limits  (ACLs)  shall  be
           developed  by  the  Owner/Operator
           [Respondent] in accordance  with U.S.  EPA
           guidance. For any  proposed ACLs  the
           Owner/Operator [Respondent] shall include
           a justification  based upon the  criteria  set
           forth in 40 CFR 264.94(b).

        c.  Within [insert number] days of receipt of  any
           proposed  ACLs, the U.S. EPA shall  notify
           the Owner/Operator [Respondent] in writing
           of approval, disapproval or modifications, the
           U.S.  EPA shall  specify in  writing  the
           reason(s)  for  any  disapproval  or
           modification.
        d.   Within [insert number] days of receipt of the
            U.S. EPA's notification or disapproval of any
            proposed  ACL,  the  Owner/Operator
            [Respondent]  shall  amend and submit
            revisions to the U.S. EPA.

    2.   Other Relevant Protection Standards

        The Owner/Operator [Respondent] shall identify
        all  relevant and  applicable  standards for the
        protection of human health and the environment
        (e.g., National Ambient Air  Quality  Standards,
        Federally-approved  state  water quality
        standards, etc.).

Task VI: Laboratory and Bench-Scale Studies

The Owner/Operator  [Respondent] shall  conduct
laboratory and/or bench  scale studies to determine the
applicability of a  corrective measure  technology  or
technologies to facility  conditions. The  Owner/Operator
[Respondent] shall  analyze the technologies, based  on
literature review, vendor contracts, and past experience to
determine the testing requirements.

The Owner/Operator [Respondent] shall develop a testing
plan identifying the type(s) and  goal(s) of the study(ies),
the level of effort needed, and the procedures to be  used
for data management and interpretation.

Upon completion of the testing, the  Owner/Operator
[Respondent] shall evaluate the testing results to  assess
the technology or technologies  with respect  to the  site-
specific questions identified in the test plan.

The Owner/Operator [Respondent] shall prepare a report
summarizing the testing program and its results,  both
positive and negative.

Task VII: Reports

A.  Preliminary and Workplan

    The Owner/Operator [Respondent] shall submit to the
    EPA reports on Tasks I and  II when it submits the
    RCRA Facility Investigation Workplan (Task III).

B.  Progress

    The Owner/Operator  [Respondent]  shall  at a
    minimum provide  the  EPA with signed, [monthly,
    bimonthly] progress reports  containing:
                                                   15

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    1.  A description and estimate of the percentage of
       the RFI completed;

    2.  Summaries of all findings;

    3.  Summaries of  all changes  made in  the  RFI
       during the reporting period;

    4.  Summaries of all contacts with representative of
       the local community, public interest groups or
       State government during the reporting period;

    5.  Summaries of all problems or potential problems
       encountered during the reporting period;

    6.  Actions being taken to rectify problems;

    7.  Changes  in  personnel during the  reporting
       period;

    8.  Projected work for the next reporting period; and

    9.  Copies  of daily reports, inspection  reports,
       laboratory/monitoring data, etc.

C.  Draft and Final
    Upon  EPA  approval,  the   Owner/Operator
    [Respondent] shall prepare  a  RCRA  Facility
    Investigation  Report to  present  Tasks IV-V.  The
    RCRA  Facility  Investigation  Report  shall be
    developed in draft  form for U.S. EPA review.  The
    RCRA  Facility  Investigation  Report  shall be
    developed in  final  format  incorporating comments
    received on the  Draft  RCRA Facility  Investigation
    Report. Task VI  shall  be submitted as a separate
    report when  the Final  RCRA Facility  Investigation
    Report is submitted.

    [Number] copies of  all reports, including the Task  I
    report.  Task  II report.  Task  III  workplan,  Task VI
    report and both the Draft  and Final RCRA Facility
    Investigation Reports (Task IV-V) shall be provided
    by the Owner/Operator [Respondent] to U.S. EPA.
[THE FOLLOWING  FACILITY  SUBMISSION SUMMARY
MAY BE PLACED IN  THE BODY OF THE  ORDER OR
PERMIT AND REMOVED FROM  THE  SCOPE OF
WORK. NOT ALL OF THE ITEMS LISTED BELOW MAY
BE REQUIRED AT EACH FACILITY.]

Facility Submission Summary
A summary  of the information  reporting requirements
contained in the  RCRA Facility Investigation  Scope of
Work is presented below:
    Facility Submission

 Description of Current
  Situation
    (Task I)

 Pre-lnvestigation
  Evaluation of
  Corrective Measure
  Technologies
    (Task II)

 RFI Workplan
    (Task III)

 Draft RFI Report
    (Tasks IV and V)

 Final RFI Report
    (Tasks IV andV)


 Laboratory and Bench-
  Scale Studies
    (Task VI)

 Progress Reports on
  Tasks I through VI
        Due Date
[ DATE]



[ DATE]





[ DATE ]
[NUMBER]days after
RFI Workplan Approval

[ NUMBER ] days after
EPA comment on Draft
RFI Report

Concurrent with Final RFI
Report
[ MONTHLY. BI-
MONTHLY ]
                                                  16

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                              Scope of Work for a Corrective Measure Study
                                                    at
                                          [Specify Facility Name]
Purpose

The purpose of this Corrective Measure Study (CMS) is
to develop and  evaluate the corrective action alternative
or alternatives and to recommend the corrective measure
or measures to be taken at [specify facility  name].  The
Owner/Operator [Respondent]  will furnish the personnel,
materials, and services  necessary  to  prepare  the
corrective measure study, except as otherwise specified.

[Note: This scope  of work is  intended to foster timely,
concise  submissions by Owner/Operators. To  achieve
this goal, it is important when  using the model scope of
work to  consider facility specific conditions. This scope
should be modified as necessary  to require only  that
information necessary to complete  the Corrective Mea-
sure Study.]

Scope

The Corrective Measure Study consists of four tasks:

    Task VIII:   Identification  and  Development of  the
               Corrective  Measure  Alternative or
               Alternatives

               A.  Description of Current Situation

               B.  Establishment  of Corrective Action
                   Objectives

               C.  Screening of  Corrective Measures
                   Technologies

               D.  Identification  of the  Corrective
                   Measure  Alternative or Alternatives

    Task IX:    Evaluation  of the  Corrective Measure
               Alternative or Alternatives

               A.  Technical/Environmental/Human
                   Health/Institutional

               B.  Cost Estimate

    Task X:     Justification  and Recommendation of
               the Corrective Measure or Measures

               A.  Technical

               B.  Environmental

               C.  Human Health
    Task XI:    Reports

               A.  Progress

               B.  Draft

               C.  Final

TASK VIII: Identification and Development of the
Corrective Measure Alternative or Alternatives

Based on the results of the RCRA Facility Investigation
and consideration  of the identified Preliminary Corrective
Measure Technologies (Task II),  the Owner/Operator
[Respondent]  shall  identify,  screen  and develop the
alternative  or alternatives for  removal,  containment,
treatment and/or other remediation of the  contamination
based on  the objectives  established for the corrective
action.

A.  Description of Current Situation

    The Owner/Operator  [Respondent] shall  submit  an
    update to the information describing the  current
    situation  at the facility and the known  nature and
    extent of  the  contamination as documented by the
    RCRA Facility   Investigation  Report.  The
    Owner/Operator [Respondent] shall  provide  an
    update to information  presented in Task I of the RFI
    to the Agency regarding previous response  activities
    and any interim measures which have or are being
    implemented  at the  facility.  The Owner/Operator
    [Respondent]  shall also make  a  facility-specific
    statement of the purpose for the response, based on
    the  results  of the RCRA  Facility Investigation. The
    statement of  purpose should  identify the actual or
    potential  exposure  pathways that should  be
    addressed by  corrective measures.

0.  Establishment of Corrective Action Objectives

    The Owner/Operator  [Respondent], in conjunction
    with  the  U.S.  EPA,  shall  establish site  specific
    objectives for  the corrective action. These objectives
    shall be based  on public health  and  environmental
    criteria, information  gathered  during  the  RCRA
    Facility  Investigation,  EPA  guidance,  and the
    requirements of any applicable Federal statutes. At a
    minimum, all  corrective actions concerning ground-
    water  releases from  regulated units  must  be
                                                    17

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    consistent with,  and as stringent  as, those required
    under 40 CFR 264.100.
D.  Identification of the Corrective Measure
    Alternative or Alternatives
C.  Screening of Corrective Measure
    Technologies

    The Owner/Operator [Respondent] shall  review the
    results of the  RCRA  Facility  Investigation  and
    reassess  the technologies specified  in  the  Task II
    report as approved by  EPA and identify additional
    technologies which are applicable at the facility. The
    Owner/Operator  [Respondent]  shall  screen the
    preliminary  corrective  measure  technologies
    identified  in Task II of the RCRA Facility Investigation
    and any  supplemental technologies  to eliminate
    those  that may prove  infeasible to implement, that
    rely on technologies unlikely to perform satisfactorily
    or  reliably,  or  that do  not achieve  the corrective
    measure  objective within  a reasonable time period.
    This screening  process focuses on eliminating those
    technologies which have  severe  limitations for  a
    given  set of waste and  site-specific conditions. The
    screening step may  also  eliminate technologies
    based on  inherent technology limitations. Site, waste,
    and technology characteristics  which are used to
    screen inapplicable technologies are described in
    more detail below:

    1.  Site Characteristics

       Site  data  should  be reviewed  to identify
       conditions that may limit or promote the use of
       certain technologies. Technologies whose use is
       clearly precluded  by  site characteristics should
       be eliminated from further consideration;

    2.  Waste Characteristics

       Identification  of waste characteristics that limit
       the effectiveness or feasibility of  technologies is
       an important  part  of  the screening process.
       Technologies  clearly  limited  by these waste
       characteristics  should  be  eliminated  from
       consideration. Waste  characteristics  particularly
       affect the  feasibility of in-situ methods, direct
       treatment  methods, and land  disposal  (on/off-
       site); and

    3.  Technology Limitations

       During  the screening  process,  the level of
       technology development, performance  record,
       and  inherent construction,  operation,  and
       maintenance  problems should be identified for
       each  technology considered. Technologies that
       are unreliable, perform  poorly, or are not fully
       demonstrated may   be eliminated  in  the
       screening  process.   For  example,  certain
       treatment  methods  have been developed  to  a
       point  where they can be implemented in the field
       without extensive technology transfer  or
       development.
    The Owner/Operator [Respondent] shall develop the
    corrective measure alternative or alternatives based
    on the corrective action objectives and  analysis of
    Preliminary Corrective  Measure  Technologies, as
    presented in  Task  II  of the RCRA  Facility
    Investigation and as supplemented  following  the
    preparation of  the RFI  Report.  The Owner/Operator
    [Respondent]  shall rely on engineering  practice to
    determine which  of  the previously  identified
    technologies  appear  most  suitable  for the  site.
    Technologies  can be combined to form  the  overall
    corrective action alternative or  alternatives.  The
    alternative or alternatives developed should represent
    a workable number of option(s) that each appear to
    adequately address all site problems and corrective
    action objectives. Each alternative may consist of an
    individual technology  or  a  combination of
    technologies.  The Owner/Operator [Respondent]
    shall  document  the reasons for  excluding
    technologies, identified  in  Task II, as  supplemented
    in the development of the alternative or alternatives.

