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
.-. v>
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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
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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
,:>"" "
TITLE
SECTION
ssss^ssism
TITLE
SECTION
TITLE
SECTION
- ••? ""
TITLE
SECTION
ssi^^asiM
TITLE
SECTION
is' «"
TITLE
SECTION
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TITLE
SECTION
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TITLE
SECTION
V. V, •. f ^ V.
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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
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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
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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.
-------
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.
-------
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
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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)
-
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
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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)
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
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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)
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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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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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."
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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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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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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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(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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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
FINDINGS OF FACT, DETERMINATION AND ORDER PAGE 6 of 9
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 1 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 2 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 3 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 4 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 6 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 7 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 8 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 9 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 10 of 26
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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.
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 11 of 26
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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:
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 12 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 13 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 14 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 15 of 26
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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,
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 16 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 17 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 18 of 26
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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
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 19 of 26
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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.
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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.
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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.
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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
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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
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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.
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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.
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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.
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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
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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.
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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.
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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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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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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
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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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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?
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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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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?
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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) 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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(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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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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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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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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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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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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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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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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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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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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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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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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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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+ 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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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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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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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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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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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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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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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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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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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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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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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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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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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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(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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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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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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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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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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(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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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)
-------
- 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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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
-------
- 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.
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- 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
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- 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)
-------
- 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
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- 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
-------
- 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.
-------
- 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.
-------
- 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)
-------
- 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
-------
- 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.
-------
- 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)
-------
- 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)
-------
- 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)
-------
Section 2
Civil/Criminal Actions
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CIVIL/CRIMINAL ACTIONS
en
w
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H
M
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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
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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
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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.
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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.
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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.
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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.
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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
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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,
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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.
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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.
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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
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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
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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
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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;
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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
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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
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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
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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
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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.
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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
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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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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
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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
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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)?
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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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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-
-------
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
-------
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
-------
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-
-------
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.
-------
- 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.
-------
- 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.
-------
- 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.
-------
- 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.
-------
- 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
-------
- 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.
-------
- 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.
-------
- 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.
-------
- 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
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..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
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OSWER Directive 9901.1
RCRA SECTION 3008(h)
THE INTERIM STATUS CORRECTIVE ACTION AUTHORITY
DECEMBER 16, 1985
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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.
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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.
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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."
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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,
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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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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.
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"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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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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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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"...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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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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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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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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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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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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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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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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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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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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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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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.
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• 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
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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
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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
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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.
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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.
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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
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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
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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.
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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
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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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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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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].
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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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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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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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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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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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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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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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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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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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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.)
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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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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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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;
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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
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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
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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.
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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.
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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.
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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:
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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 ]
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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
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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;
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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:
23
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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
24
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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
-------
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
-------
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
-------
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 orthogonal control lines,
one parallel to the axis of the impoundment, the
other positioned to produce a grid of roughly equal
surface area. Control stakes shall be placed at each
of the control lines.
ii. [specify number of samples] samples shall be taken
at each quadrant defined by control lines with
spacing of not less than [specify spacing] feet and
not greater than [specify spacing] feet.
iii. Samples shall be collected using [insert instrument
to be used] and analyze for the following [insert
Appendix VIII parameters].
b. a description of all steps to be taken to effectuate the
removal, stabilization, treatment or isolation; and
c. a description of the sampling and analysis to
determine that the removal, stabilization, treatment or
This level may not be to the extent that is ultimately necessary to
protect the human health and the environment in the long term.
Further action may be necessary during implementation of the final
remedy after ultimate levels' of cleanup have been determined. This
approach is generally not appropriate if capping or backfilling; of the
residual is necessary.
isolation has been fully undertaken. [Insert additional
components from Appendices A, C, D and E].
Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA's comments. Within days,
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan in
accordance with the schedule therein. Long term
remediation shall be effectuated following completion of a
RCRA Facility Investigation and Corrective Measures
Study.
3. Stabilize/Repair Side Walls, Dikes, or Liner(s)
Within days, the Respondent shall submit a workplan
and schedule to EPA for review and comment to stabilize
and repair and thereafter maintain the side walls and
liner(s) of surface impoundment [insert unit number] and
dike area as shown in the attached map. The workplan
shall include and be supported by an engineering analysis
that includes:
a. [insert components from Appendices A, C, D, E and
the "Technical Guidance Document on Construction
Quality Assurance for Hazardous Waste Land Disposal
Facilities," July 1986, OSWER Directive # 9472.00-3].
Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA's comments. Within_ days
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan in"
accordance with the schedule therein.
4. Temporary Cover
Within days, the Respondent shall submit a workplan
to EPA for review and comment to place a temporary
floating cover of synthetic lining over surface
impoundment [specify impoundment], as shown on
attached map to reduce infiltration of precipitation and
control air releases. The workplan shall include the design
and construction of a cover and method of application
including proper anchoring at the edges and floats to
prevent the lining from submerging so that precipitation
falling on the impoundment area runs off and does not
pond on the cover. The workplan shall also provide for
effective erosion control. The cover must have a
permeability no greater than [specify permeability] cm/sec,
thickness of [specify thickness] mil, and be compatible
with the chemical and physical characteristics of the waste
being covered, local climate and the other design
characteristics of the unit including any berms, dikes or
other appurtenances. The plan shall also include:
a. [insert components from Appendices A, C, D, E and
the "Technical Guidance Document on Construction
Quality Assurance for Hazardous Waste Land Disposal
Facilities," July 1986, OSWER Directive # 9472.00-3].
Within days following EPA's transmission of
comments, Respondent shall revise the workplan in
accordance with EPA's comments. Within days
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following EPA approval or modification, the Respondent
shall implement the revised workplan in accordance with
the schedule therein.
5. Run-off/Run-on Control (Diversion or
Collection Devices)
Within days, the Respondent shall submit a workplan
for EPA review and comment for the construction and
installation of devices to control surface run-on and run-
off so that run-on and run-off do not enter or leave the
impoundment area shown on the attached map. The
workplan shall include the design of diversion and
collection devices to effect run-on/run-off control. These
devices can consist of but not limited to: dikes and berms,
ditches, diversions, waterways, bench terraces, chutes and
downpipes. Design criteria shall consider 100 year
precipitation events and floods, volume, area and flow
rates. The workplan shall include and be supported by an
engineering analysis that includes:
a. [insert components from Appendices A, C, D and E].
It shall include a schedule for completion of work.
Within days following EPA's transmission of comments
on the proposed workplan, the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the
approved workplan in accordance with the schedule
therein.
6. Sampling and Analysis of Residuals
Within days, the Respondent shall submit a workplan
to EPA for review and comment to sample and analyze
surface impoundment [specify impoundment] shown on
the attached map to document, the levels of the
concentrations of hazardous constituents left in place when
surface impoundment [specify impoundment] was closed
by removal of wastes.* The workplan shall include but is
not limited to:
For Example:
\
a. a grid system using two orthogonal control lines one
parallel to the axis, the other positioned to produce a
grid of roughly equal surface area, and control stakes
at each end of the control lines;
b. a minimum of [insert number] boreholes taken at each
quadrant defined by the control lines with spacing of
not less than [insert spacing] feet and not greater than
[insert spacing] feet as shown on attached map and
extended to a depth of [insert depth] feet or deeper if
visual evidence of contaminants exists at each of the
sampling locations;
c. screening of cores using [insert method, e.g., HNU or
OVA]; and
d. This workplan shall include the procedures and
methods to be followed for the removal and treatment,
storage or disposal of contaminated soil and
groundwater to levels [insert interim levels that would
reduce contaminant migration and will protect human
health and the environment in the short term] or
[Respondent shall propose levels of clean up and
justification for such levels based on the soil and
waste characteristics].*
[Insert additional components from Appendices A, B and
E].
Within
days following EPA's transmission of
comments on the workplan, the Respondent shall revise
the workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the
revised workplan in accordance with the schedules
therein. Within days after receipt of lab results, the
Respondent shall prepare a report to present all the
information collected during the investigation. The report
shall include but is not limited to (for each core and
sample, with sample location):
a. [insert components from Appendix B "Data
Management Plan" and Appendix E].
EPA reserves the right to require further action during the
implementation of the final remedy and establish levels of
cleanup that are protective to human health and the
environment in the long term.
7. Interim Ground-water Measures
(See Ground-water Section)
LANDFILLS
1. Run-on/Run-off Control (Diversion or
Collection Devices)
Within days, the Respondent shall submit a workplan
for EPA review and comment for the construction and
installation of devices to control surface run-on and run-
off so that run-on and run-off do not enter or leave the
landfill area shown on attached map. The workplan shall
include the design of diversion and collection devices to
effect run-on/run-off control. These devices can consist
of, but not limited to: dikes and berms, ditches, diversions,
waterways, bench terraces, chutes and downpipes. Design
criteria shall consider 100 year precipitation events and
floods, volume, area and flow rates. The workplan shall
include and be supported by an engineering analysis that
includes:
a. [insert components from Appendices A, C, D and E].
•When this type of surface impoundment is closed by removal,
there may be constituents left in place. Some of these constituents
may present a potential threat to human health or the environment
(e.g., corrosive waste may contain heavy metals).
Ultimate levels for the protection of human health and the
environment in the long term will be determined later in the
corrective action process.
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The workplan shall include a schedule for the completion
of work. Within days following EPA's transmission of
comments on the proposed workplan, the Respondent
shall revise the workplan in accordance with EPA's
comments. Within days following EPA approval or
modification of the workplan, the Respondent shall imple-
ment the revised workplan in accordance with the
schedules therein.
2. Reduce Head on Liner and/or Leachate
Collection System
Within days, the Respondent shall reduce the head on
the liner in landfill(s) [specify landfill(s)] shown on the
attached map and/or in the leachate collection system in
landfill(s) [specify landfill(s)] to a level of [specify level]
inches as measured by [specify method] at [specify
location] and thereafter maintain the head at or below that
level. The Respondent shall treat, store or dispose of
removed leachate on-site in a manner that complies with
substantive standards of RCRA. or shall arrange for off-
site treatment, storage or disposal in compliance with
RCRA. Any discharges to navigable waters shall comply
with all relevant state and Federal requirements.
3. Inspect Leachate Collection/Removal System
or French Drain
Within days, the Respondent shall inspect the leachate
collection system in landfill [specify landfill] shown on
attached map using indirect inspection methods including
but not limited to monitoring of flow at outlets or access
points, monitoring of leachate level, correlating leachate
quality with clogging indicators; using direct inspection
methods including but not limited to video monitoring or
photographic inspection of drainage pipes and checking
physical continuity of the pipes with sewer cleaning
equipment. The Respondent shall record all data collected
or observations made including clean areas, deposits,
obstructions, deterioration, collapse, and maintain this
record as part of the facility operating record. If the
observations or data collected demonstrate that leachate
collection system is not functioning to effectively collect
leachate, or effectively transmit it to collection points or
sumps [or does not meet the standards consistent with
draft permit conditions], the Respondent shall submit the
inspection record to EPA Within days for review. [See
#4 below].
4. Repair Leachate Collection/Removal System
or French Drain
Within days, the Respondent shall clean the leachate
collection system lines in landfill [specify landfill] as shown
on attached map using conventional sewer cleaning
techniques to eliminate siltation and accumulation of
chemical, biological and. other deposits. The Respondent
shall use [option: insert specific equipment to be used,
e.g., power rodding, balling, flushing, jetting, scooter, kites,
bags, tires and poly pigs for hydraulic cleaning; and
bucket machine for mechanical cleaning]. Within days,
the Respondent shall replace sections of the leachate
collection system that have been deteriorated and/or
crushed. In the event that the landfill experiences recurring
leachate perching and poor drainage after the system has
been cleaned, Within days, the Respondent shall drill
caissons to various depths within the fill and construct a
gravel trench all the way to the bottom of the fill along the
inside periphery of the unit to prevent leachate perching
and poor drainage. The Respondent shall pump out the
perched leachate on a [insert pumping frequency] basis to
maintain the proper operation of the leachate collection
system. The Respondent shall store, treat or dispose of
the removed leachate on-site in a manner that complies
with substantive standards of RCRA, or shall arrange for
off-site treatment, storage or disposal in compliance with
RCRA. Any discharges to navigable waters shall comply
with all relevant state and Federal requirements.
5. Temporary Cap
Within days. Respondent shall submit a workplan for
EPA review and comment to place a cap (temporary) over
the entire landfill [specify landfill] shown on attached map
to prevent precipitation infiltration including preventing
ponding, control water and wind erosion and dispersion,
and isolate and contain contaminated wastes and volatiles.
The workplan shall include the design and construction of
a cover and method of application that assures that
precipitation is channelled away from the landfill area and
assures that precipitation falling on the landfill runs off
without ponding. The cap shall have a permeability no
greater than [specify permeability] cm/sec as measured by
[specify method] and a minimum thickness of [specify
thickness] mil or [specify thickness] inches if soil, be
compatible with the chemical and physical characteristics
of the waste being covered, local climate, hydrogeology
and other design characteristics of the unit including any
berms or other appurtenances. The workplan shall include
and be supported by an engineering analysis that includes:
a. [insert components from Appendices A, C, D, E and
the "Technical Guidance Document on Construction
Quality Assurance for Hazardous Waste Land Disposal
Facilities," July 1986, OSWER Directive # 9472.00-3].
Within days following EPA's transmission of comments
on the proposed workplan the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the revised
workplan in accordance with the schedule therein.
6. Waste Removal
(See Soils Section)
7. Interim Ground-water Measures
(See Ground-water Section)
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WASTE PILE
1. Run-on/Run-off Control (Diversion or
Collection Devices)
Within days, the Respondent shall submit a workplan
for EPA review and comment for the construction and
installation of devices to control surface run-on and run-
off so that run-on and run-off do not enter or leave the
waste pile area shown on attached map. The workplan
shall include the design of diversion and collection devices
to effect run-on/run-off control. These devices can
consist of, but not limited to: dikes and berms, ditches,
diversions, waterways, bench terraces, chutes and
downpipes. Design criteria shall consider 100 year
precipitation events and floods, volume, area and flow
rates. The workplan shall include and be supported by an
engineering analysis that includes:
a. [insert components from Appendices A, C, D and E].
The workplan shall include a schedule for the completion
of work. Within days following EPA's transmission of
comments on the proposed workplan, the Respondent
shall revise the workplan in accordance with EPA's
comments. Within days following EPA approval or
modification of the workplan, the Respondent shall
implement the revised workplan in accordance with the
schedules therein.
2. Temporary Cover
Within days, the Respondent shall submit for EPA
review and comment a workplan to place a cap
(temporary) over the entire waste pile [specify pile] shown
in attached map to prevent precipitation infiltration and
ponding, control water and wind erosion and dispersion,
and isolate and contain contaminated wastes and volatiles.
The workplan shall include the design and construction of
a cover and method of application that assures that
.precipitation is channelled away from the waste pile area
and assures that precipitation falling on the waste pile runs
off without ponding. The cover shall have a permeability no
greater than [specify permeability] cm/sec as measured by
[specify method] and a minimum thickness of [specify
thickness] mil, be compatible with the chemical and
physical characteristics of the waste being covered, local
climate, hydrogeology and other design characteristics of
the unit including any berms or other appurtenances. The
workplan shall include and be supported by an engineering
analysis that includes:
a. [insert components from Appendices A, C, 0, E and
the "Technical Guidance Document on Construction
Quality Assurance for Hazardous Waste Land Disposal
Facilities," July 1986, OSWER Directive #9472.00-3].
Within days following EPA's transmission of comments
on the proposed workplan the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA .approval or modification of
the workplan, the Respondent shall implement the-revised
workplan in accordance with the schedule therein.
3. Waste Removal
(See Soils Section)
4. Interim Ground-water Measures
(See Ground-water Section)
SOILS
The basic objective of this section is to provide a
concise description of the necessary steps to implement
interim measures when there is evidence that substantially
contaminated soil is present at the facility. The interim
measures which may apply at the facility include removal
of contaminated soil and capping to prevent the infiltration
of contaminants. Prior to the order/permit issuance, an
initial scoping needs to be conducted to compile and have
a better understanding of the information already available.
The initial scoping should consist of the identification of
the soil contaminated areas, a soil/geologic cross section,
if possible, to provide a three dimensional overview of
soils/geology and extent of soil contamination at the
facility, and hydrogeologic characteristics underlying the
facility. Evidence of past spills, illegal disposal and lack of
run-off control may help to identify contaminated areas.
This information will be used to:
• evaluate the type and magnitude of the problem
- amount of contaminated soil
• determine the scope of the sampling program and
select appropriate sampling methods
- ground-water sampling
- soil 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:
sampling and disposal of contaminated soil and prevention
of further migration by controlling run-off and run-on
and infiltration using a cap or cover.
1. Sampling/Analysis/Disposal
Within days, the Respondent shall submit a workplan
for EPA review and comment for the sampling and
analysis of the soil in following areas [insert specific
areas]. Within days following EPA's transmission of
comments on the workplan, the Respondent shall revise
the workplan in accordance with EPA's comments and
following EPA approval shall implement the revised
workplan in accordance with the schedules therein. The
workplan shall include but is not limited to:
10
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For Example:
a. a minimum of [insert number] boreholes at locations
shown on attached map and extended to a depth of
[specify depth] feet or deeper if visual evidence of
contaminants exists at each of the sampling locations;
b. screening of cores using [insert method, e.g., HNU or
OVA]; and
c. In addition, the workplan shall include the procedures
and methods to be followed for the removal and
treatment, storage or disposal of contaminated soil to
[interim levels of cleanup that would reduce
contaminant migration and will protect human health
and the environment in the short term or Respondent
shall propose interim levels and justification included
for such levels based on the soil and waste
characteristics.]'
[Insert additional components from Appendices A, B and
El-
Within days after receipt of lab results, the Respondent
shall prepare a report for EPA review and comment to
present all the information collected during the investi-
gation. The report shall include but is not limited to:
a. [insert components from Appendix B "Data Man-
agement Plan" and Appendix E].
Long term remediation shall be effectuated following
completion of a RCRA Facility Investigation and Corrective
Measure Study.
2. Run-off/Run-on Control (Diversion or
Collection Devices)
Within_ days, the Respondent shall submit a workplan
for EPA review and comment for the construction and
installation of devices to control surface run-on and run-
off so that run-on and run-off do not enter or leave the
contaminated area shown on the attached map. The
workplan shall provide for the design of diversion and
collection devices to effect run-on and run-off control.
These devices can consist of, but not limited to: dikes and
berms, ditches, diversions, waterways, bench terraces,
chutes and downpipes. The workplan shall include and be
supported by an engineering analysis that includes:
a. [insert components from Appendices A, C, D and E].
It shall include a schedule for the completion of the work.
Within days following EPA's transmission of comments
on the proposed workplan the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the revised
workplan in accordance with the schedules therein.
3. Temporary Cap/Cover
Within days, Respondent shall submit a workplan to
EPA for review and comment to place a cap (temporary)
over the contaminated area shown on the attached map to
prevent precipitation infiltration and ponding, control water
and wind erosion and dispersion, and isolate and contain
contaminated soils and volatiles. The workplan shall
include the design and construction of a cover and method
of application that assures that precipitation is channelled
away from the contaminated area and assures that
precipitation falling on the area runs off without ponding.
The workplan shall provide for the design and construction
of a cover that assures that the cap has a permeability no
greater than [specify permeability] cm/sec as measured by
[specify method], thickness of [specify thickness] mil or
[specify thickness] inches of clay or both, a minimum
slope of [specify slope] percent. The cover shall be
compatible with the chemical and physical characteristics
of the waste being covered, local climate, hydrogeology
and other design characteristics of the unit, including any
berms or other appurtenances. The workplan shall include
and be supported by an engineering analysis that includes:
a. [insert components from Appendices A, C, D, E and
the "Technical Guidance Document on Construction
Quality Assurance for Hazardous Waste Land Disposal
Facilities," July 1986, OSWER Directive # 9472.00-3].
Within days following EPA's transmission of comments
on the proposed workplan the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the revised
workplan in accordance with the schedule therein.
GROUND WATER *
The basic objective of this section is to provide a
concise description of the necessary steps to implement
interim measures when there is evidence that gross
contamination of ground water has or is occurring at the
facility and that the contamination is spreading. The
interim measures which may apply at a facility include
removal of the gross contamination and capping of the
contaminated area to minimize the spread of the
contamination. Prior to the order/permit issuance, an initial
scoping needs to be conducted by agency personnel to
compile and review the information already available. The
initial scoping should include a review of the physical and
chemical nature of the wastes contaminating ground water
(e.g., solubility in water, chemical class, density) and a
review of the hydrogeologic conditions at the facility
including: the characteristics of the subsurface geology;
depth to the aquifer; aquifer connections to surface water
and/or deeper aquifers; confining layers; hydraulic
conductivity of the aquifer; and horizontal and vertical
components of groundwater flow. This information will be
used to:
•Ultimate levels (or the protection of human health and the
environment in the long term will be specified later in the corrective
action process.
'See "Leachate Plume Management," November 1985,
EPA/540/2-85/004, guidance document for further information.
11
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• evaluate the type and magnitude of the problem
amount of contaminated ground water
identify the potential pathways of contaminant
migration
rate of contaminant movement
• determine the scope of the sampling program and
select appropriate sampling methods
ground-water sampling
other direct and indirect methods (e.g., soil gas
monitoring, geophysical techniques)
• evaluate and design the interim measure based on
site characteristics
waste characteristics
technology limitations
• verification of effectiveness of the interim measure
-operation and maintenance
The general language outline below when tailored to
facility specifics may be used to compel actions such as:
delineation/ verification of gross contamination, sampling
and analysis, the installation of an interceptor
trench/sump/subsurface drain system, implementation of a
pump and treat or in-situ treatment program and the
installation of a temporary cap or cover.
1. Delineation/Verification of Gross
Contamination
Within days, the Respondent shall submit a workplan
to conduct a groundwater investigation to verify the
characterization of the gross contamination beneath [insert
unit or area]. This investigation shall at a minimum provide
the following information:
a. A description of the horizontal and vertical extent of
any immiscible or dissolved contamination beneath
[insert unit or area];
b. The horizontal and vertical direction of contaminant
movement;
c. The velocity of contaminant movement;
, d. The measurement of the following parameters [insert
parameters] and the concentration of the following
Appendix VIM constituents [insert constituents];
e. An evaluation of factors influencing contaminant
movement; and
f. An extrapolation of future contaminant movement.
The workplan shall include the following components:
For Example:
a. A narrative discussion of the hydrogeologic conditions
at the facility; identification of potential contaminant
pathways;
b. Description of the ground-water monitoring system;
c. Description of the investigatory approach to be used
to delineate/verify the rate and extent of contaminant
migration;
d. Discussion of the number, location, and depth of wells
to be installed and information on the design and
construction of the wells; and
e. A description of the sampling and analytical program
to be used to obtain ground-water monitoring data.
[Insert additional components from Appendices A, B
and E]. Within days following EPA's transmission
of comments, the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA approval or modification
of the workplan, the Respondent shall implement the
workplan in accordance with the schedule therein.
2. 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 the ground-water monitoring
wells [insert numbers]. The workplan shall include
procedures for the:
For Example:
a. Measurement of depth to fluid surface and/or standing
water and depth to the bottom of the well;
b. Detection and sampling of light and dense phase
immiscible layers;
c. Evacuation of the well and withdrawal of the sample;
d. Analysis of in-situ/field measured parameters; and
e. Preservation and handling of samples.
[Insert additional components from Appendices A, B, E
and the "RCRA Ground-water Monitoring Technicat
Enforcement Guidance Document," September 1986,
OSWER Directive # 9950.1].
Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA's comments and following EPA
approval shall implement the revised workplan in
accordance with the schedule therein.
3. Interceptor Trench/Sump/Subsurface Drains
Within days, the Respondent shall submit a workplan
to EPA for review and comment for the the installation of
[interceptor trench, sump or subsurface drains] to contain
and remove the plume and lower the ground-water table
to prevent contact of water with waste material. The
workplan shall include and be supported by an engineering
analysis that includes:
a. [insert components from Appendices A, C, D and E].
Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA comments. Within days following
12
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EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan in
accordance with the schedule therein. The Respondent
shall treat, store or dispose of contaminated ground water
pumped out the [trench sump or subsurface drain] in a
manner that complies with the substantive standards of
RCRA or shall arrange for off-site treatment, storage or
disposal in compliance with RCRA. Any discharges to
navigable water shall comply with all relevant state and
Federal requirements.
4. Pump and Treat/ln-situ Treatment
Within days, the Respondent shall submit for EPA
review and comment a workplan for the design and
installation of injection wells that will allow water within the
plume to be pumped and treated." The workplan shall
include and be supported by an engineering analysis that
includes:
For Example:
a. discussion of the technical factors of importance for
the installation of the wells including:
i) selection of the number of wells and their location
based on the hydrogeology of the site, location of
the plume and the type and amount of contaminants
present in the ground water;
ii) well design and construction equipment and
specifications (i.e. pumps, pipes, tanks, etc.),
pumping cycles and rates, and the area of influence
for each withdrawal well;
b. proposed interim levels of cleanup and technical basis
for such levels.
[Insert additional components from Appendices A, C, D
and E].
Within days following EPA's transmission of comments
on proposed workplan, the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the revised
workplan in accordance with the schedules therein.
Within days after the installation of the pumping
system outlined in the above paragraph and start up, the
Respondent shall submit to EPA a report showing the
effectiveness of the pumping, the area of influence, draw
down times and any changes in operation necessary to
collect or contain the contaminated ground water. If based
on the report EPA determines that the wells are insufficient
to adequately collect or contain the contaminated ground
water, additional wells shall be proposed by the
Respondent. Within days following EPA's transmission
of comments, on the report the Respondent shall provide a
workplan for an upgraded system in accordance with
"Permit may be required for surface discharge; coordination with
proper authorities is necessary.
EPA's comments. Within days following EPA approval
or modification of the workplan, the Respondent shall
implement changes in operation necessary to collect and
contain effectively contaminated ground water including
the installation of additional wells. The Respondent shall
treat, store or dispose of contaminated ground water
pumped put of the extraction wells or drains in a manner
that complies with the substantive standards of RCRA, or
shall arrange for off-site treatment, storage or disposal in
compliance with RCRA. Any discharge to navigable waters
shall comply with all relevant state and Federal regulations.
5. Temporary Cap/Cover
Within days, the Respondent shall submit a workplan
to EPA for review and comment, for the design and
installation of a cover system to minimize rainwater
infiltration into the waste disposal area and slow the
migration of contamination. The workplan shall include and
be supported by an engineering analysis that includes:
a. [insert components from Appendices A, C, D and E].
Within days following EPA's transmission of comments
on the workplan, the Respondent shall revise the work-
plan in accordance with EPA's comments. Within days
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan
submitted pursuant to paragraph [specify paragraph] in
accordance with the schedules therein.
SURFACE WATER RELEASE
1. Overflow/Underflow Dams
Within days, the Respondent shall submit a workplan
to EPA for review and comment for the installation of
[overflow or underflow] dams at [insert area]. The workplan
shall include and be supported by an engineering analysis
that includes:
a. [insert components from Appendices A, C, D and E].
Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA's comments. Within days
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan in
accordance with the schedule therein.
2. Filter Fences
Within days, Respondent shall install filter fences in
[insert surface water name and location] in order to
prevent further spread of contamination.
3. Run-off/Run-on Control (Diversion or
Collection Devices)
Within days, the Respondent shall submit a workplan
to EPA for review and comment for the construction and
installation of surface-water diversion and collection
devices. These devices can consist of, but are not limited
to: dikes and berms, ditches, diversions, waterways, bench
terraces, chutes and downpipes. The workplan shall
13
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include and be supported by an engineering analysis that
includes:
a. [insert components from Appendices A, C, D and E].
It shall include as-designed topographic maps and a
schedule. Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA's comments. Within days
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan in
accordance with the schedule therein.
4. Regrading/Revegetation
Within days, the Respondent shall submit a workplan
to EPA for review and comment for the grading of the
capped area [specify area] as shown on attached map.
The grading shall be conducted to [state objectives], shall
result in run-off away from the area without ponding, no
run-on to the area and, run-off away from water courses.
The workplan shall include and be supported by an
engineering analysis that includes:
a. [insert components from Appendices A, C, D and E].
Within days following EPA's transmission of comments
on the proposed workplan, the Respondent shall revise the
workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the revised
workplan in accordance with the schedules therein.
Within days, the Respondent shall submit to EPA for
review and comment a workplan to establish a vegetative
cover to stabilize the surface of the hazardous disposal
site. The workplan will include and be supported by an
engineering analysis that includes:
For Example:
. a. discussion of the technical factors of importance
including:
i) description of soil characteristics including grain
size, organic content, nutrient and pH levels and
water content;
ii) selection of suitable plant species;
iii) use of currently acceptable construction practices
and techniques including description of seed bed
preparation, seeding and planting;
b. tables listing materials, equipment and specifications
including types of mulching and/or chemical
stabilizers; and
c. description of normal operation, fertilization and
maintenance.
[Insert additional components from Appendices A, C, D
and E].
Within days following EPA's transmission of
comments on the workplan, the Respondent shall revise
the workplan in accordance with EPA's comments.
Within days following EPA approval or modification of
the workplan, the Respondent shall implement the
revised workplan in accordance with the schedule
therein.
5. Sample and Analyze Surface Waters and
Sediments or Point Source Discharges
Within days, the Respondent shall submit a workplan
to EPA for review and comment to sample and analyze
surface water and sediments. The plan shall include:
a. [insert components from Appendices A, B and E].
The workplan shall provide for respondent to sample and
analyze surface waters and/or sediments located at [insert
locations upstream of adjoining and downstream of areas
which have received (point source or non-point source)
discharges from areas, units of concern]. Samples shall be
analyzed for the following parameters [list Appendix VIM
parameters]. Within days following EPA's comments,
the Respondent shall revise the workplan in accordance
with EPA's comments. Within days following EPA
approval or modification of the workplan, the Respondent
shall implement the revised workplan in accordance with
the schedule therein. Respondent shall provide information
on the sampling locations and the results of analysis
Within days of receipt from the laboratory.
GAS MIGRATION CONTROL
1. Barriers/Collection/Treatment/Monitoring
Within days, Respondent shall submit a workplan for
EPA review and comment for the design and installation of
a gas migration control system to control lateral and
vertical migration of gases or vapors from the landfill
[specify landfill]. The gas control system shall at a
minimum consist of:
a. a passive perimeter gas control system; or
b. active perimeter gas control system; or
c. active interior gas collection/recovery system; or
d. a combination of the above technologies.
The workplan shall include and be supported by an
engineering analysis that includes:
a. [insert components from Appendices A, C, D and E
which have been tailored for the facility specifics].
Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA's comments. Within days
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan in
accordance with the schedule therein.
PARTICULATE EMISSIONS
1. Truck Wash (Decontamination Unit)
Within days, the Respondent shall submit to EPA for
review and comment a workplan to develop and install
14
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decontamination units/procedures to provide for tne
effective cleaning of vehicles and personnel entering
contaminated areas in order to prevent further spread of
contamination. Within days following EPA's comment,
the Respondent shall revise the workplan in accordance
with EPA's comments. Within days following EPA
approval or modification of the workplan, the Respondent
shall implement the revised workplan in accordance with
the schedule therein.
2. Revegetation
Within days, the Respondent shall submit a workplan
to EPA for review and comment to establish a vegetative
cover to stabilize the following contaminated surfaces
[insert areas]. The workplan shall include and be
supported by an engineering analysis that includes:
a. [insert components from Appendices A, C, D and E].
Within days, the Respondent shall revise the workplan
in accordance with EPA's comments. Within days
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan to
establish a vegetative cover to stabilize the contaminated
surfaces in accordance with the schedule therein.
3. Application of Dust Suppressant
Within days, the Respondent shall spray
uncontaminated water every [specify time frame] hours in
areas [insert areas] to control dust emissions. The
Respondent shall not use collected leachate, used oil or
hazardous waste to control dust emissions.
OTHER ACTIONS
1. Fencing to Prevent Direct Contact
3. Alternate Water Supply to Replace
Contaminated Drinking Water
Within days, the Respondent shall provide an alternate
water supply to the [insert area name of affected
community]. The alternate water supply shall consist of,
but is not -limited to:
a. purchase of water from another supply; or
b. provision of a new surface water intake(s); or
c. provision of a new ground-water well(s); or
d. provision of bottled and bulk water; or
e. provision of point-of-use wells; or
f. combination of the above as necessary.
Within days, the Respondent shall submit a workplan
to EPA for review and comment for the design and
construction of a system(s) for the treatment of
contaminated water supplies. The treatment shall consist
of, but is not limited to:
a. treatment of contaminated central water supplies; or
b. point-of-use treatment; or
c. combination of the above as necessary.
The workplan shall include and be supported by an
engineering analysis that includes:
a. [insert components from Appendices A, C, D and E].
Within days following EPA's transmission of
comments, the Respondent shall revise the workplan in
accordance with EPA's comments. Within days
following EPA approval or modification of the workplan, the
Respondent shall implement the revised workplan in
accordance with the schedule therein.
Within days the Respondent shall install security g.
fencing [insert type of fence] of a minimum of [specify
height] feet high around the perimeter of the [insert
site/unit/work area], warning signs and other measures to
limit access to the facility.
2. Sampling Off-site Areas
Within days, the Respondent shall submit a workplan
to EPA for review and comment to collect and analyze
samples from drinking water wells located within a [specify
distance] mile radius of the facility. Samples shall be
analyzed for the following parameters: [insert parameters].
The workplan shall include but not be limited to the
following:
a. [insert components from Appendices A, B and E].
In the event that said permission is not obtained, the
Respondent shall demonstrate to the satisfaction of EPA,
that the Respondent was unable to obtain necessary
permission.
4. Temporary Relocation of Exposed Population*
5. Temporary or Permanent Injunction*
Suspend or Revoke Authorization to Operate
Under Interim Status*
"Order language not included.
15
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APPENDIX A.
APPENDIX B.
APPENDIX C.
APPENDIX D.
INTERIM MEASURES APPENDICES
INTERIM MEASURES WORKPLAN
1. Interim Measures Objectives
2. Health and Safety Plan
3. Community Relations Plan
INTERIM MEASURES INVESTIGATION PROGRAM
1. Data Collection Quality Assurance Plan
2. Data Management Plan
INTERIM MEASURES DESIGN PROGRAM
1. Design Plans and Specifications
2. Operations and Maintenance Plan
3. Project Schedule
4. Final Design Documents
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
16
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APPENDIX A
INTERIM MEASURES WORKPLAN
[This appendix 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
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
Investigation 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.]
The Respondent shall prepare an Interim Measures
Workplan. The Workplan shall include the development of
several plans which shall be prepared concurrently.
A. Interim Measures Objectives
The Workplan shall specify the objectives of the interim
measures, demonstrate how the interim measures will
abate releases and threatened releases, and, to the extent
possible, be consistent and integrated with any long term
solution at the facility. The Interim Measures Workplan will
include a discussion of the technical approach,
engineering design, engineering plans, schedules, budget,
and personnel. The Workplan will also include a
description of qualifications of personnel performing or
directing the interim measures, including contractor
personnel. This plan shall also document the overall
management approach to the interim measures.
B. Health and Safety Plan
The 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. Describe the known hazards and evaluate the
risks associated with the incident and with each
activity conducted, including, but not limited to
on and off-site exposure to contaminants
during the implementation of interim measures
at the facility.
c. List key personnel and alternates responsible for
site safety, responses operations, and for
protection of public health;
d. Delineate work area;
e. Describe levels of protection to be worn by
personnel in work area;
f. Establish procedures to control site access;
g. Describe decontamination procedures for
personnel and equipment;
h. Establish site emergency procedures;
i. Address emergency medical care for injuries
and toxicological problems;
j. Describe requirements for an environmental
surveillance program;
k. Specify any routine and special training required
for responders; and
I. Establish 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.
3. The Health and Safety Plan shall be revised to
address the activities to be performed at the facility
to implement the interim measures.
C. Community Relations Plan
The Respondent shall prepare a plan, for the
dissemination of information to the public regarding interim
measure activities and results. These activities shall
include the preparation and distribution of fact sheets and
participation in public meetings.
A-1
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APPENDIX B
INTERIM MEASURES INVESTIGATION PROGRAM
[This appendix should be incorporated in the scope of
work and the interim measures workplan when media
sampling will be undertaken, i.e., prior to source removal.
The components of this appendix are a Data Collection
Quality Assurance Plan and a Data Management Plan. This
appendix should be modified to take into account site-
specific technical detail.]
A. Data Collection Quality Assurance Plan
The Respondent shall prepare a plan to document all
monitoring procedures: sampling, field measurements
and sample analysis performed during the
investigations to characterize the source and
contamination, so as to ensure that all information,
data and resulting decisions are technically sound,
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 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
analytical parameters.
2. Sampling and Field Measurements
The Sampling and Field Measurements section of
the Data Collection Quality Assurance Plan shall
discuss:
a. Selecting appropriate sampling and field
measurement locations, depths, etc.;
b. Providing a sufficient number of sampling and
field measurement sites;
c. Measuring all necessary ancillary data;
d. Determining which media are to be sampled
(e.g., ground water, air, soil, sediment, etc.);
e. Determining which parameters are to be
measured and where;
f. Selecting the frequency of sampling and field
• measurement and length of sampling period;
g. Selecting the types of sample (e.g.,
composites vs. grabs) and number of
samples to be collected;
h. Documenting field sampling and field
measurement 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 and field
measurement data 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;
ix) Field equipment listing and sample
containers;
x) Sampling and field measurement order;
and
xi) Decontamination procedu/es.
i. Selecting appropriate sample containers;
j. Sample preservation; and
k. Chain-of-custody, including:
i) Standardized field tracking reporting
forms to establish sample custody in the
field prior to shipment; and
ii) Pre-prepared sample labels containing
all information necessary for effective
sample tracking.
3. Sample Analysis
The Sample Analysis section of the Data
Collection Quality Assurance Plan shall specify
the following:
B-1
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3. Sample Analysis
The Sample Analysis section of the Data
Collection Quality Assurance Plan shall specify
the following:
a. Chain-of-custody procedures, including:
i) Identification 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 dispersion for analysis.
b. Sample storage and holding 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
[Note: A performance audit may be conducted by
U.S. EPA on the laboratories selected by the
Respondent.]
h. Preventive maintenance procedures and
schedules;
i. Corrective action (for laboratory problems);
and
j. Turnaround time.
B. Data Management Plan
The 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;
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
constituent monitored;
c. Data reduction for numerical analysis;
d. Sorting of data by potential stratification
factors (e.g., location, soil layer, topography);
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, isqpleth 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. Display levels of contamination at each
sampling location;
d. Display geographical extent of contamination;
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.
B-2
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APPENDIX C
INTERIM MEASURES DESIGN PROGRAM
[This appendix should be incorporated in the scope of
work and the interim measures workplan when the
Respondent will be required to prepare construction plans
and specifications to implement the interim measure(s) at
the facility. The components of this appendix include:
design plans and specifications, operations and
maintenance plan, project schedule, and final design
documents. This appendix should be modified to take into
account site-specific detail.]
A. Design Plans and Specifications
The 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.
c. Facility Layout
d. Utility Locations
6. Tables listing materials, equipment and
specifications;
7. Tables giving material 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.
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 Respondent
shall coordinate and cross-check the specifications
and drawings and complete the proofing of the edited
specifications and required cross-checking of all
drawings and specifications.
B. Operation and Maintenance Plan
The Respondent shall prepare an Operation and
Maintenance Plan to cover both implementation and
long term maintenance of the interim measure. The
plan shall be composed of the following elements:
1. Equipment start-up and operator training
The 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.
2. 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;
d. Schedule showing frequency of each O&M
task; and
e. 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
C-1
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d. Schedule of monitoring frequency and date, if
appropriate, when monitoring may cease.
4. Description of equipment:
a. Equipment identification;
b. Installation of monitoring components;
c. Maintenance of site equipment; and
d. Replacement schedule for equipment and
installed components.