Task IX: Evaluation of the  Corrective Measure
Alternative or Alternatives

The  Owner/Operator [Respondent]  shall  describe each
corrective  measure alternative that passes through  the
Initial Screening in Task VIII and evaluate each corrective
measure alternative and it's components. The evaluation
shall be based on technical, environmental, human health
and  institutional   concerns.  The   Owner/Operator
[Respondent] shall  also develop cost estimates of each
corrective measure.

A.  Technical/Environmental/Human
    Health/Institutional

    The Owner/Operator  [Respondent] shall  provide a
    description of  each corrective  measure  alternative
    which  includes but is not limited to  the following:
    preliminary process flow  sheets; preliminary sizing
    and type of construction for buildings and structures;
    and rough quantities  of utilities required.  The
    Owner/Operator [Respondent] shall evaluate each
    alternative in the four following areas:

    1.  Technical;

       The Owner/Operator [Respondent] shall evaluate
       each corrective measure alternative based on
       performance, reliability;  implementability  and
       safety.

       a.   The  Owner/Operator [Respondent]  shall
            evaluate  performance  based  on  the
            effectiveness and  useful life of the corrective
            measure:

            i)  Effectiveness shall  be  evaluated in
               terms of the ability to perform intended
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        functions,  such  as  containment,
        diversion,  removal, destruction,  or
        treatment.  The effectiveness  of  each
        corrective measure shall be determined
        either through  design specifications or
        by performance evaluation. Any specific
        waste or site characteristics which could
        potentially  impede effectiveness  shall
        be considered. The evaluation should
        also  consider the effectiveness of
        combinations of technologies; and

    ii)   Useful life is defined as the length of
        time  the level  of effectiveness can be
        maintained. Most  corrective measure
        technologies,  with  the  exception of
        destruction, deteriorate with time. Often,
        deterioration can  be slowed through
        proper   system  operation  and
        maintenance, but the  technology
        eventually  may require replacement.
        Each  corrective  measure  shall  be
        evaluated  in  terms of the  projected
        service  lives of its  component
        technologies. Resource availability in
        the future life of the technology, as well
        as appropriateness of the technologies,
        must be considered in  estimating the
        useful life of the project.

b.   The  Owner/Operator  [Respondent]  shall
    provide information  on  the reliability of each
    corrective measure  including their operation
    and maintenance  requirements and  their
    demonstrated reliability:

    i)   Operation   and  maintenance
        requirements include the frequency and
        complexity of  necessary  operation and
        maintenance.  Technologies  requiring
        frequent or complex  operation and
        maintenance  activities should  be
        regarded   as less reliable  than
        technologies  requiring  little  or
        straightforward operation  and main-
        tenance.  The  availability of labor  and
        materials to meet  these requirements
        shall also be considered; and

    ii)   Demonstrated and expected reliability is
        a  way of measuring the risk and effect
        of failure.  The  Owner/Operator
        [Respondent] should evaluate whether
        the  technologies  have  been  used
        effectively under analogous conditions;
        whether the combination of technologies
        have  been  used  together  effectively;
        whether failure  of  any one technology
        has an immediate  impact on receptors;
        and whether the corrective measure has
           the flexibility to deal with uncontrollable
           changes at the site.

    c.   The  Owner/Operator [Respondent] shall
        describe the  implementability  of each
        corrective measure including the relative
        ease  of installation (constructability) and the
        time  required  to  achieve  a given level of
        response:

        i)  Constructability  is  determined  by
           conditions both internal and external to
           the facility  conditions  and include such
    1       items  as  location  of  underground
           utilities,   depth  to  water  table,
           heterogeneity of subsurface materials,
           and  location of the facility (i.e.,  remote
           location vs. a congested urban  area).
           The  Owner/Operator [Respondent] shall
           evaluate what measures can be taken to
           facilitate  construction  under   these
           conditions.  External factors which affect
           implementation include the  need  for
           special permits  or  agreements,
           equipment  availability, and the location
           of  suitable  off-site treatment   or
           disposal facilities; and

        ii)  Time has two components that shall be
           addressed:  the time  it  takes  to
           implement a corrective measure and the
           time it takes  to actually see  beneficial
           results.  Beneficial results are defined as
           the reduction of contaminants to some
           acceptable, pre-established  level.

    d.   The  Owner/Operator [Respondent] shall
        evaluate  each corrective  measure alternative
        with regard  to safety. This evaluation shall
        include  threats to  the  safety  of nearby
        communities and  environments  as well as
        those  to workers  during  implementation.
        Factors to consider are fire,  explosion,  and
        exposure to  hazardous substances.

2.   Environmental;

    The Owner/Operator [Respondent] shall perform
    an  Environmental Assessment  for  each
    alternative. The Environmental  Assessment shall
    focus on the  facility conditions and pathways of
    contamination  actually  addressed  by  each
    alternative. The  Environmental Assessment for
    each alternative  will include, at a minimum., an
    evaluation  of:  the  short-  and  long-term
    beneficial  and adverse effects of the  response
    alternative; any  adverse   effects  on
    environmentally sensitive areas; and  an analysis
    of measures to mitigate adverse effects.
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    3.   Human Health; and

        The Owner/Operator [Respondent] shall assess
        each alternative in terms of the extent of which it
        mitigates  short-  and  long-term  potential
        exposure to any  residual  contamination  and
        protects human health  both during  and after
        implementation of the corrective  measure.  The
        assessment  will describe the levels  and
        characterizations  of contaminants  on-site,
        potential  exposure  routes,  and  potentially
        affected population.  Each  alternative will be
        evaluated to determine the level of  exposure to
        contaminants  and the reduction over time.  For
        management of mitigation measures, the relative
        reduction  of  impact will  be  determined  by
        comparing residual levels of each alternative with
        existing  criteria,  standards,  or  guidelines
        acceptable to EPA.

    4.   Institutional;

        The Owner/Operator [Respondent] shall assess
        relevant institutional needs for  each alternative.
        Specifically,  the  effects  of Federal, state  and
        local environmental and public health standards,
        regulations, guidance, advisories,  ordinances, or
        community  relations  on  the design,  operation,
        and timing of each alternative.

B.  Cost Estimate

    The Owner/Operator [Respondent] shall develop an
    estimate  of  the  cost  of  each corrective  measure
    alternative (and for each  phase or segment  of the
    alternative). The cost estimate shall include both
    capital and operation and maintenance costs.

    1.   Capital costs consist of direct (construction) and
        indirect (nonconstruction and overhead) costs.

        a.   Direct capital costs include:

            i)   Construction  costs: Costs of materials,
                labor (including  fringe  benefits  and
                worker's compensation), and equipment
                required to  install  the  corrective
                measure;

           ii)   Equipment costs:  Costs  of treatment,
                containment, disposal and/or service
                equipment necessary to  implement the
                action; these materials remain until the
                corrective action is complete;

           iii)   Land  and  site-development  costs:
                Expenses associated with  purchase of
                land and development of  existing
                property; and                ,

           iv)   Buildings and services costs: Costs of
                process and nonprocess  buildings,
           utility connections, purchased  services,
           and disposal costs.

    b.   Indirect capital costs include:

        i)  Engineering   expenses:  Costs  of
           administration,  design,  construction
           supervision,  drafting,  and  testing  of
           corrective measure alternatives;

        ii)  Legal fees and license or permit costs:
           Administrative  and  technical  costs
           necessary  to obtain  licenses  and
           permits for installation and operation;

       iii)  Startup and  shakedown  costs:  Costs
           incurred during  corrective measure
           startup; and

       iv)  Contingency allowances: Funds to cover
           costs  resulting  from  unforeseen
           circumstances, such as adverse weather
           conditions, strikes, and  inadequate
           facility characterization.

2.   Operation and  maintenance costs are  post-
    construction  costs  necessary  to  ensure
    continued effectiveness of a corrective  measure.
    The Owner/Operator [Respondent] shall consider
    the  following  operation and  maintenance  cost
    components:

    a.   Operating labor  costs:  Wages,  salaries,
        training,  overhead,  and  fringe  benefits
        associated with the labor needed  for post-
        construction operations;

    b.   Maintenance  materials  and  labor  costs:
        Costs for labor, parts, and other resources
        required  for routine maintenance of facilities
        and equipment;

    c.   Auxiliary  materials and  energy: Costs  of
        such  items  as  chemicals and electricity  for
        treatment plant operations,  water and sewer
        service, and fuel;

    d.   Purchased  services: Sampling  costs,
        laboratory fees, and  professional  fees  for
        which the need can be predicted;

    e.   Disposal  and  treatment  costs: Costs  of
        transporting, treating, and disposing of waste
        materials, such as treatment plant  residues,
        generated during operations;

    f.   Administrative costs:  Costs associated with
        administration  of  corrective measure
        operation and maintenance  not  included
        under other categories;

    g.   Insurance, taxes,  and licensing costs: Costs
        of  such  items as  liability  and sudden
        accidental insurance; real  estate  taxes  on
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           purchased  land  or  rights-of-way;  licensing
           fees for certain technologies; and  permit
           renewal and reporting costs;

        h.  Maintenance reserve and contingency funds:
           Annual payments into escrow funds to cover
           (1) costs  of anticipated  replacement  or
           rebuilding of equipment and  (2) any  large
           unanticipated operation and  maintenance
           costs; and

        i.   Other costs: Items that do not fit any of the
           above categories.

Task X: Justification and Recommendation of
the Corrective Measure or Measures

The  Owner/Operator  [Respondent] shall justify  and
recommend a  corrective measure alternative using
technical, human health, and environmental criteria. This
recommendation shall  include summary  tables which
allow  the  alternative or alternatives to be  understood
easily. Tradeoffs among  health  risks,  environmental
effects,  and other pertinent  factors  shall be highlighted.
The  U.S.   EPA will select the corrective  measure
alternative or  alternatives to  be  implemented based  on
the results of Tasks  IX and X.  At a minimum, the
following criteria will be  used  to justify the final corrective
measure or measures.

A.  Technical

    1.   Performance -  corrective measure or measures
        which are  most effective  at  performing  their
        intended  functions and maintaining   the
        performance over extended periods of time will
        be given preference;

    2.   Reliability  - corrective  measure  or measures
        which do  not  require  frequent  or  complex
        operation and  maintenance activities  and that
        have  proven effective under  waste and facility
        conditions  similar  to those anticipated  will  be
        given preference;

    3.   Implementability  -  corrective  measure  or
        measures  which  can  be constructed  and
        operating to reduce levels of contamination to
        attain  or exceed applicable  standards in the
        shortest period of time will be preferred; and

    4.   Safety - corrective measure or measures which
        pose  the least threat to the  safety of  nearby
        residents and environments as well as workers
        during implementation will be preferred.

B.  Human Health

    The corrective measure or  measures must  comply
    with existing  U.S. EPA criteria, standards,-or
    guidelines  for  the protection of  human  health.
    Corrective measures which provide the minimum
    level of exposure to contaminants and the maximum
    reduction in exposure with time are preferred.

C.  Environmental

    The corrective measure or measures posing the least
    adverse impact (or greatest improvement) over the
    shortest period of time  on  the environment  will be
    favored.

Task XI: Reports

The  Owner/Operator  [Respondent] shall  prepare  a
Corrective Measure Study Report presenting the results
of Task VIII through X and  recommending a corrective
measure alternative, [number] copies of the preliminary
report shall be  provided  by  the Owner/Operator
[Respondent].

A.  Progress

    The  Owner/Operator  [Respondent]  shall  at  a
    minimum provide the  EPA with signed, [monthly,
    bimonthly] progress reports containing:

    1.   A description and estimate of the percentage of
        the CMS completed;

    2.   Summaries of all findings;

    3.   Summaries of all  changes  made  in the  CMS
        during the reporting period;

    4.   Summaries of all contacts with representative of
        the  local community, public interest groups or
        State government during the  reporting period;

    5.   Summaries of all problems or potential problems
        encountered during  the reporting period;

    6.   Actions being taken  to rectify problems;

    7.   Changes in personnel during reporting period;

    8.   Projected work for the next reporting period; and

    9.   Copies of daily  reports,  inspection reports,
        laboratory/ monitoring data, etc.

B.  Draft

    The Report shall at a minimum include:

    1.   A description of the  facility;

        a.   Site topographic  map and  preliminary
            layouts.

    2.   A  summary  of the corrective  measure or
        measures;

        a.   Description of  the  corrective  measure or
            measures and rationale for selection;

        b.   Performance expectations;
                                                    21

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    c.   Preliminary design criteria and rationale;

    d.   General  operation and  maintenance  re-
        quirements; and

    e.   Long-term monitoring requirements.

3.  A summary of the RCRA Facility Investigation
    and impact on the selected corrective measure
    or measures;

    a.   Field  studies (ground-water, surface water,
        soil, air); and

    b.   Laboratory studies (bench scale, pilot scale).

4.  Design and Implementation Precautions;

    a.   Special technical problems;

    b.   Additional engineering data required;

    c.   Permits and regulatory requirements;

    d.   Access, easements,  right-of-way;

    e.   Health and safety requirements; and

    f.   Community relations activities.

5.  Cost Estimates and Schedules;

    a.   Capital cost estimate;

    b.   Operation and maintenance cost  estimate;
        and

    c.   Project schedule  (design, construction,
        operation).
    [Number] copies of the draft shall be provided by the
    Owner/Operator [Respondent] to U.S. EPA.

C.  Final

    The Owner/Operator [Respondent] shall finalize the
    Corrective Measure  Study  Report incorporating
    comments received from EPA on the Draft Corrective
    Measure Study Report.

[THE  FOLLOWING FACILITY SUBMISSION SUMMARY
MAY BE PLACED IN THE BODY OF THE ORDER OR
PERMIT AND REMOVED  FROM THE  SCOPE  OF
WORK. NOT ALL OF THE ITEMS LISTED BELOW MAY
BE REQUIRED AT EACH FACILITY.]

Facility Submission Summary

A summary  of the  information reporting  requirements
contained in the  Corrective Measure Study  Scope of
Work is presented below:
    Facility Submission

 Draft CMS Report
     (Tasks VIII. IX. and X)
 Final CMS Report
     (Tasks VIII, IX, and X)
 Progress Reports on
  Tasks VHI, IX, and X
    Due Date

[ NUMBER J days
after submittal of the
final RFI

[ NUMBER ] days
after Public and EPA
comment on the Draft
CMS

[ MONTHLY.BI-
MONTHLY J
                                              22

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                        Scope of Work for the Corrective Measure Implementation
                                                   at
                                         [Specify Facility Name]
Purpose

The purpose of this Corrective Measure Implementation
(CMI) program is to design, construct, operate, maintain,
and monitor the performance of the corrective measure
or measures selected  to protect human health and  the
environment. The  Owner/Operator  [Respondent] will
furnish all personnel, materials and services  necessary
for the  implementation of the corrective measure or
measures.

[Note: This scope  of work is  intended to  foster timely,
concise  submissions  by Owner/Operators. To achieve
this goal, it is important when  using the model scope of
work to  consider facility specific conditions. This scope
should be modified as necessary to require only that
information  necessary  to complete the Corrective
Measure Implementation.]

Scope

The  Corrective Measure  Implementation  program
consists of four tasks;

    Task XII:    Corrective  Measure  Implementation
               Program Plan

               A.   Program Management Plan

               B.   Community Relations Plan

    Task XIII:   Corrective Measure Design

               A;   Design Plans and Specifications

               B.   Operation and Maintenance Plan

               C.   Cost Estimate

               D.   Project Schedule

               E.   Construction  Quality Assurance
                   Objectives

               F.   Health and Safety Plan

               G.   Design Phases

    Task XIV:   Corrective Measure Construction

               A.   Responsibility and Authority
               B.  Construction  Quality Assurance
                   Personnel Qualifications

               C.  Inspection Activities

               D.  Sampling Requirements

               E.  Documentation

    Task XV:    Reports

               A.  Progress

               B.  Draft

               C.  Final

Task XII:  Corrective Measure Implementation
Program  Plan

The  Owner/Operator  [Respondent]  shall prepare a
Corrective  Measure Implementation Program Plan.  This
program will include the development and implementation
of several  plans, which require concurrent preparation. It
may be necessary to  revise  plans as  the  work  is
performed  to focus efforts on a particular problem. The
Program Plan includes the following:

A.  Program Management Plan

    The Owner/Operator [Respondent] shall prepare a
    Program Management Plan which  will document the
    overall management strategy for performing  the
    design, construction, operation,  maintenance  and
    monitoring  of  corrective measure(s). The plan shall
    document  the responsibility  and authority of all
    organizations  and  key  personnel  involved  with  the
    implementation. The  Program Management Plan will
    also include  a description of  qualifications of key
    personnel  directing  the  Corrective  Measure
    Implementation  Program,  including  contractor
    personnel.

B.  Community Relations Plan

    The Owner/Operator [Respondent] shall revise  the
    Community Relations Plan to include any changes in
    the  level of concern of  information needs to  the
    community during design and construction activities.

    1.  Specific activities  which  must  be conducted
       during  the design stage are the following:
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        a.   Revise the facility  Community  Relations
            Plan to reflect knowledge of citizen concerns
            and involvement at this stage of the process;
            and

        b.   Prepare  and distribute a public  notice and
            an updated fact sheet at the completion  of
            engineering design.
    2.   Specific activities  to be conducted  during the
        construction  stage could  be the  following:
        Depending on citizen interest at a facility at this
        point  in  the  corrective action  process,
        community relations activities could range from
        group meetings to fact sheets  on  the  technical
        status.

Task XIII: Corrective Measure Design

The  Owner/Operator  [Respondent] shall  prepare final
construction  plans  and specifications to implement the
corrective measure(s) at the facility as defined in the
Corrective Measure Study.

A.  Design Plans and Specifications

    The  Owner/Operator  [Respondent] shall  develop
    clear and comprehensive design  plans  and
    specifications which include but are not limited to the
    following:

    1.   Discussion of the design  strategy and the design
        basis, including:

        a.   Compliance with all applicable or  relevant
            environmental and public health standards;
            and

        b.   Minimization of environmental and public
            impacts.

    2.   Discussion of the technical factors of importance
        including:
        a.   Use of currently  accepted environmental
            control measures and technology;

        b.   The constructability of the design; and

        c.   Use of currently  acceptable  construction
            practices and techniques.