5. Records and reporting mechanisms required:
a. Daily operating logs;
b. Laboratory records;
c. Mechanism for reporting emergencies;
d. Personnel and maintenance records; and
e. Monthly/annual reports to Federal/State
agencies.
The Operation and Maintenance Plan shall be
submitted with the Final Design Documents.
C. Project Schedule
The Respondent shall develop a detailed Project
Schedule for construction and implementation of the
interim measure(s) which identifies timing for initiation
and completion of all critical path tasks. Respondent
shall specifically identify dates for completion of the
project and major interim milestones which are
enforceable terms of this order. A Project Schedule
shall be submitted simultaneously with the Final
Design Documents.
D. Final Design Documents
The Final Design Documents shall consist of the Final
Design Plans and Specifications (100% complete), the
Final Draft Operation and Maintenance Plan, and
Project Schedule. The Respondent shall submit the
final documents 100% complete with reproducible
drawings and specifications. The quality of the design
documents should be such that the Respondent would
be able to include them in a bid package and invite
contractors to submit bids for the construction project.
C-2
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APPENDIX D
INTERIM MEASURES CONSTRUCTION QUALITY
ASSURANCE PLAN
[This appendix should be incorporated in the scope of
work and the interim measures workplan when the interim
measure to be implemented will require a construction
quality assurance (CQA) plan to ensure, with a reasonable
degree of certainty, that a completed interim 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 following elements:
construction quality assurance objectives, inspection
activities, and documentation. This appendix should be
modified to take into account site-specific detail. Upon
EPA approval of the CQA plan, the Respondent shall
construct and implement the interim measures in
accordance with the approved design, schedule, CQA
plan, and operation and maintenance plan.]
A. Construction Quality Assurance Objectives
In the CQA plan, the 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. The responsibility and authority of all
organizations (i.e., technical consultants, construction
firms, etc.) and key personnel involved in the
construction of the interim measure shall be described
fully in the CQA plan. The Respondent must identify a
CQA officer and the necessary supporting inspection
staff.
B. Inspection Activities
The observations and tests that will be used to monitor
the construction and/or installation of the components
of the interim 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 Respondent shall conduct the
following activities:
1. Preconstruction inspection and meeting
The Respondent shall conduct a preconstruction
inspection and meeting to:
a. Review methods for documenting and
reporting 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 ad-
dressed; 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 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 interim measure. Any outstanding
construction items discovered during the
inspection will be identified and noted
Additionally, treatment equipment will be
operationally tested by the Respondent. The
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 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.
C. Sampling Requirements
The sampling and testing activities, sample size,
sample and test locations, frequency of testing,
acceptance and rejection criteria, and plans for
D-1
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correcting problems should be presented in the CQA
plan.
D. Documentation
Reporting requirements for CQA activities shall be
described in the CQA plan. This plan shall include
such items as daily summary reports, inspection data
sheets, problem identification and interim measures
reports, design acceptance reports, and final
documentation. Provisions for final storage of all
records shall be presented in the CQA plan.
D-2
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APPENDIX E
REPORTS
[This appendix should be incorporated in the scope of
work and the interim measures workplan when the
Respondent prepares plans, specifications, and reports to
document the design, construction, operation,
maintenance, and monitoring of the interim measures. The
documentation shall include, but not be limited to the
following: progress reports, interim measures workplan,
final design documents, draft and final interim measures
report.]
A. Progress
The Respondent shall at a minimum provide the EPA
with signed, monthly progress reports containing:
1. A description and estimate of the percentage of
the interim measures completed;
2. Summaries of all findings;
3. Summaries of all changes made in the interim
measures 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.
B. Interim Measures Workplan
The Respondent shall submit an Interim Measures
Workplan as described in Appendices A, B, C, and 0.
C. Final Design Documents
The Respondent shall submit the Final Design
Documents as described in Appendix C.
D. Draft Interim Measures Report
At the "completion" of the construction of the project
(except for long term operation, maintenance and
monitoring), the Respondent shall submit an Interim
Measures Implementation Report to the Agency. The
Report shall document that the project is consistent
with the design specifications, and that the interim
measures are performing adequately. The Report shall
include, but not be limited to the following elements:
1. Synopsis of the interim measures and certification
of the design and construction;
2. Explanation of any modifications to the plans and
why these were necessary for the project;
3. Listing of the criteria, established before the
interim measures were initiated, for judging the
functioning of the interim measures and also
explaining any modification to these criteria;
4. Results of facility monitoring, indicating that the
interim measures will meet or exceed the
performance criteria; and
5. Explanation of the operation and maintenance
(including monitoring) to be undertaken at the
facility.
This report shall include of the 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.
E. Final Interim Measures Report
The Respondent shall finalize the Interim Measures
Workplan and the Interim Measures Implementation
Report incorporating comments received on draft
submissions.
E-1
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Facility Submission Summary
A summary of the information reporting requirements
contained in the Interim Measures Scope of Work is
presented below:
FACILITY SUBMISSIONS
DUE DATE-
INTERIM MEASURES WORKPLAN
-Interim Measures Objectives
-Health and Safety Plan
-Community Relations Plan
-Data Collection QA Plan
-Data Management Plan
-Construction QA Plan
Final Design Documents
-Design Plans and Specs
-O&M Plan
-Project Schedule
Draft Interim Measures Report
Final Interim Measures Report
Progress Reports
SPECIFY DATE
SPECIFY DATE
Upon completion of construction
15 days after receipt of EPA comments on Draft Interim
Measures Report
MONTHLY
•All dates are calculated from the effective date of this order unless otherwise specified.
E-2
&U.S.GOVKNMENT PRINTING OFFICE: 1988/548-158/67133
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SOLID WASTE i,\D -MERGENC'
JAN 23 1989
MEMORANDUM
SUBJECT: Interim Final Model 3008 (h) Unilateral Order
FROM: Bruce M. Diamond, Directoi
Office of Waste Programs Enforcement
TO: ADDRESSEES
Attached is the interim final model 3008(h) unilateral order.
It is intended to be used as a guide during the development of
unilateral orders. Although Headquarters anticipates that most of
the provisions in the model will appear in the orders submitted to
Headquarters for concurrence, this is not necessarily a
prerequisite for concurrence.
The majority of the comments received on the draft unilateral
order were minor and were addressed in the revised order. To the
extent practical, the more substantive comments were also addressed
in the revised order.
Although some of the comments are not incorporated, each
region is encouraged to tailor the model to address regional
specific concerns. Many of the comments that are not incorporated
in the model represent a particular drafting style and, therefore,
are not appropriate for inclusion in the model. Regions intending
to deviate from the model substantially should send their revisions
of the model to Headquarters for review before using it as a guide
for developing facility specific orders. Headquarters' review of
any major changes to the model in advance will facilitate review of
facility specific orders submitted to Headquarters for concurrence.
If you have additional comments or questions concerning the
model unilateral order, please contact Susan Hodges, of my staff,
at (FTS) 475-9315.
Attachments
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-2-
ADDRESSEES;
RCRA Enforcement Branch Chiefs, Regions I-X
RCRA Enforcement Section Chiefs, Regions I-X
Waste Management Division Directors, Regions I-X
Regional Counsel RCRA Branch Chiefs, Regions I-X
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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
U.S. EPA Docket No.
[Number]
Proceeding under Section
3008(h) of the Resource
Conservation and Recovery
Act, as amended, 42 U.S.C.
Section 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. The Part 24 hearing procedures
require that the Agency file the administrative record with the
hearing clerk at the time the order is issued. Therefore, it is
necessary 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 and is discussed below.]
I. JURISDICTION
This Administrative 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. section 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].
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9902.5
-2-
This Administrative Order is issued to [corporate/individual
name] ["Respondent"], the owner/operator of [Name and address of
Facility] ["Facility"].
II. PARTIES BOUND
1. This 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 on
behalf of (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 Order.
3. (Respondent) shall provide a copy of this Order to all
contractors, subcontractors, laboratories, and consultants
retained to conduct or monitor any portion of the work performed
pursuant to this Order within one (1) week of the effective date
of this Order or date of such retention, and shall condition all
such contracts on compliance with the terms of this Order.
4. (Respondent) shall give notice of this 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
Order.]
The issuance of the Order requires (respondent) i.e., 1) to
Perform Interim Measures (IM) at ["Facility"] to mitigate
potential threat 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 or
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 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
-3-
IV. FINDINGS OF FACT
1. (Respondent) is a corporation organized under the laws of
the state of , is authorized to do business in
the state of , and is a person as defined in
section 1004(15) of RCRA, 42 U.S.C. Section 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 of hazardous waste 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 sections 3004 and 3005 of RCRA, 42 U.S.C.
sections 6924, 6925.
4. Pursuant to Section 3010 of RCRA, 42 U.S.C. section
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:
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[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 causal 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, PA/SI
etc. ]
Example
(a) Hazardous wastes exhibiting the characteristics of
ignitability, corrosivity, reactivity or EP toxicity identified
at 40 CFR sections 261.20-261.24; (D001-D017)
(b) Hazardous wastes from non-specific sources identified
at 40 CFR Section 261.31; (FOO1-F028)
(c) Hazardous wastes from specific sources identified at
40 CFR section 261.32; (K001-KI06)
(d) Commercial chemical products, manufacturing chemical
intermediates, off-specification commercial chemical products,
or manufacturing chemical intermediates identified at 40 CFR
section 261.33(e); (PO01-P123); and
(e) Commercial chemical products, manufacturing chemical
intermediates, off-specification commercial chemical products,
or manufacturing chemical intermediates identified at 40 CFR
section 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) or areas where
releases have occurred and which are the specific
subjects of this Order. Include material relating to:
o Size of facility
o Facility layout - legible map/schematic may be
appropriate with ground-water monitoring wells
indicated
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o Number and type of units and operating status
o Specific current and past uses of different
units
o Spill areas
o Specific wastes received or handled at
specific units
o Geological conditions
o 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 from the
facility into the environment has occurred. If you
have identified action levels, you may wish to
reference them to support the finding that ambient
concentration levels have exceeded them. In
addition, there must be allegations that support 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]
o Results of an inspection (RFA, CME, CEI);
o Company submittal of a ground-water assessment
report;
o Other data/information submitted by Respondent
(e.g., Part B submittal, exposure information
report) or developed by EPA (e.g., sampling
analyses);
o Knowledge of disposal into units not designed
constructed or operated to prevent releases;
and
o 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]. The location of the wells is shown in Figure
of Attachment . Respondent has identified wells
[number/identification code] as being down-gradient from
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[describe disposal unit]. Samples of ground water from these
wells have been analyzed to determine contamination of
groundwater.- Samples were collected by EPA personnel from
ground-water monitoring wells #8, #16, #24, #32. The results
were as follows:
Well # Sampling Date Oraanics Concentration
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 as an attachment and incorporated by reference
into the Order. Information such as chain of custody
sheets, log analysis reports, QA/QC reports should not be
attached to the Order. However, these forms should be
identified and maintained in the administrative record.
[A facility map showing the location of wells, known
spills, SWMUS, etc., will clarify allegations
considerably]. Data other than ground-water data, e.g.,
soil and surface water should be used if available. Data
supporting contamination of media 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. Findings ordinarily will be more
convincing if they are based on a combination of
circumstantial and direct evidence.]
8. Hazardous wastes and/or hazardous constituents may
further migrate from the Facility into the environment in the
following pathways:
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[NOTE: If information on the migration pathway 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. Wherever
possible, cite documents in the administrative record.]
9. The hazardous wastes and/or hazardous constituents
identified in paragraph seven above (may) pose(s) a threat to
human health or 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 should be
broadly defined. For example, they may include aquifers
that are not presently used but 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 foregoing findings of fact, and after
consideration of the administrative record, the Division
Director, of EPA Region [Number], has made the following
determinations:
1. Respondent is a "person" within the meaning of Section
1004(15) of RCRA, 42 U.S.C. Section 6903(15).
2. Respondent is/was the owner or operator of a facility
that has operated or is operating subject to Section 3005(e) of
RCRA, 42 U.S.C. Section 6925(e).
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3. Certain wastes and constituents thereof found at the
Facility are hazardous wastes as defined by Section 1004(5) of
RCRA, 42 U.S-.C. Section 6903(5). These are also hazardous
wastes within the meaning of Section 3001 of RCRA, 42 U.S.C.
Section 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 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
facility-specific scope of work or a series of scopes of
work describing the requirements, performance standards and
objectives for the Interim Measures, RCRA Facility
Investigation, Corrective Measures Study and/or Corrective
Measures Implementation. These scope(s) of work should be
referenced in and appended to the Order. AN ALTERNATIVE
AND PREFERABLE APPROACH, IF SUFFICIENT RESOURCES AND
INFORMATION ABOUT THE FACILITY EXISTS, IS TO DEVELOP THE
ACTUAL DETAILED, FACILITY-SPECIFIC WORKPLAN(S) 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 scope(s) of
work.
It is important to clearly describe all of the
activities that the Respondent must perform and have a
detailed compliance schedule (specify calendar or business
days) with milestones so that there are no unnecessary
disputes.]
Pursuant to Section 3008(h) of RCRA, 42 U.S.C.
Section 6928(h), Respondent is hereby ordered to perform
the following acts in the manner and by the dates
specified herein. All work undertaken pursuant to this
Order shall be performed in a manner consistent with, at a
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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 Workplans]; RCRA and its implementing
regulations; and applicable EPA guidance documents.
[Relevant guidance should be identified by name, number
and date in the 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 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 four basic strategies that can be
used to develop Interim Measures provisions for the
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
paragraphs 2, 3 and 4); or
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); or
d. require ongoing activities in the order as an
Interim Measure to ensure the Respondent continues
to perform the activities until the final
corrective measure is implemented.
One or more of the strategies will be appropriate at a
facility, depending on the immediacy and magnitude of
the threat to human health or 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 workplan and schedule contained in
Attachment [number] to this 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 Order the Respondent
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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
Order, Respondent shall submit to EPA a Workplan for the
implementation of Interim Measures ("IM Workplan"). The
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 Order, which is incorporated by reference 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 current or potential threat(s) to human
health or the environment and are consistent with and integrated
into any long term solution at the facility to the extent
practicable. The IM Workplan shall document the implementation
of Interim Measures and shall include, but not be limited to:
the objective 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; an Operation and Maintenance Plan; a Project
Schedule; an Interim Measure Construction Quality Assurance
Plan; and Reporting Requirements.
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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 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 must be modified based on facility
specific conditions so as to foster timely, concise and
accurate submissions by the Respondent. All plans may not
be necessary for every facility.]
6. Within [number] days of the effective date of this Order,
Respondent shall submit to EPA a 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 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 wastes or hazardous constituents within and beyond the
Facility boundary. The RFI Workplan shall document the
procedures the Respondent shall use to conduct those
investigations 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;
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(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 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 Order, you should use
paragraph, numbers 11 and 12. If, however, corrective
measures implementation is not covered in this Order,
you should include this as a separate section and
use the following language in paragraph number 10.]
10. Upon EPA's selection of the corrective measure, if
Respondent has complied with the terms of this 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. If
agreement is not reached during this period, EPA reserves all
rights it has to implement the corrective measure or other
remedial response and to take any other appropriate actions
under RCRA, CERCLA or any other available legal authority,
including issuance of a unilateral administrative order
directing Respondent to implement the corrective measure.
11. 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
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Order is incorporated by reference as if fully set forth 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].
12. The CMI Program Plan shall be designed to facilitate the
design, construction, operation, maintenance and monitoring of
corrective measures 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) 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; and have a detailed compliance
schedule with milestones so that there are no unnecessary
disputes].
12. Within [number] days of approval 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 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].
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14. Respondent shall provide [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 Order and
its attachments.
15. EPA will review all draft or final reports or workplans,
and notify Respondent in writing of EPA's approval/disapproval
or modification of the report, workplan or any part thereof.
within [number] days of 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 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 Order shall be hand delivered or sent by certified mail,
return receipt requested, to the Project Coordinator designated
pursuant to Section [Number] of this Order.
17. All work performed pursuant to this Order shall be under
the direction and supervision of a professional engineer or
geologist with expertise in hazardous waste site cleanup.
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 Order days after the
effective date of this Order.
[NOTE: Under certain circumstances, new findings may
indicate that additional work must be done to protect human
health or 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 information indicates that such
additional work is necessary. EPA will 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 [Numbers] days after
the receipt of such request, Respondent may request a meeting
with EPA to discuss the additional work. 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 Order.
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VII. 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 is 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
will 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 will
inform Respondent in writing of the reasons for such decision,
and the Respondent shall modify the RFI/CMS and implement the
corrective measure selected as directed by EPA.
3. The Administrative Record supporting the selection of
the corrective measure will be available for public review at
[Place] from [time].
VIII. QUALITY ASSURANCE
Throughout all sample collection 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:
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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 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
[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.
3. Inform the EPA Project Coordinator days in
advance which laboratories will be used by Respondent and ensure
that EPA personnel and EPA-authorized representatives have
reasonable access to the laboratories and personnel used for
analyses.
4. Use the EPA guidance to evaluate all data to be used in
the proposed plans required by Section of this order.
This evaluation shall be provided to EPA as part of the (Plan)
required by Section of this order, and shall be updated
as required by EPA.
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 also set forth, as deemed neces-
sary, 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 Order for the purposes of, inter
alia; interviewing Facility personnel and contractors;
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inspecting records, operating logs, and contracts related to the
Facility; reviewing the progress of the Respondent in carrying
out the terms of this 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 Order.
2. To the extent that work required by this 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
Order. In the event that agreements for access are not
obtained within [number] days of the effective date of this
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. In
the event EPA obtains access, Respondent shall undertake EPA
approved work on such property.
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. Respondent shall submit to EPA the results of all
sampling and/or tests or other data generated by, or on
behalf of the Respondent, in accordance with the requirements
of this Order and its attachments.
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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 Order.
3. Respondent may assert a business confidentiality claim covering
all or part of any information submitted to EPA pursuant to this 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, the information may be made
available to the public by EPA without further notice to the
Respondent. Physical or analytical data shall not be deemed
confidential.
XI. RECORD PRESERVATION
Respondent shall preserve, during the pendency of this 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 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. Within days of the effective date of this 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
Coordinator shall be responsible for overseeing the implementation
of this 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 Order shall be directed
through the Project Coordinators.
2. Respondent shall provide EPA at least (Number)
days written notice prior to changing Project Coordinators.
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19
9902.5
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3. If EPA determines that activities in compliance or
non-compliance with this Order, have caused or may cause a
release of hazardous waste, hazardous constituent or a threat
to human health or the environment or that Respondent is not
capable of undertaking any studies or corrective measures
ordered, EPA may order Respondent to stop further imple-
mentation of this Order for such period of time as EPA determines
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, [number] copies of all
reports, correspondence, approvals, disapprovals, notices or
other submissions relating to or required under this Order shall
be in writing and shall be sent to:
[EPA Project Coordinator]
US EPA, Region (Number)
Address
XIV. PENALTIES FOR NONCOMPLIANCE
If (respondent) fails to comply with the terms and provisions
of this Order, EPA may commence a subsequent action to require
compliance and to assess a civil penalty not to exceed $25,000
for each day of non-compliance or issue another Order.
[NOTE: In the event a subsequent enforcement action is taken to
assess penalties, refer to the RCRA Civil Penalty Policy for
guidance and include calculations for assessing said penalties
in the administrative record].
XV. 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. For example, the Respondent
may satisfactorily perform the actions required of it by
the Order, but these actions may prove ultimately to be
insufficient to remedy the problem. To address such
instances, the Agency must reserve its right to institute
further administrative or judicial action. The following
is a sample provision.]
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9902.5
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1. EPA expressly reserves all rights 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].
2. EPA hereby reserves all of its statutory and regulatory
powers, authorities, rights, and remedies, both legal and equitable,
which may pertain to Respondent's failure to comply with any of
the requirements of this Order, including without limitation the
assessment of penalties under Section 3008(h)(2) of RCRA, 42 U.S.C.
6928(h)(2). This 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
authority of the United States.
3. Compliance by Respondent with the terms of this Order
shall not relieve Respondent of its obligations to comply with
RCRA or any other applicable local, State or Federal laws and
regulations.
4. This Order shall not limit or otherwise preclude the
Agency from taking additional enforcement action pursuant to
Section 3008(h) of RCRA or other available legal authorities
should the Agency determine that such actions are warranted and
necessary to protect human health and the environment.
5. This Order is not intended to be nor shall it be construed
as a permit. This 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 herein or any additional site characterization, feasibility
study, and response/corrective actions as it deems necessary to
protect human 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 Order, Respondent is not released from liability, if any,
for the costs of any response actions taken or authorized by EPA.
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9902.5
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XVI. OTHER CLAIMS
Nothing in this 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.
XVII. OTHER APPLICABLE LAWS
All actions required to be taken pursuant to this Order shall
be undertaken in accordance with the requirements of all applicable
local, state, and Federal laws and regulations. Respondent shall
obtain or cause its representatives to obtain all permits and
approvals necessary under such laws and regulations.
XVIII. INDEMNIFICATION OF THE UNITED STATES GOVERNMENT
Respondent shall 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 or omissions of Respondent or its
agents> independent contractors, receivers, trustees, and assigns
in carrying out activities required by this Order. The United
States government shall not be represented or construed to be a
party to any contract entered into by Respondent in carrying out
activities pursuant to this Order.
XIX. 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
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
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9902.5
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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.]
XX. SUBSEQUENT MODIFICATION
1. This Order may be amended by EPA to ensure protection
of human health and the environment. Such amendments shall be
in writing, shall have as their effective date the date on which
they are signed by EPA, and shall be incorporated into this Order.
2. Any reports, plans, specifications, schedules, and
attachments required by this Order are, upon written approval by
EPA, incorporated into this Order. Any non-compliance with such
EPA-approved reports, plans, specifications, schedules, and attachments
shall be considered a violation of this Order and shall subject
Respondent to the statutory penalty provisions referenced in
Section [XIV] of this 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 Order.
XXI. SEVERABILITY
If any provision or authority of this Order or the application
of this 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 Order shall remain in force and shall not be affected thereby.
XXII. NOTICE OF OPPORTUNITY TO REQUEST A HEARING
In accordance with Section 3008(b) of RCRA, 42 U.S.C.
Section 6928(b), the Order shall become final unless Respondent
response and requests a public hearing in writing no later
days after service of the Order and Notice of Opportunity
aring.
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9902.5
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(a) The response and request for hearing must be filed with:
[Insert name and address]
A copy of the response and request for hearing and copies of
all subsequent documents filed in this action must be sent to Office
of Regional Counsel, at the same address. The response must specify
each factual or legal determination or relief provision in the order
the respondent disputes and shall specify the basis upon which it
disputes such determination or provision. The response should also
include any proposals for modification of the Order. Any hearings
on the Order will be conducted in accordance with the attached
hearing procedures.
(b) If respondent fails to file a response and request for
hearing within 30 days after service of the Order, respondent will be
deemed to have waived its right to a hearing and the Order will become
final.
XXIII. SETTLEMENT CONFERENCE
Whether or not Respondent requests a hearing, an informal
conference may be requested at any time in order to discuss the
facts of this case and to discuss potential settlement. To
request an informal conference contact:
[Insert name and address]
A request for an informal conference does not extend the
thirty (30) day period during which a written response and request
for a hearing must be submitted. The informal conference procedure
may be pursued simultaneously with the public hearing procedure.
XXIV. TERMINATION AND SATISFACTION
The provisions of this 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
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9902.5
-24-
this Order, including any additional tasks determined by EPA to
be required pursuant to this Order, or any continuing obligation
or requirements [e.g., Record Retention, Reservation of Rights]
have been satisfactorily completed.
XXV. SURVIVABILITY/PERMIT INTEGRATION
Subsequent to the issuance of this Order, a RCRA permit may
be issued to the facility incorporating the requirements of this
Order by reference into the permit.
Any requirements of this Order shall not terminate upon the
issuance of a RCRA permit unless the requirements are expressly replaced
by requirements in the permit.
XXVI. EFFECTIVE DATE
This Order shall become final thirty (30) days after it is served
unless Respondent requests a public hearing pursuant to RCRA section
3008(b), 42 U.S.C. Section 6928(b).
IT IS SO ORDERED:
BY:
U.S. Environmental Protection Agency Date
Effective Date:
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Attachment
Model Unilateral Order Distinguished
from Model Consent Order
The model unilateral order differs from the model consent order
in the following respects:
o There is no consensual language in the model unilateral order.
o There is no Dispute Resolution provision in the model
unilateral order. A respondent to a unilateral order has a 30
day period in which to request a hearing to dispute any of the
requirements of the order.
Generally, if the issuance of a unilateral order is required
it is because the respondent to the action is uncooperative.
Therefore, the inclusion of a dispute resolution provision
will serve to further delay the corrective action. The Region
should use its discretion to identify situations where it may
be appropriate to include a limited dispute resolution
provision in a unilateral order.
o There is no Force Najeure and Excusable Delay provision in the
model unilateral order. In an effort to encourage facility
owners and operators to enter into consensual agreements, the
Force Majeure and Excusable Delay provision is included in the
consent orders to provide them with some flexibility.
o The authority to issue the order is delegated from the
Regional Administrator to the Division Director. The Regional
Administrator must remain impartial and, therefore, cannot
issue the unilateral order in the event it is challenged in
the future.
o Organizationally, some of the provisions that appear in the
model consent order have been moved br restructured in the
unilateral order.
o Instead of a Stipulated Penalties provision there is a
provision on penalties which reflects the $25,000 statutory
maximum for each day of non-compliance.
o There is a Notice and Opportunity to Request a Hearing
provision, which is waived when the consent order is
negotiated, and a provision on requesting an informal
settlement conference.
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There is a provision that was drafted after the model consent
order was developed that is in the model unilateral order
and should appear in unilateral and consent orders. This
provision, Survivability/Pennit Integration, makes clear that
a facility is not necessarily relieved of its responsibility
to comply with a 3008(h) order after a permit is issued to the
facility.
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MEMORANDUM March 22, 1989
SUBJECT: 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
FROM: Gary A. Jonesi, Attorney
RCRA Policy and Litigation Support Branch
TO: LDR Enforcement Liaisons
OECM-Waste Attorneys
Attached for your information is a March 14, 1989 decision
by the U.S. Court of Appeals for the D.C. Circuit upholding EPA's
ability to regulate RCRA listed hazardous wastes disposed before
being listed if such wastes are managed actively after the
effective date of the listing. The court also upheld EPA's
ability to regulate media e.g., soil or ground water)
contaminated by listed hazardous wastes.
In the case, Chemical Waste Management et al. v. EPA, the
petitioners challenged two major interpretative principles that
the Agency discussed in the preamble of the August 17, 1988
"First Third" Land Disposal Restrictions (LDR) final rule:
(1) the "retroactivity" of hazardous waste listings; and (2) the
"contained in" principle.-7
^Petitioners also challenged the validity of the "waste
code carry-through" principle, but EPA has resolved this issue
with the petitioners. As you may recall from my February 8, 1989
note summarizing EPA's January 27, 1989 Administrative Stay (54
Fed. Reg. 4021), the "waste code carry-through" principle is an
EPA interpretation of the 40 C.F.R. § 261.3(c) "derived-from"
rule. The derived-from rule provides that solid wastes generated
from treating, storing, or disposing of listed hazardous wastes
remain hazardous wastes. The waste code carry-through principle
is EPA's longstanding interpretation that the derived-from
residues carry the same waste code(s) as the original underlying
waste. Thus, leachate (or any other residue) derived from
multiple hazardous wastes must meet the applicable LDR treatment
standards for each of the underlying wastes.
See the series of Federal Register notices I have
distributed recently: EPA's waste code carry-through
interpretation was temporarily stayed, 54 Fed. Reg. 4021
(January 27, 1989); certain multi-source leachate was rescheduled
for land disposal prohibition in the Final Third, 54 Fed. Reg.
8264 (February 27, 1989); permit modifications necessary to
comply with LDR requirements (e.g.. to add new waste codes to the
permit) can be more expeditiously processed, 54 Fed. Reg. 9596
(March 7, 1989); and EPA is amending some of the "No Land
Disposal" treatment standards (to be published soon in the
Federal Register). All of these actions taken together resolve
most of the major issues raised by the petitioners regarding the
waste code carry-through principle.
-RETYPED FROM THE ORIGINAL-
-------
As discussed below, the court held in EPA's favor on both of
the issues.
"Retroactivity" of Hazardous Waste Listings
Petitioners claimed that wastes are not hazardous if
disposed in or on the land prior to the date when EPA listed them
as hazardous, and that EPA's attempt to regulate such wastes is
unlawful retroactive rulemaking. EPA's position is that RCRA
hazardous waste listings are "retroactive" only in the sense that
once a particular substance is determined to meet a hazardous
waste listing description, all of that substance is considered to
be that listed hazardous waste regardless of when it was
initially disposed. 53 Fed. Reg. 31138, 31147-48 (August 17,
1988) ("First Third" Final Rule). Generators or owners/operators
managing such substances are subject to RCRA Subtitle C
regulation only if the substances are managed actively after the
effective date of the listing. Similarly, the substances would
be subject to the Subtitle C LDR requirements "if they are
managed actively after the effective date of the land disposal
prohibition for the underlying waste." Slip op. at 21 (citing 53
Fed. Reg. at 31148). Therefore, petitioners' claim failed
because "[t]he rule has prospective effect only." Slip op. at
21.
Although the court explicitly reserved j.udgment on the
validity of the derived-from rule, slip op. at 9, n.4, it
presumed the validity of the rule for purposes of this
litigation, id. at 29, n.17, and addressed the narrow issue of
whether EPA reasonably interpreted the derived-from rule to
encompass a presumption of hazardousness for previously disposed
wastes that are actively managed. The court found that the
derived-from rule's presumption of hazardousness is "eminently
reasonable", id. at 22, and added that "[t]he reasonableness of
that presumption does not vary depending upon the time when the
underlying waste was disposed." Id. at 23.
The petitioners argued for regulation of only leachate
derived from wastes disposed after being listed, not leachate
derived from wastes disposed before being listed. The court
recognized that many landfills accepted wastes both before and
after they were listed as RCRA hazardous wastes. The three-judge
panel was unwilling to apply different standards to potentially
identical wastes disposed at different times because of the
"serious enforcement problems" that might result. Id. The court
could find "no possible way of.determining which portions of the
collected leachate were generated from particular shipments of
the underlying waste." Id.-'
-' Note that while petitioners' retroactivity claims focused
on management of leachate in the context of the LDR requirements,
the "retroactivity" principle has much broader applicability,
i.e., it is not limited to leachate or any other specific type or
form of waste. Both untreated wastes and treatment residues are
regulated if managed actively after the effective date of the
-RETYPED FROM THE ORIGINAL-
-------
The "Contained In" Principle and Contaminated Media
The "contained in" principle provides that any non-waste material
that contains a listed hazardous waste must be managed as if it
were a hazardous waste so long as it continues to contain the
listed hazardous waste.-7 EPA developed the principle because
media such as soil or ground water do not meet the RCRA
definition of "solid waste." The definition includes only
"garbage, refuse, sludge . . . and other discarded material."-
Because the media themselves (e.g.. soil, ground water) are not
enumerated in the definition and often are not considered
"discarded material." (e.g.. where listed hazardous wastes have
spilled or leaked onto previously uncontaminated ground), such
media are not themselves hazardous wastes. Thus, the derived-
from and mixture rules may not on their face cover the
contaminated media because these rules directly apply only to
mixtures of hazardous wastes and "solid wastes." Slip op. at
25-26, n.14.
After having upheld the reasonableness of the Agency,s
interpretation on the retroactivity of listings, the court had
little trouble sustaining EPA's "contained in" principle as
another reasonable interpretation of the derived-from rule, i.e..
media such as soil or ground water contaminated with listed
hazardous wastes are also presumed to be RCRA hazardous wastes
until delisted. The court was swayed by the -consistency of this
principle with the presumption of hazardousness in the derived-
from and mixture rules. The court also was persuaded by the fact
that EPA consistently has applied this policy in delisting
petitions involving contaminated media. The court found
statutory support for EPA's position in RCRA § 3004(e)(3), which
provides a two-year exemption from the land disposal prohibitions
for certain soil contaminated with hazardous wastes. The court
reasoned that the exemption "would of course have been
superfluous unless contaminated soil would otherwise fall within
the terms of the ban." Id. at 31.
-' (continued)
hazardous waste listings applicable to the waste. Moreover, as
discussed above, the retroactivity principle can be applied
outside the scope of the LDR framework. Non-LDR requirements may
be the only applicable Subtitle C standards, e.g.. where active
management of listed wastes occurs after the effective date of
the listing, the generator or owner/operator must comply with at
least some Subtitle C requirements, but not with LDR requirements
unless the wastes are also restricted at that time.
-' Memorandum, "RCRA Regulatory Status of Contaminated
Ground Water", from Marcia Williams, Director, Office of Solid
Waste, to Patrick Tobin, Director, Waste Management Division,
Region IV, Nov. 13, 1986.
-' RCRA § 1004(27) .
-RETYPED FROM THE ORIGINAL-
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Conclusion
This decision represents an enormous victory for the entire
RCRA program. Although the issues were raised in an LDR context
the principles upheld by the court apply equally to other areas
of RCRA. The decision is very useful precedent for cases where
EPA asserts its authority to regulate wastes disposed prior to
being listed as hazardous and wastes found in contaminated media.
Please call me at FTS-382-3072 if you have questions.
Attachment
cc: Regional Counsel Hazardous Waste Branch Chiefs
-RETYPED FROM THE ORIGINAL-
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 1 9 1989
Mr. Thomas C. Jorling
Commissioner
Department of Environmental Conservation
State of New York
Albany, New York 12233-1010
Dear Mr. Jorling:
I am writing in response to your letter of May 5, 1989, in
which you ask numerous questions concerning the regulatory
status, under the Resource Conservation and Recovery Act (RCRA),
of environmental media (ground water, soil, and sediment)
contaminated with RCRA-listed hazardous waste.
As you point out in your letter, it is correct that the
Agency's "contained-in" interpretation is that contaminated
environmental media must be managed as if they were hazardous
wastes until they no longer contain the listed waste, or are
delisted. This leads to the critical question of when an
environmental medium contaminated by listed hazardous waste
ceases to be a listed hazardous waste. In your letter, you
discuss three possible answers (based on previous EPA positions
and documents) which you believe address this question, and
request the Agency to clarify its interpretation. Each of these
is discussed below.
The first possible answer you cite would be that the
contaminated media would be a hazardous waste unless and until it
is delisted, based on the "mixture" and "derived-from" rules. As
you correctly state in your letter, a waste that meets a listing
description due to the application of either of these rules
remains a listed hazardous waste until it is delisted. However,
these two rules do not pertain to contaminated environmental
media. Under our regulations, contaminated media are not
considered solid wastes in the sense of being abandoned,
recycled, or inherently waste-like as those terms are defined in
the regulations. Therefore, contaminated environmental media
cannot be considered a hazardous waste via the "mixture" rule
(i.e., to have a hazardous waste mixture, a hazardous waste must
be mixed with a solid waste per 40 CFR 261.3(a)(2)(iv)).
Similarly, the "derived-from" rule does not apply to contaminated
media. Our basis for stating that contaminated environmental
media must be managed as hazardous wastes is that they "contain"
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-2-
listed hazardous waste. These environmental media must be
managed as hazardous waste because, and only as long as, they
"contain" a listed hazardous waste, (i.e., until decontaminated).
The second possibility you mention is that environmental
media contaminated with a RCRA listed waste no longer have to be
managed as a hazardous waste if the hazardous constituents are
completely removed by treatment. This is consistent with the
Agency's "contained-in" interpretation and represents the
Agency's current policy.
The third possibility you discuss comes from Sylvia
Lowrance's January 24, 1989, memorandum that you cited in your
letter. This memorandum indicates that OSW has not issued any
definitive guidance as to when, or at what levels, environmental
media contaminated with listed hazardous waste are no longer
considered to contain that hazardous waste. It also states that
until such definitive guidance is issued, the Regions may
determine these levels on a case-specific basis. Where this
determination involves an authorized State, such as New York/ our
policy is that the State may also make such a determination.
Related to such a determination, you ask whether a risk
assessment approach that addressed the public health and
environmental impacts of hazardous constituents remaining in
treatment residuals would be acceptable. This approach would be
acceptable for contaminated media provided you assumed a direct
exposure scenario, but would not be acceptable for "derived-from"
wastes under our current rules. Additionally, consistent with
the statute, you could substitute more stringent standards or
criteria for contaminated environmental media than those
recommended by the Federal EPA if you determined it to be
appropriate.
The Agency is currently involved in a rulemaking effort
directed at setting de minimis levels for hazardous constituents
below which eligible listed wastes, treatment residuals from
those wastes, and environmental media contaminated with those
listed wastes would no longer have to be managed as hazardous
wastes. The approach being contemplated in the De Minimis
program would be similar to that used in the proposed RCRA Clean
Closure Guidance in terms of the exposure scenario (direct
ingestion), the management scenario (not in a waste management
unit), and the levels (primarily health-based).
Your final question related to whether the "remove and
decontaminate" procedure set forth in the March 19, 1987 Federal
Register preamble to the conforming regulations on closing
surface impoundments applies when making complete removal
determinations for soil. These procedures do apply when one
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-3-
chooses to clean close a hazardous waste surface impoundment by
removing the waste. The preamble language states that the Agency
interprets the term "remove" and "decontaminate" to mean removal
of all wastes, liners, and/or leachate (including ground water)
that pose a substantial present or potential-threat to human
health or the environment (52 FR 8706). Further discussion of
these requirements is provided in a clarification notice
published on March 28, 1988, (53 Zfi 1144) and in OSWER Policy
Directive # 9476.00-18 on demonstrating equivalence of Part 265
clean closure with Part 264 requirements (copy enclosed).
I hope that this response will be helpful to you in
establishing and implementing New York's hazardous waste policies
on related issues. Should you have additional questions, please
contact Bob Dellinger, Chief of the Waste Characterization Branch
at (202) 475-8551.
Sincerely yours,
y'Jonathan Z. CMnnon
•^"Acting Assistant Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
OSWER DIRECTIVE # 9940.4
JUL 6 1989
MEMORANDUM
SUBJECT: Guidance on Administrative Records for RCRA § 3008(h)
Actions
FROM: Bruce M. Diamond, Director
Office of Waste Programs Enforcement
Glenn L. Unterberger, Associate Enforcement Counsel
for Hazardous Waste . -
Office of Enforcement and Compliane Monitoring
TO: Hazardous Waste Division Directors, Regions I-X
Regional Counsels, Regions I-X
Attached is guidance on compiling administrative records for
RCRA § 3008(h) corrective action orders. The 40 C.F.R. Part 24
hearing procedures for § 3008(h) unilateral orders make compiling
good administrative records key to successfully prosecuting these
cases. As we said when this guidance was issued in draft for
your comment, however, many of the underlying concepts for
compiling records are not limited in application to § 3008(h)
administrative records. This guidance can, therefore, assist in
the preparation of records compiled under other authorities.
We would like to thank those of you who commented and
offered suggestions on the draft. We believe we addressed them
all. In addition, we have modified the guidance to answer many
of the questions that are being asked at the workshop on
§ 3008(h) administrative records and hearing procedures that is
traveling to all the Regions. So far, this workshop has been
given in Regions II, III, IV, IX and VIII and will soon be given
in Regions V and X and Headquarters.
If you have comments or questions concerning this guidance
or the workshop, please contact Rick Colbert, OWPE, at (FTS)
475-9847.