    3.   Description of assumptions made and  detailed
        justification of these assumptions;

    4.   Discussion of the  possible sources of error and
        references  to  possible  operation  and
        maintenance problems;

    5.   Detailed  drawings of the proposed design
        including:

        a.   Qualitative flow sheets; and

        b.   Quantitative flow sheets.

    6.   Tables listing equipment and specifications;
    7.   Tables giving material and energy balances;

    8.   Appendices including:

        a.   Sample  calculations  (one  example
            presented  and  explained  clearly  for
            significant or unique design calculations);

        b.   Derivation  of  equations  essential  to
            understanding the report; and

        c.   Results of laboratory or field tests.

B.  Operation and Maintenance Plan

    The Owner/Operator [Respondent]  shall  prepare  an
    Operation and  Maintenance Plan  to  cover  both
    implementation  and  long-term maintenance  of the
    corrective measure. The plan  shall  be composed of
    the following elements:

    1.   Description of normal operation and maintenance
        (O&M);

        a.   Description of tasks for operation;

        b.   Description of tasks for maintenance;

        c.   Description of  prescribed treatment  or
            operation conditions; and

        d.   Schedule  showing frequency of each  O&M
            task.  .

    2.   Description of potential operating problems;

        a.   Description   and analysis of potential
            operation problems;

        b.   Sources of information  regarding problems;
            and

        c.   Common and/or anticipated remedies.

    3.   Description  of routine monitoring and laboratory
        testing;

        a.   Description of monitoring tasks;

        b.   Description of required  laboratory tests and
            their interpretation;

        c.   Required QA/QC; and

        d.   Schedule of monitoring frequency and date,
            if appropriate, when monitoring may cease.

    4.   Description  of alternate O&M;

        a.   Should  systems fail, alternate procedures to
            prevent undue hazard; and
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        b.  Analysis of vulnerability and additional
           resource requirements  should a  failure
           occur.

    5.   Safety plan;

        a.  Description  of  precautions,  of necessary
           equipment, etc., for site personnel; and

        b.  Safety tasks required in  event of systems
           failure.

    6.   Description of equipment; and

        a.  Equipment  identification;

        b.  Installation of monitoring components;

        c.  Maintenance of site equipment; and

        d.  Replacement schedule for equipment and
           installed components.

    7.   Records and  reporting mechanisms required.

        a.  Daily operating logs;

        b.  Laboratory  records;

        c.  Records for operating costs;

        d.  Mechanism for reporting emergencies;

        e.  Personnel and  maintenance records; and

        f.  Monthly/annual reports to  State agencies.

        An initial  Draft  Operation and Maintenance Plan
        shall  be  submitted simultaneously with the
        Prefinal Design Document  submission and the
        Final  Operation  and  Maintenance Plan with the
        Final  Design Documents.

C.  Cost Estimate

    The Owner/Operator [Respondent] shall develop cost
    estimates for the  purpose of assuring that the facility
    has the financial resources necessary to  construct
    and implement the corrective  measure. The  cost
    estimate developed in the Corrective  Measure Study
    shall be refined to reflect the more detailed/accurate
   .design  plans  and  specifications  being developed.
    The cost estimate  shall include  both capital and
    operation  and maintenance costs. An  Initial  Cost
    Estimate  shall be submitted simultaneously with the
    Prefinal Design  submission  and the  Final Cost
    Estimate with  the Final Design Document.

D.  Project Schedule

    The Owner/Operator [Respondent] shall develop a
    Project   Schedule   for  construction  and
    implementation  of the corrective measure  or
    measures  which  identifies timing for initiation and
    completion of all  critical  path tasks. Owner/Operator
    [Respondent] shall  specifically identify dates  for
    completion  of the project  and  major  interim
    milestones. An  Initial Project Schedule shall  be
    submitted  simultaneously with the  Prefinal  Design
    Document  submission and  the  Final  Project
    Schedule with the Final Design Document.

£.  Construction Quality Assurance Objectives

    The Owner/Operator [Respondent] shall  identify and
    document  the objectives  and framework  for the
    development  of a  construction quality  assurance
    program including,  but  not limited  to the following:
    responsibility  and authority; personnel qualifications;
    inspection  activities;  sampling requirements;  and
    documentation.

F.  Health and Safety Plan

    The Owner/Operator [Respondent]  shall  modify the
    Health Safety Plan  developed for the  RCRA Facility
    Investigation to  address  the  activities to  be
    performed  at the facility to implement the corrective
    measure(s).

G.  Design Phases

    the design  of  the corrective measure(s) should
    include the phases outlined below.

    1.   Preliminary design

        The Owner/Operator [Respondent] shall submit
        the Preliminary design when the design effort is
        approximately 30% complete. At  this stage the
        Owner/Operator [Respondent]  shall  have field
        verified the existing conditions of the facility. The
        preliminary  design shall  reflect a level of effort
        such that the  technical  requirements of the
        project have been addressed  and  outlined so
        that they may  be reviewed to  determine  if the
        final design will provide an operable and usable
        corrective  measure.  Supporting  data  and
        documentation  shall be provided with the design
        documents defining the functional aspects of the
        program. The preliminary construction drawings
        by the Owner/Operator [Respondent] shall reflect
        organization and clarity. The scope of the
        technical specifications shall be  outlined in  a
        manner  reflecting the final specifications. The
        Owner/Operator [Respondent] shall  include with
        the  preliminary submission design  calculations
        reflecting the same percentage  of completion as
        the designs they support.

    2.   Intermediate design

        Complex project design may necessitate review
        of the   design  documents  between the
        preliminary  and the prefinal/final  design. At the
        discretion of the Agency, a design  review may
        be required at 60% completion  of the project.
                                                    25

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    The intermediate design submittal should include
    the same elements as the prefinal design.

3.  Correlating plans and specifications

    General  correlation  between  drawings and
    technical specifications, is a basic requirement of
    any  set  of  working  construction  plans and
    specifications. Before submitting the  project
    specifications, the  Owner/Operator [Respondent]
    shall:
    a.   Coordinate  and  cross-check
        specifications and drawings; and
the
    b.   Complete the  proofing  of  the  edited
        specifications  and required  cross-checking
        of all drawings and specifications.

    These activities shall  be  completed prior to the
    95% prefinal submittal to the Agency.

4.   Equipment startup and operator training

    The Owner/Operator [Respondent] shall prepare,
    and  include  in the  technical  specifications
    governing  treatment  systems,  contractor
    requirements  for  providing:  appropriate service
    visits by experienced  personnel  to supervise the
    installation, adjustment, startup and operation of
    the  treatment  systems, and training  covering
    appropriate  operational  procedures once  the
    startup has been successfully accomplished.

5.   Additional studies

    Corrective Measure Implementation may require
    additional studies  to  supplement the  available
    technical data. At the direction of the Agency for
    any such studies  required, the  Owner/Operator
    [Respondent]  shall furnish all services, including
    field work as required, materials, supplies, plant,
    labor, equipment,  investigations,  studies and
    superintendence. Sufficient sampling, testing and
    analysis  shall  be  performed to optimize  the
    required  treatment and/or disposal operations
    and systems. There shall be  an initial meeting of
    all  principal  personnel  involved  in  the
    development of the program. The purpose  will
    be  to  discuss   objectives,  resources,
    communication channels, role of personnel
    involved  and  orientation  of  the  site,  etc. The
    interim  report  shall present the results of  the
    testing with the  recommended treatment  or
    disposal  system (including  options). A review
    conference shall be scheduled after the interim
    report has  been  reviewed by all interested
    parties. The final  report  of the testing shall
    include all  data taken during the testing  and  a
    summary of the results of the studies.
    6.  Prefinal and final design

        The Owner/Operator [Respondent] shall  submit
        the prefinal/Final design documents in two parts.
        The first submission shall be at 95%  completion
        of design  (i.e.,  prefinal). After approval  of  the
        prefinal  submission,  the  Owner/Operator
        [Respondent] shall  execute  the  required
        revisions and submit the final  documents  100%
        complete  with reproducible drawings  and
        specifications.

        The prefinal design submittal shall consist of the
        Design Plans and  Specifications, Operation and
        Maintenance Plan, Capital and  Operating and
        Maintenance Cost  Estimate, Project  Schedule,
        Quality Assurance  Plan  and  Specifications  for
        the Health and Safety Plan.

        The final design submittal consists of the Final
        Design  Plans and  Specifications  (100%
        complete), the Owner/Operator's [Respondent's]
        Final  Construction  Cost Estimate,  the  Final
        Operation and  Maintenance Plan, Final Quality
        Assurance Plan, Final Project Schedule and Final
        Health and  Safety Plan specifications.  The
        quality of the design documents should be such
        that the Owner/Operator [Respondent] would be
        able to include them in a bid package and invite
        contractors to submit bids for the construction
        project.

Task XIV: Corrective Measure Construction

Following  EPA approval of the  final design, the
Owner/Operator  [Respondent]  shall  develop  and
implement  a  construction quality  assurance (CQA)
program to ensure, with a reasonable degree of certainty,
that a completed corrective measure(s)  meets or exceeds
all design criteria, plans and specifications. The CQA plan
is  a facility  specific document which must be  submitted
to  the Agency  for  approval  prior  to  the  start of
construction. At a minimum, the CQA plan should include
the elements, which are summarized below.  Upon EPA
approval  of  the  CQA   plan the   Owner/Operator
[Respondent] shall construct  and  implement the
corrective  measures  in accordance  with the  approved
design, schedule and the CQA plan. The Owner/Operator
[Respondent] shall  also implement the elements  of  the
approved Operation and Maintenance plan.