Attachments
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OSWER Directive S 9940.4
- 2 -
cc: Elaine Stanley, OWPE
Carrie Wehling, OGC
Steve Botts, OECM
Sven Erik-Kaiser, OWPE/CED
Ken Shuster, OSW
Frank McAlister, OSW
Linda Southerland, OWPE/FFHWCO
Steve Johnson, Region IX
Danial Shiel, Region VII
Lynn Williams, Region X
Bruce Gelber, DOJ
Tom Bartman, DOJ
Melinda Gould, Region V
Jerri Green, OES (A-101)
RCRA Enforcement Branch Chiefs
RCRA Enforcement Section Chiefs
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9940-4
Guidance on Administrative Records for
RCRA § 3008(h) Actions
-------
EXCLUSIVE USE OF' THIS DOCUMENT
9940.4
Tliis document is intended solely for the guidance of RCRA
compliance personnel employed by or representing the U.S.
Environmental Protection Agency. It is not intended and does not
constitute rule-making 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 in
this document, or which are not in compliance with internal
office procedures that may be adopted pursuant to it.
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9940.4
Table of Contents
I. Scope of Guidance 1
II. Purpose of the Administrative Record 2
A. Part 24 Hearing Requirements for Unilateral Orders and
Judicial Review 2
B. Public Participation, Oversight, Improved
Decisionmaking and Quality Orders 4
III. Contents of the record 4
A. General ,r 4
B. Document Sources 6
C. Guidances and Directives 10
D. Legal Sources 10
E. Technical Sources 10
F. Sampling Data ..,..11
G. CERCLA Sources 11
H. State Sources 11
I. Information Not Included in the Record 12
IV. Compiling the Record 14
A. When 14
B. Location 16
C. Organization 16
D. Index 17
V. Maintaining the Record .. .18
A. Public and Respondent Access 18
B. How Long Available 18
C. Notice of Availability 19
D. Controlling the Record 19
E. Document Copying 20
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Appendix A: Federal Register Notice for 40 C.F.R. Part 24 Final
Rule
Appendix B: Model Public Notice of Record Availability
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V940.4
I. Scope of Guidance
This guidance applies to administrative records compiled for
administrative orders for corrective action issued pursuant to
§ 3008(h) of RCRA. Specifically, it covers administrative
records for unilateral § 3008(h) orders subject to 40 C.F.R. Part
24 hearing procedures (reprinted in Appendix A) and to § 3008(h)
consent orders. This guidance does not address administrative
records for unilateral § 3008(h) orders subject to 40 C.F.R. Part
22 hearing procedures.1
This guidance focuses on the responsibilities of RCRA
enforcement personnel. The extent of those responsibilities
depends on whether an administrative record is for a consent
order or for a unilateral order (subject to Part 24). In
accordance with Part 24 requirements for unilateral orders,
enforcement personnel must compile an initial administrative
record and deliver it to the Regional hearing clerk by the date
the unilateral order is served on the respondent. During the
Part 24 process the hearing clerk is responsible for maintaining
the record.
Consent orders are not subject to the Part 24 process.
Administrative records for these orders are not, therefore,
required to be delivered to and maintained by the hearing clerk.
The administrative record can be a component in a public
involvement strategy for a facility subject to a § 3008(h) order.
V 40 C.F.R. Part 22 governs administrative hearings for
unilateral orders issued under RCRA § 3008(h) authority if the
orders contain RCRA § 3008(a) claims, include a suspension or
revocation of authorization to operate under RCRA § 3005(e) or
seek penalties under RCRA § 3008(h) for non-compliance with a §
3008(h) order. 40 C.F.R. Part 24 governs unilateral orders
(called "initial orders" in Part 24) not subject to Part 22. (40
C.F.R. § 24.01.)
2/ 40 C.F.R. § 24.03 requires the EPA office issuing a
unilateral § 3008(h) order to deliver the order and
administrative record to the "Clerk designated by the Regional
Administrator." This will generally, if not always, be the
Regional hearing clerk. The hearing clerk is responsible for
maintaining the record and docket for the Part 24 proceeding. In
some Regions, it may be extremely difficult or impossible for the
hearing clerk physically to receive, hold and maintain the record
and the clerk may require the assistance of the office issuing
the order in fulfilling these duties under Part 24. Therefore,
before issuing an order, Regional enforcement personnel should
make arrangements with the hearing clerk for the delivery and
maintenance of the record.
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This guidance includes some discussion of RCRA public involvement
requirements and strategies. For more information on public
involvement, this guidance should be read in conjunction with
"Guidance for Public Involvement in RCRA Section 3008(h)
Actions," OSWER Directive No. 9901.3, May 5, 1987, and "Guidance
on Public Involvement in the RCRA Permitting Program," OSWER
Directive No. 9500.00-1A, January 1986.
II. Purposes of the Administrative Record
o Fulfill Part 24 hearing requirements
o Form basis of judicial review
o Facilitate public participation
o Assist oversight
o Improve decisionmaking and quality of orders
A. Part 24 Hearing Requirements for Unilateral Orders and
Judicial Review
An administrative record is the compilation of information
upon which an administrative decision is based. In the context
of Part 24 hearings, the administrative record is the basis of
EPA's adjudication of an owner/operator's objection to the
issuance of a § 3008(h) order. The process for development of
the record under Part 24, however, is different from that for
other administrative adjudications in which RCRA enforcement
personnel are often involved, namely 40 C.F.R. Part 22 hearings
for RCRA § 3008(a) actions.
Part 22 hearings follow a formal adversarial model. Each
party to the proceeding attempts to present only that information
supportive of its position and only at that time when it is most
appropriate for its case. The administrative records for these
decisions are developed as each party, chiefly during the
hearing, submits documents and testimony to the presiding
officer. The administrative hearing procedures found in Part 24
for RCRA § 3008(h) cases depart from this process to some extent.
These differences have important implications to RCRA enforcement
personnel preparing the documentation for a Part 24 hearing.
Part 24 creates streamlined procedures for adjudicating RCRA
§ 3008(h) order disputes. These procedures allow for less
discovery and fewer opportunities to introduce information after
a unilateral order is issued than is the norm for Part 22
hearings. In light of this, Part 24 requires EPA to compile, at
the beginning of the administrative proceedings, an
administrative record on which it bases its initial order and to
include in the record not only documents supporting issuance of
the order, but all relevant documents (excluding privileged
information) considered by EPA in developing and issuing the
order. This might include information that does not always
support EPA's conclusions and remedial decisions. These
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administrative record requirements give respondents an early
opportunity to understand the basis for issuance of the order and
EPA's theory of the case.
By the date the unilateral order is issued, the record is
prepared by EPA enforcement personnel, including Regional
counsel, and submitted to the Regional hearing clerk. This
initial record, now maintained by the clerk, grows as parties
make additional submissions during the hearing process.
Especially for EPA, however, opportunities for additional
submissions are limited or subject to the presiding officer's
discretion. Since the record is the basis of the presiding
officer's recommendation and the Regional Administrator's
decision to accept, modify or withdraw the unilateral order, the
streamlining achieved by Part 24 forces EPA to ensure that the
administrative record be as complete as possible from the start.
Another feature of the Part 24 procedures has similar
implications. Part 24 does not give parties the right to present
and examine witnesses at a hearing. This means that EPA cannot
expect or plan to supplement or fill in gaps in the record by
presenting witnesses. Therefore, testimony that EPA believes is
necessary to its case should instead be in the form of a written
statement or memorandum included in the record submitted to the
hearing clerk when the unilateral order is issued.
Under these circumstances, those compiling the initial
record should act as if this is the first and last opportunity
for EPA to submit documents and information into the record.
Enforcement program personnel should, therefore, seek out the
cooperation and assistance of Regional counsel in compiling the
record to ensure that it will support issuance of the unilateral
order and is otherwise complete.
Part 24 does not address judicial appeals of § 3008(h)
decisions. The administrative record developed for a Part 24
hearing, however, will be the basis of judicial review of a Part
24 decision. If the record is poor or incomplete, the court will
either overturn the decision as arbitrary and capricious or, at
best, hold a trial and reconsider the decision itself. At trial
the court could require discovery of and live testimony from EPA
personnel and other supplementation of the record. In all cases,
an inadequate record will cause delay and wasted resources.
The above discussion concerns records for unilateral orders.
It can never be assumed, however, that settlement negotiations
will always be successful. An anticipated consent agreement may,
in fact, become a unilateral order. As a practical matter,
therefore, every order to be issued under § 3008(h) should be
assumed to be a potential unilateral order requiring a record
satisfying Part 24. If enforcement personnel want to be "ready
to go" with a unilateral order as soon it is clear that
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negotiations are unsuccessful, the record also has to be "ready
to go." The comments and issues raised during negotiations by a
facility and EPA responses to them should be memorialized for the
record.
B. Public Participation. Oversight. Improved Decisionmakina and
Quality Orders
The administrative record serves other purposes besides
satisfying Part 24 requirements for unilateral orders. These
other objectives are relevant to both unilateral and consent
orders.
As discussed in the "Guidance for Public Involvement in RCRA
Section 3008(h) Actions," EPA is committed to providing
meaningful opportunity to the public to be informed of and
participate in decisions that affect them and their communities.
Since the administrative record is the basis for corrective
action decisions, it can be a tool in fulfilling EPA public
involvement objectives. It should also be noted that, regardless
of efforts by EPA to integrate administrative record and public
involvement activities, most documents in the administrative
record are, in any case, available to the public through Freedom
of Information Act (FOIA) requests. EPA's compiling and making
publicly available an administrative record may save EPA's and
the public's time and resources in making and processing FOIA
requests.
One of the most important guides for determining the quality
of § 3008(h) orders is the administrative record. A review of
the order and record answers questions about the enforceability
of, evidentiary support for and judgment exercised in drafting
and issuing an order. These concerns are shared, in varying
degrees, by EPA Headquarters staff, the public at large and
respondents. This should also, therefore, be a concern of
Regional personnel in their day-to-day activities. By
emphasizing the importance of compiling a good administrative
record, Regions can ensure good decisionmaking.
III. Contents of the Record
A. General
The administrative record prepared by enforcement staff for
§ 3008(h) corrective action orders supports the order's findings
of fact, determinations of law. and ordered relief and must
contain all relevant non-privileged documents and oral
information (which has been reduced to writing) considered by EPA
in the process of developing and issuing the order, regardless of
whether the documents support the order.
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Just as the order itself must address the elements of a
§ 3008(h) action:
o EPA jurisdiction (issuance by a delegated authority)
o a release into the environment
o of hazardous wastes or hazardous constituents
o from an interim status facility owned or operated by the
respondent
o requiring corrective measures to protect human health or the
environment,
the administrative record must provide factual support for
statements and provision's in the order. For example,
jurisdiction could be supported by copies of delegation orders;
releases by sampling data, inspection reports where evidence of
spills is identified, or statements made by respondents in
correspondence, submissions or notifications to EPA; interim
status by notifications, permit applications or certifications
required by § 3005(e) of RCRA, statements by respondents
contained in those or other submissions or correspondence.3
Without this support, orders issued unilaterally may be modified,
withdrawn or vacated by the Regional Administrator or a court.
Although consent orders are less likely to be challenged,
disputes concerning interpretation of orders could, in some
cases, be more readily resolved (and perhaps avoided) by a
complete record.
Determining what documents are needed to support an order
involves judgment and discretion. For example, if an aspect of
an order is likely to be contested by a respondent, more
supporting documentation may be needed in the record in that
area. These documents may, in fact, raise positions rejected by
EPA. When they, however, are read in the context of other
documents in the record that give reasons for rejecting these
positions and accepting EPA's position, they may lend support and
credibility to the order. Whatever the specific reason may be
for including in the record a supporting document, a fundamental
V If a respondent failed to satisfy the submission
requirements of § 3005(e)(1), the record will need to show that
the respondent should have had interim status. If statements by
the respondent are insufficient to substantiate this allegation,
the record may need to include deeds, contracts, certifications
from a secretary of state concerning the respondent's corporate
identity, reports showing that respondent treated, stored or
disposed of hazardous wastes when it should have had a permit or
interim status, etc.
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factor .in making that determination is that EPA may have limited
opportunity after an order is issued to make additional
submissions to the record. As previously discussed in II.
Purposes of the Administrative Record, this factor encourages
making the record complete from the beginning.
In addition to documents that support the order, the record
must also include all non-privileged documents and oral
information (which has been reduced to writing) considered by EPA
in developing and issuing an order. Under Part 24, documents
considered by EPA are documents that were relied upon or comments
which EPA solicited and received from respondents or the public
to proposed EPA decisions or actions relevant to the order.
The record prepared by enforcement personnel for RCRA
§ 3008(h) cases is not supposed to be one-sided, reflecting only
EPA's point of view. As already discussed, choosing to include
opposing positions in the record can lend support to the order.
While making that choice in the context of determining what will
or will not support the order involves discretion and judgment,
comments solicited and received by EPA to decisions relevant to
the order must be included, regardless of whether they include
information or opinions that support the position taken by EPA in
the order. It is recommended that an EPA response accompany
them. (Unsolicited comments received by EPA are not required to
be included in the record, but if they are significant, it is
recommended that they be included, along with an EPA response,
since they are likely to be raised at the Part 24 hearing.)
Although a respondent has the opportunity to add information
to the record under the Part 24 hearing procedures, those
procedures, as discussed previously, require and rely on EPA's
effort to include in the initial record all relevant information
considered (relied upon) by the Agency in issuing the order.
Since it cannot always be determined precisely whether specific
information was relied upon, there should be a preference for
including relevant documents in the record when compiling the
record. Questions concerning inclusions in the record should be
referred to Regional counsel.
B. Document Sources
Documents are writings, drawings, graphs, charts,
photographs, and data compilations from which information can be
obtained. Physical samples are not documents. Computer disks or
tapes are not documents (and are not part of the record), but
records containing information saved on disks or tapes and
printouts, from disks or tapes are documents.
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Various documents may contain relevant information that
should be looked to for inclusion in the administrative record.
These documents may typically be, but are not limited to:
o EPA Investigative Records
- Inspection reports
Sampling and analytical data and related chain of
custody and quality control/quality assurance
documentation (discussed further below)
- Photographs
Statements by witnesses (factual or expert witnesses)
Statements/interview reports with current or past
facility employees, managers, etc.
Records of leads or complaints by citizens
o Communications with Respondents
Records of conferences or telephone calls
Written communications
- Technical documents
o RCRA Sources
Section 3010(a) notifications
Part A or Part B permit applications
Response to § 3007 letter concerning presence of SWMUs
Comprehensive Monitoring Evaluations (CMEs)
Exposure Information Report
Biennial reports
Waste manifests
Facility Assessments (RFAs)
Facility Investigations (RFIs)
Corrective Measures Studies (CMSs)
Responses to § 3007 information requests
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Information obtained through § 3013 orders
Administrative or Judicial Orders (e.g., §§ 3008(a),
3013, 7003) and supporting documentation
Groundwater Task Force reports
Applicable guidances and directives (discussed below)
IRIS reports
Progress reports
EPA release determination
CERCLA Sources (discussed below)
Section 103(c) Notifications of Reportable Quantities
Responses to § 104 information requests
Preliminary Assessments (PAs)
Site Investigations (Sis)
Hazard Ranking System (HRS) documentation
Remedial Investigation/Feasibility Studies (RI/FS)
Proposed remedial design and action plans
Records of Decision (RODs)
Field Investigation Team Reports
Action memoranda for removals
State Sources (discussed below)
Investigative records
Studies
Orders
EPA/State or State/respondent communications
• Permit applications
Responses to demands for corrective action
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Other Federal Program Records
Clean Air Act or Clean Water Act permits and permit
applications
TSCA/OSHA inspections
DOD Installation Restoration Program Reports
- Reports from the Department of Interior and other
Federal or State Natural Resource Trustees
Documents Filed with the Regional Hearing Clerk or Presiding
Officer. (For enforcement personnel compiling a record for
a consent order or a unilateral order, this category of
documents generally includes only documents submitted in a
related prior proceeding. The hearing clerk handles
submissions made during pending Part 24 proceedings.)
Miscellaneous sources
Well permits
Deeds
Legal descriptions of property
U.S. Geologic Survey and state hydrogeologic maps
Population data from U.S. Census Bureau or local
utilities
Weather information from airports or weather bureaus
Toxicological reports
Financial reporting documents, such as Dunn &
Bradstreet profiles (for issues such as the need for
financial assurance)
Securities and Exchange Commission (SEC) corporate
filings
Public Involvement
Public notice and analysis of proposed corrective
measures
- . Public comments
Documentation of information obtained at public
meetings
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Other communications with public, including
congressional correspondence
- Responses to public comments
Newspaper or magazine articles
This list is not exhaustive and there will likely be other
possible sources for documents included in the record. As
discussed under III. I.. Documents Not Included in the Record.
some documents listed above, or parts of them, may be privileged
and should not be in the record.
C. Guidances and Directives
EPA guidances or directives that were relied upon in
developing or issuing the order should be part of the
administrative record. They do not, however, have to be
physically in the record if they are referenced in the index and
readily accessible for inspection and copying in the same
building where the administrative record is kept. In determining
whether to include copies of guidances or directives (or portions
of them) in the record, the burden to EPA of making copies of
voluminous or repeatedly used documents should be weighed against
the added burden to those reviewing the record of having to look
elsewhere in the building for these documents. To minimize this
problem, it is recommended that the Region keep a guidance and
directive library in the same area as the administrative record.
D. Legal Sources
Legal sources - statutes, regulations, court or
administrative decisions, notices published in the Federal
Register - are not required to be part of the administrative
record. For legal sources not generally available at a public
law library, such as unreported court cases and administrative
orders or decisions, it is recommended that copies be available
for inspection and copying in the building where the
administrative record is kept. This procedure can assist the
respondent and the public in reviewing the record.
E. Technical Sources
Technical sources such as scientific or engineering
textbooks, manuals or articles that were relied upon in issuing
or developing the order must be part of the administrative
record. . Large documents or ones that are frequently referenced
in Agency orders may be treated analogously to EPA guidances or
directives, as discussed above, and not physically placed in the
record.
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F. Sampling Data
Sampling data relied upon by EPA in issuing or developing
the order should be in the record. The sampling data and
sampling chain of custody forms are part of the record but they
may be kept in their original storage location, e.g.,
Environmental Services Division or contract laboratory. Data
summary sheets, however, must be physically located in the
record. The index must list the data summary sheets, reference
the underlying sampling data and chain of custody forms, and
indicate where the underlying data and forms can be found.
G. CERCIA Sources
If RCRA § 3008(h) action is taken at a site where there is
also Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) activity, information developed for CERCLA
actions will likely be relevant to § 3008(h) decisions and should
be part of the § 3008(h) record. At the same time, information
developed under RCRA, including under § 3008(h) authority, will
likely be included in CERCLA files and administrative records.
The administrative record requirements for CERCLA response
actions are discussed in "Interim Guidance on Administrative
Records for Selection of CERCLA Response Actions," OSWER
Directive No. 9833.3A, dated March 1, 1989.
The often close relationship between RCRA § 3008(h) and
CERCLA activity at the same facility or site will require
coordination to ensure that the requirements of both legal
authorities are efficiently met. Generally, either CERCLA or
RCRA staff will have lead responsibility at a site. With
respect to administrative records, good organization of documents
concerning a facility or site will make compiling records for
RCRA § 3008(h) orders or CERCLA response actions easier.
Compiling a joint § 3008(h)/CERCLA response action administrative
record, however, is not recommended. There are various reasons
for this.
Although some aspects of a RCRA § 3008(h) orders and CERCLA
response selections are similar - such as using or requiring
information as to the nature and extent of contamination or the
ability of certain technologies to effect a cleanup - other
aspects are not. These differences in the decisionmaking process
may affect what goes into an administrative record for a RCRA
§ 3008(h) order or a CERCLA response action and dictate against
compiling joint records.
H. State Sources
States may be taking actions under their own authorities at
facilities that may be subject to § 3008(h) orders. As with
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CERCLA activity, information developed by the State may be
relevant to § 3008 (h) decisions. If this information was relied
upon, it must be in the § 3000(h) administrative record to make
it complete. Inspecting the record must not be a treasure hunt.
Merely referring to or referencing state files or "administrative
records" is generally not sufficient and requiring those
reviewing the record to go to different locations to find the
various pieces is not acceptable. Since many States will not
have one centralized agency collecting documents relevant to the
§ 3008(h) order, EPA may have to look for documents kept in
various agencies, such as those for health, agriculture, fish and
wildlife, transportation, etc.
I. Information Not Included in the Record
o internal deliberative material
o attorney work-product
o attorney-client communications
o investigative techniques or procedures
o confidential business information in the public record
Certain documents, even though they relate to a facility,
might not meet the test for inclusion - they neither support the
order nor were they relied upon or considered by EPA in
developing or issuing the order and thus are not relevant. These
documents might be kept in a file for the facility, but they
should not be included in the administrative record for a
§ 3008(h) order that is compiled, indexed and subject to
inspection and copying by respondents and members of the public.
(Although these documents are not part of the record, some might
be available to the public through Freedom of Information Act
(FOIA) requests.)
Privileges that EPA may clain. Inter- or intra-agency
documents that are pre-decisional deliberative material, attorney
work-product, attorney-client communications and certain law
enforcement records, including those that disclose investigative
techniques and procedures (such as certain enforcement guidances
and manuals) or could reasonably be expected to interfere with
enforcement proceedings, are exempted from disclosure to
respondents and the public and should not be included in the
record.4 EPA may, however, waive these privileges (by disclosure
to third parties), but this should not be done without first
consulting Regional counsel.
V Part 24 states that the record be "...exclusive of
privileged internal communications." 40 C.F.R. § 24.03. Note
that rule's concerning inclusion of privileged documents in
administrative records compiled under CERCLA for selection of
response actions may be different.
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Inter- or intra agency documents that are pre-decisional
deliberative material are frequently drafts, notes or memoranda
expressing opinions or recommendations, as opposed to factual
information, to staff or management. To be within the privilege,
documents must be pre-decisional. Drafts are a category of
documents likely to be within the privilege. If the draft
document is expressly adopted in or is used as the final
document, however, or if it is circulated outside the government
(and its contractors), the draft loses the deliberative process
privilege protection.
Attorney work product includes documents prepared in
anticipation of litigation by an attorney or under an attorney's
supervision, including reports by consultants or program staff
and certain witness statements and interview reports. Since this
privilege does not terminate when a proceeding is concluded,
documents subject to the privilege could include work related to
past enforcement proceedings.
Attorney-client communications, as between Regional counsel,
OECM, OGC or DOJ and EPA program personnel, include information
intended to be kept confidential and made in connection with
obtaining or giving legal advice. In order to retain the
privilege, the information must be treated confidentially and not
be disclosed to third persons.
The above privileges are the most likely to arise in
compiling the record. This is, however, not an exhaustive list
or a complete discussion of privileges. Regional counsel should,
therefore, be consulted concerning the applicability of
privileges. In addition, Regional and Headquarters personnel
responsible for implementing FOIA may be able to provide advice
on privileges.5
Confidential Business Information. Confidential business
information (CBI) furnished to EPA is subject to a privilege
claimed by the business submitting the information. EPA does not
have the discretion to waive CBI and disclose it to the public.
In fact, there are penalties for improper disclosure of business
information that is entitled to CBI treatment. See 18 U.S.C.
§ 1905.
EPA has issued, under 40 C.F.R. Part 2, Subpart B, detailed
regulations concerning CBI, including the rules for handling
business information which is or may be entitled CBI treatment
and for determinations by EPA of whether information is, in fact,
5/ The Freedom of Information Case List, published annually
by the Department of Justice, Office of Information and Privacy,
is a good reference for FOIA and privileges.
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entitled to CBI treatment. Certain statutory provisions may set
different standards for what qualifies as CBI (for example, SARA
Title III) so the statutory provision under which information is
submitted should be referred to when a question concerning CBI
arises. Other statutory provisions may affect rules for non-
disclosure of information. For example, information obtained
under RCRA § 3007 may be disclosed in certain circumstances if
relevant to a proceeding under RCRA, such as issuance of a
§ 3008(h) order. See 40 C.F.R. § 2.305. Before including in the
record material that may be subject to CBI, Regional counsel
should be consulted.
Since CBI is a privilege claimed by the business submitting
the data, that business can waive the claim. EPA can ask the
business to waive CBI or narrow its claim. In addition, EPA may
provide CBI to the business submitting it.
Using Privileged Information and CBI. EPA may wish to
include in the administrative record relevant documents protected
from disclosure because of a privilege or CBI. Rather than
waiving a privilege (assuming EPA may do so) or not using the
document and excluding it from the record, EPA can consider
certain alternatives. First, documents can be included in a
confidential portion of the administrative record that is
withheld from public disclosure but is available to the
respondent. This can be used with CBI submitted by the
respondent since CBI treatment is maintained. For most other
privileges, however, disclosure to the respondent may waive EPA's
privilege. All documents placed in the confidential portion of
the administrative record must be identified in the
administrative record index, which is available to the public.
Second, information contained in an excluded document can,
if feasible, be extracted and placed in the record available to
the public and the respondent. This can be done by summarizing
the relevant information or editing out the information not to be
made public. For example, factual information contained in a
draft document subject to the privilege for inter- or intra-
agency pre-decisional deliberative material can be extracted into
another document and placed in the record. If EPA follows the
first alternative and creates a confidential portion of the
record available to the respondent, it should also attempt to
extract from that record non-protected information for public
disclosure.
V. Compiling the Record
A. When
The record must be compiled and indexed on or before the
date a § 3008(h) unilateral order is served on a respondent (40
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C.F.R. .§ 24.03). A record should be compiled and indexed for
consent orders when they are issued.
Ideally, the record should be compiled as documents and
information are obtained by EPA. The process of indexing,
organizing and updating the record can help make EPA
decisionmaking more orderly and efficient. Following such a
process will make it easier for staff newly assigned to work on a
case to become familiar with it and allows staff already assigned
to a case to leave one case to work on another. Managers also
will have the flexibility to require these moves.
Public interest concerning activities at a facility should
be considered when deciding when to begin compiling a record. If
there is exceptional public interest and there has been or may be
requests for access to documents in a facility file, beginning to
compile a record early and making it available to the public is
advisable. The final compilation of the record can be done
before the order is issued.
As an alternative to beginning to compile the record early
in the process, Regions could make available to the public
especially important documents related to corrective action.
These could include the RCRA Facility Assessment (RFA), the RCRA
Facility Investigation (RFI) Report and the Corrective Measures
Study (CMS) Report. The public comment period for selection of a
corrective action plan is a critical point for public involvement
and making these documents publicly available could facilitate
the process. Regions are very strongly urged to adopt this
approach for the comment period. Note that the comments received
by EPA, along with its responses, must be included in the record.
The complete § 3008(h) corrective action process will not
generally involve a single order or a single event for
implementation. The process is dynamic. Documents and
information resulting from earlier activities at a facility may
be used to build administrative records for subsequent actions.
For example, orders will generally be issued in two stages - the
RCRA Facility Investigation (RFI) through the Corrective Measures
Study (CMS) as one order, and the Corrective Measures
Implementation (CMI) as a second order - with the second building
on the first. There may be additional orders required to enforce
implementation a § 3008(h) order. In addition, many activities,
some over extended periods of time, will be occurring during
implementation. The information may be of interest or necessary
to those following or overseeing corrective action activities at
a facility.
Regions should, therefore, keep with the record for the
final order (i.e., the record accompanying issuance of a consent
order or the record as it stands after completion of Part 24
proceedings) relevant documents obtained during implementation of
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the order. Technically, these post-decisional documents are not
part of the record for the final order and should be identified
as supplemental to the record for the final order.
B. Location
The record should be located in the Regional Office issuing
the order. (For unilateral orders, the record must be maintained
by the Regional hearing clerk at the Regional office during the
Part 24 process). If there is substantial public interest in a
facility, Regions should consider keeping additional copies of
the record (or a subset of documents from it) near the facility -
a library, for example, or other information repository - or at a
state environmental office. If RCRA permitting or CERCLA has
created an information repository at or near the site, the Region
should consider using the same location.
It should be noted that CERCLA regulations require that the
complete administrative record file be kept at the EPA Regional
office and a copy of this file, with some exceptions, be located
at or near the site. At Federal facilities where CERCLA
authorities are being used, CERCLA administrative records are
compiled by the Federal agency in accordance with CERCLA
administrative record and public participation requirements.
However, the complete record is located at the Federal agency
office comparable to an EPA Regional office, rather than at the
EPA office. If a § 3008(h) order is issued to a Federal
facility, regardless of whether CERCLA activity is also
occurring, EPA retains responsibility for compiling the § 3008(h)
record and locating it at the EPA Regional office.
C. Organization
The record must be in some logical order. The record is
supposed to be a working file that allows users to locate
documents relevant to their interests. A logical order helps
achieve this goal.
The simplest and often most useful organization is arranging
all documents chronologically. Even if documents are arranged by
subject areas in sub-files, documents should be arranged
chronologically within each sub-file. Generally, documents
should be put in the record according to the date they were
completed, not received by EPA. The date of EPA's receipt of a
document is, however, often relevant and Regions should make it
standard practice to stamp the date of receipt on all documents.
There are innumerable subject areas that can be used to
organize the record into sub-files. The headings found under
Document Sources in this guidance are one possible set of
subjects. Other possibilities include arranging the record
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9940. 4
according to the elements of the order or segregating documents
relating specifically to the facility from other documents, such
as guidances, directives or technical sources. When certain
issues can be identified beforehand as being of special interest
or subject to dispute, they can be the basis for record division.
The choice of file organization can be a matter of personal
preference. For example, an attorney handling a § 3008(h)
hearing may prefer, in presenting the record to the hearing
officer, one file organization over another. As long as the
chosen organization is logical, it is acceptable.
Each document should be given a document number or letter.
This number should be marked on the front of the document or the
blank flip side of the first page. The number should be a serial
number showing the document's location in the entire record or
within some sub-file. The number must be unique to the document
so that documents with similar descriptions, titles or dates can
be differentiated. It is recommended that each page of the
record be numbered in series.
D. Index
The record must be indexed. The index serves several
functions. It must, at a minimum, identify all documents in the
record and their location. By knowing what is supposed to be in
the record and where, EPA is better able to prevent the
unauthorized addition or removal of documents from the record by
those inspecting it. The index also helps the user to locate
documents in the record.
An index may be little more than a table of contents that
tracks record organization. The index, however, can also
supplement organization. For example, if the record is arranged
chronologically, the index could be arranged by subject. This
gives the user two ways of locating documents in the record.
If the resources are available, various indexes can be
created by using a computer database management system.
Documents comprising the record can be coded according to various
fields, and indexes created by the choice of fields. A
chronological index, for example, could be created using the date
field.
Regardless of the type of index used, it should contain the
following information for each document:
o Description of the document. This should include the
document's title, if any, and a very brief description
identifying a document's subject or contents. This
description should enable differentiating the document from
other documents in the record.
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9940* A
o Identity of the author and recipient. It is recommended
that their affiliations or titles also be included.
o Date. Give the date (or approximate date) that the document
was completed or generated.
o Location of the document. If the document is physically in
the record, give the sub-file name, if any, and the
document's number (see Organization, above). If the
document is not physically in the file (such as an EPA
guidance or CBI that is in a confidential file), identify
where it is located.
o Number of pages in document.
V. Maintaining the Record
A. Public and Respondent Access
During the time a unilateral § 3008(h) order is subject to
the 40 C.F.R. Part 24 procedures, the hearing clerk must satisfy
Part 24 administrative record requirements for public and
respondent access to the record.
The administrative record for consent orders and unilateral
orders after the Part 24 process is completed should be
accessible to the respondent and the public for inspection at the
Regional Office during normal business hours, for example, 9 A.M.
to 4 P.M., Monday through Friday. Every effort should be made to
make the record available without requiring the respondent or
members of the public to give EPA prior notice or make an
appointment. Resource shortages, both personnel and space, may,
however, justify a reasonable prior notice requirement.
Even if it adopts such a requirement, the Region should
attempt to continue to work toward obviating the need for
requiring prior notice. If continual need for access to a
specific record is anticipated, as where there is substantial
public interest in a facility's activities, an attempt should be
made to arrange for access without requiring prior public or
respondent notice to the Region.
In no case should the person seeking access to the record
demonstrate need or be required to pay a search or access fee.
(See Document Copying, below.)
B. How Long Available
The record for consent orders and unilateral orders that are
final after the Part 24 process should be available to the public
and the respondent until the respondent's obligations under the
order are satisfied and the order terminated. Order
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9940. 4
implementation may occur over a long period and public interest
in having easy access to the record may eventually decline, as
when a remedy is in a routine maintenance and monitoring phase.
Taking this into account, Regions may wish to balance the
resources required for keeping the record at the Regional Office
against archiving it elsewhere and retrieving it when a specific
request for access is made.
C. Notice of Availability
At or before the time the administrative record for a
unilateral order is delivered to the hearing clerk or a consent
order is issued, the Region should notify the public of the
availability of the record for inspection. (Appendix B contains
a model notice.) The procedures for public notice found in
"Guidance on Public Involvement in the RCRA Permitting Program,11
should be followed. Regions should also consider providing
additional notices for the availability of the record at other
times. For example, if the Region has started compiling the
record and making it publicly available prior to issuance of an
order, such as during the comment period for selection of the
corrective measure, the public should be notified. Notices
should contain any requirement for those seeking to review the
record to contact Regional personnel beforehand.
Unilateral orders must notify respondents of the
availability of the record.
D. Controlling the Record
Access to the record should be controlled to ensure its
continued integrity. There should be a sign-in log for those
inspecting the record. The log should ask for the individual's
name, address, phone number, and affiliation, and also record
which administrative record (there may be records for other cases
at the same location) was inspected and any copying fee collected
or waived (see Document Copying, below).
Agency personnel should be at or near the area where a
record is being reviewed. They can provide assistance to those
reviewing the record and also help supervise the area to prevent
documents being lost or damaged or the record becoming
disorganized. After a record has been inspected, it should be
checked to determine that all documents have been returned
intact.
The record available for public and respondent inspection
should be a duplicate copy of the record. It is very strongly
recommended that EPA request that respondents provide at least
one additional copy of their submissions for inclusion in the
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9940.4
publicly available record. The master copy of the record should
be kept by the Agency.
E. Document Copying
The record at the Regional Office should be available to the
public and respondent for copying. EPA can have a copying
machine available for public use where the record is located, or
the Agency can make copies for requestors.
If EPA makes partial or complete copies of the record
available for inspection in addition to the one at the Regional
office, EPA should also attempt to have copying facilities
available at these locations.
Regions should follow FOIA requirements and policies in
determining the appropriate charge for copying. Generally,
copying fees should be waived for other Federal agencies, members
of Congress and EPA contractors or grantees. For all other
persons or entities, including respondents, the duplication cost
for paper copies of paper originals is $.15 per page, actual cost
for duplicating photographs and non-paper originals. No fee
should be charged to anyone for the first 100 copies of paper
originals. In addition to these free copies, there is an
administrative fee waiver for subsequent copying costs up to
$25.00. (At $.15 per page, this administrative fee waiver covers
another 166 copies.) The reason for this waiver is that the
Agency does not collect a fee if the cost of processing and
collecting the fee exceeds the amount it is permitted to collect.
The Agency has determined that $25.00 is the cost of collecting
and processing fees. There is no administrative fee waiver if
copying costs exceed $25.00. Therefore, if more than 266 copies
are made (100 free copies plus 166 copies under the
administrative fee waiver), the $.15 per page charge should apply
to all copies beyond the free first 100 copies.
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9940*4
Appendix A: Federal Register Notice for 40 C.F.R. Part 24 Final
Rule
-------
Friday
July 27, 1990
Part II
Environmental
Protection Agency
40 CFR Parts 264, 265, 270, and 271
Corrective Action for Solid Watte
Management Units at Hazardous Waste
Management Faculties; Proposed Rule
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30798
Federal Register / Vol 55. No. 145 / Friday. July 27, 1990 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 264,265,270, and 271
r.mL-3403-0; EPA/OSW-FB-90-012J
RIN 2050-AB42
Corrective Action for Solid Waste
Management Units (SWMUs) at
Hazardous Waste Management
Facilities
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency is today proposing requirements
under the Resource Conservation and
Recovery Act (RCRA) for corrective
action for solid waste management units
(SWMUs) at facilities seeking a permit
under section 3005(c) of RCRA. This
proposal will establish procedures and
technical requirements for implementing
corrective action under section 3004(u)
of RCRA.
Today's proposal would create a new
subpart S in the RCRA part 264 ,
regulations to define requirements for
conducting remedial investigations.
evaluating potential remedies, and
selecting and implementing remedies at
RCRA facilities. It also proposes to
amend the RCRA part 270 permit
requirements, make conforming changes
to part 264 and 265 facility closure
information requirements, and establish
standards for States to become
authorized to administer corrective
action requirements.
DATES: Written comments on this
proposed rule should be submitted on or
before September 25,1990.
Public hearings on this proposed
rulemaking are scheduled as follows:
• October 9,1990 in San Francisco,
CA.
• October 12,1990 in Washington.
DC.
ADDRESSES: The public hearings will be
held at the following locations:
• October 9,1990 at the Hyatt
Regency San Francisco in Embarcadero
Center, 5 Embarcadero Center, San
Francisco, CA 94111 (415-788-1234); and
• October 12,1990 at the Omni-
Shoreham Hotel 2500 Calvert Street
NW., Washington, DC 20008 (202-234-
0700).
Those individuals who wish to
present oral testimony at either of the
public hearings must request an
opportunity to be heard. Requests must
be made in writing to Thea McManus,
Hearings Clerk. Office of Program
Management (OS-305), U.S.
Environmental Protection Agency, 401M
Street SW« Washington. DC 20460. The
request should reference the RCRA
Corrective Action Proposed Rule.
Regulatory Docket No. F-GO-CASP-
FFFFF. Unless otherwise requested in
writing, individuals will be scheduled
10-minute time segments to present oral
testimony. Time segments will be
allotted based on the order in which the
written requests are received. Written
requests must be received by the end of
the written comment period.
Written comments on today's
proposal should be addressed to the
docket clerk at the following address:
U.S. Environmental Protection Agency.
RCRA Docket (OS-305), 401M Street
SW.. Washington. DC 20460. One
original and two copies should be sent
and identified by regulatory docket
reference number F-flO-CASP-FFFFF.
The docket is open from 9 a.m. to 4 pan.,
Monday through Friday, excluding
Federal holidays. Docket materials may
be reviewed by appointment by calling
(202) 475-9327. Copies of docket
materials may be made at no cost, with
a maximum of 100 pages of material
from any one regulatory docket
Additional copies are $0.15 per page.
FOR FURTHER INFORMATION CONTACT:
General questions about the regulatory
requirements under RCRA should be
directed to the RCRA/Superfund
Hotline. Office of Solid Waste. U.S.
Environmental Protection Agency.
Washington. DC 20460, (800) 424-0346
(toll-free) or (202) 382-3000 (local). For
the hearing impaired, the number is
(800) 553-7672 (toll-free), or (202) 475-
9652 (local).
Specific questions about the issues
discussed in this proposed rule should
be directed to David M. Pagan, Office of
Solid Waste (OS-341), U.S.
Environmental Protection Agency. 401M
Street SW. Washington. DC 20460, (202)
382-4740.