A.  Responsibility and Authority

    The responsibility and authority  of all organizations
    (i.e., technical consultants, construction firms, etc.)
    and key personnel involved in the construction of the
    corrective  measure shall be  described fully  in  the
    CQA plan. The  Owner/Operator  [Respondent] must
    identify a CQA officer and the necessary  supporting
    inspection staff.
                                               26

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B.  Construct/on Quality Assurance Personnel
    Qualifications
    The qualifications of the CQA officer and supporting
    inspection personnel shall be presented in the CQA
    plan to demonstrate that  they possess the  training
    and experience necessay to  fulfill their identified
    responsibilities.
C.  Inspection Activities

    The observations  and  tests  that  will  be used to
    monitor  the construction  and/or installation  of the
    components of  the  corrective measure(s) shall be
    summarized in the CQA plan. The  plan shall  include
    the scope and frequency of each type of inspection.
    Inspections  shall  verify  compliance  with  all
    environmental requirements and include, but not be
    limited to  air quality  and emissions monitoring
    records,  waste disposal  records (e.g.,  RCRA
    transportation  manifests), etc. The  inspection should
    also ensure compliance with  all  health and safety
    procedures. In addition to oversight inspections, the
    Owner/Operator [Respondent] shall  conduct the
    following activities:
    1.  Preconstruction inspection and meeting

       The Owner/Operator [Respondent] shall conduct
       a preconstruction inspection and meeting  to:

       a.  Review  methods  for documenting  and re-
           porting inspection data;
       b.  Review  methods for distributing and storing
           documents and reports;

       c.  Review work   area  security  and  safety
           protocol;
       d.  Discuss any appropriate modifications of the
           construction quality assurance plan to
           ensure  that  site-specific considerations are
           addressed; and

       e.  Conduct a site walk-around to verify .that
           the design criteria, plans,  and specifications
           are understood and to review  material and
           equipment storage locations.
    The preconstruction inspection and meeting shall be
    documented by a designated person  and minutes
    should be transmitted to all parties.

    2.  Prefinal inspection
       Upon  preliminary  project   completion
       Owner/Operator [Respondent]shall notify EPA for
       the purposes of conducting a prefinal inspection.
       The prefinal inspection will consist of  a walk-
       through inspection  of the entire project site. The
       inspection is to determine whether the project is
       complete  and  consistent with the  contract
       documents  and  the EPA approved  corrective
       measure.  Any outstanding construction  items
        discovered  during  the inspection  will  Co
        identified  and  noted.  Additionally, treatment
        equipment will  be operationally  tested by  the
        Owner/Operator  [Respondent].  The
        Owner/Operator [Respondent] will certify that the
        equipment has  performed to meet the purpose
        and intent of the specifications. Retesting will be
        completed where deficiencies  are revealed. The
        prefinal  inspection  report  should outline  the
        outstanding construction items, actions required
        to  resolve items,  completion date for  these
        items, and date for final  inspection.
    3.  Final inspection

        Upon completion of any outstanding construction
        items, the Owner/  Operator [Respondent] shall
        notify EPA for the purposes of conducting  a final
        inspection. The  final inspection will consist of  a
        walk-through inspection of the  project  site. The
        prefinal  inspection report  will be used  as  a
        checklist with the final inspection focusing on the
        outstanding construction items identified  in  the
        prefinal  inspection. Confirmation shall be  made
        that outstanding items have been resolved.

0.  Sampling Requirements

    The  sampling activities,  sample  size,  sample
    locations, frequency  of  testing,  acceptance and
    rejection criteria, and plans for correcting problems
    as addressed in the project specifications should be
    presented in the CQA plan.

£.  Documentation

    Reporting requirements for  CQA activities shall be
    described in detail  in  the  CQA plan.  This should
    include such  items as  daily  summary  reports,
    inspection data sheets,  problem identification and
    corrective measures  reports,  design  acceptance
    reports, and final documentation. Provisions for  the
    final storage of all records also should be presented
    in the CQA plan.

Task XV: Reports

The  Owner/Operator  [Respondent] shall prepare  plans,
specifications, and reports as  set  forth in Tasks  XII
through Task XV to document the design, construction,
operation, maintenance, and monitoring of the corrective
measure. The documentation shall include, but not be
limited to the following:

A.  Progress

    The  Owner/Operator  [Respondent]  shall  at  a
    minimum provide the  EPA with signed,  [monthly,
    bimonthly] progress reports during the design and
    construction phases and [semi-annual] progress
                                                   27

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    reports for  operation and maintenance  activities
    containing:

    1.  A description and estimate of the percentage of
       the CMI completed;

    2.  Summaries of all findings;

    3.  Summaries of all changes made in  the CMI
       during the reporting period;

    4.  Summaries of all contacts with representative of
       the local community,  public interest groups or
       State government during the reporting period;

    5.  Summaries of all problems or potential problems
       encountered during the reporting period;

    6.  Actions being taken to rectify problems;

    7.  Changes  in  personnel  during  the  reporting
       period;

    8.  Projected work for the next reporting period; and

    9.  Copies  of daily  reports, inspection  reports,
       laboratory/ monitoring data, etc.
8.  Draft
    1.  The Owner/Operator [Respondent] shall submit a
       draft  Corrective  Measure  Implementation
       Program Plan as outlined in Task XII;

    2.  The Owner/Operator [Respondent] shall submit
       draft  Construction  Plans  and  Specifications,
       Design  Reports,  Cost Estimates,  Schedules.
       Operation and  Maintenance  Plans,  and  Study
       Reports as outlined in Task XIII;

    3.  The Owner/Operator [Respondent] shall submit a
       draft  Construction  Quality  Assurance Program
       Plan and Documentation as outlined in Task XIV;
       and

    4.  At  the "completion" of the construction  of the
       project, the  Owner/Operator  [Respondent] shall
       submit  a Corrective Measure Implementation
       Report  to  the Agency.  The Report  shall
       document that the project is  consistent with the
       design  specifications,  and that the corrective
       measure is  performing adequately.  The  Report
       shall  include, but  not be limited to the following
       elements:
       a.  Synopsis of the corrective  measure and
           certification of the design and construction;

       b.  Explanation of any modifications to the plans
           and  why  these were  necessary  for the
           project;

       c.  Listing of the criteria, established  before the
           corrective measure was initiated, for judging
           the functioning  of  the  corrective measure
           and  also  explaining any modification  to
           these criteria;

       d.  Results of facility monitoring, indicating that
           the corrective measure  will meet  or exceed
           the performance criteria; and

       e.  Explanation   of  the  operation  and
           maintenance (including  monitoring) to  be
           undertaken at the facility.

    This report should  include all of the daily  inspection
    summary reports,  inspection  summary reports,
    inspection  data sheets, problem  identification and
    corrective measure  reports, block evaluation reports,
    photographic reporting  data  sheets,  design
    engineers' acceptance  reports,  deviations from
    design  and material specifications  (with justifying
    documentation) and  as-built drawings.

C.  Final

    The Owner/Operator [Respondent] shall  finalize the
    Corrective  Measure Implementation  Program Plan,
    Construction  Plans and  Specifications,  Design
    Reports, Cost Estimates, Project Schedule, Operation
    and Maintenance Plan, Study Reports, Construction
    Quality Assurance  Program Plan/Documentation and
    the Corrective  Measure Implementation   Report
    incorporating comments  received   on  draft
    submissions.

[THE  FOLLOWING FACILITY SUBMISSION  SUMMARY
MAY BE  PLACED IN THE BODY OF THE ORDER OR
PERMIT  AND  REMOVED  FROM  THE SCOPE  OF
WORK. NOT ALL OF THE ITEMS LISTED BELOW MAY
BE REQUIRED AT EACH FACILITY].

Submission Summary

A  summary of  the  information reporting requirements
contained in the  Corrective  Measure  Implementation
Scope of Work is present below:
                                                   28

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                 Facility Submission
 Draft Program Plans (Task XII)

Final Program Plans (Task XII)

Design Phases (Task XIII A)
• Preliminary Design (30% completion)
- Intermediate Design (60% completion)
•- Prefinal Design (95% completion)
- Final Design (100% completion)
(Tasks XIII B through G)
- Draft Submittals
•Final Submittals
Additional Studies: InterimReport (Task XIII F)
Additional Studies: Final Report (Task XIII F)
Draft Construction Quality Assurance Plan (Task XIV)

Final Construction Quality Assurance Plan (Task XIV)

Construction of Corrective Measure(s)
Prefinal Inspection Report (Task XIV)

Draft CMI Report (Task XV)
Completion of Construction
Final CMI Report (Task XV)

Progress Reports for Tasks XII through XIV

Progress Reports During Operation and Maintenance
                     Due Date
  DATE
[ NUMBER ] days after EPA comment on Draft Program
Plans
[ NUMBER ] days after submittal of  Final Program Plan
[ NUMBER ] days after submittal of  Final Program Plan
[ NUMBER ] days after submittal of  Final Program Plan
[ NUMBER ] days after submittal of  Prefinal Design

Concurrent with Prefinal Design
Concurrent with Final Design

[ DATE ESTABLISHED PRIOR TO FINAL DESIGN ]

[ NUMBER ] days after EPA comment on Interim Report

Prior to construction

[ NUMBER ] days after EPA comment on Draft
Construction Quality Assurance Plan

As approved in Final Design

[ NUMBER ] days after Prefinal Inspection

Upon completion of construction phase

As approved by EPA in the Corrective Measure Design

[ NUMBER ] days after EPA comment on Draft CMI
Report

[ MONTHLY.BI-MONTHLY ]

[ SEMI-ANNUAL]
                                                  29

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                                         Annotated Bibliography
                                                 for the
                                         Corrective Action Plan**
Guidance on Remedial Investigations  Under CERCLA;
May 1985

    Provides detailed  guidance  on the  information that
    should  be  collected  in  performing  a CERCLA
    Remedial Investigation. This document should be
    consulted in performing the investigation portion of
    the RFI/CMS  since most  of  the  RCRA  Facility
    Investigation data needs  are  identical  to these in
    CERCLA.

Guidance on Feasibility Studies Under CERCLA; April
1985.

    Provides a framework for developing, screening, and
    selecting a  remedial action under CERCLA.  Most of
    the techniques  described are  appropriate  for  the
    developing, screening, and  selection of the RCRA
    Corrective Measures. However, the management and
    policy objectives  presented in the  document  (i.e.;
    fulfilling  the requirements of the CERCLA  National
    Contingency Plan) are  not appropriate to RCRA and
    should be omitted  from  the Corrective Measure
    decisionmaking framework.