SUPPLEMENTARY INFORMATION:
Outline
L Authority
Q. Background
m. Purpose of Today'* Rule
IV. EPA'i Implementation of the Corrective
Action Program to Date
A. Pre-HSWA RCRA Corrective Action
B. July 15,1985, Codification Rule (50 PR
28702)
C December I1987, Codification Rule (52
FR 45788)
D. Proposed Rule, Financial Assurance for
Corrective Action (51 FR 37854)
B. National RCRA Corrective Action
Strategy (51 FR 37608) and the RCRA
Corrective Action Outyear Strategy (Fall,
F. Implementation of the HSWA Corrective
Action Program
V. Approach to Corrective Action in Today's
Rule
A. Prioritiei and Management Philosophy
for RCRA Corrective Action
B. Cleanup Goal* for Corrective Action
C Major Element* of Today'* Proposal
VL Section-by-Section Analysis
A. Purpose/Applicability (| 281500)
1. Conforming Change* to Previou*
Codification of | 30M(u) and General
Di*cu**ion
2. Exception* to Applicability
a. Permits for Land Treatment
Demonstrations
b. Emergency Permit*
c. PermiU-by-Rule for Ocean Disposal
Barges or Vowel*
d. Research, Development and
Demonstration Permits
3. Voluntary Corrective Action
& Definition* (8 264.501)
1. Facility
2. Release
3. Solid Waste Management Unit (SWMU)
4. Hazardous Waste and Hazardous
Constituents
6. Corrective Action Management Units
C Remedial Investigations (Si 264410-
264413)
1. General
2. Scope of Remedial Investigation*
(1264411)
3. Plan* for Remedial Investigation*
(I 284.512)
4. Report* of Remedial Investigation*
(8 264413)
D. Determination of No Further Action
(I 264.514)
E. Corrective Meaiura Study (If 264420-
284.524)
1. Purpoie of Collective Measure Study
(I 284.520)
2. Trigger for Corrective Measure Study
(1264.521)
a. U*e of Action Level*
b. Criteria for Determining Action Levels
c. Action Level* for Ground Water
d. Action Level* for Air
*. Action Level* for Surface Water
L Action Level* for Soil
g. Action Level* Where Health- and
Environmental-Baied Levels Are Not
Available
h. Authority to Require a Corrective
Meaiure Study Where Action Level*
Have Not Been Exceeded
3. Scope of Corrective Measure Study
(I 264.522)
4. Plan* for Corrective Measure Study
(1264423)
5. Reports of Corrective Measure Study
(I 264.524)
F. Selection of Remedy (8 264.525)
1. General (f 264425)
2. General Standard* for Remedie*
(I 264425(a))
3. Remedy Selection Decision Factor*
(I 264.525(b))
4. Schedule for Remedy (8 264425(c))
5. Media Cleanup Standards (8 264425(d))
a. General
b. Protectiveness
c. Cleanup Levels and Other Sources of
Contamination
6, Determination that Remediation of
Release to a Media Cleanup Standard is
Not Required
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
30799
a. Areas of Broad Contamination
b. Ground Water
c. Technical Impracticability
7. Demonstration of Compliance With
Media Cleanup Standards (8 264.525(e))
a. Points of Compliance
b. Methods
c. Timing of Demonstration of Compliance
B. Conditional Remedies (I 284.525(f))
G. Permit Modification for Selection of
Remedy (8 284.526)
H. Implementation of Remedy (5! 264.527-
2d4.531)
1. Remedy Design (i 264.527)
2. Progress Reports (8 264.528)
3. Review of Remedy Implementation
(i 264.529)
4. Completion of Remedies (I 264.530)
S. Determination of Technical
Impracticability (S 264.531)
L Interim Measures (| 284.540)
}. Management of Wastes (85 264.550-
264.552)
1. Overview
2. General Performance Standard
(5284.550)
3. Management of Hazardous Wastes
(8 264.551(a))
a. Temporary Units (8 264.551(b))
b. Corrective Action Management Units
(8 264451{c); I 264J01)
4. Management of Non-Hazardous Solid
Waste* (8 284.552)
K. Required Notices (8 204.560)
1. Notification of Ground-Water
Contamination
2. Notification of Air Contamination
3. Notification of Residual Contamination
L. Permit Requirements (81270.1(c)-
270.60(c)(3J)
1. Requirement to Maintain • Permit
(8 270.1(c))
2. Schedule* of Compliance for Corrective
Action (8 27O34)
3. Conditions Applicable to All Permits
(8 270.30(1)(12))
4. Information Repository (8 270.36)
5. Major Permit Modifications
(8 270.41(a)(5Hlx))
6. Conforming Changes to Requirement* for
Pennits-by-Rule (8 27O60(b)(3):
8 27060(cK3){viii))
7. Alternative Dispute Resolution
M. Conforming Change* to Closure
Regulation* (88 264.113.265.112 and
265.113)
1. General
2. Clarification*
a. Extension of Closure Deadline*
b. Modification of Closure Plan*
3. Closure Plan Information Requirements
N. Conforming Change to 12M.l(g)
VIL Relationship to Other Program*
A. Superfund
1. General
2. Listing RCRA Sites on the National
Priorities List (NPL)
3. Use of CERCLA to Supplement RCRA
Authorities
E PCB Spill Policy under TSCA
C Other Element* of RCRA Subtitle C
Program
1. Relationship to Subpart F Ground-Water
Corrective Action
2. Land Disposal Restriction* Program
3. Relationship to section 3004{n) Standard*
4. Administrative Orders under RCRA
section 3008(h)
5. Financial Assurance for Corrective
Action
a. Timing
b. Cost Estimation
c. Allowable Mechanisms
D. RCRA Subtitle D: Solid Waste Disposal
E. RCRA Subtitle I: Underground Storage
Tanks
F. Federal Facilities
VUL Public Involvement
IX. State Authorization
A. Applicability of Rules in Authorized
States
B. Effect on State Authorizations
1. Schedule and Requirement* for
Authorization
2. States with Existing Corrective Action
Programs
C. Corrective Action and Mixed Waste
Authorization
X. Regulatory Impact Analysis
A. Executive Order No. 12291
1. Background
2. Scope and Analytical Approach
3. Potential Scope of the Corrective Action
Program
4. Qualitative Analyst*
5. Description of Option* Analysed
Quantitatively
6. Results of Quantitative Analysis
7. Economic Impact*
8. Federal Facilities
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
List of Subjects
XL Supplementary Documents
1. Authority
These regulation* are issued under the
authority of sections 1003,1000,2002(a),
3004(u). 3004(v), 3005(c), and 3007 of the
Solid Waste Disposal Act as amended
by the Resource Conservation and
. Recovery Act as amended by the
.Hazardous and Solid Waste
Amendments of 1984.42 U.S.C. 6924 (a),
(u). and (v). and 6925(c).
IL Background
Prior to passage of the Hazardous and
Solid Waste Amendments of 1984
(HSWA). statutory authorities and
promulgated regulations for compelling
corrective action at facilities regulated
under subtitle C of the Resource
Conservation and Recovery Act (RCRA)
were limited to the following: (1) Section
7003 of RCRA. which provides EPA
enforcement authority to take action
where solid or hazardous waste may
present an imminent and substantial
endangennent to human health or the
environment; (2) section 3013 of RCRA,
which provides authority for requiring
investigations where the presence of
hazardous waste or releases of
hazardous waste may present a
substantial hazard to human health or
the environment; and (3) 40 CPR part
264. subpart F, which provides a
regulatory program to address releases
of hazardous wastes and hazardous
constituents to ground water from
"regulated units." ("Regulated units" are
defined in 40 CFR 264.90 as surface
impoundments, waste pile*, land
treatment units, and landfills which
received hazardous waste after July 28,
1982.) Section 108 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA), provides a broad authority.
similar to RCRA section 7003, to take
abatement actions to remediate any
actual or potential imminent and
substantial endangennent caused by
actual or threatened releases of
hazardous substances.
The 1984 HSWA amendments
substantially expanded corrective
action authorities for both permitted
RCRA facilities and facilities operating
under interim status. Section 3004(u) of
HSWA requires that any permit issued
under section 3005(c) of RCRA .to a
treatment storage, or disposal facility
after November 8,1984. address
corrective action for releases of
hazardous wastes or hazardous
constituents from any solid waste
management unit (SWMU) at the
facility. These permits will contain
schedules of compliance where
corrective action activities cannot be
completed prior to permit issuance. In
addition, facility owners or operators
must demonstrate assurances of
financial responsibility for completing
the required corrective actions. Section
3004(v) authorizes EPA to require
corrective action beyond the facility
boundary where appropriate. Section
3006(h) provides EPA with authority to
issue administrative orders or bring
court action to require corrective action
or other measures, as appropriate, when
there is or has been a release of
hazardous waste or hazardous
constituents from a RCRA facility
operating under interim status.
m. Purpose of Today's Rule
The purpose of today's rule is to
establish a comprehensive regulatory
framework for implementing the
Agency's corrective action program
under RCRA. This rule defines both the
procedural and substantive
requirements associated with sections
3004{n) and 3004(v). While the new
corrective action authorities became
effective on their date of enactment
(November 8,1984). today's proposed
rule is intended to establish a
comprehensive regulatory framework
for these statutory authorities. The
proposal should serve to promote
national consistency in implementing
this important component of the RCRA
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Federal Register / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
program, and will establish standards to
which States seeking authorization for
section 3004(u) corrective action must
demonstrate equivalence. In addition,
this rulemaking provides a procedural
vehicle for the regulated community and
other interested parties to comment on
the Agency's regulatory intentions for
this program.
The following sections of this
preamble provide a detailed explanation
of the background and specifics of
today's proposed rulemaking. Section IV
discusses implementation of the
corrective action program to date.
Section V provides an overview of the
regulatory program proposed today and
the management philosophy which led
to this proposal. Section VI provides a
section-by-section analysis of the
proposed rule. Section VII examines the
relationship of today's rule to other
environmental programs. Section Vm
discusses public involvement in the
corrective action program, while section
K provides information on State
authorization for the new program.
IV. EPA's Implementation of the
Corrective Action Program To Date
Since 1982, the RCRA program has
been implementing the subpart F
corrective action requirements for
releases to ground water from regulated
units through permits. Since November
1984. the HSWA corrective action
requirements, which were effective
immediately, have been implemented on
a case-by-case basis in individual
facility permits or section 3008(h)
corrective action orders. To implement
the HSWA corrective action program to
date, EPA has issued several regulations
and guidance documents. This section
describes those rules and guidance
documents, the current status of
corrective action activities in the
permitting and enforcement programs,
and the availability of technical
guidance documents pertaining to
corrective action.
A. Pre-HSWA RCRA Corrective Action
EPA's base permit regulations,
promulgated under pre-HSWA
authority, establish a program for
monitoring and remediating releases to
ground water from regulated hazardous
waste management units (40 CFR part
284. subpart F, discussed below), and
reporting of releases from permitted
units (under 40 CFR part 270). These
regulations were established in 1982
under the general statutory authority in
section 3004(a) of RCRA.
Under current subpart F regulations,
the corrective action requirement
(8 284.100) is the third step of a three-
phase program for detecting,
characterizing, and responding to
releases to the uppermost aquifer from
regulated units. The first phase, called
detection monitoring, requires facility
owners or operators to monitor ground
water at the downgradient edge of the
waste management boundary for
indicator parameters or constituents
that indicate the likelihood of a release.
If a release is detected, the owner/
operator tests for all appendix IX (of 40
CFR part 264) constituents, and a
ground-water protection standard
(GWPS) is established for every
appendix K constituent detected above
background levels. Under the second, or
compliance monitoring phase of the
program (which is triggered when the
release is confirmed), the owner/
operator is required to perform
additional investigations to characterize
the nature and extent of contamination.
In the third and final stage—corrective
action—the owner/operator is required
to remove or treat in place all
contaminants present in concentrations
above the ground-water protection
standard beyond the compliance point.
The ground-water protection
standards established under subpart P
are set at either the background levels,
maximum contaminant levels (MCLs)
for 14 specific constituents, or alternate
concentration limits (ACLs). MCLs are
contaminant concentration levels which
represent the maximum permissible
level in drinking water supplies as
promulgated by the EPA under the Safe
Drinking Water Act ACLs are
contaminant concentration levels
determined by the Agency to be
protective of human health and the
environment based on site-specific
circumstances. Proposed revisions to the
existing subpart F regulations'to create a
program consistent with today's
proposal for subpart S are expected to
be published shortly in the Federal
Register. A discussion of the
relationship between this proposal and
the proposed amendments to subpart F
is included in section VTLC of this
preamble.
B. July 15,1985. Codification Rule (SO FR
28702)
On July 15,1985, EPA promulgated
regulations that codified the statutory
language of the new section 3004(u)
corrective action authority of HSWA
(see 50 FR 28702,40 CFR 284.90(a)(2) and
264.101). In particular, the July 1985
Codification Rule amended 40 CFR part
264, subpart F by adding new § 264101.
which essentially reiterated the
statutory language of section 3004(u).
In addition, the preamble to the July
1985 Codification Rule defined the
Agency's jurisdiction under the new
authorities by interpreting a number of
key terms in the statutory language.
Specifically, the preamble discussed
EPA's interpretations of the terms
"facility," "solid waste management
unit," and "release," in relation to the •
new corrective action authorities. (EPA
is proposing to codify these definitions,
with some modifications, in today's
rule.) The preamble also provided the
Agency's interpretation of the authority
conferred on it through section 3008(h),
the interim status corrective action
authority. A detailed discussion of the
Agency's interpretation of the section
3008(h) authority was provided in a
December 16,1985, guidance
memorandum entitled "Interpretation of
section 3008(h) of the Solid Waste
Disposal Act." A copy of that
memorandum may be found in the
docket established for this rulemaking.
C. December 1,1987, Codification Rule
(52 FR 45788)
On December 1,1987, EPA issued a
companion to the July 1985 Codification
Rule that further modified the part 264
and part 270 hazardous waste
management regulations to implement
the new statutory provisions of HSWA
(see 52 FR 45788). This Second
Codification Rule addressed issues
arising from the new amendments rather
than codifying requirements imposed
directly by the statute. Three elements
of that rule relate to the new HSWA
corrective action requirements: Permit
application requirements for solid waste
management units (SWMUs), corrective
action beyond the facility boundary, and
corrective action for injection wells with
permits-by-rule.
The Second Codification Rule
amended the existing part B permit
application requirements of S 270.14 by
adding a new provision (§ 270.14(d)) that
requires certain information pertaining
to solid waste management units at the
facility applying for a RCRA permit. The
new provision requires descriptive
information on all solid waste
management units at the facility, and all
available information pertaining to any
past or current releases from these units.
The provision also requires facility
owner/operators to perform sampling
and analysis as required by EPA to
assist in determining whether or not
releases have occurred from solid waste
management unite at the facility.
The Second Codification Rule also
amended S S 264.100 and 264.101 of the
RCRA part 264 regulations to codify
section 3004(v) of RCRA. This statutory
provision requires facility owner/
operators to address corrective action
for releases that have migrated beyond
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30801
the facility boundary, unless the owner
or operator demonstrates to EPA that.
despite his or her best efforts, s/he was
unable to obtain the necessary
permission to undertake the required
actions (see Si 284.100(e) and
284.101(c)). This new provision applies
to releases from all solid waste
management units, including releases to
the uppermost aquifer from regulated
units. Moreover, section 3004(v) makes it
clear that the provision applies to
certain interim status units (section
3004(v)(2)). as well as units at permitted
faculties (section 3004(v)(l)). Where
access to off-site property is denied,
EPA may require that certain measures
be taken on site to mitigate the off-site
contamination (e.g., source control
measures). As will be discussed later,
EPA is today proposing changes to these
regulatory provisions.
The Second Codification Rule also
included new provisions governing the
implementation of corrective action
requirements through RCRA pennits-by-
rule for Class I hazardous waste
injection wells (see It 270.60(bK3).
144.1(h), 144.31(g)). Under 40 CFR 270.60.
the corrective action requirements of
S 284.101 must be addressed in order to
obtain a permit-by-rule for a hazardous
waste injection well Since today's
proposal will replace 1264.101, these
facilities will be required to comply with
today's proposed subpart S regulations
in the same manner as other facilities
which receive permits under section
3005(c)ofRCRA.
The Second Codification Rule also
clarified that a Class I hazardous waste
injection well with a UIC permit issued
after November 8,1984. does not have a
RCRA permit-by-rule until the corrective
action requirements are imposed at the
entire facility. Further, the Second
Codification Rule clarified that a Class I
injection well that received a UIC permit
retains interim status under RCRA until
corrective action requirements (if
necessary) are imposed through a RCRA
rider permit
D. Proposed Rule, Financial Assurance
for Corrective Action (SI FR 37854)
• On October 24,1986, EPA proposed *
new amendments to the financial
responsibility standards applicable to
owners and operators of hazardous
waste treatment storage, and disposal
facilities (hereinafter referred to as
FACA—see 51 FR 37854). This proposed
rule provided a regulatory framework
for implementing die statutory
requirement of section 3004(u) (codified
in Si 264.101 and 284.90(a)(2)) for
demonstrating financial assurance for
the costs of corrective actions.
The 1988 FACA proposal set out a
detailed set of procedures implementing
the section 3004(u) financial assurance
requirements. These procedures
addressed: (1) The timing of financial
assurance demonstrations; (2) cost-
estimating procedures, including the
periodic adjustment of cost estimates,
for determining the amounts of required
financial assurance; and (3) permissible
financial assurance mechanisms,
including their required wording and
allowable combinations of mechanisms.
EPA is today proposing specific
language which will clarify when
financial assurance for corrective action
must be demonstrated and when
adjustments to the coverage levels will
be required. With respect to all other
procedural aspects associated with the
FACA requirements (&#., the set of
acceptable mechanisms or use of a
mechanism for multiple financial
responsibilities), EPA intends to use the
FACA proposal as general guidelines for
examining, on a case-by-case basis, the
adequacy of the financial assurances.
Financial assurance for corrective
action is discussed more fully in section
VII.C.5 of this preamble.
£ National RCRA Corrective Action
Strategy (SI FR 37808) and the RCRA
Corrective Action Outyear Strategy
(Fall. 1989)
In October 1988, EPA issued a draft
"National RCRA Corrective Action
Strategy" to inform the Regions, States.
regulated community, and the public of
the Agency's overall plans for
implementing the HSWA corrective
action authorities. The Strategy
provided an overview of the HSWA
corrective action authorities and the
universe of RCRA facilities subject to
these authorities, and described the
basic process for identifying,
investigating, and remediating releases
at RCRA faculties. It also discussed the
Agency's plans for establishing
priorities for corrective action* the
relationship between permitting and
enforcement authorities, factors
influencing the management of
corrective action, and the relationship
between EPA and the States hi
implementing *"<• program.
The Agency received a number of
comments on the draft strategy, many of
which are reflected hi the content of
today's proposed rule. Today's proposal,
which addresses in detail most of the
elements of the draft strategy,
effectively finalizes the strategy.
Although some portions of the draft
strategy, mch as the Agency's plans for
prioritizing RCRA facilities for
corrective action, are not fully
addressed in today's proposal, they an
the subjects of recommendations
contained in the RCRA Corrective
Action Outyear Strategy (CAOS),
published in the Fall of 1989. These
recommendations outline a management
approach for the corrective action
program that is realistic and workable in
light of the many challenges that EPA
and the States will face in implementing
this program over the next several
years. While some of the CAOS
recommendations can be directly
implemented, others will be addressed
in detail in forthcoming guidance.
F. Implementation of the HSWA
Corrective Action Program
To implement the corrective action
program to date, EPA has developed a
general process to assure that actions
taken are commensurate with the
problem presented. In this process, each
stage serves as a screen, sending
forward to the next step those facilities
or units at a facility which the Agency
has found to be a potential problem, and
•limlnating from further consideration
units and faculties where the Agency
has discovered no current
environmental problem. The Agency
intends to provide sufficient flexibility
in this process to facilitate timely
abatement of environmental problems.
RCRA facilities an generally brought
into the corrective action process at the
time the Agency is considering a permit
application for the facility, or when a
release justifying action under section
3008(h) is identified. The process begins
with an Agency-conducted RCRA
Facility Assessment (RFA), which is
analogous to the Superfund Preliminary
Assessment/Site Investigation (PA/SI).
The RFA includes: (1) A desk top review
of available information on the site; (2) a
visual site inspection to confirm
available information on solid waste
management units at the site and to note
any visual evidence of releases; and (3)
in some cases, a sampling visit to
confirm or disprove suspected releases.
It after completion of the RFA it
appears likely that a release exists, the
Agency typically develops a schedule of
compliance, to be included hi a facility's
RCRA permit for further studies and
actions the permittee must undertake to
fulfill the responsibilities imposed by
section 3004(u). Alternatively, the
Agency might issue an order pursuant to
section 3008(h) to compel corrective
action!
The second stage of the corrective
action process is the RCRA Facility
Investigation (RFI). The RFI is
undertaken when a potentially
significant release has been identified in
the RFA; its purpose is to characterize
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the nature and extent of contamination
at the facility, and it is analogous to the
Remedial Investigation (RI) process of
the Superrtmd program. Typically, the
RF1 will be focused on specific concerns
Identified in the RFA and will be staged
to avoid unnecessary analysis. When
the Agency determines, on the basis of
data generated during the RF3 or other
information, that cleanup is likely to be
necessary, the owner/operator will be
required to conduct a Corrective
Measure Study (CMS) to identify •
solution for the problem at the site.
Once the Agency selects the remedy for
the facility, the Agency will either issue
a followup section 3006(h) order (in the
case of an interim status facility), or
modify the permit and the remedy will
be implemented by the owner/operator
with Agency, oversight.
In certain situations, the Agency may
require an "interim measure" at the
facility without waiting for the final
results of the RFI or the CMS. Interim
measures are actions required to
address situations which pose a threat
to human health or the environment or
to prevent further environmental
degradation or contaminant migration
pending final decisions on required
remedial activities. Soperfund generally
uses the removal authority provided
under section 101 of CERCLA to
accomplish rt»i« «aitn» objective where
expedited response and/or emergency
actions are needed.
Currently, implementation of the
corrective action program is being
undertaken by EPA, with assistance
from State agencies. Six States have
been authorized to date to implement
the HSWA tonective action program.
The general corrective action process
described above is carried forward in
today's proposal However, today's
proposal wiD describe the requirements
in greater detail and will provide the
public an opportunity to comment on
this approach.
More detailed information about each
of the phases of the corrective action
program as implemented to date can be
found hi the guidance documents
referenced below. Additional guidance
will be developed in the future.
1. RCRA Facility Ateetunent
Guidance (Final October. 1988). This
documentpjn be obtained through the
National Technical Information Services
(NTIS), 6285 Port Royal RA, Springfield.
VA—(703) 487-4650. Document Number
PB87-10778Q.
2. RCRA Facility Invettigatian
Guidance (Interim Final May, 1989). For
further information, contact Jon Perry—
(202)382-4663.
3. Corrective Action Kan (Interim
Final May. 1988). For further
information, contact (202) 38»~M80.
4. Interim Measures Guidance
(Interim Final May. 1988). For further
information, contact Tracy Back—(202)
382-3122.
V. Approach to Corrective Action fe
Todays Role
Together with the National
Contingency Plan (NCP). which EPA
recently promulgated (March 8.1990,55
FR 8868), today's proposal defines EPA's
overall approach to the cleanup of
environmental contamination resulting
from the mismanagement of hA»»rdmi«
and solid waste. Today's proposal wiQ
establish a regulatory framework for
corrective action under section 3004(u)
of RCRA and win provide guidelines for
corrective action orders imposed
through administrative orders m»A»F
section 3008(h) of RCRA. Substantive
provisions of the rule, when
promulgated, generally win be
applicable to response •«Hima
CERCLA involving releases of
hazardous waste (including hazardous
constituents). These provisions may also
be "relevant and appropriate" to other
CERCLA response actions.
This section of the preamble briefly.
summarizes EPA's basic approach to
RCRA corrective action, the
fundamental cleanup goals of the
program, and the major elements of
today's rule.
A. Priorities and Management
Philosophy for RCRA Corrective Action
Approximately 5700 facilities are
currently in the RCRA subtitle C
universe, and therefore are potentially
subject to corrective action
requirements. These facilities are likely.
together, to have as many as 80400
SWMUs. Many of these facilities, EPA
believes, will require some level of
remedial investigation and corrective
action to address past or current
releases.
The level of investigation and
subsequent corrective action will vary
significantly across facilities. This
regulation would ensure that variation
can be accommodated by recognizing
that tne necessary scope of
investigations and studies may be
different depending upon the situation -
presented. It is the Agency's intention
that State and Regional pm^m*! have
the ability to require investigations
sufficient to fully characterize the
facility and assess necessary actions. In
many cases the problem will pose less
risk or be less complex than a major
Superfund site listed on the National
Priorities List Therefore, the Agency
expects that for the most pert RCRA
cleanups will be less oomptexand less
expensive than those under CERCLA.
and less detailed study will be required
before remedial action begins. In some
cases, however, the Agency also
recognizes that the situation could be
comparable to that of a major CERCLA
site. In such cases, the Agency will
require more detailed analysis and more
rigorous oversight Then will also be
cases where immediate action is
required, while at many other sites,
current exposure will be limited aid
action can be safely deferred. Not only
will the nature of cleanup required vary
widely, but so too will the
characteristics of the facility owner/
operators. Some facilities will be sites
controlled by fi«atiri«Hy viable owner/
operators, while others will be weak
financially; some will be under active
long-term management bat at others the
owner/operator will be seeking to leave
the site; some wifl be simple facilities
with one or two storage tanks, yet
others will be major complexes, such as
large Federal facilities, with thousands
of solid waste management units.
Because of the wide variety of sites
likely to be subject to corrective action.
EPA believes that a flexible approach,
based on site-specific analyses, is
necessary. No two cleanups will follow
exactly the same course, and therefore
the program has to allow
latitude to the decision ""»>"»> in
structuring the process, selecting the •
remedy, and setting cleanup standards
appropriate to the specifics of the ,
situation. At the same time, a series of
basic operating principles guide EPA's
corrective action program under RCRA.
These principles, which are reflected in
today's proposal are described briefly
below.
In managing the corrective action
program, the Agency will place it»
higheet priority an action at the moat
environmentally ttgnificantfociUtiet
and on the most tignificant problemt at
specif ic facilities. EPA is committed to
directing its corrective action resources
first to the most environmentally
significant problems. The level of threat
posed by each of the SJOO facilities now
subject to corrective action varies
widely— some an a major concern and
require prompt attention; others will
require eventual cleanup but do not
currently pose a threat; still others have
no significant releases and will not
require corrective action at «1L At some
of these facilities. EPA will
automatically address corrective action
because of its permitting priorities.
Under HSWA. statutory deadlines were
established for issuance of RCRA
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permits to the various types of
treatment, storage, and disposal
facilities. Each of these permits must to
the extent necessary, require a schedule
of compliance for corrective action.
However, a substantial universe of
facilities that will not receive permits
must also be addressed for corrective
action. EPA. through its Environmental
Priorities Initiative, will review and set
priorities for action among these
facilities, to ensure that it addresses the
most significant first
It will also be important for EPA to set
priorities and focus its efforts within
facilities undergoing corrective action
through the permitting process. Facilities
receiving permits will present the full
range of remedial problems; EPA and
authorized States must carefully manage
their resources at these facilities to
ensure that the program effectively
focuses on the most pressing problems.
The Agency's first priority will be to
require interim measures to address
sites posing an immediate threat to
human health and the environment, and
to pursue engineering remedies to
control or eliminate further migration of
environmental releases. In addition, the
Agency will expect prompt remediation
of all significant off-site contamination,
regardless of whether human or
environmental exposure to the
contamination is currently occurring. On
the other hand, sites where current
exposure is low and releases have been
effectively controlled will be a lower
priority. This is particularly likely to be
the case where a site is controlled by a
financially viable owner/operator who
can ensure that releases are adequately
contained and exposure eliminated and
who will be capable of undertaking
eventual cleanup.
The Agency may rely on '
"conditional" remedies when prompt
remedial action can reduce risk to
levels acceptable for current uses, or
where final cleanup is impracticable- As
a general principle, EPA believes that
cleanups must achieve a level
appropriate for all actual and
reasonably expected uses (The question
of cleanup goals is discussed more fully
in the next section of this preamble.)
RCRA sites subject to corrective action.
however, will typically be facilities
seeking permits to manage hazardous
waste, rather than sites that are widely
open to the public and subject to a
broad range of uses. As long as the
permit Is in place and the facility is
under the management of the owner/
operator, exposure to contaminated
media within the facility boundary, such
as contaminated soils, would be
significantly less than it would be hi an
area of unrestricted access, where future
uses might include residential or
agricultural development In such
controlled use situations, EPA believes
that it will often be reasonable to
require prompt cleanup to levels
consistent with current use, but to defer
final cleanup as long as the owner/
operator remains under a RCRA permit.
In other cases, it may be readily
apparent that cleanup of a site to levels
appropriate for unrestricted use will be
impracticable. RCRA will have to
address a number of intractable
problems, such as the cleanup of large,
complex sites like municipal landfills, or
ground-water cleanup where the
bedrock is heavily fractured. In these
cases as well, it may be appropriate to
rely on "conditional" remedies that
control risk during the life of the permit
and rely on institutional controls to
prevent future exposure.
EPA expects that these conditional
remedies will play a significant role in
the implementation of RCRA corrective
actioa and will enable the Agency and
the regulated community to focus their
resources most effectively on the most
pressing problems. Further discussion of
"conditional" remedies is contained in
section VI.F.8 of this preamble.
The Agency intends to remove
regulatory disincentives to independent
action by facility owner/operators and
will encourage voluntary cleanups. EPA
recognizes that it is important to allow
willing and responsible owner/
operators to begin corrective action
promptly without unnecessary
procedural delays. In many cases, the
Agency believes that owner/operators
will wish to take source control
measures, begin ground-water pumping,
or take other measures to reduce or
eliminate a problem. EPA encourages
these activities, and in many cases may
find it appropriate to incorporate
owner/operator, initiated corrective
action into permits as interim measures.
In addition, the Agency has taken steps
to simplify RCRA permit modification
procedures for corrective action in it*
final rule on RCRA permit modifications
(53 FR 37912. September 28.1988). The
issue of voluntary corrective action is
discussed more fully in section VLA of
this preamble.
Facility investigations and other
analyses will be streamlined to focus on
plausible concerns and likely remedies,
and to expedite cleanup decisions.
While remedial investigations must be
thorough enough to identify any serious
problems, EPA recognizes that its own
resources and those of the regulated
industry are finite, and therefore that
these investigations must be focused on
plausible concerns and conducted in a
step-wise fashion, with early screens to
determine whether further investigation
is necessary. Similarly, although it will
be necessary in some cases—
particularly at facilities with large and
complex cleanup problems—for the
owner/operator to analyze a wide range
of cleanup alternatives, at most RCRA
facilities a more limited analysis will be
appropriate. For example, when the
appropriate remedy is self-evident (e.g.,
drum removal and treatment to best
demonstrated available technology
(BOAT)), it may be unnecessary to
evaluate alternatives that would not be
adopted. Similarly, where an owner/
operator proposes a remedy that is
effective and protective, it may be
appropriate to approve the remedy and
avoid continued studies that would
serve only to delay cleanup. In either
case, the permit would establish
performance standards in the form of
cleanup levels. If the remedy failed to
achieve these standards, it would have
to be modified accordingly. Section
VLH5 of the preamble discusses in
further detail the issue of the technical
impracticability of achieving a remedial
requirement given a specified remedy.
In managing the corrective action
program, the Agency will emphasize
early actions and expeditious remedy
decisions. One of the Agency's
overriding goals in managing the
corrective action program will be to
expedite cleanup results by requiring .
sensible early actions to control
environmental problems on an interim
basis, and using flexible and pragmatic
approaches in making final remedy
decisions. EPA believes that in many
cases it will be possible to identify early
in the corrective action process actions
which can and should be taken to
control exposure to contamination, or to
stop further environmental degradation
from occurring. Such interim measures
may be relatively straightforward, such
as erecting a fence or removing small
numbers of drums, or may involve more
elaborate measures such as installing a
pump and treat system to prevent
further migration of a ground-water
contaminant plume. In another example.
where it is obvious that the eventual
remedy will require excavation and
treatment or removal of contaminated
"hotspots." such action should be
initiated as an interim measure, rather
than deferring it until after final remedy
selection.
Final remedy decisions must be based
on careful judgments and sound
technical information. However, today's
proposed rule provides for considerable
flexibility in structuring studies and
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Fedeial Register / VoL 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
•electing remedies. It is EPA's intention
to use that flexibility to streamline die -
remedy development/decision process
whenever feasible. Corrective Measure
Studies should focus on plausible
remedial options, and should be scaled
to fit the complexity of the remedial
situation. Obvious remedial solutions
should not be impeded by unnecessary
studies. Voluntary cleanup initiatives by
owner/operators that are consistent
with EPA's cleanup goals will be
encouraged as a means of expediting the
remedial process.
B. Cleanup Coals for Corrective Action
EPA's goal in RCRA corrective action
is, to the extent practicable, to eliminate
significant releases from solid waste
management units that pose threats to
human health and the environment and
to clean up contaminated media to a
level consistent with reasonably
expected, as well as current uses. The
timing for reaching this goal will depend
on a variety of factors, such as the
complexity of the action, the immediacy
of the threat the facility's priority for
corrective action, and the financial
viability of the owner/operator.
However, the final goal of cleanup
would remain the same.
It should be recognized that EPA's
emphasis in today's rula on minimising
further releases means that corrective
action will frequently require source
removal source control and waste
treatment In this respect today's rule
reflects a shift in fmptm«u from current
RCRA corrective action requirements
for ground-water releases from
regulated units. These requirements
currently focus on cleanup of the ground
water, but not on control of the source.
However. EPA believes that it will
frequently be impossible to control
releases and ensure the long-term
Bffectiveness of remedies without
lignificant source control For example,
i response action that focuses entirely
m remediation of the contaminated
nedium may meet acceptable cleanup
itandards in the short term, but
ontinued leaking could lead to
inacceptable releases in the future as
be source continues to leak Therefore.
oday's rule explicitly provides EPA
uthority to require source control
(tee of the more controversial issues
slated to corrective action is the
teanup goals for contaminated media.
r "how clean is clean," EPA ban nit
ttempted in this rule or elsewhere to
itablish specific cleanup levels for
tfferent hazardous constituents in each
edium. Instead. EPA believes that
fferent cleanup levels will be
ipropriate in different situations, and
at the levels are best established as
part of the remedy selection process.
Generally, however, the cleanup must
achieve protective levels for future as
well as current uses. This is the
approach taken in today's proposal
To be "protective" of human health.
EPA believes that cleanup levels for
carcinogens must be equal to or below
an upperbound excess lifetime cancer
risk level of 1 in 10.000 (1X 1(T *). As
proposed today, cleanup levels would
be selected within the upper bound
IX10'*1 to 1X10~* risk range during the
selection of remedy process; however,
remedies at the more protective end of
the range would ordinarily be preferred.
For non-carcinogens, cleanup levels
would be set at a level at which advene
effects would not be expected to occur.
The application of this approach to
specific media is described below.
Ground water. Potentially drinkable
ground water would be cleaned up to
levels safe for drinking throughout the
contaminated plume, regardless of
whether the water was in fact being
consumed. Where timvtmnm
contaminant levels (MCLs) established
under the Safe Drinking Water Act are
available for specific contaminants.
these limits generally will be used;
otherwise, the levels would be set
within the protective range. Alternative
levels protective of the environment and
safe for other uses could be established
for ground water that is not an actual or
reasonably expected source of drinking
water.
Soil. Contaminated soil would be
remediated to levels consistent with
plausible future patterns of use. For
example, where access to an area would
be unrestricted, cleanup would generally
be required to levels appropriate for
residential development At industrial
sites or sites dedicated to long-term
hazardous waste management cleanup
to less stringent levels might be
appropriate, although institutional
control* could be necessary to ensure
that the use pattern did not change.
Surface water. Releases to surface
water should be remediated to levels
consistent with potential uses. For
example, where surface water is
designated for drinking water or is a
potential drinking water source, cleanup
to drinkable levels would be required In
the case of surface water, environmental
effects are likely to be particularly
important because levels protective for
humans may often be insufficient for
protection of aquatic organisms.
Air. Like soil air releases from solid
waste management units would be of
concern where they posed a threat to
humans or the environment under
plausible current or future use patterns.
Typically, corrective action involving air
concerns would involve source control
to minimiMt further releases.
C. Major Elements of Today'* Proposal
The principles described above will
shape EPA's general approach to
corrective action, and they serve as
operating assumptions behind today's
notice. Today's proposal will establish
the basic framework for the corrective
action program, both for EPA and
authorized States. More specifically, it
codifies the procedures for identifying
problems and selecting remedies at
RCRA facilities; the standards for
cleanup, including the establishment of
cleanup levels; and the standards for
managing cleanups and the wastes
generated by cleanups. The major
elements of the proposal are
summarized below.
Permitting procedures and permit
schedules of compliance. Today's
proposal which implements section
3004(u), addresses corrective action at
facilities seeking RCRA permits.
Corrective action requirements will be
imposed on these facilities directly
through the permitting process and will
be incorporated into permits through
schedules of compliance. Typically,
before a permit is issued. EPA or an
authorized State would conduct an RFA
at the facility to determine whether a
potential problem existed. Where a
likely release was found, the permit
would contain a schedule of compliance.
as specified in proposed { 264.510,
requiring a remedial investigation
focusing on the specifics of the likely
release. This schedule of compliance
would be a part of the permit and
would be successively modified, as
necessary, as studies and corrective
actions at the facility proceeded.
Trigger or "action levels. " Where
contamination is Identified during the
facility investigation. EPA or an
authorized State will have to make a
decision on whether further analysis,
including analysis of potential remedies.
is appropriate, or whether the
contamination is at an inatgntflr^nt
level For this reason, the rale
incorporates the concept of "action
levels"— levels that if found in the
environment wfll typically trigger a
Corrective Measure Study. Under
today's proposal action levels would be
established in the initial permit or. in
some cases, through a permit
modification after a release has been
identified.
Section 254:521 of the proposal
establishes the general principles by
which action levels would be
established for each medium. To provide
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guidance for RCRA pennit writer*.
industry. and the public, today**
proposal includes in Appendix A of this
preamble values that the Agency
believes may be appropriate as action
levels for a number of hazardous
constituents in different environmental
media. These levels would be
incorporated individually into permits
through the permitting process.
If environmental levels were found to
be below the action levels, no further
action would ordinarily be required.
However, even if an action level ha*
been exceeded, the proposal in 1 264514
would allow the owner/operator to
demonstrate that no action was
necessary. For example, if ground water
were not a potential source of drinking
water because of high levels of natural
contamination, an owner/ operator might
successfully argue that cleanup was
unnecessary. In this way, action level*
would constitute rebuttable
presumptions. This issue is discussed in
more detail in section VL&2 of this
preamble.
Corrective Measure Study and
remedy selection. Typically, if an action
level has been exceeded, the faculty
owner/operator would be required
under the proposal to conduct a
Corrective Measure Study (CMS). The
purpose of the CMS is to identify and
evaluate potential remedies. EPA
anticipates that. In a few cases, owner/
operators of larger sites with complex
environmental problems may need to
evaluate several alternative »
approaches hi determining the most
appropriate remedy for the facility. For
most RCRA facilities, however, it will be
possible to abbreviate the analysis, and
frequently it may be appropriate for the
owner/operator to propose a single
alternative, which EPA would approve
or disapprove. The proposed regulation
in 1 264£22 gives the Agency the
necessary flexibility to vary the soope of
the Corrective Measure Study.
depending on the specifics of the
situation.
EPA would approve or select the
remedy under the standards and criteria
proposed in 1 261525. Proposed
J264.525(a) would require the remedy to
be protective of human health and the
environment to achieve media deamm
standards, to minimize further releases,
and to comply with subtitle C and other
waste m*m«ff*™^nt standards. In
selecting the remedy, the Agency would
be required to consider a wide range of
factors, such as the remedy's short- end
long-term effectiveness and ill
practicability. These factors are
generally comparable to the factor*
considered by the Agency in selecting
Superftmd remedies under 1300430 of
the NCP. (See 55 FR 8668. March 8.
1990.)
Remedies selected mA*~ | 264525
would require formal permit
modifications, with opportunity for
public comment and rights of appeal
After public comment, the proposed
permit schedule of compliance would be
amended, (if necessary) and approved.
to require that the owner/operator
develop a specific remedial design and,
after approval of the design, carry out
the remedy.
Cleanup levels. The Agency's goal is
that remedies clean up to levels
determined to be protective of human
health and the environment EPA's
general cleanup goals are described in
section B above and in section VLF.5 of
this preamble. Specific levels for each
facility, consistent with these goals,
would be established during the remedy
selection process and would be
incorporated into the pennit and made
available for public comment
Where protective levels could not be
attained, or where wastes were left on
site in disposal units, long-term
management would be required through
the permit
Standards for management of
corrective action waste. Proposed
§ 8 264.550-284.552 would establish
standards for conducting corrective
action and handling wastes generated
during corrective action. If corrective
action waste meets the RCRA regulatory
definition of hazardous it would have to
be handled under the proposal as
hazardous waste. With some limited
exceptions, new units built to treat
store, or dispose of this waste on-site
would have to comply with 40 CFR part
264 performance standards for
hnyjji^fluf waste "n|*« Similarly,
hazardous waste shipped off site would
have to be sent to RCRA subtitle C
facilities.
The rule would also establish more
flexible standards for temporary
treatment and storage unit* developed
during the course of corrective action.
Completion of remedy. Proposed
1 261530 would establish requirement*
for remedy completion. JUmU** to RCRA
closures, an independent •"fl*"***' or
other Qualified profesffiirtial would have
to certify completion of the remedy, and.
in addition, public
would be required before the Agency
made • final decision on whether the
remedy had been Bon?p|*tffd.
In some cases, it Bngm become clear
ta the course of a remedy that H was not
allow termination of tin remedial action
and waiver of tt>* ^M^TO standard.
However, if environmental
contamination remained at i
cleanup level* specified m the permit la
this case, proposed 8 264J31 would
levels, long-term institutional or other
controls would be required to prevent
human and environmental exposure.
These requirements and alternatives
that the Agency considered are
discussed in more detail hi the following
sections.
VL Section-by-Section Analysis
A. Purpose/Applicability (Section
264.500)
1. Conforming Changes to Previous
Codification of§3004(u) and General
Discussion. In today's proposal EPA is
establishing a new subpart S to 40 CFR
part 264. This section of the proposed
rule sets forth the general applicability
of the proposed subpart S regulation*.
The procedures and technical
requirements of subpart S apply to any
facility seeking a permit under section
3005(c)ofRCRA.
The language of 1264.500(a) through
S 264.500(d) reiterates the statutory
language of section 3004(u) and section
3004(v). Proposed (9 264.500 (b), (c). and
(d) have already taken effect as a final
rule following public notice and
comment and are codified at 40 CFR
264.101 (on July IS, 1965.50 FR 28702:
and December 1.1987.52 FR 45788). It is
not the Agency's intention to reopen for
public comment the substance of these
pre-existing provisions. The Agency
seeks comment only on the minor
language changes reflected in { 264.500
(e.g.. compare the first sentence of
{ 264.101(b) with the first sentence of
{ 264.500(c)). and its proposal to move
these provisions from S 264.101 to
8264.500.
Proposed f 264JOO(a) clarifies mat
subpart S applies to corrective action for
all SWMUs, including regulated units
(defined hi S 284JO(a)(2) as any landfill
surface impoundment waste pile, or
land treatment unit that received
hazardous waste after July 26,1982).
Corrective action for releases to ground
water from regulated unit* is currently
governed by 8 264.100. Subpart S will
apply to the investigation of releases to
ground water from other SWMUs.
Releases to other media (air. soil and
surface waters) from both regulated
units and other SWMUs will also be
governed by subpart S.
The Agency intends to modify the
8 264.100 standards to be consistent
with the applicable sections of subpart
S. Thus, regulated units and other
SWMUs would be subject to thr same
standards Cor identifying and
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Federal Register / Vol. 85. No. 145 / Friday. July 27, 1990 / Proposed Rules
implementing necessary remedial
action. However, regulated units will
continue to be subject to slightly
different standards for identifying and
confirming unacceptable releases to
ground water. EPA believes-that this
distinction between regulated units and
the larger universe of SWMUs is
justified by the slightly different
function of investigating procedures in
the context of regulated units; the
purpose of the ground-water detection
and compliance monitoring programs in
subpart F is primarily preventive, rather
than essentially responsive like the
subpart S program.
The statutory language of section
3004(u). repeated in 55 264.500 (b) and
(c), allows EPA to issue a RCRA permit
with a schedule of compliance for •
investigating and correcting releases,
rather than delay issuance of the permit
until cleanup has been completed. This
will allow more prompt permitting both
of interim status facilities, bringing them
under the more stringent 40 CFR part 264
standards sooner, and of new facilities,
allowing more rapid expansion of
treatment storage, and disposal
capacity.
Schedules of compliance, which are
enforceable components of the permit,
will thus be the primary vehicle by
which EPA will specify the procedural
and technical requirements that owner/
operators must follow to achieve
compliance with their subpart S
responsibilities. EPA is proposing
specific procedural requirements for
corrective action schedules of
compliance, including requirements
associated with modifications to the
schedules, in today's rule as
amendments to the existing 40 CFR part
270 permit regulations.
As specified in proposed 1264.500(b).
subpart S regulations will apply to all
facilities seeking permits under subtitle
C of RCRA (with the exception of the
specific permits identified in proposed
6 264.500(f))- Permits subject to subpart
S include post-closure permits, as well
as permits issued to operating
hazardous waste management facilities.
Further discussion of the applicability of
post-closure permit requirements and
their relationship to section 3004(u)
corrective action is discussed in the
preamble to the Second Codification
Rule (December 1,1987.52 FR 45788).
2. Exceptions to Applicability.
Today's proposed 8 264.500(f) lists four
types of RCRA "permits" to which the
subpart S regulations would not apply.
Each is discussed below.
a. Permits for Land Treatment
Demonstrations. Current RCRA
regulations for hazardous waste land
treatment units (see 1270.63(a) and
§ 264.272) provide for a two-phased
permit process in certain circumstances.
A "permit" can be issued to a facility
with permit conditions which cover only
the activities needed to demonstrate
that the hazardous waste constituents
can be completely degraded,
transformed, or immobilized in the
treatment zone. Such a permit does not
address the full RCRA standards (e&.
financial assurance, general facility
standards) that apply to land treatment
facilities. In the absence of permit
conditions addressing full RCRA facility
standards, this first-phase
demonstration permit is not considered
a full RCRA permit issued under the
authority of section 3005. Once the
demonstration is successfully completed
and the actual operating permit (i.e.,
second part of the two-phased permit)
for the land treatment unit is issued, the
subpart S corrective action requirements
will apply.
b. Emergency Permits. Section 270.61
of the RCRA regulations provides for
issuance of emergency permits, not to
exceed 90 days in duration, where
immediate actions that involve
treatment storage, or disposal of
hazardous waste are necessary to
protect human health and the
environment The emergency permit
provision was included in the RCRA
regulations as a way to provide a
mechanism for responses by an owner/
operator in true emergency situations
which could not be delayed until a full
RCRA permit could be issued. In some
cases, emergency permits can be issued
orally when followed by a written
permit within a specified time frame.
EPA does not believe it is appropriate to
apply subpart S requirements to
emergency permits, since such a
requirement would render this permit
mechanism unworkable for the quick-
response situations it was designed to
address. If a facility is required to
continue to operate under a RCRA
permit beyond the allowable time limit
for emergency permits, a full operating
permit would be required and the
facility would be subject to subpart S
requirements.
c. Pemits-by-Rule for Ocean Disposal
Barges or Vessels. Ocean disposal
barges and vessels are regulated
primarily under the Marine Protection.
Research and Sanctuaries Act (MPRSA)
The applicable RCRA regulations (40
CFR 270.60(a)) provide that operation of
vessels accepting hazardous waste for
ocean dumping are deemed to have a
RCRA permit if they have obtained and
comply with an ocean dumping permit
issued under the MPRSA. and comply
with certain RCRA administrative
requirements. The RCRA permit-by-rule
functions primarily to ensure that
certain administrative requirements of
the RCRA system—in particular, waste
manifest requirements—apply to owner/
operators of such vessels. Furthermore,
as of November 1988, the Ocean
Dumping Ban Act has in effect banned
the ocean dumping of industrial waste.
While corrective action requirements
under subpart S do apply to
underground injection control (UIC)
facilities and publicly-owned treatment
works (POTWs) with National Pollutant
Discharge Elimination System (NPDES)
permits subject to RCRA pennits-by-rule
under 40 CFR 270.60, such requirements
are necessary to ensure that corrective
action requirements apply to releases
from all solid waste management units
at these facilities not regulated under
other laws. MPRSA permits, however,
cover all portions of ocean-dumping
vessels. (Any onshore storage or
treatment facility that may be
associated with the ocean disposal
operation is required to obtain a
separate RCRA permit.) Thus there are
no unregulated units within an ocean
dumping barge "facility." Furthermore,
unauthorized releases from such vessels
are subject to regulation under the
MPRSA. EPA does not believe it is
appropriate to apply subpart S to these
vessels because the substantive
requirements of section 3004(u) of RCRA
are already effectively satisfied by
MPRSA requirements.
d. Research, Development and
Demonstration Permits. EPA does not
believe that RCRA requires the
application of section 3004(u)
requirements to facilities seeking a
research and development
demonstration permit under section
3005(g) of RCRA. The conference report
on section 3004(u) expressly states that
the provision is intended to apply to
facilities seeking a permit under section
3005(c) of RCRA. Accordingly, facilities
seeking a permit under section 3005(g)
would not automatically be
encompassed by section 3004(u).
Moreover, the reading of section 3004{u)
suggested by the conference report is
supported by the statutory language of
section 3005(g). Section 3005(g)(l)
provides that the Regional
Administrator shall include such terms
and conditions in research' and
development demonstration permits as
s/he deems necessary to protect human
health and the environment including
provisions related to monitoring,
financial responsibility and remedial
action. Section 3005(g)(l) further
provides that these provisions may be
established case-specifically in each
permit without the establishment of
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30807
separate regulations. Accordingly, the
plain language of section 3005(g){l). and
the legislative history of section 3004(u)
both suggest that research and
development demonstration permits can
be subject to case-specific remedial
conditions in the permit as determined
to be necessary, and need not be subject
to the general corrective action
regulations developed under section
3004{u).
3. Voluntary Corrective Action.
Today's proposal for corrective action
under the authority of RCRA section
3004(u) applies to RCRA facilities which
are seeking permits under RCRA subtitle
C Certain facilities where RCRA
hazardous wastes are present and
where corrective action may be needed,
are not required to obtain subtitle C
permits, and, therefore, are not subject
to today's rule. For example, facilities
which generate hazardous wastes and
accumulate and store the wastes on site
for less than 90 days prior to shipment to
another facility are not subject to
permits or to today's proposed rule.
In a number of cases, owner/
operators not subject to a RCRA permit
have expressed an interest in
proceeding with corrective action in an
attempt either to reduce their liability or
to preclude subsequent Agency or State
actions. Some activities conducted
during voluntary corrective action may
require a permit if hazardous waste is
involved (eg., excavated waste is
placed into a disposal unit or stored on
site for more than 90 days).
Current regulations, however, provide
significant flexibility for non-permitted
facilities to undertake corrective action
without a RCRA permit For example. 40
CFR 26L34 allows generators to
accumulate hazardous waste on site in
tanks or containers for up to 90 days
without a permit or interim status, as
long as certain conditions—most
importantly compliance with tank and
container standards of 40 CFR part
265—are met In addition, this authority
allows generators to treat hazardous
waste in tanks during the accumulation
period. Under RCRA regulations, a
facility owner/operator conducting
voluntary corrective action involving
hazardous waste could often be
considered a generator. One approach to
achieving cleanup without triggering the
need to obtain a subtitle C permit would
be to store or treat such generated
wastes in tanks within the accumulation
period, so long as the wastes remained
on site for less than 90 days, and other
conditions of i 26234 were met
In addition, voluntary corrective
action could take place under a consent
decree issued under section 7003 of
RCRA, This authority allows EPA (or an
authorized State with comparable
authority) to require remedial action in
the case of an imminent and substantial
threat to human health or the
environment "notwithstanding any
other provisions of this Act" Thus,
under this authority, EPA could order a
facility to take corrective action, while
at the same time waiving permit
requirements. Any facility interested in
taking corrective action under this
authority should consult with the
appropriate Region or authorized State
to explore the possibility of a section
7003 consent order.
The concept of "voluntary" corrective
action may also apply to owner/
operators who have been issued permits
with corrective action schedules of
compliance. Some facilities, such as
those with small or low-risk
contamination problems, will be of
relatively low priority for expending the
substantial resources required to
oversee investigations and studies and
make remedy decisions. For those
facilities. EPA's oversight attention
could be deferred for several yean
while the program focuses on high
priority facilities with major
environmental problems. However,
owner/operators of lower priority
facilities may wish, for various reasons,
to expeditionsly initiate cleanup actions.
rather than wait for EPA to begin
actively pursuing corrective action for
the facility. EPA strongly encourages
owner/operator cleanup initiatives at
permitted facilities, and intends to
facilitate soch actions by Tninimtrino
any administrative obstacles which may
impede cleanup.
Owner/operators may take a wide
range of remedial-type activities at
RCRA permitted facilities without
triggering the need for formal approval
by the Agency or modification of the
permit Such activities include, for
example, treatment storage, or disposal
of any non-hazardous solid wastes;
excavation of hazardous wastes for
disposal off site: less-than-90-day
storage or treatment of hazardous
wastes in tanks; and treatment of
contaminated ground water in an
exempt wastewater treatment unit
However, some activities which may be
necessary to achieve corrective action
goals at the facility would require a
permit modification. Such activities
might include creation of a new
hazardous waste land «tiffyf' unit
consolidation and/or movement of
hazardous wastes between SVVMUs at
the facility, or construction (or
movement on site) of a new hazardous
waste incinerator to manage corrective
action wastes.
The Agency intends to pursue an
approach to this type of "voluntary"
corrective action which will provide
sufficient Agency oversight over cleanup
activities to prevent possible adverse
effects of cleanup actions without
creating disincentives to owner/
operators who wish to take a proactive
position vis-a-vis their corrective action
responsibilities. This approach would
encoura
EPA and the State of any remedial-type
activities being undertaken at the
facility, even though the activities are
not subject to formal Agency approval.
For proposed cleanup activities that are
subject to permit modification
requirements, the owner/operator would
be required to submit a request for a
Class L 0 or in permit modification, or a
request for temporary authorization for
the activities. (See the final permit
modification regulations at 53 FR 37912.
September 28,1988.) In the request for a
permit modification (or temporary
authorization), the owner/operator
would be expected to include: (1) A
description of the remediation initiative.
including details of the unit or activity
that is subject to permit requirements;
and (2) an explanation of how the
proposed action is consistent with
overall corrective action objectives and
requirements outlined in today's
proposed regulation. EPA expects that
the corrective action regulations
proposed today will offer owner/
operators clear guidance in fashioning
acceptable remedies and making such
showings of consistency.
EPA's review of the application would
focus on the units or actions subject to
the permit modification requirements; it
would not however, focus on whether
the proposed cleanup action as a whole
satisfies the subpart S requirements.
Rather, EPA will screen the cleanup
proposal to ensure that it would not
pose unacceptable risks to human health
and the environment [&g» by producing
undesirable cross-media impacts) or
interfere with attainment of the final
remedy at the site (eg., by creating a
new unit over an area of soil
contamination which may later need to
be treated or removed to health-based
levels). Following this review, the •
Agency would approve or disallow the
application.
Where a permit modification is
approved under these circumstances,
the modification will make clear that the
voluntary activities initiated for
corrective action purposes may not be
the final remedy, and that those
activities, when completed, will not
necessarily absolve the owner/operator
from further cleanup responsibilities at •
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later date. This will also hold for
cleanup actions reviewed by the Agency
that are not subject to permit
modifications. It is not possible for the
Agency to delegate to owner/operators
the ultimate responsibility for ensuring
that remedial activities fully satisfy
RCRA's statutory requirement for
protection of human health and the
environment
The Agency solicits comments on the
approach to voluntary corrective action
described above.
B. Definitions (Section 264.501)
EPA is today proposing to define five
key terms which apply specifically to
this subpart
1. Facility, In the July 15,1985,
Codification Rule. EPA interpreted the
term "facility" in the context of section
3004(u) to mean all contiguous property
under the control of the owner/operator
of a facility seeking a permit under
subtitle C. This interpretation was
upheld in a decision of the U.S. District
Court of Appeals (United Technologies
Corporation vs. U.S. EPA. 821 F2d. 714
(DC Cir. 1987}). Thus, by proposing this
interpretation as the definition of facility
in today's rule. EPA is not modifying its
basic interpretation as previously
elaborated for the purpose of
implementing section 3004(u). There are,
however, several aspects of this
definition which merit further
clarification.
The definition of facility in today's
proposal at 8 264.501 is not intended to
alter or subsume the existing—and
narrower—definition of "facility" that is
given in 40 CFR 260.10. That definition
describes the facility as all
contiguous land and structures * * *
used for treating, storing or disposing of
hazardous waste * * *" EPA intends to
retain this definition for the purposes of
implementing RCRA subtitle C
requirements, with the exception of
subpart S corrective action (including
those provisions governing corrective
action for regulated units). At the same
time, however, the Agency is reviewing
its uses of the term "facility" in other
parts of the subtitle C regulations to
ensure consistent usage.
Today's proposed definition refers to
"contiguous property" under the control
of the owner/operator. Several
questions have been raised as to the
Agency's interpretation of "contiguous
property" in the context of defining the
area! limits of the facility. Clearly,
property that is owned by the owner/
operator that is located apart from the
facility (i.e.. is separated by land owned
by others) is not part of the "facility."
GPA does intend, however, to consider
property that is separated only by a
public right-of-way (such as a roadway
or a power transmission right-of-way) to
be contiguous property. The term
"contiguous property" also has
significant additional meaning when
applied to a facility where the owner is
a different entity from the operator. For
example, if a 100-acre parcel of land
were owned by a company that leases
five acres of it to another company that
in turn, engages in hazardous waste
management on the five acres leased,
the "facility" for the purposes of
corrective action would be the entire
100-acre parcel. Likewise, if (in the same
example) the operator also owned 20
acres of land located contiguous to the
100-acre parcel but not contiguous to
the five-acre parcel, the facility would
.be the combined 120 acres. EPA invites
comment on these interpretations of
contiguous property.
In some cases, adjacent properties
may be separately owned by two
different subsidiaries of a parent
company, where only one of the
subsidiaries' operations involves
management of hazardous wastes. In
such cases, EPA intends to consider the
ownership to be held by the parent
corporation. Thus, in the example
provided, the facility would include both
properties.
EPA acknowledges that in some
situations, "ownership" of property can
involve a complex legal determination.
EPA solicits comment and information
on the interpretation offered in general,
and specifically on the issue of how
ownership or "control" of property
should be determined in the context of
subsidiary-parent companies.
2. Release. Today's proposal includes
the definition of "release" articulated in
the preamble to the July 15,1985,
Codification Rule. This definition
essentially repeats the CERCLA
definition of release. Today's proposed
definition also includes language from
SARA which extended the concept of
"release" to include abandoned or
discarded barrels, containers, and other
closed receptacles containing hazardous
wastes or hazardous constituents.
Although this definition of release is
quite broad, section 3004(u) is limited to
addressing releases fromsolid waste
management units. Thus, there may be
releases at a facility that are not
associated with solid waste
management units, and that are
therefore not subject to corrective action
under this authority. (See discussion
below which defines solid waste
management unit)
Many facilities have releases from
solid waste management units that are
issued permits under other
environmental laws. For example, stack
emissions from a solid waste refuse
incinerator at a RCRA facility are likely
to be authorized under a State-issued air
permit. Another example would be
NPDES (National Pollutant Discharge
Elimination System, under the Clean
Water Act), or State-equivalent permits
for discharges to surface water from an
industrial wastewater treatment system.
EPA does not Intend to utilize the
section 3004(u) corrective action
authority to supersede or routinely
reevaluate such permitted releases.
However, in the course of investigating
RCRA facilities for corrective action
purposes. EPA may find situations
where permitted releases from SWMUs
have created threats to human health
and the environment In such a case,
EPA would refer the information to the
relevant permitting authority or program
office for action. If the permitting
authority is unable to compel corrective
action for the release, EPA will take
necessary action under section 3004(u)
(for facilities with RCRA permits) or
section 3008(h) (for interim status
facilities), as appropriate, and to the
extent not inconsistent with certain
applicable laws (see section 1008(a) of
RCRA).
3. Solid Waste Management Unit
(SWMU). Today's rule proposes the
following definition of solid waste
management unit
Any discernible unit at which solid wattes
have been placed at any time, iiretpective of
whether the unit wat intended for the
management of solid or hazardous watte.
Such units include any area at a facility at
which solid wastes have been routinely and
systematically released.
This definition is also derived from
the Agency interpretation discussed in
the July 15.1985, Codification Rule. A
discernible unit in this context includes
the types of units typically identified
with the RCRA regulatory program,
including landfills, surface
impoundments, land treatment units,
waste piles, tanks, container storage
areas incinerators, injection wells,
wastewater treatment units, waste
recycling units, and other physical,
chemical or biological treatment units.
The proposed definition also includes
as a type of solid waste management
unit those areas of a facility at which
solid wastes have been released in a
routine and systematic manner. One
example of such a unit would be a wood
preservative "kickback drippage" area,
where pressure treated wood is stored
in a manner which allows preservative
fluids routinely to drip onto the soil,
eventually creating an area of highly
contaminated toils. Another example
might be a loading/unloading area at a
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facility, where coupling and decoupling
operations, or other practices result in a
relatively small but steady amount of
spillage or drippage, that, over time,
results in highly contaminated soils.
Similarly, if an outdoor area of a facility
were used for solvent washing of large
parts, with amounts of solvent
continually dripping onto the soils, that
area could also be considered a solid
waste management unit
For clarification purposes it may also
be useful to identify certain types of
releases that the Agency does not
propose to consider solid waste
management units using the "routine
and systematic" criterion. A one-time
spill of hazardous wastes (such as from
a vehicle travelling across the facility)
would not be considered a solid waste
management unit If the spill were not
cleaned up, however, such a spill would
be illegal disposal, and therefore subject
to enforcement action under section
300B(a) or section 7003 of RCRA.
Similarly, leakage from a chemical
product storage tank would generally
not constitute a solid waste
management unit such "passive"
leakage would not constitute a routine
and systematic release since it is not the
result of a systematic human activity.
Likewise, releases from production
processes, and contamination resulting
from such releases, will generally not be
considered solid waste management
units, unless the Agency finds that the
releases have been routine and
systematic in nature. (Such releases
could, however, be addressed as illegal
disposal under section 300B(a) or section
7003.) EPA solicits comment on these
interpretations, and on the overall
definition of solid waste management
unit
EPA recognizes that these
interpretations have the effect of
precluding section 3004(u) from
addressing some environmental
problems at RCRA facilities. However,
EPA intends to exercise its authority, as
necessary, under the RCRA "omnibus"
provision (section 3005(c)(2)), or other
authorities provided in RCRA (e.g..
section 3008(a) and section 7003) or
CERCLA (e&. CERCLA section 104 or
section 106), or States, under State
authorities, to correct such problems
and to protect human health and the
environment
The RCRA program has identified
certain epedfic units and waste
management practices at facilities about
which questions have been raised
concerning applicability of the definition
of a solid waste management unit One
such question relates to military firing
ranges and impact anas. Such areas are
often potentially hazardous, due to the
presence of unexploded ordnance. EPA
has decided that such areas should not
be considered solid waste management
units. There is a strong argument that
unexploded ordnance fired during target
practice is not discarded material which
falls within the regulatory definition of
"solid waste." Ordnance that does not
explode, as well as fragments of
exploded ordinance, would be expected
to land on the ground. Hence, the
"ordinary use" of ordnance includes
placement on land. Moreover, it is
possible that the user has not
abandoned or discarded the ordnance,
but rather intends to reuse or recycle
them at some time in the future. In
addition, a U.S. District Court decision
(BarceUo vs. Brown, 478 F. Supp. 646,
668-669 (D. Puerto Rico 1979)), has
suggested that materials resulting from
uniquely military activities engaged in
by no other parties fall outside the
definition of solid waste, and thus
would not be subject to section 3004(u)
corrective action.
Another issue which raises questions
regarding the definition of "solid waste
management unit" relates to industrial
process collection sewers. Process
collection sewers are typically designed
and operated as a system of piping into
which wastes are introduced, and which
usually discharge into a wastewater
treatment system. The Agency believes
that there are sound reasons for
considering process collection sewers to
be solid waste management units. Such
sewers typically handle large volumes of
waste on a more or less continuous
basis, and are an integral component of
many facilities' overall waste
management system. Program
experience has further indicated that
many of these systems, especially those
at older facilities, have significant
leakage, and can be a principal source
of soil and ground-water contamination
at the facility. Although process
collection sewers are physically
somewhat unique in the context of the
types of units which have traditionally
been regulated under RCRA. EPA
believes that including them as solid
waste management units for purposes of
corrective action is well within the
discretion provided under the statute for
EPA to determine what "units" should
be subject to RCRA standards.
EPA recognizes that there may be
technical problems associated with
investigating releases from process
collection sewers, and with correcting
leakage. Information and comment are
specifically solicited on EPA's tentative
decision to treat process collection
•ewers as solid waste management
units, and on technical approaches am?
limitations to investigating and
correcting releases from such systems.
For essentially the same reasons as
described above for process sewers,
EPA also proposes to include open (or
closed) ditches that are used to convey
solid wastes as solid waste management
units; comment is also solicited on this
interpretation.
4. Hazardous Waste and Hazardous
Constituents. Section 3004(u) requires
corrective action for releases of
"hazardous wastes or constituents." The
Agency believes that use of the term
"hazardous waste" denotes "hazardous
waste" as defined in section 1004(5) of
RCRA. Accordingly, today's .proposed
rule repeats the statutory definition of
"hazardous waste" found in that
section. The term "hazardous waste" is
distinguished from the phrase
"hazardous waste listed and identified,"
which is used elsewhere in the statute to
denote that subset of hazardous wastes
specifically listed and identified by the
Agency pursuant to section 3001 of
RCRA. Thus, the remedial authority .
under section 3004(u) is not limited to
releases of wastes specifically listed in
40 CFR part 281 or identified pursuant to
the characteristic tests found in that
section. Rather, it extends potentially to
any substance meeting the statutory
definition. However, EPA believes that
use of the phrase "hazardous wastes or
constituents" (emphasis added)
indicates that Congress was particularly
concerned that the Agency use the
section 3004(u) authority to address a
specific subset of this broad category,
that is, hazardous constituents.
The term "hazardous constituent"
used in section 3004(u) means those
constituents found in appendix VIII to 40
CFR part 261. See H. Rep. No. 98-198,
98th Cong., 1st Seas. 60-61, May 17.1983.
In addition, the Agency proposes to
include within the definition those
constituents identified in appendix DC to
40 CFR part 264. Appendix DC generally
constitutes a subset of appendix VIII
constituents particularly suitable for
ground-water analyses. However, it also
includes additional constituents not
found on appendix Vffl, but commonly
addressed in ground-water analysis
conducted as a part of Superfund
cleanups.
It is EPA's intention that
investigations of releases under su jpart
S focus on the subset of hazardous
waste (including hazardous
constituents) that is likely to have been
released at a particular site, based on
the available information. Only where
very little is known of waste
characteristics, and where there is a
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Federal Register / Vol. 55. No. 145 / Friday, July 27. 1990 / Proposed Rules
potential for a wide spectrum of wastes
to have been released, wonld the
owner/operator be required to perform
extensive or routine analysis for a
broader spectrum of wastes.
5. Corrective Action Management
Unit (CAMU). The definition-of CAMU
is provided in section VLJ 3.b of today's
preamble. This section also provides a
thorough discussion of the CAMU
concept and of how the Agency intends
to define CAMUs in the context of
implementing remedies.
C. Remedial Investigations (Sections
264.510-204.513)
1. General. The RCRA Facility
Investigation (RFI) is the second phase
of the RCRA corrective action process,
and will typically be preceded by a
RCRA Facility Assessment (RFA),
conducted by EPA or the State prior to
issuance of the permit or section 3008(h)
order. The RFA is the first step in the
RCRA corrective action process, and is
analogous to the Preliminary
Assessment/Site Investigation (PA/SI)
stage of the Superfund program. The
RFA serves as a screen, eliminating
solid waste management units
(SWMUs), environmental media, or
entire facilities from further
consideration where the Agency
determines that there is no evidence of a
release or likelihood of a release that
poses a threat to human health and the
environment The RFA also serves to
focus the scope of the follow-on
remedial investigations by identifying
those releases or areas mat are of the
most environmental concern at the
facility. The RCRA RFI is comparable to
the Remedial Investigation in the
Superfund program. Because of the
similarity of the two processes and
because of their common goals, the RFI
is referred to in mis section and in the
rule by the more generic term, remedial
investigation.
As described above, EPA would
require a remedial investigation under
proposed 8 284.510 if the RFA indicated
that a release from a SWMU was likely
to have occurred or to be occurring, or,
in certain limited circumstances, likely
to occur in the future. Requirements for
the remedial investigation would be
specified by the Agency in a schedule of
compliance in the facility's permit The
schedule would typically identify the
SWMUs and environmental media that
required more detailed investigation as
well as the types of investigations
required; it would also typically require
the owner/operator to develop a plan
for conducting these investigations. The
permit would also include "action
levels" for specific constituents in
specific media under investigation. If
subsequent investigation indicated mat
these action levels had been exceeded, a
Corrective Measure Study could be
required by the Agency.
EPA has recently issued a guidance
document entitled RCRA Facility
Investigation Guidance, which describes
a menu of technical investigations that
may be appropriate to conducting
remedial-type investigations at RCRA
facilities. EPA wishes to emphasize that
the nature and scope of remedial
investigations for RCRA facilities under
proposed { 284.510 will be tailored to
the specific conditions and
circumstances at the facility.
Investigations will be focused on the
specific units, releases, and exposure
pathways that have been identified by
EPA to be of concern. In some cases, the
scope of a remedial investigation could
be limited to taking several soil samples
of a particular area of discolored soils.
Likewise, for inactive units that do not
contain substantial volumes of volatile
organic compounds, remedial
investigations will rarely need to
address air releases. In defining the
nature and scope of remedial
investigations at RCRA facilities, EPA
will endeavor to minimi™ unnecessary
and unproductive investigations, and to
focus resources on characterizing actual
environmental problems at facilities.
Today's rule, in 8§ 284.511 through
264.513, proposes a regulatory
framework (both procedural and
substantive) for conducting remedial
investigations. For more information on
technical approaches to these
investigations, readers should refer to
the RFI Guidance, which has been
included in the public record of this
rulemaking.
EPA also anticipates that remedial
investigations will typically be phased,
to avoid unnecessary investigations
where a concern, can be quickly
eliminated. Because of the importance of
accurate data, and the likely need to
extend or modify the analysis as data
are developed, the remedial
investigation will often, in addition,
require a high level of interaction
between the permittee and the Agency.
The specific contents and scope of the
investigations are described below.
2. Scope of Remedial Investigation
(§264311). Proposed 1284^11 defines in
general terms the scope of remedial
investigations which may be required
under 8 284^10. Proposed f 284.511(a)
states the general performance objective
that remedial investigations
characterize the nature, extent
direction, rate, movement and
concentration of releases, as required by
the Agency. Tfaa icope and complexity
of remedial investigations will depend
on the nature and extent of the
contamination, whether the releases
have migrated beyond tin facility
boundary, the amount of existing
informatioB on the site, the likely risk at
the site, and other pertinent factors. The
proposed general performance standard
gives considerable flexibility to the
Agency in defining the specific scope,
level of detail, and data requirements
for each remedial investigation. The
specific investigation requirements
deemed to be appropriate at a given
facility will be included in the permit as
part of the schedule of compliance.
Proposed 99 284.511(a)(lH7) provide
a menu of more specific types of
information that may be required in
remedial investigations: (1)
Characterization of the environmental
setting; (2) characterization of solid
waste management units; (3) description
of the humans and environmental
systems which are, have been, or may
potentially be exposed to the release; (4)
information that will assist the Agency
in assessing the risk posed to humans
and environmental systems by the
release; (5) extrapolations of future
contaminant movement; (6) laboratory,
bench-scale, or pilot-scale tests or
studies to determine the feasibility or
effectiveness of treatment or other
technologies which may be appropriate
in implementing remedies at the facility;
and (7) statistical analyses to aid in the
interpretation of data required in the
investigation.
The RFI Guidance describes in detail
technical approaches to characterizing
the releases and environmental settings
in remedial investigations. In addition,
the RCRA Ground-Water Monitoring
Technical Enforcement Guidance
Document (September 1988) provides
specific guidelines for characterizing
ground-water releases. Therefore, this
preamble will not describe in detail
these technical procedures.
Section 264.511(a)(lXiHv) describes
five types of information that may be
required in a characterization of the
environmental setting: Hydrogeologic
conditions: chmatotogical conditions;
soil characteristics; surface water
characteristics including sediment
quality; and air quality and
meteorological conditions. This
information would be required as
appropriate to address the concerns
identified in the RFA. Specific
requirements for the facility will be
included to the permit schedule of
compliance.
Section 264.511(a)f2) would allow EPA
to require a characterization of any
SWMU from which releases may be.
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30811
occurring or may have occurred. This
characterization, which could include
chemical and physical analyses, will
often be important in making decisions
as to potential source control measures
that may be needed. Characterization of
wastes contained in SWMUs may
involve generation of chemical and
physical data about the wastes, their
constituent breakdown, volumes,
concentrations, and other relevant data.
In some cases, unit characteristics such
as materials of constructioa age, or type
and thickness of liners may be relevant
to remedy decisions.
Section 264.511(a)(3) proposes that the
Agency may require a full "* * *
description of human and environmental
systems which are or may be exposed to
release(s)." The proximity and
distribution of exposed populations may
indicate the need for interim measures
as proposed under { 264.540 of today's
rule. Useful exposure information will
generally be available at facilities with
landfills or surface impoundments, in
the form of Exposure Information
Reports required under section 3019 of
RCRA. The RFA report may also
provide useful information on human
and environmental systems which may
potentially be exposed. Where
information available prior to permit
issuance does not adequately identify
potentially exposed populations, EPA
will require, this information, as
appropriate, to be generated as part of
the remedial investigation.
The Agency is also concerned with
the potential exposure of sensitive
environmental species or systems to
releases from SWMUs. As in the
Superfund program, the Agency intends
to carefully evaluate effects on sensitive
environmental systems, including
wetlands, estuaries, and habitats of
endangered or threatened species.
Section 264.511(a)(4) would provide
the Agency with die authority to require
information that will assist the Regional
Administrator in the assessment of risks
to human health and the environment
from releases from solid waste
management units. Information
collected under S 264.511(a)(3) also
would be used in the assessment of risk.
The risk assessment would integrate
information on exposed human and
environmental systems and information
on contaminant concentrations to assess
the magnitude of threat* to exposed
populations. The Agency may perform •
risk assessment to determine whether
interim measures are appropriate prior
to selecting the final remedy or to
evaluate whether a determination is
warranted so that no further action is
necessary (under proposed | 264.514).
The permittee should refer to chapter
vm of the RFI Guidance for information
regarding the Agency's expectations for
data that may be needed to conduct a
risk assessment
Section 264.511(a)(5) would provide
the authority for the Agency to require a
permittee to submit information that
extrapolates future contaminant
movement. Such information could be
important in determining whether
interim measures will be required to
prevent further migration of
contamination and what measures are
likely to be effective in doing so. In
addition, extrapolated contaminant
movement will be important in
assessing the adequacy of proposed
schedules of implementation of the
remedy.
Section 264.511(a)(6) would provide
the Agency with the authority to require
"* • * * laboratory, bench-scale, or pilot-
scale tests of studies to determine the
feasibility or effectiveness of treatment
technologies * • * that may be
appropriate in implementing remedies at
the facility." It is often difficult, and
sometimes impossible, to predict the
effectiveness of treatment technologies
accurately without data from bench- or
pilot-scale studies. Experience in the
Superfund program has shown that -
bench-scale and pilot-scale studies can
be useful both in developing potential
remedies and in predicting the
effectiveness of alternative approaches.
Typically, such studies would be
performed during the Corrective
Measure Study (CMS) (which may be
required after a contaminant
concentration level specified in the
permit as an "action level" is exceeded).
However, in some cases such studies
may need to be initiated during the
remedial investigation to prevent delays
in cleanups, and the Agency should
have the regulatory authority to require
this. For example, at SWMUs at
facilities where confirmed releases have
occurred over a long period of time and
where wastes placed in those SWMUs
wen highly toxic OF mobile, it should
not be necessary to wait for the CMS
phase of the corrective action process to
begin to evaluate, on a small scale, the
effectiveness of various treatment
technologies in achieving protective
concentration levels in the contaminated
medium.
Section 264.511(a)(7) would provide
the authority for die Agency to require a
permittee to perform statistical analyses
to aid in the interpretation of data
collected through remedial
investigations required under 1264.510.
For example, such statistical analyse*
may be needed to determine whether
measured concentrations of
contaminants exceed action levels.
Section 284.511(b) would authorize the
Regional Administrator to specify the
constituents and parameters for which
samples collected during remedial
investigations would be analyzed.
Generally, analyses required will be
limited to certain hazardous wastes or
hazardous constituents listed in
appendix Vm of 40 CFR part 261 or
appendix IX of 40 CFR part 264 that are
known or suspected to have been
released from the unit However, in
some cases, where the wastes disposed
in the unit are unknown to the owner/
operator, or the unit is known to contain
a hazardous substance(s) not included
on either appendix VTH or DC referenced
above, additional analyses may be
required. In the first case, it may be
necessary to have an initial analysis
which is designed to scan, for example,
for all appendix IX constituents. Further
analyses may then be limited to
constituents which are found to be
present in the initial sample. In addition,
EPA may stipulate a requirement to
analyze for substances not on either
appendix Vffl or DC (see preamble
discussion on the definition of
"hazardous waste"). Authority to
specify the analyses to be performed,
and for which constituents, will be
important in ensuring that quality data
are developed to accurately characterize
releases, and to support no further
action decisions that may be
appropriate.
3. Plant for Remedial Investigations
(§264.512). Under today's proposed
| 264.512, permittees may be required to
submit a plan for conducting the
remedial investigation if an
investigation is determined to be
necessary. The Agency considered, but
is not proposing, making submittal of
such plans an absolute requirement: that
is, expressing it as a "shall" rather than
a "may". In some cases the Region or
State may have extensive knowledge of
the facility prior to permit issuance, and
may be able to specify, in detail, how
the investigations should be conducted.
In this situation, it would not be
necessary to require the owner/operator
to submit a workplan for approval.
Likewise, in some other cases the
permittee may have begun remedial
investigations under an interim status
corrective action order, under CERCLA,
or on a voluntary basis. Where the
workplan developed for investigations
prior to permit issuance is determined
by the Regional Administrator to be
adequate, it will not be necessary to
require submission and approval of the
current plan—that plan would simply be
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
incorporated into the permit In the great
majority of cases, however, the Agency
believes that plans for remedial
investigations will need to be submitted
by the permittee. The permit would
specify a schedule for submission of the
plan, as well as the elements the plan
must include. These requirements will
generally reflect the complexity of the
situation to be addressed. The Agency
considered a requirement that would
impose a definite deadline for every
owner/operator required to submit an
RFI plan (e.g., 90 days after permit
issuance). Typically 90 days would be
sufficient time for an owner/operator to
develop and submit a plan for the
investigation. However, the
circumstances at some facilities may be
highly complex [&g» location above a
Karat formation) and may mean that
more than 90 days would be required to
develop an adequate plan. Further,
where the Agency must set priorities to
manage a heavy work load, facilities
suspected of having serious
contamination may be required to
submit plans more quickly. Therefore,
EPA has not proposed a specific time
period within which the plan must be
submitted, but the Agency is soliciting
comment on whether such an approach
is preferable to the more flexible
approach in today's proposal.