Chemical, Physical  and Biological  Properties of
Compounds Present at Hazardous  Waste  Sites;
EPA/OWPE;  September 1985.

    Provides detailed technical information  of the
    physical and toxicological properties  of a wide range
    of chemicals. Such information should be included in
    the RCRA Facility Investigation and  should be used
    in developing Corrective Measures.

Endangerment  Assessment  Handbook;  EPA/OWPE;
August 1985.
    Provides guidance on developing   a CERCLA  (or
    RCRA 7003)  Endangerment Assessment.  The
    information  presented might be useful in assessing
    health and environmental effects in the RFI/CMS.

Methods  for Chemical Analysis of Water and  Waste;
EPA-600/4-79-020;  March 1979.

    Provides test  procedures  for monitoring waste
    discharge water supplies, and ambient waters.

Toxicology  Handbook  • Principles Related to
Hazardous  Waste Site Investigations;  EPA/OWPE;
August 1985.

    Discusses toxicological principles. Intended as an aid
    for non-toxicologists.

Remedial  Action at Waste Disposal Sites  (Revised);
EPA/625/6-85/006;  1985.
    Provides basic reference material on the design and
    implementation of remedial action. Although the
    document  is  geared towards the CERCLA RI/FS
    process, most of  the material presented is directly
    applicable to the RCRA Corrective Action Plan.

Test  Methods  for  Evaluating  Solid  Waste,
Physical/Chemical Methods; SW-846; July 1982.

    Provides  procedures  that should  be used  to
    determine whether a waste is a hazardous waste  as
    defined by 40 CFR Part 261.

Superfund Remedial Design and Remedial Action
Guidance; February 1985.

-   Provides guidance on developing  remedial design
    and remedial actions at Superfund sites. Although
    procedurally focused on  satisfying the  NCP, the
    document provides useful managerial information for
    implementing RCRA Corrective Meaures.

Guidance on Remedial Actions for Contaminated Ground
Water at Superfund Sites; Draft; May 1986.

    Provides technical discussions of CERCLA remedial
    alternative  screening  and case studies which are
    largely applicable  to the RFI/CMS. The guidance  is
    intended to be consistent with EPA's Ground Water
    Protection Strategy and with RCRA.

Construction Quality  Assurance for Hazardous Waste
Land Disposal Facilities;  EPA/530-SW-85-031;  July
1986.

    Public guidance on construction quality assurance for
    hazardous  waste  landfills,  surface impoundments.
    and wastepiles.

RCRA  Ground-Water Monitoring Technical Enforcement
Guidance  Document;  Final;  EPA/OWPE; September
1986.

-   Provides guidance  on  data collection  and  well
    spacing  and design for  detection  and assessment
    monitoring  of Interim Status facilities. This guidance
    should  be  consulted -in both  the RCRA Facility
    Investigation and Corrective Measure stages of the
    RFI/CMS.
"NOTE:  This is not a complete listing of the Agency guidance which
       may be relevant to the corrective action process. A number of
       documents are presently under development and  have not
       been included.
                                                   30
                                                              lirU.S. GOVERNMENT PRINTING OFFICE: 1988/548-158/67132

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          United States      Office of Solid Waste and  EPA/530-SW-88-029
          Environmental Protection Emergency Response    OSWER Directive 9902.4
          Agency         Washington DC 20460   June 1988
EPA      RCRA Corrective
          Action Interim
          Measures Guidance

          Interim Final

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                                  EPA/530-SW-88-029
                                 OSWER Directive 9902.4
                                        June 1988
  RCRA CORRECTIVE ACTION

INTERIM MEASURES GUIDANCE


           (Interim Final)
         Office of SoHd Waste
    Office of Waste Programs Enforcement

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                      NOTICE

This document has been reviewed in accordance with
U.S. Environmental Protection Agency policy and
approved for publication.  Mention of trade names
or commercial products does not constitute endorse-
ment or recommendation for use.
                       11

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                                     TABLE OF CONTENTS
                                                                                   Page

FOREWORD  	   v

ACKNOWLEDGMENTS 	'	  vii

INTERIM MEASURES IMPLEMENTATION STRATEGY	   1

EXAMPLES OF INTERIM MEASURES  	   4

MODEL INTERIM MEASURES LANGUAGE	   5

  Containers	   5
  Tanks	   6
  Surface Impoundments  	   6
  Landfills 		   8
  Waste Pile	  10
  Soils   	  10
  Ground Water	  11
  Surface Water Release  	  13
  Gas Migration Control  	:	  14
  Particulate Emissions	  14
  Other Actions   	  15

  APPENDICES	  16

  APPENDIX A:  Interim Measures Workplan	   A -
  APPENDIX B:  Interim Measures Investigation Program	   B -
  APPENDIX C:  Interim Measures Design Program  	   C -
  APPENDIX D:  Interim Measures Construction Quality Assurance Plan  	   D -
  APPENDIX E:  Reports	,   E -
                                               in

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                                      FOREWORD
This document was issued by Gene A.  Lucero, Director, Office of Waste Programs Enforcement,
and Marcia Williams, Director,  Office of Solid Waste, on June 10, 1987,  as the  RCRA §3008(h)
Corrective Action Interim Measures Guidance (Interim Final). OSWER Directive 9902.4

The  Interim Measures Guidance should be used  in the  development,  implementation and
coordination of corrective action orders (§3008(h)) and corrective action programs  carried out
pursuant to a RCRA permit (§3004(u) and (v)). Its purpose is to assist the  regions and states in
deciding when to require an interim measure. In addition,  it will also assist in identifying and
communicating to the owner/operator or respondent the specific work which must be performed to
mitigate or remove the threat presented  by releases. This document should be used in conjunction
with  two previously transmitted corrective action guidances, the interim final Corrective Action
Plan, November 1986 and the RCRA §3008(h) Model Consent Order, February 1987.

The document is designed to provide a review of corrective actions available under §3008(h) as
well as through RCRA permits  to quickly address problems while other detailed investigations or
analyses may be ongoing. Interim  measures can  be designed and  implemented  as an initial
corrective action activity in a multi-phased order or as the action in the first of a  series of orders
which feed into an operating permit, post-closure permit or supplement an interim status closure
plan.

The Interim Measures guidance consists of:

1.  Implementation Strategy - which lays out the thought process necessary to determine the
    need for interim measures.

2.  Interim Measures List -  which  provides examples of  interim measures compiled from past
    removal actions and Superfund remedial guidance.

3.  Model Language - which provides specific language as needed for each interim measure that
    should be modified to address site-specific conditions.

4.  Interim Measures Appendices -  which lay out the scope of work for the investigation, design
    and implementation of the interim measures.

Regions should consider the magnitude of potential threat to human health and the environment
during the selection of an interim measure. The Agency's authority to require an owner/operator to
perform specified  activities  is  directly correlated to the  protection  of  human  health and the
environment. Therefore,  if the risk has yet to be determined, simple monitoring of ground  water,
surface  waste, soil  or air may be the types of actions ordered. As more  information becomes
available through initial or additional sampling and analysis, more comprehensive actions should
be contemplated  either  by incorporating actions into a permit,  a single "phased"  order  or  by
issuing separate orders.

Please note that the model language provided in this document should be tailored to site-specific
technical details.  This  is particularly important when the Agency compels the respondent to
implement an interim measure without a submission  of  a plan for EPA  review and approval.
Significant up-front detail should be provided in the order or  the  permit  so that the measure
implemented by the respondent is  appropriate and in accordance  with  EPA's requirements. In
addition, since the purpose of the interim measure is to expeditiously abate or remove the threat
presented  by releases,  specific and  stringent time frames  for  implementation should  be
incorporated into the order or permit.

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                              ACKNOWLEDGMENTS
This document was prepared by Mark Gilbertson, Anna Duncan and Jacqueline Moya of the RCRA
Enforcement Division in the Office of Waste Programs Enforcement. A special thanks   to Tony
Baney and Lloyd Querci for their management support and the Office of Solid Waste and various
regional staff for their technical review and comments.
                                         vii

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                            INTERIM MEASURES IMPLEMENTATION STRATEGY
Introduction
Regions  should  consider interim  measures  for corrective
action in orders  and permits and initiate them for facilities
where response is  appropriate prior to the  completion of
the RCRA Facility Investigation/Corrective Measure Study.
Implementation of interim measures should  be consistent
with agency priorities and must be related to protection of
human health or the environment.


Decision Criteria

Regional staff must review the pertinent facts about the
source and  nature  of  the release  or potential threat of
release.  To decide whether an  interim  measure is
appropriate, both technical engineering judgment and an
evaluation of  potential  threat  to  human health  or the
environment should be considered. The decision for an
interim measure can be made, based on the immediacy
and magnitude of the potential threat to  human health or
environment, the nature of appropriate corrective action,
and the implications of deferring the corrective action until
the RCRA Facility Investigation/Corrective Measures Study
is  completed.  The EPA official initiating the  action should
maintain a  file  containing reports  and  internal  Agency
documents  used in generating or supporting  the interim
measure.

Sources  that may provide information on releases as well
as environmental and health concerns include:

•   Inspection reports

•   RCRA Facility Assessment (RFA)

•   RCRA Facility Investigations (RFIs)

•   RCRA Part A and Part B permit applications

•   Notice of significant increase (265.93)

•   Responses to RCRA §3007 information requests

•   Information obtained through RCRA §3013 orders

•   Notifications required by CERCLA  §103  or RCRA
    §3016 submittals

•   Information-gathering  activities conducted under
    CERCLA §104

•   Informants'  tips or  citizens' complaints corroborated
    by supporting information

In  considering a release  and  potential  threat  to human
health or the environment, the enforcement  official/permit
writer should consider factors  such as type  of release, its
scope  and site demographics.  The  following  questions
may help the Regional staff in evaluating these factors.*

A.  Release Characterization

    1.   What is the source(s)? (nature,  number of drums,
        size  (area, depth), amount, location(s))

    2.   Regarding  hazardous wastes or constituents at
        the source(s):

        a.   What hazardous wastes (listed, characteristic)
            and hazardous constituents are present?

        b.   At  what concentrations?

        c.   What  is  the  background  level  of each
            hazardous waste or constituent?

    3.   What are the known pathways through which the
        contamination is migrating or may migrate and the
        extent of contamination?

        a.   By  what media is  it spreading or likely to
            spread? In what direction? At what rate?

        b.   How far have the contaminants migrated? At
            what concentrations?

        c.   How mobile is the constituent?

        d.   What are  the  estimated quantities  and/or
            volumes released?

    4.   What is  the projected fate and transport to the
        extent known?

B.  Potential Human Exposure

    1.   What is or  will  be the exposure pathway(s) (e.g.,
        air, fire/explosion,  ground  water, surface water,
        contact, ingestion)?

    2.   What are  the  location  and  demographics of
        populations potentially at risk  from exposure (e.g.,
        residential area, schools, drinking water supply,
        sole  source aquifer near vital ecology or protected
        natural  resource)?

    3.   What are the potential effects of human exposure
        (short-  and  long-term  effects)?**
  This does not  imply  that either  a risk assessment  or an
  endangerment assessment is necessary. In part, these questions are
  designed to focus on high priority releases.
  "Hazardous constituent health  effects data can  be found in
  "Chemical, Physical and Biological Properties of Compounds Present
  at Hazardous Waste Sites," September 1985. The draft "Superfund
  Exposure. Assessment  Manual,"  January 14,  1986,  the draft
  "Superfund Public Health Evaluation Manual," December 18, 198S
  and the RCRA §3001 data on identification and listing of hazardous
  wastes are also available as references on health effects.

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    4.  Has human exposure  actually occurred?  When
       may human exposure occur?

       a.  What kind (e.g.,  inhalation,  ingestion, skin
           contact)?

       b.  Are there reports of illness, injury, death?

       c.  May people be affected?

       d.  What are  the characteristics of the exposed
           population(s) (how many, infants,  nursing
           home residents)?

    5.  If response is delayed,  how  will the situation
       change?

C.  Potential  Environmental  Exposure   and
    Threats

    1.  What media have been and may be contaminated
       (e.g., ground water, air. surface water)?

    2.  What are the  likely short-term  and long-term
       threats  and effects on the environment  of the
       released waste or constituent?

    3.  What natural resource  and environmental effects
       have occurred or are possible  (terrestrial; aquatic
       organisms;  aquifers  whether or  not used for
       drinking water purposes)?

    4.  What  are  the known or  projected  ecological
       effects?

    5.  When is this  threat likely to  materialize  (days,
       weeks, months)?

    6.  What are the projected long term effects?

    7.  If response is delayed,  how  will the situation
       change?

Selection of Interim Measures

Once a decision can be made that interim measures are
appropriate,  then  the next question is  what interim
measures (generally short term and mid-term) might be
required  for this particular situation. Examples of interim
measures for various unit and  release  types are listed  in
the next chapter of this guidance document on page 4.

Integration with Long Term Corrective Action

Interim   measures  may  be   separate  from  the
comprehensive corrective action plan but should anticipate
integration with any longer term  corrective action (e.g.,
corrective measure through an  order, an operating permit,
or  a  post-closure  permit or interim  status  closure
requirements). To the extent  possible, interim measures
should not seriously complicate  the  ultimate physical
management of  hazardous wastes or constituents and
should not present a  substantial  health or environmental
threat  Interim measures may add additional costs or work
to the  comprehensive corrective action. This does not
preclude implementation of an interim measure.

Developing the Interim Measure Language

A  scope of work for the implementation of the  interim
measures should be laid out in the corrective action order
or permit. Depending on  the immediacy of the problem
and the nature of the measure, an order may be written to
directly compel actions or may require submission of  a
plan to be  implemented  upon  EPA  approval  or
modification. This scope of work could be laid out in the
body of the order/permit  or may be  incorporated as' an
attachment to the order/permit.

Interim measures  language to be included in a corrective
action order follows in the chapter entitled "Model Interim
Measures  Language,"  on  page 5. Language included in
this guidance for various units and releases types can be
combined  in either an order/permit.  In general, the scope
of work for interim  measures  to be  implemented  at  a
facility  may consist of all or some of the tasks, which have
been laid out in more detail in the model language and the
appendices of this document.  Examples of  how the
Appendices may be expanded  and/or tailored to specific
units are provided on pages 7, 8,11,12,13 and 14.

Appendix A contains the recommended components (the
objectives,  a health and  safety plan and  a community
relations plan) for an interim measures workplan. When
interim measures  are taking place at the same time as a
RCRA  Facility  Investigation (RFI), the  RFI workplan may
already incorporate  health and safety and community
relations plans sufficient for the interim measure activities.
Additional  components  may  need  to  be added  to  this
workplan.   For example,  if  media investigations  are
necessary,  see Appendix B -  Interim Measures  Investi-
gation Program, for details to be added to the workplan. If
an interim measure design is  necessary,  see Appendix
C  - Interim Measures  Design  Program, for  details to be
added  to the workplan. If a construction quality assurance
program is required, see Appendix  D - Interim Measures
Construction Quality Assurance Plan,  for details  to be
added to the workplan. If progress, draft and final reporting
are required, see  Appendix E - Reports, for details to be
added to the workplan. Language in the appendices should
be  modified to take into account  site-specific technical
detail.

   APPENDIX A - INTERIM MEASURES WORKPLAN

    1.   Interim Measures  Objectives
    2.   Health and Safety Plan
    3.   Community Relations Plan

   APPENDIX B - INTERIM MEASURES
   INVESTIGATION PROGRAM

    1.   Data Collection Quality Assurance Plan
    2.   Data Management Plan

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APPENDIX C - INTERIM MEASURES DESIGN
PROGRAM

  1.  Design Plans and Specifications
  2.  Operation and Maintenance Plan
  3.  Project Schedule
  4.  Final Design Documents

APPENDIX D - INTERIM MEASURES
CONSTRUCTION QUALITY ASSURANCE PLAN

  1.  Construction Quality Assurance Objectives
  2.  Inspection Activities
  3.  Sampling Requirements
  4.  Documentation

APPENDIX E - REPORTS

  1.  Progress
  2.  Interim Measures Workplan
  3.  Final Design Documents
  4.  Draft Interim Measures Report
  5.  Final Interim Measures Report

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                                  EXAMPLES OF INTERIM MEASURES
    The following is a list of possible interim measures for
various units and release types. This list is not considered
to be all inclusive.

Containers

    1.   Overpack/Redrum
    2.   Construct Storage Area/Move  to  New Storage
        Area
    3.   Segregation
    4.   Sampling and Analysis
    5.   Treatment, Storage and/or Disposal
    6.   Temporary Cover

Tanks

    1.   Overflow/Secondary Containment
    2.   Leak  Detection/Repair/Partial  or  Complete  Re-
        moval

Surface Impoundments

    1.   Reduce Head
    2.   Remove Free Liquids and Highly Mobile Wastes
    3.   Stabilize/Repair Side Walls, Dikes or Liner(s)
    4.   Temporary Cover
    5.   Run-off/Run-on  Control (Diversion or Collection
        Devices)
    6.   Sample  and  Analysis to  Document  the
        Concentration of Constituents Left in Place When
        a Surface Impoundment  Handling  Characteristic
        Wastes is Clean Closed
    7.   Interim  Ground-water Measures  (See  Ground-
        water Section)

Landfills

    1.   Run-off/Run-on  Control (Diversion or Collection
        Devices)
    2.   Reduce Head  on  Liner and/or  in  Leachate
        Collection System
    3.   Inspect Leachate Collection/Removal System or
        French Drain
    4.   Repair  Leachate  Collection/Removal  System or
        French Drain
    5.   Temporary Cap
    6.   Waste Removal (See Soils Section)
    7. .  Interim  Ground-water Measures  (See  Ground-
        water Section)

Waste Pile

    1.   Run-off/Run-on  Control (Diversion or Collection
        Devices)
    2.   Temporary Cover
    3.   Waste Removal (See Soils Section)
    4.   Interim  Ground-water Measures  (See  Ground-
        water Section)
Soils

    1.   Sampling/Analysis/Disposal
    2.   Run-off/Run-on  Control (Diversion or Collection
        Devices)
    3.   Temporary Cap/Cover

Ground Water

    1.   Delineation/Verification of Gross Contamination
    2.   Sampling and Analysis
    3.   Interceptor Trench/Sump/Subsurface Drain
    4.   Pump and Treat/ln-situ Treatment
    5.   Temporary Cap/Cover

Surface Water Release (Point and  Non-point)

    1.   Overflow/Underflow Dams
    2.   Filter Fences
    3.   Run-off/Run-on  Control (Diversion or Collection
        Devices)
    4.   Regrading/Revegetation
    5.   Sample and  Analyze  Surface Waters  and
        Sediments or Point Source Discharges

Gas Migration Control

    1.   Barriers/Collection/Treatment/Monitoring

Paniculate Emissions

    1.   Truck Wash (Decontamination Unit)
    2.   Revegetation
    3.   Application of Dust Suppressant

Other Actions

    1.   Fencing to Prevent Direct Contact
    2.   Sampling  Off-site  Areas
    3.   Alternate Water Supply to Replace Contaminated
        Drinking Water
    4.   Temporary Relocation of Exposed Population*
    5.   Temporary or Permanent Injunction*
    6.   Suspend  or Revoke Authorization  to  Operate
        Under Interim Status *
 . •Model language not included in this guidance.