Plans for conducting remedial
investigations would be subject to
review and approval or modification by
the Regional Administrator. When a
workplan submitted for the Regional
Administrator's approval does not
adequately address all elements of the
investigation, the Regional
Administrator may either disapprove
the plan and return it to the permittee
for revision, or make modifications to
the plan and return the modified plan to
the owner/operator as the approved
plan. The latter approach is analogous
to the discretion provided the Regional
Administrator to modify closure plans
submitted by an owner/operator
pursuant to | 265.112 during interim
status, or through a Notice of Deficiency
during the permitting process. An
approved plan will establish both
requirements applicable to the conduct
of the investigation and a schedule for
its implementation. Section 26lS12(b)
would provide regulatory authority for
enforcing compliance with the approved
plan, which becomes an enforceable
part of the permit schedule of
compliance. In most cases, it if expected
that the initial permit will specify that
the plan becomes an enforceable
component of the permit upon approval
Alternatively, the permit may be
modified to incorporate the provisions of
the approved plan.
Proposed ( 2M.512(a) lists items that
the Regional Administrator may require
in the work plan. Such plans should
generally call for focused, staged
investigations, the scope and emphasis
of which will be refined as releases are
verified and/or found not to have .
occurred. The work plans would
generally include: A description of
overall approach; technical and
analytical approaches and methods;
quality assurance procedures; and data
management procedures and formats to
document and track the results of
investigations. In addition, the Regional
Administrator may impose other
elements, as necessary, to assure that
work undertaken will be of an adequate
quality (and an appropriate level of
detail) to serve as the primary basis for
decisions on further stages of the
corrective action process that may be
necessary at the facility.
The description of the overall
approach, which could be required
under proposed 1264.512(a)(l), would
generally include a description of the
objectives of the investigatioa its
schedule, and the qualifications of the
persons conducting the investigation.
The schedule is particularly important
because, when approved, it will become
enforceable as part of the schedule of
compliance.
A requirement to specify the technical
and analytical approaches to be
employed (under proposed
S 264.512(a)(2)) might include
specifications for the location,
construction, and frequency of «ampHng
of ground-water monitoring wells. This
would be analogous to the types of
specifications for wells that are typically
in permits for land disposal units.
Submissions of proposed quality
assurance procedures under
8 264.512{a)(3) would be evaluated to
ensure that data generated during the
investigation are accurate, and that they
can be used with confidence to support
the next steps of the corrective action
process. Guidance on appropriate
quality assurance procedures may be
found in the RCRA Facility Investigation
Guidance.
Data management procedures and
formats for documenting results of the
investigation are included in proposed
126C512(a)(4) to ensure that RFI data
and summary results are presented in a
clear and logical manner. Studies such
as the RFI typically produce large
amounts of data, such as laboratory
analyses of numerous waste
constituents from numerous samples.
Effective data management and
presentation will be necessary to ensure
that the data can be property
interpreted.
4. Reports of Remedial Investigations
(§264.513). Proposed fi 264£13 would
establish the Regional Administrator's
authority to require periodic reports that
summarize results of remedial
investigations. Timing of the reports, as
well as specific content requirements,
would be detailed in the permit schedule
of compliance. The report format may be
specified by the Regional Administrator
where necessary to ensure presentation
of data in an orderly and easily
comprehensible fashion.
The Agency considered, but is not
requiring in today's proposal, specifying
intervals for reports (e.g.. such as every
180 days). The Agency believes that
there should be flexibility in the timing
of submission of reports to reflect the
nature of the investigations which may
be required at specific facilities. For
example, where extensive monitoring-
well construction and sampling are
necessary, months may pass before
significant results are gathered. On the
other hand, where limited soil sampling
of a few SWMUs is required to confirm
or disprove suspected contamination,
meaningful results may be achieved
more quickly.
Where data generated during the
investigation (or which are newly
available from other sources) indicate
that the investigation should be
modified, the Regional Administrator
may require such modifications either
by negotiation with the facility owner/
operator, or through a modification to
the schedule of compliance.
Modifications could occur, for example.
if the investigation revealed that
contamination had migrated, or would
soon migrate, off site. In such a case,
additional activities may be imposed as
interim measures to contain the
contamination until active, longer term
remediation could begin. Further, new
information may indicate the need for
additional investigations, or the
Regional Administrator may need to
modify the investigation requirements
based on preliminary analytical results.
Proposed §{ 28t513(b) and 264.513(c)
would require the permittee to submit a
final report of the investigation to the
Regional Administrator for approval
and would allow the Agency to require
the permittee to add to or otherwise
revise the report if it did not fully and
accurately summarize the results of the
remedial investigation. This authority to
require revisions should ensure that
adequate information (both in quality
and level of detail) is presented to
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30813
support farther corrective action
decisions for the facility.
In addition to the final report, the
permittee would be required to submit a
summary of the report under proposed
S 264£13(b)(2). This summary would
also be subject to the approval of the
Regional Administrator, and would be
mailed to all individuals on the facility's
mailing list by die owner/operator. (The
facility ipiiHng list which is required
under 40 CFR 124-10(c)(l)(viil), is
developed and maintained by EPA as
part of die permitting process.) This
proposed requirement is an important
element of the Agency's overall public
involvement strategy for corrective
action, which is described in further
detail in today's preamble under section
Vm. Distribution of the summary urtbis
manner will provide notice to interested
parties as to the general nature of the
environmental problems at the facility,
what releases have been found, and
other results of investigations.
Section 284.513(e) would require that
the permittee maintain all raw data
(such as laboratory reports, drilling logs.
and other supporting information) at the
facility for the duration of the corrective
action activities and any permit period
unless the Regional Administrator
approves maintaining this information in
a different location. Although such data
will often be required to be submitted
along with investigation reports, this
requirement will ensure that when
questions do arise concerning
interpretation of data or the adequacy of
procedures used to obtain and analyze '
data, the original records will be
available for inspection.
D. Determination of No Further Action
(Section 284*14)
EPA anticipates that at some facilities
releases or suspected releases that are
identified in a RCRA Facility
Assessment (RFA), and subsequently
addressed as part of required remedial
investigations, will be found to be non-
existent or otherwise of such a nature
that they do not pose a threat to human
health or the environment. EPA
proposes providing a mechanism by
which a permittee may request a permit
modification to effectively terminate
further requirements in these cases.
Section 284.514 proposes the
procedures to be followed by both the
permittee and the Regional
Administrator when a determination of
no further action for the facility is
requested. The request for an Agency
determination that no further action is
required, and the corresponding permit
modification request must be
accompanied by supporting
documentation that demonstrates that
there are no releases of hazardous
waste (including hazardous
constituents) from SWMUs at the
facility which pose a threat to human
health or the environment (See
proposed { 264.514(a)(2).)
Under proposed 1264.514(a) the
permittee may request a modification of
the facility permit to terminate the
schedule of compliance for corrective
action based on the findings of remedial
investigations. The request would be
initiated according to the procedures of
a Class ID permit modification. (See the
September 1988 final permit
modification rule.) These procedures
would require the permittee to notify all
persons on the facility mailing list of the
proposed change and publish a
newspaper notice concerning the
request; both notices must announce the
initiation of a 80 day comment period as
well as the time, date, and location of an
informational public meeting, hi
addition, a copy of the proposed
modification and supporting
documentation must be placed in a
location accessible to the public hi the
vicinity of the permitted facility. (In the
case of proposed modifications at
facilities required to establish an
information repository under | 270.38 of
today's proposal, this location would be
the information repository.) Mora
detailed information concerning the
requirements for a Class in permit
modification may be found in the rule
for permit modifications died above and
the preamble discussion which
accompanies it
Under proposed i 284.514(b). if the
Regional Administrator, using all
available information (including
comments received during die comment
period required for Class in
modifications), determines that releases
or suspected releases investigated either
do not exist or do not pose a threat to
human health or the environment the
Regional Administrator will grant the
requested permit modification.
This determination will be
straightforward where the permittee can
demonstrate that no release has
occurred; however, such a determination
may still be supported when a release
has occurred, whether the releaae(s) is
either below or above action levels. For
example, such a determination may be
made when concentrations of hazardous
constituents exceed action levels but the
contamination is hi a highly saline
(Class m) aquifer, or where
contamination hi ground water can be
shown to have originated from a source •
outside the facility. Such a
determination would be consistent with
the provision made hi today's proposal
at S 264.525(d)(2)(ii). which allows
certain cleanup exemptions when
contamination is present in ground
water that is neither a current or
potential source of drinking water nor
potentially usable for other human
purposes. Another example where a no
further action determination might be
made is where it can be determined that
contaminant levels (and the risks posed
by them) from a release from a SWMU
are insignificant as compared to existing
"background" levels (e.g., levels that are
naturally occurring, or that have
resulted from releases from outside the
facility). This determination would be
consistent with the provision made hi
today's proposal at { 264.525(d)(2)(l).
A determination that no further action
is required under S 284.514, and the
subsequent termination of the permit
schedule of compliance for corrective
action, does not affect other
responsibilities or authorities of the
Regional Administrator. For example,
responsibilities to Include requirements
in a permit for ah* emissions control and
monitoring under section 3004(n) are not
affected by a determination that no
further action is required under { 264£14
(see preamble section VTL(13 on
relationship to section 3004(n)
standards). In addition, the authority of
the Regional Administrator to modify
the permit under 1270.41 at a later date
to require corrective action
investigations or studies based on new
information is not affected Furthermore.
despite a determination under 1264.514.
EPA may require continuing or periodic
monitoring when site-specific
circumstances indicate that releases are
likely to occur in the future. For
example, for a particular SWMU from
which releases-have not occurred, it
may be reasonable to conclude, based
on site-spedfic circumstances, that
releases to ground water might be
expected within the next several years
(/.•„ the term of the permit). In these
situations, continued monitoring
requirements could be imposed.
Where the permit schedule of
compliance has been terminated and the
Regional Administrator subsequently
determines that a new investigation or
remediation is required, die Regional
Administrator will Initiate a major
permit modification under 127041 to
require further action by the permittee.
B. Corrective Measure Study (Sectiont
2B4J20-28U24)
1. Purpose of Corrective Meatun
Study (§ 204.520). Proposed 1284520
would establish the authority of the
Regional Administrator to require die
permittee to perform a Corrective
Measure Study (CMS). The remedial
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Federal Register / Vol. 55. No. 145 / Friday. July 27, 1980 / Proposed Rules
investigation should serve to focus the
CMS on units which are sources of
releases and the media pathways
affected by such releases. The CMS is
designed to identify and evaluate
potential remedial alternatives for the
releases that have been identified at the
facility; in this respect it is analogous to
the Feasibility Study (FS) conducted for
CERCLA remedial actions.
2. Trigger for Corrective Measure
Study (§ 284.521)—a. Use of Action
Levels. Action levels are defined hi
proposed 8 264.521. Under proposed
5 264.520(a), the Regional Administrator
may require the permittee to conduct a
Corrective Measure Study whenever
concentrations of hazardous
constituents in an aquifer, surface
water, soils, or air exceed action levels
for any environmental medium.
Action levels are health- and
environmental-based levels determined
by the Agency to be indicators for
protection of human health and the
environment The Agency proposes to
set action levels for hazardous
constituents, a subset of hazardous
wastes. Many hazardous wastes, such
as some of the wastes listed in 40 CFR
261.32. are not specific constituents at
all, but rather are complex mixtures
comprised of many constituents. EPA
believes that it would not be feasible in
most cases to set action levels for such
wastes. Conversely, other hazardous
wastes are individual constituents that
do not appear on appendix Vm to 40
CFR part 261 or appendix DC to 40 CFR
part 264. When such wastes (e.g.,
asbestos) are of concern at a facility, an
action level would be specified for that
waste.
Where appropriate, action levels are
based on promulgated standards (e$.,
romdmum contaminant levels
established under the Safe Drinking
Water Act). In other cases, action levels
are established by the Regional
Administrator on the basis of general
criteria (see following discussion).
Appendix A provides examples of
concentrations derived by EPA
according to these criteria for some
appendix vm and DC constituents.
The Agency is proposing the use of
action levels because active remediation
may not be necessary at all facilities
required to perform a remedial -
investigation under proposed 1281510.
For instance, • remedial investigation
may indicate that a suspected release
identified in the RFA had, in fact not
occurred, or may indicate that levels of
contamination from a past release ore
unlikely to present • threat to human
health and the environment Therefore,
the Agency believes it should establish
a trigger that will indicate the need for a
CMS, and below which e CMS would
not ordinarily be required,
Action levels will, whenever possible,
be incorporated in the permit The
Agency believes it is advantageous to
identify action levels in the permit eo
that the public and the permittee will
know in advance what levels will trigger
the requirement to conduct a CMS. This
approach also minimizes the need for
permit modifications later in the
process, which could delay ultimate
cleanup.
In some cases there may be sufficient
information on the nature and levels of
contamination at the time of permit
issuance to establish the need for a
Corrective Measure Study. In such
cases, it might not be necessary to
include action levels in the permit
However, it is more often likely that
remedial investigations conducted after
permit issuance will yield the data
needed to determine if action levels are
exceeded; hence the need to generally
include the action levels in the original
permit
A determination that action levels
have been exceeded may occur at any
point during the RFI, or may not become
evident until the RFI is completed. In
either case, when such data become
available, the permit schedule of
compliance will provide for notification
of the permittee that the action levels
specified in the schedule have been
exceeded The notification, as provided
in proposed 8 284.520(d) would specify
which hazardous constituents exceed
action levels, for which media, and
when initiation of a CMS is required.
It is the Agency's intention that the
action level "trigger" approach as
outlined in this proposal serves to
identify early in the process the need for
initiating a Corrective Measure Study;
such studies should typically not be
delayed pending completion of all
remedial investigations. In many-
instances it will be appropriate to
conduct simultaneously the RFI end
CMS for the facility.
Action levels should be distinguished
from cleanup standards, which are
. determined later in the corrective action
process. Contamination exceeding
action levels indicates a potential threat
to human health or the environment
which may require further study. Action
levels also inform the permittee of the
levels below which tha Agency is
unlikely to require active remediation of
releases, and provide a point of
reference for suggesting and supporting
alternative remedial levels.
Section 264.520 allows, but does not
require, the Regional Administrator to
require a CMS when contamination
exceeds action levels. In some caese. the
permittee may rebut the presumption
that a CMS is required when action
levels are exceeded. For example, the
permittee may establish that the
contamination is not due to releases
from solid waste management units at
the facility. In other instances, the
permittee may demonstrate that a CMS
is not required (or only a limited CMS is
required) if the release is confined to a
Class m aquifer meeting the criteria of
8 264.525(d)(2)(ii) or to ground water
other than Class in for which the actual
and reasonably expected uses do not
merit further action. In addition, a CMS
might not be required if the CMS is
triggered by a carcinogenic hazardous
constituent that slightly exceeds the
action level but is within the 1 X10~* to
!X10~*risk range that is protective for
the site (see preamble section Vl.F.5.b
for discussion of risk range). This
"rebuttal" of the need for a CMS would
generally be made through the process
for determination of no further action,
proposed in 8 264.514.
Conversely, the fact that no
contaminants are found to exceed action
levels does not preclude the Regional '
Administrator from requiring a CMS.
Section 264.520(b) would allow the
Regional Administrator to require a
CMS if concentrations below action
levels may pose a threat to human
health or the environment due to site-
specific exposure conditions. (See
discussion in section VIJL2.h of today's
preamble, below.)
In some situations it may not be
obvious from the available data whether
concentrations in media truly exceed
action levels. This situation would arise
when some data on a hazardous
constituent indicate that it is present at
a concentration less than the action
level, while other data indicate that it is
present at a concentration greater than
the action level In such situations, the
Regional Administrator may require the
permittee under 1284.511(a)(7) to
provide additional data or statistical
analyses to aid in the determination
under § 264.520 of whether action levels
are exceeded. For example, a tolerance,
prediction, or confidence interval
procedure may be required, in which the
action level is compared to th« upper
limit established from the distribution of
the data for the concentration of the
constituent
The ^Agency considered the
alternative of establishing a mandatory
requirement to perform a statistical
analysis as part of the determination
under 8 294.520 mat action levels have
been exceeded However, the Agency
believes that it is unnecessary to make
this requirement mandatory, since in
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
30815
many cases contamination from
SWMUs will greatly exceed action
levels. The Agency believes that the
diversity of SWMUs and contamination
scenarios calls for some discretion in the
requirement to perform statistical
analyses. For example, in some
situations, contamination from a SWMU
may be known to be extensive in size
and concentration. In such situations,
statistical analyses are not needed to
determine that an action level has been
exceeded. In other situations, a
contaminant release at a SWMU may
not be extensive enough (either in size
or concentration) to clearly indicate
contaminatioa In these cases, a
statistical test may be required to
determine if a release has actually
occurred in excess of action levels. The
Agency requests comment on its
proposed approach of providing.
discretion to the Regional Administrator
in requiring statistical analyses, and on
the alternative of making such analyses
mandatory in determining whether
action levels have been exceeded.
The Agency examined but did not
propose two alternatives to requiring the
Corrective Measure Study which did not
involve the use of action levels. Under
one approach, the Agency would have
required the permittee to conduct a
Corrective Measure Study concurrently
with the remedial investigations
conducted pursuant to 1264.510. Under
this option, the Agency would have used
the same trigger for requiring a CMS as
is used to require an RFI—the finding of
an existing or likely release pursuant to
an RFA. This alternative was rejected
because of its potential for requiring
unnecessary studies.
The second alternative considered by
the Agency would have required the
permittee to conduct a Corrective
Measure Study only after completion of
the remedial investigation conducted
pursuant to proposed 1284.510 and a
determination of the need to protect
human health and the environment If
the Agency had adopted this approach,
it would not have required the permittee
to conduct a CMS until all
contamination and contaminant sources
at the facility wen fully characterized
and the need for corrective measures at •
the facility was established. The Agency
rejected the alternative because of the
delay that would be associated with
conducting these phases of the
investigations sequentially even in cases
where early data indicate that
remediation is highly likely to be
required.
The Agency also examined alternative
approaches for setting action levels. One
alternative would have required a
Corrective Measure Study whenever
background levels of contaminants were
exceeded. Experience in the subpart F
program has demonstrated that the
determination of background levels can
be a lengthy, controversial process.
Furthermore, background levels will
often be much lower than health-based
levels. Thus, this alternative was
rejected, since it might delay the
initiation of the CMS and ultimate
cleanup, and might often require
Corrective Measure Studies even where
levels were significantly below health
and environmental-based standards.
A second alternative would have
required a CMS whenever detection
limits were exceeded. This alternative
was also rejected, since detection limits
can be difficult to define and do not
directly relate to the goal of corrective
action; that is, protection of human
health and the environment.
The Agency also considered but did
not adopt an alternative for requiring
the Corrective Measure Study that
would involve the use of a range of
action levels. Under this approach, the
Agency would select constituent-
specific action levels within the 1 x 10~4 -
to ix 10"* risk range based on the
exposure scenarios proposed under
9S 264.521 (a)(2), (b), (c)(3), and (d),
depending on the likelihood that
exposure would in fact occur. For
example, if the Agency could be
convinced that there is a minimal
opportunity for human exposure through
one medium or several media, an action
level could be established at the 1X10~*
risk level This alternative was
considered because the Agency is
concerned about the possibility that
some SWMUs might be triggered into a
CMS at the ixHTMevel even though
they do not pose a threat to human
health and the environment due to a
lack of current and low probability of
future exposure. Although it is the
Agency's view that the proposed
regulations have enough flexibility to
avoid requiting a Corrective Measure
Study where it is not necessary, the
Agency is requesting comment on the
use of a range'of action levels.
The Agency believes the approach
proposed in today's role provides it with
the flexibility to require die permittee to
investigate corrective measures
sufficiently early (whether
simultaneously with the RFI or
sequentially) in the corrective action
process, while minimising the potential
for unnecessary investigations.
Experience in the Superfund program
suggests that early consideration of
potential remedies allows focused
investigations and prevents delay*
without imposing unnecessary resource
burdens on either the permittee or the
Agency.
b. Criteria for Determining Action
Levels. In several cases. EPA has
promulgated health-based standards
appropriate for action levels for specific
media. Where these standards are
available, EPA intends to use them as
action levels. The most obvious of these
are maximum contaminant levels
(MCLs), which establish drinking water
standards under the Safe Drinking
Water Act (SDWA). EPA will use these
standards to set action levels for ground
water, and, in some cases, for surface
water.
In the overwhelming majority of
cases, however, promulgated standards
will not be available. Nevertheless,
health-based levels that have undergone
extensive scientific review, but which
have not been formally promulgated, are
available for many chemicals. The
Agency is proposing today in
8 264.521(a)(2) (iHiv) criteria which
enable the Regional Administrator to
use such non-promulgated health-based.
levels to derive action levels.
Concentrations derived from non-
promulgated health-based levels that
meet the following four criteria included
in today's proposal could be used for
action levels. Pint the concentration
must be derived in a manner consistent ..
with principles and procedures set forth
in Agency guidelines for assessing the
health risks of environmental pollutants.
which wen published in the Federal
Register on September 24.1986 (51FR
33992.34006.34014.34028). Second,
toxicology studies used to derive action
levels must be scientifically valid.
conducted in accordance with the Good
Laboratory Practice Standards (40 CFR
part 762), or equivalent The Good
Laboratory Practice Standards prescribe
good laboratory practices for conducting
studies related to health effects,
environmental effects, and chemical fate
testing, and are intended to assure
quality data of integrity. The guidelines
are for ensuring scientifically valid
studies, and also may be useful as
guidance. In addition, the Agency
guidelines for assessing the health risks
of environmental pollutants (dted
above) dte several publications which
outline procedures for evaluating studies
for scientific adequacy and statistical
soundness. Third, concentrations used
as action levels must (for carcinogens)
be associated with a lxlO~*
upperbound excess cancer risk for Class
A and B carcinogens, and a 1X10-*
upperboond excess cancer risk for Class
C carcinogens. Finally, for systemic
toxicant* (referring to toxic chemicals
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
that cause effects other than cancer or
mutations), the action level must be a
concentration to which the human
population (including sensitive
subgroups) could be exposed dh a daily
basis that is likely to be without
appreciable risk of adverse effects
during a lifetime. These criteria are
similar to those upon which promulgated
health-based standards and criteria are
based. Action levels derived according
to these criteria represent valid,
reasonable estimates of levels in media
at or below which corrective action is
unlikely to be necessary.
As mentioned previously, guidance
levels are available for many chemicals.
Appendix A of this preamble lists •
concentrations for selected hazardous
constituents in water, soil, and air which
the Agency believes meet these four
criteria, EPA established these
concentrations by an assessment
process which evaluated the quality and
weight-of-evidence of supporting
toxicological, epidemiological and
clinical studies, and which relied on the
exposure assumptions in appendix D of
this preamble.
The Agency's approach to assessing
the risks associated with systemic
toxidty is different from that for the
risks associated with carcinogenicity.
This is because different mechanisms of
action are thought to be involved in the
two cases. In the case of carcinogens,
the Agency assumes that a small
number of molecular events can evoke
changes in a single cell that can lead to
uncontrolled cellular proliferation. This
mechanism for cardnogenesis Is
referred to as "nonthreshold," since
there is essentially ho level of exposure
for such a chemical that does not pose a
small but finite, possibility of generating
a carcinogenic response. In the case of
systemic toxidty, organic homeostatic.
compensating, and adaptive
mechanisms exist that must be
overcome before the toxic end point is
manifested For example, there could be
a large number of cells performing the
same or similar function whose
population must be significantly
depleted before the effect is seen.
The threshold concept is important in
the regulatory context The individual
threshold hypothesis holds that a range
of exposures from zero to some finite
value can be tolerated by the organism
with essentially no chance of expression
of the toxic effect Further, it is often
prudent to focus on the most sensitive
members of the population: therefore,
regulatory efforts are generally made to
keep exposures below the population
threshold, which is defined as the
lowest of the thresholds of the
individuals within a population.
Thus, for the chemicals on appendix A
which cause systemic toxic effects, the
Agency has estimated reference doses
(RfDs). The RfD is an estimate of the
daily exposure an individual (including
sensitive individuals) can experience
without appreciable risk of health
effects during a lifetime, and is
consistent with the threshold concept
described above.
For the chemicals on appendix A
which are believed to cause cancer, the
Agency has estimated carcinogenic
slope factors (CSFs). Since the Agency
assumes that no such threshold exists
for carcinogens, the issue to be resolved
in health assessments of carcinogens is
the probability of the occurrence of an
effect The CSF, or unit cancer risk, is an
estimate of the excess lifetime risk due
to a continuous constant lifetime
exposure from one unit of carcinogenic
concentration (e.g., mg/kg/day by
ingestion. ug/m* by inhalation).
Chemicals which cause cancer and
mutations also commonly evoke other
toxic effects. Thus, an RfD and CSF may
both be available for a single chemical.
hi these cases, the level which is lower
(more protective) should be used as an
action level. Generally, the protective
level for cancer will be lower.
For carcinogens, EPA believes that
action levels corresponding to a 1 X10~*
risk level (or 1 X10~* for Class C
carcinogens) generally are appropriate.
This is at the higher protective end of
the 10-«to 10~* risk range. (See
discussion in section VLF.5 of today's
preamble.) Using a value from the high
end of this range ensures that the
hazardous constituents screened out at
this point are those for which corrective
measures are unlikely to be necessary.
In adopting the 1X 10~4 to 1X NT* risk
range for this proposed rule, the Agency
recognized that 1 xlO~4risk levels of
constituents may not be protective at all
sites, due to multiple constituents,
multiple exposure pathways, or other
site-specific factors.
Thus, the alternative of establishing
actions levels at the low,er protective
end of the risk range (e.g.. 1X10'4) was
rejected since it would be too
insensitive a trigger—/.e., it would fail to
require a Corrective Measure Study at
some sites which may pose a threat to
human health and the environment The
Agency believes that the selected risk
levels are reasonable points to establish
action levels for carcinogens.
Section 284.621(a)(2)(iii) provides
some flexibility to die Regional
Administrator to consider the overall
weight of evidence of cardnogenidty in
setting action levels for carcinogens.
EPA has explained its classification
scheme for carcinogens based on the
weight of evidence for carcinogenicity in
its cancer guidelines (51 FR 33992). The
constituent concentrations provided as
example action levels in appendix A
reflect this approach. In this table,
known or probable human carcinogens
(known as Class A and Class B
carcinogens, respectively, under the
Agency guidelines) are listed at a
IX NT "risk level, whereas
concentrations listed for constituents for
which the weight of evidence of
cardnogenidty is weaker (known as
Class C, or possible human carcinogens
under the Agency's guidelines),
correspond to a 1 x 10~* risk level. Some
experts have argued that it is
inappropriate to weight Class C
carcinogens in this way, and that all
substances classified as carcinogens
should be weighted equally, whereas
others argue that Class C carcinogens
should be weighted more heavily (i.e.,
more stringently) because of the greater
uncertainty associated with the limited
evidence of their carcinogenicity. The
Agency solicits comments on how it
should handle Class C carcinogens in
setting action levels.
Many of the RfDs and CSFs used to
derive the concentrations listed hi
appendix A are available through the
Integrated Risk Information System
(IRIS), a computer-housed, electronically
communicated catalogue of Agency risk
assessment and risk management
information for chemical substances.
IRIS is designed espedally for Federal.
State, and local environmental health
agendes as a source of the latest
information about Agency health
assessments and regulatory decisions
for specific chemicals. (To establish an
IRIS account call Dialcom at (202) 488-
0550.) The risk assessment information
(i.e.. RfDs and CSFs) contained in IRIS,
except as specifically noted, has been
reviewed and agreed upon by intra-
agency review groups, and represents an
Agency consensus. As EPA working
groups continue to review and verify
risk assessment values, additional
chemicals and data components will be
added to IRIS. IRIS hardcopy will be
available through the National
Technical Information Service (NTIS). In
addition. EPA will routinely update
appendix A as new data on hazardous
constituents an developed.
c. Action Levels for Ground Water.
Proposed i 264.521(a) establishes action
levels for ground water hi aquifers. By
specifying the term "aquifer" hi this
context the Agency intends to define
broadly the type of ground-water
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30817
contamination situations that may
require Corrective Measure Studies,
while triggering such studies only in
situations where actual ground-water
cleanup is a reasonable remedial
approach.
The Agency considered using the term
"uppermost aquifer," but decided that
this would limit its flexibility in
addressing contamination in lower
aquifers that are not hydiaulically
connected with the uppermost aquifer.
Such a situation could arise if waste
were leaked from the casing of an
underground injection well. Thus, the
wording of S 264.521(a) will explicitly -
allow the Agency to address any such
unusual instances where solid waste
management units have contaminated
ground water that is not in an
"uppermost" aquifer as defined in
J 264.510.
The Agency also considered not using
the term "aquifer" in i 264.521(a). This
would have required Corrective
Measure Studies for ground water to be
performed even when the ground water
is of negligible use as a resource, such
as a small pocket of soil which becomes
saturated only episodically. Although
contamination in any saturated zone
that could act as a pathway transporting
contaminants to aquifers could be a
concern, the Agency would intend to
address those situations in the context
of setting action levels for soils (see
{ 264.521(d)). including "deep soils" that
could act as a ground-water
contaminant pathway.
EPA has, under a number of statutes,
promulgated standards and criteria
relevant to protection of environmental
media. Among the most important of
these are maximum contaminant levels
(MCLs) promulgated under the Safe
Drinking Water Act (42 U.S.C. section
300(f) et aeq.), which have been
incorporated into this rule as action
levels for ground water under
S 264.521(a)(l). MCLs promulgated under
the Safe Drinking Water Act are
maximum concentrations of
contaminants allowed in water used for
drinking (see appendix B). The use of
MCLs for action levels is consistent with
current RCRA ground-water protection
standards (40 CFR part 264. subpart F),
which set the interim primary drinking
water standards (MCLs) for 14
constituents (which existed at the time
subpart F regulations were promulgated)
as ground-water protection standards in
the absence of another Agency decision.
Currently there are 34 MCLs
promulgated, of which six are
microbiological contaminants, three are
radionuctides, and 25 are organic and
inorganic contaminants; the MCLs for
the chemical contaminants are listed in
appendix B.
Where MCLs are available for a
particular constituent but the ground
water at a site is not currently used for a
drinking water supply, and is unsuitable
for use as a drinking water supply hi the
future, MCLs will still ordinarily be used
as action levels (i.e., to require a CMS);
however, cleanup to the MCL might not
be required (see section VLF.5 for
discussion of media cleanup standards).
The Agency is persuaded that, in cases
where ground water is contaminated at
levels above action levels, further study
is necessary (e.g., to make sure that
sources of releases are controlled).
Where MCLs have not been
promulgated for hazardous constituents,
EPA would develop levels according to
the criteria specified in proposed
8 264.521(a)(2)(iHiv) and described in
detail above in this preamble (see
section VUL2.b). In this analysis, the
Agency would use the standard
exposure assumptions of two liters a
day for a 70 kilogram adult over a 70
year lifetime (see appendix D),
assumptions that are used extensively
throughout EPA and other agencies.
Appendix A lists levels that were
developed for water by the Agency
according to these principles and which
the Agency believes would be
appropriate for ground-water action
levels. In addition, proposed (but not yet
promulgated) MCLs would also typically
meet the criteria proposed in
ft 264.521(a)(2)(iHiv) and could serve as
ground-water action levels.
Where data are insufficient to develop
action levels according to these criteria,
the Agency would establish levels
according to the procedures in proposed
8 264.521(e). which are described in
more detail in section VLE2.g of this
preamble. The Agency solicits comment
on the proposed approach and
alternative approaches to establishing
action levels for ground water.
d. Action Levels for Air. Proposed
§ 284.521(b) Identifies criteria for
establishing action levels for air,
assuming exposure through inhalation of
air contaminated with the hazardous
constituent Appendix A lists possible
action levels that meet these criteria.
The Agency used the following
procedures to develop concentrations in
air listed in appendix A:
Note Appendix A action levels are
currently taken exclusively from the DUS
data base, and developed using only
procedures 1 sad 4; this appendix will be •
modified to include other health-based
numbers not currently on DUS. derived from
procedures 2 and 1 This is consistent with
current Superfund practices and policy.
1. Where an Agency-verified health-
based intake level for inhalation (04..
RfD) was available, that level was used
to calculate the concentration in air.
2. Where an Agency-verified level (as
in (1), above) was not available, a level
based on a valid Inhalation study was
used, even if it had not yet gone through
the formal intra-Agency verification
process.
3. If a level based on an inhalation
study (as in (1) or (2) above) was not
available, a health-based intake level
(e.g., RfD) based on an oral study was
used, with a conversion factor of one for
route-to-route extrapolation to calculate
the concentration in air—except where
such an extrapolation factor was
determined to be inappropriate. For
example, it is not appropriate where a
constituent that is a systemic toxicant
through the oral route of exposure
causes local adverse effects on the lung •
through the inhalation route. A
constituent might also be determined to
be an inappropriate candidate for route-
to-route extrapolation due to significant
differences hi metabolism or absorption.
Where the extrapolation from oral route
to inhalation route of exposure is
determined to be inappropriate, and a
level based on an inhalation study (as in
(1) or (2) above) is not available,
appendix A does not list a concentration
in air (see section VLEL2.g for a
discussion of how to set action levels
where health- and environment-based
levels are not available). While the
concentrations in air listed in appendix
A (and C) are being evaluated further by
the Agency with regard to the
appropriateness of this route-to-route
extrapolation, they will be used only as
an interim measure. The Agency will
adopt RfDs based on actual inhalation
toxicity data as soon as the data
become available.
4. The standard exposure assumption
for air typically used in Agency risk
assessments (Le.. 20m'/day for a 70
kilogram adult for a 70 year lifetime)
was used (see appendix D).
Under proposed 1264.521(a)(2). action
levels would be measured or estimated
at the facility boundary, or another
location closer to the unit if necessary to
protect human health and the
environment
The Agency has chosen the facility
boundary as the location where air
action levels are proposed to be
typically measured, for several reasons.
Measuring at the facility boundary will
have the effect of requiring Corrective
Measure Studies to be conducted
whenever potentially health-threatening
levels of airborne constituents that
originate from waste management units
-------
30618
Federal Register / Vol. 55. No. 145 / Friday. July 27. I960 / Proposed Rules
an being released to area* outiide the
facility property. The Agency recognize*
that in coma cue* this could require
owner/operators to study potential
remedial solutions where actual
remediation of air releases will not be
required—under today's proposal, the
requirement actually to remediate air
releases is tied to actual exposure; /.a,
exceedence of health-based levels at the
most exposed individual (see the
discussion of sir cleanup standards in
section VLF.74 of today's preamble).
However, under this scenario, if
exposure conditions were to
subsequently change and trigger the
need for corrective action for air
emissions, the owner/operator would be
able to more expeditiously implement
the remedy that had already been
developed in the Corrective Measure
Study. The Agency believes that
measuring action levels at the facility
boundary, while environmentally
conservative, will not represent an
undue burden on owner/ operator!.
Under today's proposal, the Regional
Administrator could, when necessary,
require action levels to be measured at
one or more locations within the facility.
An example would be if individuals
were actually residing on the facility
property, as might be the case at a
Federal faculty fag* a military base).
On-site worker exposure would not
generally be a determining factor in
establishing locations for action levels,
since such exposure is regulated by the
Occupational Safety and Health
Administration (see further discussion
in section VlF.7.a(2) of today's
preamble).
The Agency considered, but did not
propose, other locations for establishing
action levels for air releases. These
alternative locations would have
involved determining action levels at (1)
the unit boundary, or (2) the most
exposed individual. The alternative of
determining action levels at the unit
boundary was rejected as unnecessarily
stringent since it would likely have the
effect of very often triggering the need
for a Corrective Measure Study, when
no actual or potential threat to human
health and the environment existed. The
option of measuring action levels at titt
most exposed individual was not chosen
because in some cases a CMS would not
be triggered based on current locations
of receptors, even though future
residential development close to the
fadbty were planned and could result ta
exposure above action levels. The
Agency specifically requests comment
on the most appropriate location for
measuring action levels for die air
mediuv
e. Act/oa Levels for Surface Water.
Proposed S 264.521(c) identifies action
levels for surface water.
Notwithstanding these action level*.
some releases from solid waste
management units to surface water may
be subject to the National Pollutant
Discharge Elimination System (NPDES)
pursuant to section 402 of the Clean
Water Act (CWA). The CWA prohibits
the unregulated discharge of any
pollutant to waters of the United States
from any point source. Releases to
surface waters that are nonpoint sources
may be subject to die Nonpoint Source
Management Program established under
sections 206 and 319 of the CWA. If the
Agency discovers releases from sond
waste management units which are
point sources, but lack an NPDES
permit CWA authorities will generally
be used to address the release. It should
be understood that the term surface
water in this context includes wetlands.
as prescribed under section 404 of the
CWA. Section 404 permits are required
for dredge and/or fill into wetlands.
Proposed ( 2A4£21[c) specifies that
State water quality standards
established pursuant to section 303 of
the CWA that are expressed as
numerical values will be used as action
levels, where they have been
established for the surface water body
in question. However, EPA anticipates
that such numerical standards may, in
some cases, not have been established
at the time when remedial investigations
are being conducted at RCRA faculties.
In these cases, action levels may be
established as numeric interpretations
of State narrative water quality
standards.
Water quality standards both
establish water quality goals, and serve
as a basis for establishing treatment
controls, based on the use or uses which
the State designates for the receiving
water (ftg, recreation or public water
supply). The standards consist of a
designated use or uses, and the water
quality criteria which will protect such
uses. Criteria an expressed as either
numeric constituent concentration levels
or narrative statements that represent a
quality of water that supports a
particular use.
In applying narrative standards to
specific water bodies, some States have
prescribed methods for calculating
numeric values for the water body. Such
methods vary from State to State in their
complexity, the time required to
establish the numeric values, and the
procedures involved. Although deriving
these numeric interpretations from
narrative standards will often be
straightforward, the Agency expects
that in some situations the derivation of
such values could be relatively complex
and time-intensive. In such cases, the
Regional Administrator could determine
that the use of numeric interpretations
of narrative water quality standards
was not appropriate for the purpose of
establishing action levels. EPA
emphasizes that the use of such
narrative standards must not delay the
corrective action process.
Where numeric water quality
standards have not been established by
the State, and where numeric
interpretations of narrative standards
•are either unavailable or inappropriate
(for reasons described above), proposed
{ 264£21(c)(3) provides that maximum
contaminant levels (MCLs) promulgated
under the Safe Drinking Water Act will
be used as action levels, if the surface
water has been designated as a drinking
water source by the State (see
discussion in previous section on the use
of MCLs as action levels in ground
water).
In situations where a numerical water
quality standard, a numeric
interpretation of narrative standards, or
an MCL is not available for a particular
hazardous constituent in surface water
designated by the State for drinking,
proposed 1264.524(c)(4) specifies that
the criteria under 12M.521(a)(2) (i)-(iv)
be used for establishing action levels in
surface water, assuming exposure
through consumption of the water
contaminated with the hazardous
constituent The standard exposure
assumptions of two liters/day for a 70
kg adult over a 70 year lifetime in
appendix D should be used, unless
people also consume aquatic organisms
from the surface water. In these cases,
the Agency suggests mat Federal Water
Quality Criteria be used as action levels,
since they satisfy die criteria for action
levels established under 1264£21(a)(2)
(i)-(iv). Federal Water Quality Criteria
are concentrations of contaminants
determined to be protective of human
health and/or aquatic organisms.
Criteria for protection of human health
are based on exposure through drinking
water, as well as exposure through
drinking water *nH inyi«iing aquatic
organisms. Criteria for protection of
freshwater/estnarine and marine
organisms are also available. EPA has
promulgated water quality criteria for
126 pollutants under die dean Water
Act .