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            MODEL INTERIM MEASURES LANGUAGE FOR CORRECTIVE ACTION ORDERS*
                  CONTAINERS"

1.  Overpack/Redrum
Beginning immediately, the Respondent shall overpack or
redrum  each leaking, significantly  corroded, damaged,
uncovered and bulged container located in [insert location]
that may leak or burst. This action shall be completed by
[insert  date].  Within_  days  and  every	days
thereafter until [insert dateJTthe Respondent shall examine
every container located in [insert location] to detect any
leakage, significant corrosion or structural damage likely to
lead to leakage. Each  such leaking,  significantly corroded,
damaged uncovered or bulged container  that may leak or
burst shall be overpacked or redrummed within 24 hours
of discovery. The Respondent  shall  within	days of
detection, report to EPA any leak or inadequate container
which has  been identified and  the measures taken to
correct the problem.

2.  Construct Storage Area/Move  to New Storage
    Area
Within	days, the Respondent shall designate to EPA or
construct a storage area in [insert location] that meets the
standards of 40 CFR §265 (or authorized state standards
or standards consistent with draft permit conditions) and is
large enough for all containers presently in areas [insert
areas] as shown in the attached map, stacked one  high
with sufficient aisle space. The storage area must have an
impervious base with side containment walls. The volume
contained within the walls shall  be sufficient to contain
10% of the volume  of containers  or  the volume  of the
largest container, whichever is greater. The walls must be
joined to the base and scaled to prevent any releases  from
migrating between the base and walls.  The Respondent
shall also submit a schedule for placing  containers in the
area.

[If construction is  required,  within	days  Respondent
shall submit to  EPA for review and comment a  workplan
and schedule for the construction of the storage area. The
workplan shall include:

  a. [insert components from Appendices  A, C, D and E].

Within	days following  EPA's  transmission of
comments, the  Respondent shall modify the workplan in
  It should be noted that each action listed under a particular unit or
  media is independent of each other unless otherwise specified.
  "See also 'Guidance Document for cleanup of Surface Tank and
  Drum Sites,' OSWER 9380.0-3. May 28, 1985.
accordance  with  EPA's comments. Within	days
following EPA's approval or modification, the Respondent
shall implement the  workplan in accordance with  the
schedule therein.]
Following  approval  of  the storage area  by  EPA,  the
Respondent shall consolidate and place containers that do
not require overpacking or redrumming in the storage area,
by [insert date]. Respondent shall overpack  or  redrum
each leaking, significantly corroded, damaged,  uncovered
and bulged container located in  [insert location] area  that
may leak or burst and place the overpacked or redrummed
containers in the storage area by  [insert date].

3.  Segregation

Within	days, the  Respondent  shall  segregate
hazardous waste in area [insert area] that is incompatible
with any waste or other materials stored in other containers
[or nearby piles, open tanks  or surface impoundments in
the area shown in attached map]. Toward this end, within
days, the  Respondent  shall submit a workplan  and
schedule  to  EPA for  review  and  comment  for  the
installation of devices and movement of wastes that will
segregate incompatible waste. The workplan shall include
the design, construction  and installation of  dikes, berms,
walls  or other devices  in  accordance with 40  CFR
§265.177 and movement  of  wastes to  segregate
incompatible  wastes. The plan  shall include  but is  not
limited to:

  a. [insert components from Appendices A, C, D and E].

Within	days  following  EPA's  transmission  of
comments, the Respondent shall modify the workplan in
accordance  with  EPA's comments.  Within	days
following EPA approval or modification of the  aBbve,  the
Respondent shall implement the workplan in accordance
with the schedule therein.

4.  Sampling and Analysis

Within	days, the Respondent shall  submit a workplan
to EPA for review and comment which details procedures
for sampling and analysis of wastes in [every container or
specify container or other unit] for the following parameters
[insert parameters]  or  [Region develops boiler plate
sampling  and analysis plan  and requires Respondent to
implement it which is the preferred option where time is of
the essence  or Respondent  is unlikely to produce an
acceptable workplan]. This workplan shall include:

  a. [insert the components from  Appendices A, B and E].

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  Within	days  following  LPA rs  :ranu!r'.:ss!on  jf
  comments , the Respondent shall modify the workpian in
  accordance  with  EPA's  comments.  Within	days
  following EPA's approval or modification of the workpian,
  the  Respondent  shall  implement  the  workpian  in
  accordance with the  schedule  therein.  Within	days
  after receipt of lab results, the Respondent shall submit a
  report to EPA with all data generated from the sampling
  and analysis. The report shall include but is not limited to:

  a. [insert  the components from  Appendix  B "Data
    Management Plan" and Appendix E].

  5. Treatment,  Storage  and/or  Disposal  of
    Containers

  Within	days, the Respondent shall submit a workpian
  to EPA for review and  comment, for  the treatment,
  storage  and/or disposal of containers [insert container
  description  and  location].  Management  of hazardous
  waste shall be conducted on-site in accordance  with the
  substantive requirements of RCRA  or off-site  in
  accordance with RCRA. The workpian shall include:

  a. [insert components from Appendices A and E].

  Within	days,  following  EPA's  transmission  of
  comments, the Respondent shall modify  the workpian in
  accordance  with  EPA's comments.  Within	days,
  following EPA approval or modification of the above, the
  Respondent shall implement the workpian in accordance
  with the schedule therein.

  6. Temporary Cover

Within	days, the Respondent shall  place a  temporary
cover [specify material: e.g., synthetic material] over the
containers  in the areas [insert  areas]  to  prevent
precipitation  infiltration,  control water  running  off  the
container area, prevent air  emissions and isolate and
contain contaminated  wastes and  volatiles.  Respondent
shall inspect the cover on a [specify  period] basis, and
shall maintain the cover until [insert date].

                       TANKS*

1.  Overflow/Secondary Containment

Within	days, to prevent overflow, the Respondent shall
remove waste from  tank [specify  tank]  as shown on
attached  map to ensure a freeboard of at least 2 feet.
Within_	days,  the  Respondent  shall  monitor  on a
[specify period] basis  the liquid level and maintain the 2
feet freeboard [or submit a workpian to EPA for review and
comment for the installation  .of an  impervious secondary
containment  structure  with  a capacity that equals  or
exceeds  the volume  of  the tank.  The  workpian shall
include but is not limited to:

  a. [insert components from Appendices A, C, D and E].
vviiiim	days of  transmission ot  fcPA ;   .•>,,.T".;n••
Respondent shall revise the workpian  in accordance
EPA comments. Within	days following EPA approval ..T
modification of the workpian, the Respondent shall imple-
ment the workpian  in  accordance  with  the schedule
therein.

2.  Leak Detection/Repair/Partial or Complete
    Removal

Beginning within	days and on a [specify period] basis
thereafter, the Respondent shall inspect tanks [specify
tanks] as shown on  the attached map,  including  valves,
pumps and pipes (especially  joints  and connectors) to
detect leaks or cracks. The Respondent shall repair leaks
and tanks that present structural failure (e.g., cracks). The
Respondent shall  immediately  remove  the substances
from the tanks into other  tanks and replace the  tanks  if
leaks or  cracks  cannot be  effectively and permanently
repaired  in situ.  The Respondent shall initiate closure of
the emptied tanks in accordance with a RCRA  Closure
Plan approved by [specify date].

            SURFACE IMPOUNDMENTS*

The basic objective of this section is to provide a concise
description of  the  necessary steps to implement  interim
measures at surface  impoundments.  Prior  to  the
order/permit issuance, an  initial scoping of the available
information needs  to be conducted.  The  initial  scoping
should consist  of  a  review of the existing information
regarding the  hydrogeologic conditions underlying  the
surface  impoundment, characteristics  of the design and
construction  of  the surface  impoundment,  estimated
quantities of wastes stored and their characteristics. This
information will be used to:

  • evaluate the type and magnitude of the problem
        dike stability
        freeboard conditions
        releases to ground water, air, surface water
  • identify depth  of subsurface sampling  program and
    select appropriate sampling methods
        soil sampling
        ground-water sampling
        waste sampling
  • evaluate and design the interim measure based on
        site characteristics
        waste characteristics
        technology limitations
  • verification of effectiveness  of the interim measure
        operation and maintenance

General  language outlined below tailored  to  facility
specifics  may  be used  to compel  actions  such  as:
reduction of head,  removal of wastes and minimization of
further migration of contaminants.
  'See also "Guidance Document for Cleanup of Surface Tank and
  Drum Sites," OSWER 9380.0-3, May 28, 1985.
  'There are scenarios where some types of interim measures may not
  be appropriate. These scenarios are discussed in the "Guidance
  Document for Cleanup of Surface Impoundment Operable Units."
  January 14.  1986, OSWER 9355.0-13.

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1.  Reduce head

Within	days, the Respondent shall reduce the head by
pumping in surface impoundment [specify impoundment]
as shown on  the attached map, to a level of [insert level]
inches below [specify  benchmark]  and thereafter shall
maintain the head at or below  that level so as to prevent
overtopping and dike or side wall failure. The Respondent
shall store, treat  or  dispose of the pumped materials on-
site in a manner  that complies with substantive standards
of RCRA or shall arrange for off-site  storage, treatment or
disposal  in accordance  with  RCRA. Any  discharges  to
navigable waters shall comply  with all relevant state and
Federal  requirements.

2.  Remove Free  Liquids  and  Highly  Mobile
    Wastes

Within	days, the Respondent shall  submit a  workplan
and schedule to  EPA for review and comment to remove
any  free liquids and  pumpable materials in surface
impoundment [specify impoundment] as shown  on
attached  map. The workplan shall  also  provide  for
Respondent  to effectuate  source control  by removing,
stabilizing, treating, and/or isolating (individually  or  in
combination)  soils/ sludges down to  levels [specify  levels
that would reduce contaminant migration and will protect
human health and  the environment in  the  short term]  or
[Respondent shall  propose  levels  of  cleanup  and
justification for such levels]* The workplan shall include:

For Example:

 a. a description of the sampling  and analysis  to  be
    conducted to determine  the  characteristics of the
    wastes to be  stabilized, treated or isolated;

   i.  Impoundment [specify impoundment] will be divided
     into a grid system using two ortho