In situations where a numerical water
quality standard is not available for a
particular hazardous constituent in
surface water A»^^t»tmA by die State
for uses other than drinking, proposed
| 2fi4.524(c}(5) provides die Regional
-------
Federal Register / Vol. 55, No. 145 / Friday, July 27, 1990 / Proposed Rules
30819
Administrator with the flexibility to
consider the State-designated use of the
surface water in establishing a
concentration as the action level. For
example, in some surface waters
designated for industrial uses, the
Agency believes that an MCL may be
too sensitive a trigger for a CMS. In
other situations, MCLs may be too
insensitive a trigger for a CMS (for
example, in trout streams). Federal
Water Quality Criteria may provide
useful guidance in setting action levels
under } 264.524(c)(5).
If Federal Water Quality Criteria are
used as action levels, the purposes for
which such criteria were developed
should be considered in determining
which criteria are appropriate to use.
For example, for a surface water body
used for fishing and drinking, the criteria
for protection of human health based on
drinking water and eating aquatic
organisms would be most appropriate.
For Class A and Class B carcinogens,
the criteria corresponding to a 10"'risk
level should be used, whereas for Class
G carcinogens, the Agency suggests that
the criteria corresponding to NT1 risk
level be used. (See discussion of
Agency-established classes of
carcinogens and relative risk levels
considered appropriate in section
VI.E.2.C of this preamble.)
If contaminants attributable to
releases from a SWMU exceed an action
level anywhere in surface water, a
Corrective Measure Study may be
required. Proposed § 264.521(c) does not
specify where in surface waters
concentrations should be measured
against action levels. In determining
appropriate sampling locations, the
Agency will generally attempt to specify
locations in the surface water where the
highest concentrations of hazardous
constituents released from SWMUs are
expected to occur—i.e., at or near the
point or points where releases enter the
surface water. However, in some cases,
establishing the precise point(s) where
releases enter the surface water may be
difficult and time-consuming, such as in
the case of a ground-water plume in a
complex hydro-geologic setting that
flows into a lake. In these cases, the
Agency would not wish to delay the
initiation of a Corrective Measure Study
while the point of release is located, if
concentrations greater than action levels
could already be detected in the surface
water.
EPA specifically requests comment on
today's proposal for establishing action
levels for surface water.
Proposed § 264.520(b). which allows
the Regional Administrator to require a
CMS when necessary to protect human
health and the environment even when
no action levels have been exceeded,
may be particularly important for
surface water. For example, the
Regional Administrator may determine
that a threat from consumption of
aquatic organisms exists at levels at or
below the MCL, since the MCL does not
incorporate exposure through ingestion
of contaminated organisms.
A Corrective Measure-Study may also
be required under { 264.520(b) if the
Regional Administrator determines that
there is a threat to human health or the
environment from contaminated
sediments even though action levels for
surface water have not been exceeded.
The Agency believes it is important to
clarify its authority to address
sediments contaminated by releases
from solid waste management units
under sections 3004 (u) and (v) of
HSWA, although today's proposal does
not establish action levels specifically
for sediments. The Agency is currently
developing sediment criteria which,
when promulgated, may be used as
guidance in evaluating contaminated
sediments. However, no health-based or
environmental levels are currently
available which are appropriate as
sediment action levels. Thus, until such
criteria are developed, the need for
Corrective Measure Studies based on
sediment contamination will be •
determined on a case-by-case basis. The
Agency requests comment on this
approach to addressing sediments.
Finally, the Regional Administrator
may require a Corrective Measure Study
for surface water under 1264.520(b)
when a threat to aquatic health exists at
levels at or below action levels. Federal
Water Quality Criteria for protection of
aquatic health should be used as
guidance in making this determination.
t. Action Levels for Soil. Proposed
I 284.521(d) establishes criteria for
establishing action levels for soil
assuming exposure through consumption
of the soil contaminated with the
hazardous constituent Action levels
would be set on die basis of the
exposure assumptions in appendix D,
which assume a residential use pattern.
with long-term direct contact and soil
ingestion by children. Action levels for
soil would typically be measured on the
surface (generally the upper two feet of
earth).
The exception to this approach, is
where EPA has already established
standards for the cleanup of spilled
polychlorinated biphenyls (PCBs), which
are regulated under the Toxic
Substances Control Act (TSCA). The
Agency has determined that the use of
these promulgated standards, as action
levels and cleanup standards for soil, is
relevant to RCRA corrective action. This
policy is also consistent with Superfund
policy. The PCB Spill Policy under TSCA
is discussed more fully in section Vn J)
of this preamble.
Although action levels for soils are
established using direct contact
assumptions most appropriate for
surficial soils, it is intended that these
action levels will often also be used as a
presumption that a CMS may be
necessary for contaminated deep soils
which may pose a threat to ground
water in aquifers. The Agency does not
believe that generic action levels based
on the potential for hazardous
constituents in soil to contaminate
ground water can be developed at this
time, since the type of soil, distance to
ground water, and other site-specific
factors, as well as the properties of the
hazardous constituent influence this
potential. A permittee may attempt to
rebut this presumption by demonstrating
that there is no threat to human health
and the environment from such deep soil
contamination, either through direct
contact or migration to aquifers or
surface water. Alternatively,
{ 264.520(b) may be used to require a
CMS in situations where deep soils are
contaminated below action levels, but
pose a threat to ground water in
aquifers.
Although estimates of soil intake are
not as frequently used by the Agency as
are estimates of air or water intake,
appendix D provides recommended
exposure assumptions for non-
carcinogenic and carcinogenic soil
contaminants given an unrestricted use
scenario. A soil ingestion rate of 0.1 g/
day is recommended for carcinogens,
and a rate of 02 g/day, based on an
average child's body weight of 16 kg, is
recommended for non-carcinogens.
In the case of non-carcinogenic
contaminants, the oral RfD would be
used to calculate an action level, or
threshold concentration below which
adverse effects would not occur,
assuming 0.2 gram per day of soil is
consumed. Sixteen kilograms represents
an average body weight for children
aged one to six. The Agency believes
these exposure assumptions are
reflective of a conservative average
scenario in which children ages 1-6
yean (i.e., the time period during which
children exhibit the greatest tendency
for hand-to-mouth activity) are assumed
to ingest an above-average amount of
soil on a daily basis. The exposure
levels estimated in this manner are
calculated to keep exposures well below
the population "threshold" for toxic
effects (see earlier preamble discussion).
Since the toxic effect of concern is
assumed to occur once the threshold
-------
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-------
Federal Register / Vol. 55. No. 145 / Friday. July V. 1990 / Proposed Rate
a threat to persons who ingest fish
caught from that surface water.
Constituents in ground water that do not
exceed MCLs may still pose a threat
through ponding or basement seepage.
Nevertheless, the Agency believes that
with few exceptions, proposed action
levels will be adequate to identify
potential threats to human health and
the environment which necessitate a
CMS.
3. Scope of Corrective Measure Study
(§ 264.522). In the RCRA program,
corrective action requirements will be
implemented at facilities with a wide
range of different types of
environmental problems. Some RCRA
facilities might if evaluated according to
Superfund's Hazard Ranking System
(MRS), score high enough to be included
on the National Priority List On the
other hand, most RCRA facilities have
much less extensive environmental
problems, and are maintained by viable
owner/operators, who may be expected
to operate at the site for an extended
period of time. Recognizing the diversity
of the RCRA facility universe, today's
proposal has been structured to provide
the Agency considerable flexibility in
defining the scope and analytic
approach to developing Corrective
Measure Studies, consistent with the
extent and nature of the environmental
problems at the facility.
EPA anticipates that for most RCRA
facilities, the studies needed for
developing sound, environmentally
protective remedies can be relatively
straightforward, and may not require
extensive evaluation of a number of
remedial alternatives. Such
"streamlined" Corrective Measure
Studies can be tailored to fit the
complexity and scope of the remedial
situation presented by the facility. For
example, if the environmental problem
at a facility were limited to a small area
of soils with low-level contamination.
the Corrective Measure Study might be
limited to a single treatment approach
that is known to be effective for such
types of contamination. In a different
situation, such as with a large
munidpal-type landfill, it may be
obvious that the source control element
of the CMS should be focused on
containment options. EPA anticipates
that a streamlined or highly focused
CMS will be appropriate to the
following types of situations:
• "Low risk" faculties. Facilities where
environmental problems are relatively small
and where releases present minimal exposure
concems.
• High quality remedy propoMd by the
owner/operator. Owner/operators majr
propose a remedy which to highly protective
(e.g., equivalent to a RCRA -clean closure").
and which to consistent with all other
remedial objectives (reliability, etc.).
• Facilities with few remedial options. This
would include situations where then are few
practicable cleanup solutions (•£.. large
municipal landfills), or where anticipated
future uses of the property dictate a high
degree of treatment to achieve veiy low
levels of residual contamination.
• Facilities with straightforward remedial
solutions. For some contamination problems.
standard engineering solutions can be
applied that have proven effective hi similar
situations. An example might be cleanup of
soils contaminated with PCBs,
• Phased remedies. At some facilities ths
n&tufc Oi IBB ^pyiFfl^^BffttisM proolflo will
dictate development of the remedy In phases,
(tee the discussion of phased approach under
12M.S26(d)). which would focus on one
aspect (of, ground-water remediation) of the
remedy, or one area of the facility mat
deserves immediate measures to control
further environmental degradation or
exposure problems, m mess situation*, the
Corrective Measure Study would be focused
on that specific element of the overall
remedy, with follow-on studies as
appropriate to deal with the remaining
remedial netds at ths facility.
EPA recognizes that in contrast to the
above situations, some facilities with
very extensive or highly complex
environmental problems will require
Corrective Measure Studies that assess
a number of alternative remedial
technologies or approaches. The
following are examples of situations
which would likely need relatively
extensive studies to be done to support
sound remedy selection decisions:
• "High risk" facility with complex
remedial solutions. Such facilities might have
large volumes of bom concentrated wastes
and «n»itMiii«t«ii »otl». for which several
different treatment techaologias could be
applied to achieve varying degrees of
effectiveness (/.«, reduction of toxidty or
volume). In conjunction with different types
of containment systems for residuals.
• Contaminant problems for which several
very different approaches are practicable.
There may be several quite distinct technical
approaches for remediating a problem at a
facility, each of which offers varying degress
of long-term reliability, and would be
Implemented over different time frame*, with
substantially different associated cost
impacts. In such cases, remedy selection
decisions will necessarily involve a difficult
balancing of competing goals and interests.
Such decisions must be supported with
adequate information.
In addition to the above examples of '
situations calling for either a limited, or
relatively complex CMS. other studies
will fall in the middle of that range.
Given this "continuum" of possible
approaches to structuring Corrective
Measure Studies, it is the Agency's
general intention to focus these studies
on plausible remedies, tailoring the
scope and substance of the study to fit
the complexity of the situation.
The general types of analyses and
information requirements that may
potentially be required of the permittee
in conducting a Corrective Measure
Study are outlined in today's proposed
S 2M.522(a). Note that this provision
does not prescribe that any specific
types of remedies be analyzed, nor does
it define a decision process by which
remedial alternatives are "screened" or
evaluated. It is intended to provide the
decisionmaker with a range of options
for structuring a study to support the
ultimate remedy selection for the
facility.
• Proposed 12B4^22(a)(l) lists items
that the Regional Administrator may
require in a CMS for any remedy(s)
evaluated. In general sufficient
iafennatioa should be provided for the
Agency to determine that the remedy
selected can meet the remedy standards
of | 2M.525(a).
Section 2M.522(a)(l) would give the
Regional Administrator authority to
require tile permittee to perform an
evaluation of the performance,
reliability, ease of implementation, and
impacts (including safety, cross-media
contaminant transfer, and control of
exposures to residual contamination)
associated with any potential remedy
evaluated. In evaluating the
performance of each remedy, the
Agency would expect the permittee to
evaluate the appropriateness of specific
remedial technologies to the
contamination problem being addressed
and the ability of those technologies to
achieve target cleanup concentrations
(per following discussion on "target
levels").
To evaluate these factors for a
specific remedy, the owner/operator
may be required to develop specific
data. Data may bar needed on general
site conditions, waste characteristics.
site geology, soil characteristics, ground-
water characteristics, surface water
characteristics, and climate. The Agency
anticipates that permittees will collect
much of *hi« information during
remedial investigations required under
i 284.510. In some cases, important
relevant information may be included in
die part B application. To the extent that
potential remedies an identified early In
the remedial Investigation process, the
permittee can streamline his or her data
collection efforts to include data needed
for die evaluation of specific remedial
alternatives.
Analysis of a remedy's performance
and reliability should include an
assessment of the effectiveness of a
remedy in controlling the source of
-------
Federal Register / Vol S5. No. 14S / Friday. July 27. 1990 f Proposed Roles
release and its long-term reliability.
Where treatment is planned, an
assessment of treatment capability
should be provided: when waste will be
managed on-site, the details of the
management (including a description of
the units In which it is treated or -
disposed of) should be supplied.
Potential safety impacts (e&, associated
with excavation, transportation, etc.) of
the remedy should also be considered in
most cases. Further, the Agency may
require information on
implementability—such as capacity
availability or State or local permitting
requirements—to determine whether a
remedy is feasible.
The Agency is particularly concerned
about potential cross-media impacts
(intermedia transfer of contaminants) of
remedies, and therefore specifically
identified them as an area that may
require study. In addition, cross-media
impacts will be one of the factors
considered in remedy selection (see
proposed 1204425). Some remedial
technologies may cause secondary
impacts that must be considered in
selecting remedies. For example, in
some circumstances, air stripping of
volatile organic compounds (VOCs)
from ground water may release these
VOCs to the air unless specific emission
control devices are installed on the air
stripper. The Corrective Measure Study
should also determine whether other
adverse impacts from a potential
remedy will reduce its effectiveness in
achieving the cleanup goal. For example,
removal of contaminated sediments in
large, slow-moving riven may
resuspend sediments and cause more
harm than allowing the sediments to
remain in place.
Proposed 1284422(a)(2) would allow
the Regional Administrator to require
that the Corrective Measure Study
assess the extent to which appropriate
source controls could be implemented.
and contaminant concentrations
appropriate to the constituents) could
be reached by the remedy. In some
cases, bench- or pilot-scale studies may
be required to determine the given
treatment technology'sperformance on •
the particular waste at the facility. Such
studies can often save both time and
money in addressing environmental ~
remediation.
it will often be appropriate for the
Regional Administrator to specify, prior
to or during the course of the CMS,
preliminary "target" cleanup levels for
goataminents which Hw permittee
should use in evaluating the items under
12MJS22(a) (1) and (2). These target
concentrations would thus serve as
preliminary estimates of the media
cleanup standards to be established in
the remedy selection process. Target
levels might be specified to cover a
cleanup range (e&, 10" * level and a 10'*
level), or a specific level for a
constituent that would be EPA's best
estimate of the ultimate cleanup
standard, based on the information
available at the time.
There will be many situations where
the levels of cleanup that must be
achieved will dictate the kinds of
cleanup technologies considered, and
thus, the target levels specified in the
context of the CMS process will be a
critical element in shaping the study. '
However, there may also be many
situations where it would not be
necessary to specify preliminary target
levels, such as where the remedy
involves only removal of a specified
number of drums, or construction of a •
tank for dewatering sludges. Other such-
situations might be where cleanup
concentration levels do not greatly
affect the actual design of the remedial
technology (e& a ground-water
extraction system), or where the owner/
operator proposes a remedy that will
effectively achieve highly protective
levels of cleanup. In any case, however.
when target levels for a remedy are
specified, the Agency would reserve the
right to set cleanup standards different
from the target levels that were
identified, since those standards may
often be affected by remedy factors that
cannot be fully evaluated until the CMS
has been completed.
Today's proposal would also allow
the Regional Administrator to require an
evaluation of the timing of the potential
remedy (1 264J22(a)(3)), including
construction time, start-up, and
completion. The timing of a remedy will
be particularly important where
contamination has migrated beyond the
facility boundary or is nearing potential
receptors. In these cases, a prompt
remedy would be necessary. In other
cases, timing will be important in
g remedies. Some
technologies may require considerably
less construction and start-up- time than ,
others, but would require more time to
achieve the cleanup standard. For . .
example, if the permittee has a large
volume of waste which must be -
incinerated to achieve BOAT under the
land disposal restriction requirements
imposed in HSVVA, s/he may need to -
build an incinerator and successfully
complete the requirements for a trial
bum. It on the other hand, the wastes to
be removed frame 8WMU are not-
waste! subject to the land disposal
restrictions and may be disposed in an
operating hazardous waste disposal unit
at the site, far less time will be required
both to initiate and complete the
remedy. The Agency, therefore, may
require the permittee to include
information on factors affecting both
remedy initiation and completion.
The Regional Administrator may also
require the permittee to include cost
estimates for alternatives considered
(8 264.522(a)(4)). Cost information may
become a factor in the remedy selection
process when evaluating alternative
remedies which will achieve an
adequate level of protection. This
information will also serve as a first
estimate of the cost estimate required to
determine the level of financial
assurance mat the permittee must
demonstrate when the final remedy is
selected.
Finally. 1264.522{a)(S) would provide
the Regional Administrator authority to
require the permittee to assess
Institutional requirements, such as State
or local permit requirements, or other
environmental or public health
requirements, that may be applicable to
the remedy and that may substantially
affect implementation of the remedy.
State and local governments may have
specific requirements related to the
remedial activities that could affect
implementation of the remedies
evaluated hi the Corrective Measure
Study.
In addition to the elements listed hi
proposed 1264.522(a). the Regional
Administrator may include other
requirements in the scope of the CMS as
needed. Such requirements will be
specified in the permit schedule of
compliance.
As indicated above, proposed
1264.522(b) would allow the Regional
Administrator to specify one or more
potential remedies which must be
evaluated hi the CMS. The Agency is
persuaded mat this authority is
necessary to ensure that delays hi
initiating cleanup will not result from
CMS reports which evaluate only poor
or inappropriate remedial solutions.
Requirements for Corrective Measure
Studies in two particular circumstances .
contemplated under today's proposal'
merit special attention. When either a .
phased remedy (see 1264.526(d)) or a ,,'„•
conditional remedy (see \ 264J25(f)) is
contemplated for the facility, the «cppei
and timing of Corrective Measure' ]',".••"
. Studies may be adjusted to fit the
particular requirements for such .
remedies.
Proposed 1264.528(d) allows the -
Regional Administrator to specify (in the
permit modification for remedy .:
selection) that a remedy be implemented
•in phases. Such an approach is
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Federal Register / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
30823
anticipated where separable activities
are being addressed at the facility and
where, in many cases, imposition of
further remedial requirements may be
dependent on the experience and/or
knowledge gained during preceding
phases. In such a case, the CMS may
also be divided into phases to match the
remedial phases specified in the permit
modification.
Conditional remedies are authorized
under proposed 8 264.525(f). Conditional
remedies are not final remedies since
they do not necessarily meet all
standards for remedies included in
S 264.525(a); decisions must be revisited
before the permit can be terminated. If
the conditional remedy is found to meet
all S 264.525(a) standards, it may be
declared the final remedy when the
decision is revisited. If, however, further
corrective action is required to satisfy
requirements for a final remedy, a
follow-up CMS may be necessary prior
to a final remedy decision.
4. Plans for Corrective Measure Study
(§264323). This section would give the
Regional Administrator authority to
require the submission of a plan for
conducting the Corrective Measure
Study at the tine s/he determines that •
CMS is necessary. Specific requirements
for the plan and a schedule for its
submission would be included in the
permit schedule of compliance.
Typically, a plan would include a
description of tluLgeneral approach to
investigating and evaluating potential
remedies, a definition of the overall
objectives of the study, a schedule for
the study, a description of the specific
remedies which will be studied, and a
description of how each potential
remedy will be evaluated Further, to
guarantee an orderly presentation of
study results, the Regional
Administrator may require the permittee
to include as part of the plan the format
for presenting the results of the CMS.
Discussions between the permittee and
the Regional Administrator before the
plan is drafted will generally be needed
to ensure that appropriate remedial
alternatives are considered, that
appropriate target concentration levels
of contaminants are used, and that the
unnecessary expenditures of time or
other resources for revisions which
otherwise might be required are
avoided.
Upon receipt of the corrective
measures plan, the Regional
Administrator will evaluate its
adequacy. If the plan is deficient
proposed 8 284.523(a) would allow the
Regional Administrator to modify the
plan or require the owner/operator to
make the appropriate modifications, m
some cases the plan will require only
slight modification, and by actually
making .those modifications the Regional
Administrator will be able to eliminate
the need for further iterations of the
submission and approval process. In
other cases, where a submitted plan is
deficient even after modifications have
been made by the owner/operator,
modifying the plan will allow the
Regional Administrator to cut short the
iterative process that has not produced
an acceptable document. This provision
of S 264.523(a) is analogous to the
authority provided to the Regional
Administrator for modifying interim
status closure plans (see § 265.112). It is
also similar to the process involved in
obtaining complete permit applications.
Upon approval of the plan by the
Regional Administrator, I 264.523(b)
would require that the permittee
conduct the CMS according to the
approved plan, including the schedule.
Both the plan and the schedule included
in the plan will become an enforceable
part of the permit schedule of
compliance.
5. Reports of Corrective Measure
Study (§ 264.524). As proposed. 8 284.524
would provide authority for the Regional
Administrator to require progress
reports on the Corrective Measure Study
at intervals appropriate to the site-
specific study requirements. Progress
reports would serve two functions—they
would keep the Regional Administrator
informed of the progress of the study,
and would provide the basis for a
periodic review to determine whether
midcourse corrections to the study are
needed. For example, if a pilot-scale
study is conducted for a specific
treatment technology and early results
indicate that the technology does not
consistently achieve the expected
concentration level, it may be
appropriate to eliminate further study of
that particular remedy and to consider
other approaches.
Today's proposal would require, in all
cases, submission of a final report of the
CMS which summarizes the results of
the Investigations for any remedy
studied, and any pilot testa conducted.
The report would evaluate each
alternative in terms of its anticipated
performance in achieving the standards
for remedies, which are provided in
today's proposal at 8 284 J»25(a).
Proposed 8 264.524(c) would give the
Agency the authority, upon review of
the CMS report to require the permittee
to evaluate one or more additional
remedies or to develop in greater detail
specific elements of one or more
remedies previously studied. This
provision would ensure that appropriate
remedies are evaluated by the permittee
in sufficient detail to allow the Agency
to determine its feasibility and
effectiveness. In a case where the
permittee does not identify an
appropriate remedy during the
Corrective Measure Study, the Agency
may require him or her to evaluate
additional remedies as necessary to
ensure that a suitable remedy, meeting
the standards established under
8 264.525(8), is developed.
F. Selection of Remedy (Section 264.525)
1. General (§ 264.525). Proposed
8 264.525 outlines the general
requirements for selection of remedies
for RCRA facilities. As structured, it
establishes four basic standards which
all remedies must meet and specifies
certain decision criteria which will be
considered by EPA in selecting the most
appropriate remedy which meets those
standards for individual facilities. In
addition, decision factors for setting
schedules for initiating and completing
remedies are outlined, and specific
requirements for establishing media
cleanup standards, including
requirements for achieving compliance
with them, are also contained in this
section. The section also specifies
requirements for conditional remedies.
2. General Standards for Remedies
(§ 264.525(a)). Proposed 8 284.525(a)
specifies that remedies must
• Be protective of human health and
the environment;
• Attain media cleanup standards as
specified pursuant to 8 264.525 (d) and
(e);
• Control the sources of releases so
as to reduce or eliminate, to the extent
practicable, further releases that may
pose a threat to human health and the
environment: and
• Comply with standards for
management of wastes as specified in
8 8 284.550-284.559.
These standards reflect the major
technical components of remedies:
cleanup of releases, source control, and
management of wastes that are
generated by remedial activities. The
first standard—protection of human
health and the environment—is a '
general mandate derived from the RCRA
statute. This overarching standard
requires remedies to include those
measures that an needed to be
protective, but are not directly related to
media cleanup, source control, or
management of wastes. An example
would be a requirement to provide
alternative drinking water supplies in
order to prevent exposures to releases
from an aquifer used for drinking water.
Another example would be a
requirement for the construction of
barriers or for other controls to prevent
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30824
Federal Register / VoL 65, No. 145 / Friday, July 27, 1990 / Proposed Rule*
harm arising from direct contact with
waste management units.
Remedies will be required to attain
the media cleanup standards that will
be specified by EPA according to the
requirements outlined in subsection (d)
of this section. The media cleanup
standards for a remedy will often play a
large role in determining the extent of
and technical approaches to the remedy.
In some cases, certain technical aspects
of the remedy, such as the practical .
capabilities of remedial technologies,
may influence to some degree the media
cleanup standards that are established.
It is because of this interplay between
cleanup standards and other remedy-
goals and limitations that today's rule
establishes media cleanup standards
within the overall remedy selection
structure of 1264.525.
Section 284.525(a)(3) is the source
control standard for remedies. A critical
objective of remedies must be to stop
further environmental degradation by
controlling or «iHmin«Hng further
releases that may pose a threat to
human health and the environment
Unless source control measures are .
taken, efforts to clean up releases may
be ineffective or. at best will involve an
essentially perpetual cleanup situation.
EPA is persuaded that effective source
control actions are an important part of
ensuring the long-term effectiveness and
protectiveness of corrective actions at
RCRA facilities. The proposed source
control standard is not intended to
mandate a specific remedy or class of
remedies. EPA encourages the
examination of a wide range of
remedies. This standard should not be
interpreted to preclude the equal
consideration of using other protective
remedies to control the source, such as
partial waste removal capping, slurry
walls, in-situ treatment/stabilization
and consolidation. Overall EPA expects
this policy to be no more stringent than
the threshold criteria used for selecting
remedies under the National
Contingency Plan.
Proposed 1284 J25(a)(3) requires that
further releases from sources of
contamination be controlled to the
"extent practicable." This qualifier is
intended to account for the technical
limitations that may in some cases be
encountered in achieving effective
source controls. For some very large
landfills, or large areas of widespread
soil contamination, engineering
solutions such as treatment or capping
to prevent further leaching may not be
technically practicable, or completely
effective in •Hmin«Hng further releases
above health-based contamination
levels. In such cases, source controls
may need to be combined with other
measures, such as plume management or
exposure controls, to ensure an effective
and protective remedy.
The proposed remedy standard of
{ 264.525(a)(4) requires that remedial
activities which involve management of
wastes must comply with the
requirements for solid waste
management as specified in 5 5 284.550-
264.559 in today's proposed rule. RCRA
remedies will often involve treatment
storage or disposal of wastes,
particularly in the context of source
control actions and cleanup of releases.
This standard will assure that
management of wastes during remedial
activities will be conducted in a
protective manner.
3. Remedy Selection Decision Factors
(§ 264.525(b)). Proposed f 204.525(b)
specifies five general factors which shall
be considered as appropriate by EPA in
selecting a remedy that meets the four
standards for remedies, and that
represent an appropriate combination of
technical measures and management
controls for addressing the
environmental problems at the facility.
The five general decision factors in
proposed | 26tJS25(b) are:
• Long-term reliability and
effectiveness;
• Reduction of toxidty, mobility or
volume of wastes:
• Short-term effectiveness;"
• Implementability; and
• Cost
Any remedy proposal developed
under a Corrective Measure Study and
presented to EPA for final remedy
selection must at a minimum, meet the
four standards of | 284.525(a). The
Agency will then evaluate potential
remedies against the five decision
factors listed in proposed I 264.525(b).
as appropriate to the specific
circumstances of the facility.
The order of the decision factors
listed in proposed 1264.525(b) is not
intended to establish an implicit
ranking, nor does it suggest the relative
importance each factor might have at
any particular faculty or across faculties
in general There are circumstances in
which any one of these factors might
receive particular weight
For example, long term effectiveness
may rule out alternative remedies that
might achieve clean up targets hi the
short term, but at the expense of
creating new or greater future risks that
may necessitate a future corrective
action. Conversely, remedies that
significantly reduce actual or imminent
human exposure in the short term may
be preferred over alternatives that
eliminate long term risks, but at the cost
of lengthening the period during which
exposure persists. Reductions in
toxidty, mobility, or volume are
especially valuable in situations where
the wastes or constituents may degrade
into more hazardous or toxic products.
or fail to naturally attenuate. Finally,
cost may be determinative when more
than one alternative remedy can reach
the established cleanup target In
practice, the relative weights assigned to
these five factors will vary from facility
to facility according the site
characteristics. EPA is soliciting
comment today on situations in which
these tradeoffs may significantly affect
the remedy in ways which would
suggest that a more prescriptive
weighting of the factors might be
desirable.
The following is a general explanation
of the five decision factors, and how
they may generally be used in remedy
decisions.
The Agency intends to place special
emphasis in selecting remedies on the
ability of any remedial approach to
provide adequate protection of human
health and the environment over the
long term. Thus, source control
technologies that involve treatment of
wastes, or that otherwise do not rely on
containment structures or systems to
ensure against future releases, will be
strongly preferred to those that offer
more temporary, or less reliable.
controls. Whenever practicable, RCRA
corrective action remedies must be able
to ensure with a high level of confidence
that environmental damage from the
sources of contamination at the facility
will not occur in the future. EPA
believes that long-term reliability of
remedies is an essential element in
ensuring that actions under section
3004(u) satisfy the fundamental mandate
of RCRA to protect human health and
the environment
The second dedsion factor—reduction
of toxidty, mobility or volume —is
directly related to the concept of long-
term reliability of remedies. As a
general goal remedies will be preferred
that employ techniques, such as
treatment technologies, that are capable
of permanently reducing the overall
degree of risk posed by the wastes and
constituents at the facility. Reduction of
toxidty, mobility or volume is thus a
means of achieving the broader
objective of long-term reliability. EPA
recognizes, however, that for some
situations, achieving substantial
. reductions hi toxidty, mobility or
volume may not be practicable or even
desirable. Examples might indude large,
munidpal-type landfills, or wastes such
as unexploded munitions that would be
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Federal Register / Vol 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
30625
extremely dangerous to handle, and for
which the short-term risks of treatment
outweigh potential long-term benefits.
The third decision factor—short term
effectiveness—may be particularly
relevant when remedial activities will
be conducted in densely populated
areas, or where waste characteristics
are such that risks to workers are high,
and special protective measures are
needed. Implementability, the fourth
decision factor, will often be a
determining variable in shaping
remedies. Some technologies will
require State or local permits prior to
construction, which may increase the
time needed to implement the remedy.
One of the decision factors which
raises particular issues in the context of
RCRA remedies is that of cost RCRA's
overriding mandate is protection of
human health and the environment.
However, EPA believes that relative
cost is a relevant and appropriate
consideration when selecting among
alternative remedies that achieve the
clean up range.
EPA's experience in Superfund has
shown that in many cases several
different technical alternatives to
remediation will offer equivalent
protection of human health and the
environment but may vary widely in
cost The Agency believes that it is
appropriate in these situations to allow
cost to be one of the several factors
influencing the decision for selecting
among such alternatives.
The exact emphasis placed on these
decision factors, and how they will be
balanced by EPA in selecting the most
appropriate remedy for a facility, will
necessarily depend on the types of risks
posed by the facility, and the
professional judgment of the
dedsionmakers. Comment is specifically
invited on the remedy selection
approach outlined in today's proposed
rule and preamble.
4. Schedule for Remedy (§ 264.525(c)).
Proposed 8 264.525(c] would require the
Regional Administrator to specify a
schedule for initiating and completing
remedial activities as a part of the
selection of remedy process. Some of the
factors that will be considered when
setting the schedule are enumerated in
proposed S 264.525(c) (1H5). These
factors include:
• Extent and nature of contamination
at the facility;
• Practical capabilities of remedial
technologies as assessed against
cleanup standards and other remedial
objectives:
• Availability of treatment or disposal
capacity for wastes to be managed as
part of the remedy;
• Desirability of utilizing emerging
technologies not yet widely available
which may offer significant advantages
over currently available technologies;
and
• Potential risks to human health and
the environment from exposure to
contamination prior to remedy
completion.
Proposed ( 264.525(c)(6) would allow
the Regional Administrator flexibility to
consider other relevant factors in setting
a schedule for remedy initiation and
completion. Such factors could relate to
the remedial technology to be employed
or the characteristics of the particular
waste or facility being addressed.
The timing of remedy Implementation
and completion will be determined after
these and other factors are considered
by the Regional Administrator, and a
schedule of compliance will be included
in the modified permit The Agency
wishes to emphasize, however, that
expeditious initiation of remedies and
rapid restoration of contaminated media
is a high priority and a major goal of the
RCRA corrective action program. The
schedule included in the permit will be .
an enforceable permit condition, and the
owner/operator will be obligated to
seek any change hi the schedule for
remedy implementation and completion
prior to milestones established. This
approach is consistent with the
Agency's application of schedules of
compliance to other aspects of the
corrective action program proposed
today.
EPA expects that many different
specific factors will influence the timing
of remedies. For example, the level of
technical expertise required and
available to implement a particular
remedial technology could be an
important factor, or the amount and
complexity of construction which must
precede actual cleanup, or the amount of
time which would routinely be needed
to achieve the media cleanup standards
set in remedy selection, given a
specified technology. All major
variables which will affect remedy
timing are expected to be assessed
routinely in the CMS, and will be
considered by EPA in setting aggressive
yet realistic schedules for remedial
activities.
While the Agency's strong preference
is for rapid and active restoration of
contaminated media, it is recognized
that there may be limited cases where a
less aggressive schedule may be
appropriate. For example, in situations
where ground-water cleanup standards
can be achieved through natural
attenuation within a reasonable
timeframe, and where the likelihood of
exposure and potential risks to human
health and the environment from
exposure to contaminated ground water
prior to the attainment of cleanup
standards is minimal, a remedy schedule
based on natural attenuation could be
determined to be the most appropriate
solution for a site. Thus, such factors as
location, proximity to population, and
likelihood for exposure may allow more
extended timeframes for remediating
ground waters.
Management strategies adopted in UK-
remedy selection decision also nay
affect the timing of remedies. For
example, proposed { 264.526(d)
(discussed later in this preamble-) would
allow the Regional Administrator to
require implementation of remedies in
discrete phases or incremental
segments. Such a phased approach often
wUl affect overall timing of the final
cleanup for the facility. As one or more
phases of the required remedy are
completed, the Regional Administrator
may choose to review the results
achieved by that phase prior to requiring
subsequent stages. For example, if
results of an initial treatment process foi
wastes in a SWMU are successful, the
next phase of the remedy might apply
that treatment technology to the
remainder of the wastes at the facility.
Similarly, timing of remedies often may
be influenced by the need to address the
most important environmental problems
first This might be the case where
ground-water contamination has
migrated beyond the facility boundary;
the initial remedial step would be to
require installation of a pump and treat
system to stop further migration. (This
could also be done as an interim
measure prior to final remedy selection;
see } 264.540.) Subsequent actions to
perform source control, or other
remedial action might then be phased in
as dictated by their environmental
priority, practicability, or other factors.
In addition to these kinds of
considerations, adequate time must be
allowed in the schedule of the remedy
for the owner/operator to
decontaminate and remove, close, or
dispose of units, equipment devices, or
structures used to implement the
remedy. The time needed to perform
specific activities associated with this
requirement necessarily will be
evaluated on a site-specific basis.
5. Media Cleanup Standards
(§264£25(d))—*. General. Section
264.525(d)(l)(iHiv) outlines the
Agency's proposed approach for
establishing media cleanup standards
(MCS) through the remedy selection
process.
Media cleanup standards represent
constituent concentrations in ground
-------
/ VoL S5. Me, 145 / Friday, Jaly V. 1990 / Proposed Roles
water, surface water* satis, and air diet
easszdiOB Bint achieve to comply with
standards fornnedlM under
0 mS2S(eM2). Media deanap standards
ofo ostebHshed at concentrations that
©E25JBP8 protection Of llUSSSJi nT1t"o end
at. and on Mt for each
sjgdiena during the remedy selection
Tfoa Agency i> proposing to set media
cleanup standards within the overall
Aa part of the Corrective
slopaient process, the Agency will
icolly provide be owner/operator
levebfarstojnficsm
hazardous constituento in each
off concern when he/the is required to
perform a CMS. For carcinogens, these
targets will be established within the
prafejctfve risk range of lxl(T4to
l@r*» based on srte-spedfic factors,
ass another level is deemed
ivironmental
receptors. EPA may start the analyses
fey establishing target deanap levels at
fihg action level understanding that
Bvattve
QBtea levels en set under c
©so^snsptions and mat me
ma$ be modified as appropriate. The
samsdies analysed by the owner/
gpecto? would generally be designed to
m@®t mess targets. After reviewing the
psrnoittee's Corrective Meesan Stady
iObffi) using the remedy selection
factors given m 126tS25(b). the Agency
wffl select a remedy and set media
standards mat most be
ffo Regional Administrator wffl
spedry media cleanup standards Oat
the ffemedy must achieve, as neet
2e protect human health and the
smtosnment The Regional
Administrator may sat a media i
p^qffl^ard far a^A mmiitnmt fart
OH action level has bean exceeded, aa
which the Regional Administrate
Amines to pose a threat to!
health and the environaant f*j,
ean&tituents cuiishlmadaad
g mS2D(b)). Alternatively. I
AdramisavtormsjspacirjMi
eleonup standards far a aahaet of
hazardous constituents]
site which an ma most I
persistent and difficult to L
gonsidering the comeiitiBllnns at whiuh
8hey are nreeent at the site. Thfa
^hera than an large
darimstrator
pmeau that some cause exists far not
esiMB® ft standard far certain
constiioents, ea discussed later fat this
•eetton of me preamble. Sectioo.
26«£2S(dNl) describes the specific
approach the Agency proposes to fallow
in setting these levels.
b. Protectivenesa. A primary goal of
corrective action is to achieve cleanup
consistent with existing media-spedfie
cleanup standards, or, when such
standards do not exist, to achieve
protection against risks to human health
sncb mat the ejutess lifetime risk UTJIJB
exposure to a carcinogenic hasardoos
constituent hi sou, afar, gronnd we lei or
surface water does not exceed 10r*. A
variety of practical constraints, 89
described later, can prevent the
consistent achievement of mat goal
However, the risks to an iudivkual from
exposure toe htinifduus luusutnentfat
contaminated media should not exceed
approximately 10~*.
In me oofrective actifl
remediation decisions must be made at
hundreds of diverse sites across the
country. Therefore, as 8 practical
maflyr, tfm hmmm iitMihtt fftal •>d|
two-step approach. First EPA Intends to
use a bfetime excess cancer risk of UT*
as a point of departure for establishing
remediation goals far the risks from
hazardous constituents at specific sites.
This starting point is generally
consistent with historical Agency
practice. Whfle it expresses EPA's
preference, ft to not a strict presumption
that the fi"nt cleanup wfll attain mat
risk level
Hie f*****A step involve*
consideration of a variety of site-epedfic
or remedy specific factors. Such factors
will enter into the determination of
where within the risk range of 10~4 to
1.0" * th0 IHfitJB «4aiiftitiTT> ctAttdSRl ftrT 4%
fllVQB BAXBIuOUA OODaUltUfifiil WlD DO
This meant that a risk level of UT'ft
iised as the starting point for
deteonining the most appropriate risk
level that alternatives ihoakl be
designed to attain. The eae of 1IT*
expresses EPA's preference far remedial
actions that result m risks at the more
protective end of the risk range, but this
doe* not reflect a presumption that the
final remedy should attain each, a risk
level The ultimate decision of what,
level of protection will be appropriate
depends on the selected remedy, which
is, in tan, based on the criteria fisted hi
proposed 1 2M£25(b). Because of
factors related to exposure, •ncerlainty.
that me entire risk range wiB bo
availabh) and utilized at variooe sites.
In the Agency's view, ft is fanpnrtimt
to have an initial vahw to which
adjustments can be made, partkoiariy
since the risk range coven two orders of
magnftade. By using ier*aa the point of
departure, EPA intends met mere be e
preference for selling remediation goals
at the more protective end of the range,
other things being equal EPA does not
believe that tins preference will be so
strong as to preclude appropriate site-
specific factors.
Several examples illustrate how under
today's proposal EPA might adjust
cleanup standards in fight of potential
uses. First ground water that is not a
potential source of drinking water would
not require remediation to a 10~* to 10"•
level (although deannp to address
other bnmfklsl uses might be required).
Second. gnHUHl welsi in a broadly
contaminated area would typtoaBy be
remediated to suedfk. background
levels as described below,
where
the remediation took place as part of an
area-wide «^«"mp^ Finally,
conlasBmatod •"** at an industrial site
might be cleaned up to be suffidenny
protective for industrial use but not
residential uee, as kng as mere to
reasonable certainty mat the site would
remain industrial
At the same time, in exceptional
circumstances, other site-specific
exposure factors may indicate the need
to establish a risk goal far a particular
contaminant mat is more protective man
the overall goal of 1IT*. These stto-
gpedfic exposure factors may mcnde:
The cumulative effect of multiple
ffi'ui i naa tm • • tm |SQ8 fouOWilBJ. lilil IISSftTTl)!
other pathways at the facility;
population sensitivities; potential
ot envnvomeuBu n
and cross-media i
In summary. EPA has proposed an
approach *t»»* allows a pragmatic •*•**
flexible evahsation of p"*"*****1 "••«••*"•?
at a site wnfle still protecting human
health and the environment. This
approach emphasizes the overall goal of
10~* as the pom* of departure (in
situations when then an i
standard* such aafcfCLs). whfle
allowing ana or remedy-epadfic factors,
including reasonably faresusatib future
uses, to ••*•» into fr* evaluation of
what to appropriate at a given aha. Aa
risks menus above) HT*. they become
less desirable, and the risks to
md^vidaala should not exceed
approximately 10~4.
Proposed 12B&ns(dXl)(in) hats four
considerations which may be need to
establishing media deannp standards.
These considerations apply to setting
atuUSQUQat »Of DOvD CeUCZfiQflBDat ADO DOQ*
carcinogens. The factors listed above
which may be used hi «<•*•**«<«>t^
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990j Proposed Rules
30827
cleanup standards for carcinogens
within the risk range are intended to be
included broadly within these four
general considerations.
(1) Multiple Contaminants. The first
consideration under
S 264.525(d)(l)(iii)(A) is multiple
contaminants in the medium. In order to
ensure that individuals exposed to a
medium (e.g.. via drinking ground water)
will be protected it may be necessary to
consider the risks posed by other
constituents in that medium before a
media cleanup standard for a single
constituent can be established. In
considering the risks posed by multiple
contaminants, the Agency will follow
the procedures and principles
established in its "Guidelines for the
Health Risk Assessment of Chemical
Mixtures" (51FR 34014). The cumulative
risk posed by multiple contaminants
should not exceed a 1X NT4 cancer risk.
All other factors being the same, the
media cleanup standard for a
constituent present in a medium that is
contaminated with many other
constituents posing significant risks may
be established at a lower concentration
than if that constituent were the sole
contaminant in the medium.
(2) Environmental Receptors.
Remedies must be protective for the
environment as well as human health.
Section 264.525(d)(l)(iii)(B) allows the
Regional Administrator to consider
actual or potential exposure threats to
sensitive environmental receptors in
establishing media cleanup standards.
Standards, criteria, and other health-
based levels are often based on
protection of human health, since more
information is usually available on
effects of contaminants on humans (or
laboratory animals) than on
environmental receptors. Levels set for
protection of human health will
frequently also be protective of the
environment. However, there may be
instances where advene environmental
effects may occur at or below levels that
are protective of human-health.
Sensitive ecosystems (e.g., wetlands) or
threatened or endangered species or
habitats that may be affected by
releases of hazardous waste or
constituents should be considered in
establishing media cleanup standards.
The Agency plans to develop guidance
on evaluating ecological impacts. Until
more substantial guidance is developed,
the Agency intends to determine on a
case-by-case basis when standards must
be established at lower concentrations
to protect sensitive ecosystems or
environmental receptors. For releases to
surface water. Federal Water Quality
Criteria may be used as guidance in
making this determination.
(3) Other Exposures. Generally, the
Agency will only consider the
contamination contributed by the
releases subject to corrective action in
setting protective cleanup levels. In
unusual situations, however, it may be
necessary to consider the presence of
other exposures or potential exposures
at the site (S 264.525(d)(l)(iii)(C)). For
example, if residents living in close
proximity to a facility receive unusually
high exposures to lead due to the
presence of a lead smelter in their town,
it may be necessary to set lower cleanup
levels for lead in ground water from a
SWMU than would otherwise be
necessary. Remedies whose cumulative
exposures (i.e., mixtures of chemicals, or
multiple pathways of exposure) fall
within the risk range for carcinogens
(1X10" * to 1X10' ^. or meet acceptable
levels for non-carcinogens, are
considered protective of human health.
Chronic exposure to multiple SWMU-
contaminated media, although not likely
at most sites, may be considered under
proposed { 284.525(d)(l)(iii)(C] in
establishing media cleanup standards.
An example might be where releases
from solid waste management units are
present in both ground water and soils
(from wind blown particulates) at
nearby residences. In this case, it might •
be appropriate to set cleanup standards
for either or both releases at more
conservative levels, to account for such
cumulative risk concerns. The Agency
will examine such cross-media effects,
when appropriate, on a case-by-case
basis.
(4) Remedy-Specific Factors. Section
264.525(d)(l)(iii)(D) allows the Regional
Administrator to consider the reliability.
effectiveness, practicability, and other
relevant factors of the remedy in
establishing media cleanup standards.
These factors are related to the remedy
selection decision factors specified in
{ 264.525(b). An example of how these
factors ma> be considered by the
Agency in establishing media cleanup
standards under S 264.525(d) is the
following. Suppose that one remedial
alternative can theoretically treat
constituents in soil to concentrations
posing a 1 x 10" • risk level, but relies on
a technology that has not been
successfully demonstrated under
conditions analogous to those at the site
in question, or may be unreliable for
other reasons. In this situation,
consideration of the long-term reliability
and effectiveness of the remedy may
result in the selection of another
technology that can achieve a 1 X10~*
risk level, but has been demonstrated to
be more reliable.
A variety of exposure-related factors
may be considered in establishing media
cleanup standards. For example, the
potential and pathways for exposure to
soils may vary greatly across sites.
Media cleanup standards will generally
be established for soils to protect
individuals from health threats resulting
from direct contact to soils. In some
cases, however, individual health may
be threatened due to the absorption of
contaminants in soils by plants and in
turn by grazing animals used for human
consumption. In these cases, cleanup
standards might be set on the basis of
protecting health from this exposure
pathway.
In establishing media cleanup
standards for soil based on exposure via
direct contact, the Agency may use the
exposure assumptions listed in
Appendix D. These exposure
assumptions are based on a daily intake
of soil through ingestion, of particular
concern for young children (see
preamble section Vl.E.2.f for a detailed
discussion of soil exposure
assumptions). However, the Agency
recognizes that these exposure
assumptions would be appropriate only
where soil ingestion is plausible. The
Agency is considering using different
exposure assumptions where different
exposure scenarios are likely baaed on
current and projected future land use at/
near the site. For example, for sites
located in industrial areas that are likely
to remain industrial in the foreseeable
future, exposure assumptions more
appropriate to industrial land use might
be used. Thus, the exposure
assumptions proposed in Appendix D
would apply to sites near areas that are
now residential or are reasonably
projected to become residential.
However, the Agency recognizes that
considerable uncertainty is involved in
forecasting future land use. The Agency
requests comment on the general
concept of using current and projected
land use to develop likely exposure
scenarios for different sites in
developing media cleanup standards,
and on specific exposure assumptions
which are reasonable for these different
exposure scenarios.
It should be understood that the
Agency does not intend typically to
establish cleanup standards per se (i.e.,
according to § 284.525(d)(l)) for "deep"
soils that do not pose a direct contact
exposure threat Such contaminated
soils can, however, often be a transfer
source of contaminants to other media,
such as through leaching of wastes into
ground water or surface water. In such
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Federal Regiater / Vol. 55. No. 145 / Friday. July 27, 1900 / Proposed Rules
Cases th* r-ontnmtnatfxi ««il« WQuLd be
dealt with as a source* rather than as a
release: that is. the remedy would
specify containment, removal or
treatment measures for the soOe in the
same manner as for other sources of
releases (e.g.. landfills). Such measures
would be required as necessary to
ensure that media cleanup standards for
the affected media are not exceeded.
There are several means of
investigating the mobility of
contaminants m soil, including a
descriptive approach (i.e. consideration
of constituent and soO properties), and/ •
or the use of mathematical models or
leaching tests (for mobility to ground
water). The Agency is further evaluating
the nse of different leach tests, and
requests comments on these and other
ways of estimating media transfer of soil
contaminants.
The Agency recognize* that there are
also technical limitations which must be
considered, in addition to scientific
information about the hazards to human
health and the environment, to
establishing media cleanup standards.
For example, media cleanup standards
would not be sat tower than detectable
levels. Consideration of reliability,
effectiveness, practicability, and other
factors wiH generally be considered on a
case-by-case basis.
c, Cuanap Levels and Other Sources
of fa'rl'"*'nett'mt In some if'T, solid
waste management unite will be located
in areas contaminatad from other
sources. For example, a solid waste
management unit may ue over an
aquifer already contaminated front off-
site sources or from other activities at
the facility. Similarly, an area of
contaminated soil resulting from waste
management may he in a broader area.
of high naturally oecarriBg
contamination. In such M***I section
3004(u) gives EPA authority only to
require f-tymp of contaminants
released from on-aite solid waste
management units. This authority does
not extend to cleanup of releases from
production areas (unless the releases
are "routine and systematic'') or from
off-site sources (unless those sources
are also at a RCRA facility V
Proposed { 2MJ25(dKlUv) codifies
this limitation on section 3004(u)
authority by allowing the facility owner/
operator to demonstrate that a specific
concentration of a constituent in the
vicinity of a solid waste management
unit does not come from that unit, but
rather is attributable to sources other
than on-aite solid waste management
units. If the owner/operator can
auccessfuDy make this demonstration.
EPA would not have the authority under
subpartS to reqttfre cleanup below that
concentration. Proposed
8 2844>25(d)(l)(v) provides, however.
that the Regional Administrator may
determine that cleanup to levels below
the background concentration is
necessary for the protection of human
health or the environment in connection
with an area-wide cleanup under RCRA
or other authorities.
The beat example of this {imitation on
section 3004(n) is found hi contaminated
ground water. If a specific constituent is
found to ground water dowagradtent of
a solid waste management unit at levels
exceeding action levels, a CMS would
ordinarily be required. However, if the
facility owner/operator can demonstrate
that the constituent levels did not
exceed opgradient "background" levels.
and mat the npgradient background
levels did not come from other sobd
waste management units on the facility.
cleanup would not be required.
Similarly, even if the downgmaent
concentration exceeded npgndteBt
background, cleanup could be required
only to the upgradient background
levels. This approach to "background" is
the same as the one found in subpart F.
In the case of soil the same principle
applies. Section 9004(u} provides EPA
the authority only to require owner/
operators to clean up contaminated softs
to the extent that the contamination
derives from releases from a solid waste
management unit (or that the area itself
is a solid waste management unit).
Therefore, cleanup of soils would not be
required under subpart S below
"background?* levels. The best measure
of background levels for soils wfO
generally be naturally occurring' sous hi
areas not contaminated by a facflfty*s
activities— for example, off-site soils.
However, to areas broadly
contaminated with constituents not
subject to section aootfu) (for example,
from m»i«»t"-*i"ti^fl or off-site sdr
emissions), en uiuiei/opeietar may be
able to argue soccessfnQy that
A^^KMft£*MA^Ba» C^H^K^t «^K ^ 4W«vlale^ a^aLa*^^ A
irtisfllniftHTi KUDO. OB • lacioty Deuyw a
certain level cannot be attributed to
releases from a solid waste management
unit
Today's proposal, uuwe»m. does not
allow RCRA facilities located in
contaminated anas to ignore f acuity
contributions to *^* ««»ta»»iimKM^ The
permittee will be required to dean ap
the contamination caused by his/her
waste management activities, unless a
determination is made under proposed
section 2M£25(dK2) that rmniniiatim of
the release is aot required.
In reviewing the «tra
management unit at the facility, the
Regional Administrator would evaluate
sampling data developed by the
permittee. The Regional Administrator
would assess the accuracy of these data
and evaluate the statistical procedures
used by the permittee to characterize
these concentrations. The Regional
Administrator may use the performance
standards proposed on August 24, 1387,
at 40 CFR 264.97 to make this
assessment (5Z FR 31948).
0. Determination tint Remediation of
Release to a Media Cleanup Standard la
Not Required. Proposed 9 264.52S(d)(2)
identifies three situations in which the
Regional Administrator may decide not
to require cleanup of a release of
hazardous waste or hazardous
constituents from a SWMU to a media
cleanup standard meeting the conditions
of 1 264,525(4)11). These situations are
limited to cases where there hi no threat
of exposure to releases from SWMUs;
cases where cleanup to a level meeting
the standards of 1 284£2S(dM1) wiD not
result to any significant redaction to risk
to humans or the environment; arts
technically impracticable, b situations
where tin Regional Admmistratar
determines that cleanup to a leva!
meeting the conditions of 1 26L52S(d)fl)
is technically impracticable, the owner/
operator may be required to remediate
to levels which are technically
practicable and which significantly
reduce threats to human health and the
environment
The Agency does not beneve that
continued further degradation of the
environment should be allowed, even in
those situations where actual cleanup of
releases may not be required. Aa
provided by 1 2M£25(dK3k the Regional
Administrator may require source
control measures to control further
releases into the environment, or other
measures to protect nflf*iM* exposure to
contaminated """^» if eoorce control or
other measures are not necessary (eg,
tK« sourer* oo ^T* exists), a
*t*^>Tiiin9tiftii Q£ HA further sfrtinn may
be made pursuant to 1 261514.
a. Areas of Brood Contamination. In
some cases. SWMUs
hazardous constituents to the
environment will be located to areas
that already are significantly
contaminated. When >Vt p{"^« from
releases from the SWMUs are trivial
compared to the risk already present
from overall area-wide ««M>*«««ti«at<«yn,
or where "•"v^ri measures aimed at
lac the SWMU would not
1 2M£25(d](l)[v] that a aazardoua
constituent^} at a •imp.tf
in a medium is naturally occurring or is
from a source other than a solid waste
reduce risk. EPA believes that
remediation of releases from the SWMU
to a cleanup level meeting the standards
of ft 204.S25(d)(l) would not be
-------
Federal RagbteJ Vol. 55, Na 145 / Friday. July 27, 1990 / Proposed Roles
neceuaiy or appropriate. In these
situations, proposed § 2M£25(d}(2){i)
would allow the facility owner/operator
to provide the Regional Administrator
information demonstrating that such
remediation would provide-no
significant reduction in risk. If the
demonstration were successful, the
Regional Administrator would
determine that remediation to a level
meeting the standards of { 264.525(d)(l)
was not necessary.
For example, ground water below a
leaking SWMU might be heavily
contaminated from off-site sources. In
this case, removal of the SWMLTs
contribution to the contamination might
have very limited benefit, particularly if
that contribution was relatively minor.
Similarly, a SWMU such as a surface
impoundment might be contributing
relatively trivial amounts to area-wide
air problems. Control of the SWMU
releases might do very little, in such
cases, to Improve the overall situation in
the area, yet (in the case of an operating
unit) could be extremely burdensome to
the owner/operator.
In such cases, EPA believes that it
will make more sense to attack area-
wide problems, where they are
determined to threaten human health or
the environment, on a more
comprehensive basis and to focus on the
primary sources of release—for
example, under RCRA section 7003,
CERCLA, or other environmental
authorities. The Agency does not believe
that it makes sense routinely to require
remediation of SWMU releases when
they represent only a trivial contribution
to an area's problems.
Two points should be stressed here,
however. First, the facility owner/
operator would be required to take
corrective action where it could have •
significant effect on reducing risks—far
example, as part of an ana-wide
cleanup'strategy. The fact of ana-wide
contamination would not eliminate
EPA's authority to require action in this
case. It should be noted that an ana-
wide cleanup might not be coordinated
under a single authority, or within a
specific narrow time frame: rather the
Regional Administrator may use a
variety of authorities to address an
area-wide contamination problem over
time. Second, EPA in any case would
have the authority under proposed
1264£2S(d)(3) to require source control
to prevent further releases, or to requin
other measures such as those necessary
to protect against exposure to the
affected medium.
The Agency has not attempted to
define "significant reductions" in risk IB
this rulemaldng. and believes the
decision is best made on a case-by-caae
basis. However, the Agency seeks
comment on whether a more specific
definition is necessary for the purposes
of this rulemaking.
b. Ground Water. Under proposed
S 264.525(d)(2)(ii). the Regional
Administrator may determine that
remediation of a hazardous constituent
released from a SWMU into ground
water to a media cleanup standard
meeting the standards of 8 2M.525(d)(l)
is not necessary to protect human health
and the environment if. (1] The ground
water is not a current or potential
source of drinking water and (2) the
ground water is not hydraulicalry
connected with waters to which the
hazardous constituents could migrate in
concentrations which could increase
contamination in the water to
concentrations that exceed action
levels.
In interpreting whether the aquifer is a
current or potential source of drinking
water, the Agency will generally use the
approach outlined in the Agency's
Ground-Water Protection Strategy
(August 1984 and as subsequently
modified) as guidance. Generally, Class
m aquifers will be considered to meet
the requirements specified in
S 26i.S25(dU2)(u). Class m aquifers are
ground waters not considered potential
sources of drinking water and an
considered to be of limited beneficial
use. They an ground waters that an
heavily saline, with total dissolved
solids (TDS) levels over 10000 mg/L or
an otherwise contaminated beyond
levels that allow cleanup using methods
reasonably employed in public water
system treatment These ground waters
also must not migrate to Class I or n
ground waters or have a discharge to
surface water that could cause
degradation.
A determination under
8 2M.525(dX2Xii) that remediation to a
media cleanup standard is not necessary
might be made m situations when a
SWMU located in a heavily
industrialized ana has released to
ground water in an aquifer that is
surrounded by ground water that has
been heavily contaminated from non-
SWMU sources. It is not the intention of
the Agency to create a ground-water
"ialand of parity" that is unlikely to be
used for drinking water or other (non-
industrial) beneficial purposes due to its
location in an ana historically used
only for industrial purposes.
Information from the State and/or
local government as to thf beneficial
use of the ground water may also be
useful if the ground water has been
classified for specific uses. If the ground
water is not a potential source of
drinking water but has other beneficial
uses («#, agricultural), then, remediation
to a media cleanup standard may not be
required; however, remediation of the
ground water to its beneficial use would
be required, as provided under
8 284.525(d)(3).
If a determination under
8 264.525{d)(2Kii) is made where the
ground water poses a threat to
environmental receptors, or poses a
threat to human health through an
unusual exposure pathway (e.g.. ponding
or basement seepage from shallow
aquifers), remediation to alternative
levels could likewise be required
pursuant to 1264£25(d)(3). The Agency
believes that health-based concerns may
be secondary to environmental concerns
for releases to Class in ground waters.
The need to remediate Class in ground
waters will be assessed on a case-by-
case basis, m any case, cleanup levels
for ground water that is not a potential
source of drinking water would be
established at other than "drinkable-
levels.
In other cases, ground water may not
fall into Class m. but. because of its
distance from any population or other
factors, is unlikely to become a source of
drinking water m the foreseeable future.
In these cases, remediation might be
carried out over an extended period of
time, and natural attentuation might
play a major role In the remedy. The
issue of timing of remedies is discussed
in more detail in section V1.F.4 of this
preamble.
To demonstrate whether the ground
water is hydraulically connected with
waters to which the hazardous
constituents an migrating, samples of
water should be taken within the
discharge zone of the ground-water
contamination plume. The discharge
zone will have to be determined on a
site-specific basis, and is dependent on
the local hydrogeology. If, upon
sampling in the discharge zone, the
levels of the constituent of concern an
not detectable, a statistical comparison
of sampling data does not need tb be
performed. However, if the discharge
levels an detectable, an appropriate
statistical procedure should be used to
compare the constituent concentration
in the discharge zone to the constituent
concentration upstream. Guidance on
appropriate statistical techniques may
be obtained from the proposal on
statistical methods for use in the RCRA
subpart F program dated August 24.1987
(proposed as 40 CFR 284.97; see 52 FR
31946). In addition, the Agency expects
to develop further guidance on
appropriate statistical techniques for
making these ^»*»
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30830
Federal Register / Vol 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
The determination of whether the
ground water is hydraulically connected
with waters to which the hazardous
constituents are likely to migrate in
concentrations which exceed action .
levels will be made on a site-specific
basis. The physical and chemical
characteristics of the hazardous
constituents in ground water, the
concentrations of the hazardous
constituents in ground water and
surface water, and local hydrogeological
characteristics should be considered in
making th<« determination.
c. Technical Impracticability.
Proposed 1264.526{d)(2)(iii) would allow
the Regional Administrator to make a
determination that remediation of a
release to a media cleanup standard
meeting the criteria of | 264.525(d)(l) is
not required when remediation is
technically impracticable. The
determination of technical
impracticability involves a
consideration of both engineering
feasibility and reliability. Such a
determination may be made, for
example, in some cases where the
nature of the waste and the
hydrogeologic setting would either
prevent installation of a ground-water
pump and treat system (or other
effective cleanup technology), or limit -
the effectiveness of such a system—e&,
dense, immiscible contaminants in
mature Kant formations or in highly
fractured bedrock. In other situations a
determination under | 264.525(d)(2)(iii)
may be made when remediation may be
technically possible, but the scale of
operations required might be of such a
magnitude and complexity that the
alternative would be impracticable. The
Agency is persuaded that in these and
other situations determined to be
technically impracticable from a
remedial perspective the Regional
Administrator should have the authority
to not require remediation to media
cleanup standards.
Decisions regarding the technical
impracticability of achieving media
cleanup standards must be made upon
careful evaluation of the technical-
circumstances involved. Facility owner/
operators will be required to provide
clear and convincing information to
support any assertion that such cleanup
is technically impracticable.
As suggested in the examples
provided above, the Agency believes
that the concept of technical
impracticability may in some cases also
apply to situations in which use of
available remedial technologies would
create unacceptable risks to workers or
surrounding populations, or where
cleanup would create unacceptable
cross-media impacts. For example, some
wastes present a high potential for
explosion during excavation. The
Agency expects that these types of
situations which could lead to a
determination of technical
impracticability will be quite rare. In the
case of cross-media impacts, it is
expected that sound techniques and
engineering controls—or other remedial
alternatives—should be available to
effectively minimize such cross-media
transfer effects. In the absence of such
controls or alternatives, however.
remediation of such situations could be
determined technically impracticable.
The Agency is specifically soliciting
comment today on the types of
situations which might warrant a
determination that remediation of a
release to a media cleanup standard
meeting the standard of i 264.525(d)(l)
is technically impracticable, and would
not, therefore, be required.
7. Demonstration of Compliance With
Media Cleanup Standards (§ 284.525(e)).
Section 284.525(e) outlines the Agency's
proposed approach to establishing
conditions the permittee must fulfill to
achieve and demonstrate compliance
with the media cleanup standards (or
alternative cleanup levels) established
during the remedy selection process.
Media cleanup standards are
contaminant concentration limits set on
a constituent-specific basis in each
environmental medium in which the
permittee is required to remediate a
release. (See proposed | 264.525(4).) The
site-specific conditions which would be
established by the Regional
Administrator in the permit under
126C52S(e) include compliance points
(where cleanup standards must be
achieved) for each medium: sampling,
analytical, and statistical methods the
owner/operator must use in compliance
demonstrations; and the length of time
over which the data must show that the
media cleanup standard (or alternative
cleanup level) has not been exceeded to
successfully demonstrate compliance.
Each of these requirements is discussed
below.
a. Points of'Compliance—<1) Ground
Water. Proposed 1264.52S(e)(l)(i) would
establish that the media cleanup
standard would generally be required to
be achieved throughout the area of
contaminated ground water. This would
require that, if the ground water were a
drinking water source, the entire plume
of contamination would have to be
cleaned up to levels acceptable for
drinking. EPA is proposing this
alternative since exposure to
contaminated ground water may
potentially occur anywhere within an
area of ground-water contamination.
Proposed | 284.525{eKl)(i) would also
provide the Regional Administrator with
the discretion to establish a point of
compliance for ground water at the
boundary of the waste when waste is
left in place. Such discretion may be
necessary where it is impossible or
inappropriate to install monitoring wells
at certain locations. For example, in the
case of a large landfill it would usually
be unwise to install monitoring wells
through the landfill itself. In addition,
there will be circumstances where
ground water contamination is caused
by releases from several distinct units or
sources that are hi close geographical
proximity. In such cases, the most
feasible and effective ground-water
cleanup strategy may well be to address
the problem as a whole, rather than unit
by unit and to draw the plume of
contamination back to a point of
compliance encompassing the sources of
release. Proposed S 264.525(e)(l)(i]
therefore explicitly gives the Regional
Administrator the authority to set the
point of compliance at a Una
encompassing the original sources of the
release.
The Agency stresses that its general
goal is to clean up the entire plume of
contamination: however, it believes that
for very practical reasons it must have
the discretion to set an alternative point
of compliance for ground water around
one or more common sources of release.
In determining where to draw the point
of compliance in such situations, the
Regional Administrator will consider
such factors as the proximity of the
units, the technical practicabilities of
ground-water remediation at that
specific site, the vulnerability of the
ground water and its possible uses,
exposure and likelihood of exposure,
and similar considerations.
Further, in situations where there
would be little likelihood of exposure
due to the remoteness of the site,
alternate points of compliance may be
considered, provided contamination in
the aquifer is controlled from further
migration.
Proposed i 264JS25(e)(l)(i) provides
that the location of ground-water
monitoring wells will be specified by the
Regional Administrator. The monitoring
wells will serve both to monitor the
effectiveness of the ground-water
remediation program, and to allow the
permittee to demonstrate compliance
with the media cleanup standards
contained in the permit for releases to
ground water. Where waste is left in
place (either at facility closure or at
operating waste management units),
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Federal Register / VoL 55. No. 1*5 / Friday. July 27. 1900 / Proposed Rutet
wells will generally be located up to the
boundary of the wute (£«» the unit
boundary for operating waste
management units).
In establishing the point of
compliance for remediation of ground
water for today's proposed role, EPA
considered several different
alternatives. These include the
following:
• Throughout the ground water;
• At the hazardous waste unit
boundary,
• At the edge of the existing
contamination not to exceed a "buffer"
zone inside the facility boundary (ej, a
line describing the point at which it
would take at least five yean for the
contamination to reach die facility
boundary if it was left unabated); aad
• At the facility boundary.
The alternative considered by the
Agency which would have established
the point of compliance at the facility
boundary would recognize that the
likelihood of exposure to ground-water
contamination is extremely unlikely on
the property of an actively managed
facility. Owners and operators of these
facilities are required to identify and
monitor existing contamination under
existing regulations. Where existing
contamination would result in exposure
(or to any contamination beyond the
facility boundary), owner/operators
would be required to cleanup mis
contamination. A point of compliance at
the facility boundary would reduce costs
in certain cases, while providing
protection from adverse exposure.
However, the Agency is not proposing
this alternative because it may allow the
spread of contamination within the
facility boundary, and provides a
smaller margin of safety man a more
stringent point of compliance.
Another alternative would be to set
the point of compliance at the edge of
the existing contamination, with a
"buffer* zone inside the facility
boundary. This would prohibit the
continued spread of contamination and
provide a margin of safety between the
facility boundary and any existing
contamination. The size of the "buffer"
could be determined by the expected
mobility of the contamination at mat
site. For instance, the buffer could be set
so that it would take at least five yean
for contamination to reach the facility
boundary. Once identified.
contamination entering the buffer zone
would be required to undergo collective
action.
EPA requests comments on its
proposal and on alternatives to this
adopted a point of compliance less
stringent than the waste unit boundary,
the Regional Administrator would have
the discretion to adopt a more stringent
point of compliance where warranted by
site specific characteristics.
(2) Air. Proposed 12M£25(e)(l)(ii)
would generally establish the
compliance point for hazardous
constituents released to air at the
location of the most exposed individual
This is intended to be the points) where
maximum long-term human exposure
would occur. It is expected that the
point of compliance will typically be
outside the facility boundary.
In determining the location of the
most exposed individual, the Agency
will evaluate the risks where people
spend a fjgnifi<--ant •mniini of their time
on a daily basis rather than address
temporary or transient exposures to air
emissions fag* persons driving by the
facility). Thus, cleanup standards might
be set at any dwelling, private, or public
building, or other public or private area
where exposures could occur on a
regular or continuous basis if releases
continue. This exposure might occur
through windblown particles (a*, from
contaminated soil), windblown volatile
emissions, or toxic gases migrating from
the subsurface into dwellings or other
structures. These kinds of potential
exposures an evaluated during the
facility investigation, and will generally
require source controls when they pose
an actual or potential threat
In establishing the location(s) of the
most exposed individual^ EPA will
generally not include on-site facility
worken. but would Include people who
live on-site, such as military personnel
and families who reside at a Federal
facility required to obtain a RCRA
permit Occupational exposures
generally are the purview of the
Occupational Safety and Health
Administration (OSHA). Under OSHA
Instruction CPL 2-237A of January 28,
1988, OSHA and EPA have agreed mat
OSHA has the lead role hi providing for
the safety and health of worken at
hazardous waste sites. OSHA has
established standards for such
exposures in 29 CFR 1910.120. Although
EPA has the authority to address
occupational exposures, it wfll generally
do so only when the Regional
Administrator has cause to believe that
inadequate controls an being exercised
at the site.
The Agency believes that achieving
compliance at the location of actual
human exposure will, in most cases, be
fully protective. However, the Agency
recognizes that some sites may present
arcumstanoes in which a different
compliance point may be necessary to
protect human health and the
environment and has provided the
Regional Administrator the flexibility to
set a compliance point other than at the
most exposed individual This may
particularly apply where exposure of
environmental receptors are a concern.
For example, the Regional Administrator
could specify that a permittee must
demonstrate compliance with the
cleanup standard at the location of the
most exposed environmental receptor if
site conditions warranted.
The Agency considered other points
of compliance for media cleanup
standards for air, including the unit
boundary and the facility boundary. The
Agency, however, believes that
requiring compliance with air cleanup
standards at these locations would be
unnecenarily stringent and would
provide very little, if any, real additional
health or environmental protection. For
example. If the point of compliance were
set at the unit boundary, releases from
the unit would have to be controlled to
health-based levels, assuming life-time
exposure at that unit In practical terms,
this would require that emissions &om
units such as surface impoundments
would in some cases have to be
controlled virtually to sera. The Agency
believes that such a standard would be
unrealistic. Similarly, the Agency
believes that it is unnecessary to set the
point of compliance as a routine matter
at the faculty boundary, since in many,
if not most cases the actual location of
exposed populations will be some
considerable distance from the site.
As discussed earlier in today's
preamble (section VLE£.d), action levels
for air are determined at the facility
boundary in order to ensure mat there
will be a plan to place to address the
contingency of receptors moving close
enough to the facility to be adversely
affected by air releases from SWMUs.
Recognizing that wMidjmHal patterns
may change after a remedy has been
selected and implemented, proposed
12M£60(b) would require the facility
owner/operator to notify EPA and any
individuals who may be exposed to the
contaminated air if, at any time, air
concentrations exceed the action level
beyond the facility boundary. The need
for interim measures or additional
studies would be assessed at that time.
The approach proposed today for
establishing points of compliance for air
releases differs somewhat from the
proposed approach for other media.
such as ground water. This Is due to
basic differences in the behavior of
contaminants In air as compared to
ground water. When a release into
ground water occurs, typically the
resulting ground-water contamination
will remain at or near the facility for an
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Federal Register / Vol. 55, No. 145 / Friday. July 27, 1990 / Proposed Rules
extended period of time. Thus, if the
contamination is not remediated.
exposure to the contamination (;>.,
through drinking water wells) can occur
for years thereafter. In contrast when a
release into air occurs, typically it will
migrate and disperse relatively rapidly:
the time when individuals who are
located close to the facility could be
exposed to the air toxicants would be a
matter of minutes or hours. Thus, an air
release that is occurring at any given
time does not present a long-term
exposure threat to those individuals, as
would a ground-water release. Remedies
for an air release problem will most
often involve stopping or controlling the
release itself from continuing to occur;
the released chemicals will not actually
be "cleaned up" per se.
Although the Agency recognizes that
there can be other effects from air
releases from solid waste management
units (e& formation of ozone), the
general objective under subpart S is to
prevent exposure of nearby individuals
to harmful levels of airborne toxicants
and carcinogens released from SWMUs
(see section VH.C3 of this preamble for
a discussion of the relationship of
subpart S to section 3004{n) standards .
and ozone concerns). Therefore, EPA
believes that the proposed approach for
setting points of compliance for air
releases at the most exposed individual
is sensible and realistic. Requiring
compliance at the unit boundary (which
would follow the approach for ground
water) would, in essence, create a
standard based on protecting against an
implausible exposure scenario.
Proposed 1264525(e)(l)(ii) also
provides that the Regional
Administrator will specify locations
when air monitoring devices must be
installed and what emission model!
testing, atmospheric dispersion m<
or other methods must be used to
demonstrate that a permittee hu
achieved compliance with the media
cleanup standards. Methods of
demonstrating compliance wijh air
cleanup standards will vary from site to
•ite. At many sites, emission modeling
or monitoring air close to the unit may
be coupled with air dispersion modeling
to estimate concentrations of hazardous
constituents at the point of compliance.
At other sites, monitoring of air quality
at the actual point of compM*""*1 may be
the most accurate and reliable method
of demonstrating compliance with the
media cleanup standard. In other cases.
corrective measures taken to control the
source of the release may eliminate the
release to air altogether. In such cases,
continued air monitoring or modeling
would not generally be required.
(3) Surface Water. For surface water,
the Agency is proposing the point where
releases enter the surface water as the
point of compliance. (See
{ 2M.5Z5(e)(l)(iii).) This compliance
point will be used for releases to surface
water that are ongoing, such as would
be the case with contaminated ground
water that flows into a surface water
body, or non-point runoff which occurs
during rainfall events. The Agency
believes that achieving compliance with
the media cleanup standard for such
releases at the point of entry into
surface water will be necessary to
assure that human health and the
environment are protected.
EPA recognizes, however, that in
some cases releases from solid waste
management units that have occurred in
the past have settled and accumulated
in surface water sediments. Where
actual cleanup of contaminated
sediments is determined to be
necessary, and cleanup standards have
been specified for the sediments in the
context of a remedy, proposed
8 264.525(e)(l)(iii) would allow the
Regional Administrator to designate
locations (/.«., areas and depths in the
sediments) where compliance with the
standards would be required.
The Regional Administrator will
specify the locations where surface
water must be sampled to monitor the
water quality. The Agency recognizes
that in some cases (e#., fast moving
streams) there may be some dilution of
hazardous constituents before samples
can be collected: however, the goal in
establishing sampling locations should
be to mtnfanjgn such dilution effects. The
Regional Administrator also may specify
locations where sediment samples will
be collected and analyzed to
demonstrate compliance with media
cleanup standards. Such considerations
will be particularly important when the
surface water is in important
environment for aquatic life and/or fish
or other organisms which an likely to .
be ingested by a nearby population. .
(4) Soils. Today's proposal would
establish the point of compliance for
soils at any point when direct contact .
exposun to the soils may occur. In most
cases this point will be near the surface
of soils, because this is when the
gnatest likelihood exists of human
contact
b. Method*. Under 1264525(eX2), the
Agency proposes that the Regional
Administrator specify in the permit the
sampling and analytical methods to be
used, methods of statistical analyses, if
required, and the frequency of sampling
or monitoring that may be required to
characterize levels of hazardous
constituents in all media, and to
demonstrate compliance with media
cleanup standards (or alternative
cleanup levels). In many cases the
permittee may have proposed, in the
Corrective Measure Study, sampling and
other analytic methods that would be
appropriate for the remedial alternative
as part of an implementability or
availability of needed services analysis.
In such cases, the Regional
Administrator may consider and adopt
the proposed methods or other methods
that he/she believes to be more
appropriate for the environmental
problem being addressed or may require
the parmittee to use methods he/she
believes mon reliable.
c. Timing of Demonstration of
Compliance. The Agency is also
proposing under 8 264.525(e)(3) that the
Regional Administrator specify in the
nmedy the length of time during which
the permittee must demonstrate that
concentrations of hazardous
constituents have not exceeded
specified concentrations in order to
achieve compliance with media cleanup
standards (or alternative cleanup
levels). Under the existing subpart F
regulations (8 204.100), the Agency has
required that facility owner/operators
remediating ground-water
contamination from regulated units
continue corrective action until the
designated ground-water protection
standard has not been exceeded for a
period of three years. The Agency has
found that given the variety of
hydrogeologic settings of facilities and
characteristics of the hazardous
constituents, it is difficult to
demonstrate reliably that the ground-
water protection standard has been
achieved by imposing a uniform time for
demonstrating compliance.
The Agency is not proposing a specific
time period under the subpart S
regulations for achieving compliance
with cleanup standards befon
discontinuing corrective action. Instead,
the Agency is proposing that the
Regional Administrator specify the
length of time required to make such a
demonstration as appropriate for a given
media cleanup standard. As described
under proposed 8 284J25(e)(3) (i)-{v),
the Regional Administrator may
consider five factors in setting this
timing requirement (1) The extent and
concentration of the ralease; (2) the
behavior characteristics of the
hazardous constituents in the affected
medium: (3) the accuracy of the
monitoring techniques; (4)
characteristics of the affected media; ,
and, (5) any seasonal, meteorological, or
other environmental variables that may
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Federal Register / Vol 55. No. 145 / Friday, July 27. 1990 / Proposed Rules
30833
affect the accuracy of the monitoring
results. The Agency believes that
consideration of these factors will allow
the Regional Administrator to set an
appropriate time period for
demonstrating compliance with cleanup
standards rather than relying on an
arbitrary time period for all facilities or
all situations at the same facility.
One example of how these
considerations might affect a decision
on the time a cleanup standard must not
be exceeded to demonstrate compliance
is given here. The Agency expects that
pump and treat systems will be required
at many facilities when hazardous
wastes or hazardous constituents have
migrated to ground water from SWMUs.
Experience in the RCRA snbpart F
program (which addresses releases of *
hazardous constituents to ground water
from regulated units) has shown that
continuous operation of a pump and
treat system may interfere with the
owner/operator's ability to obtain
accurate sampling data on constituent
concentration levels. Allowing natural
restoration of chemical equilibrium in
the affected ground water after the
pump and treat system is turned off will
be necessary to obtain accurate
readings of constituent concentrations.
If the concentration^) rise to
unacceptable levels after the remedial
technology is disconnected, reinitiation
of treatment may be required. This
process would have to be repeated until
acceptable concentration levels an
achieved after chemical equilibrium has
been reached in the ground water with
the treatment system suspended. In such
canes it may be necessary to extend the
life of the permit until required remedial
results have been achieved even when
waste management operations have
ceased at all active hazardous waste
units at the facility.
8. Conditional Remedies (§ 284.S25(f)J.
Proposed ft 284.525(0 would allow EPA
to select a "conditional" remedy. A
conditional remedy would allow, at
EPA's or the authorized State's
discretion, an owner/operator to phase-
in a remedy over time, as long as certain
conditions are met EPA recognizes that
in some cases MmplaHng cleanup will
be sufficiently complex and costly to
warrant a phased approach to cleanup.
Generally, a conditional remedy would
allow
(sometimes at existing levels) to remain
within the facility boundary, provided
that certain conditions are met These
conditions would include achieving
media cleanup standards for any
releases mat have migrated beyond the
facility boundary as soon as practicable,
implementing source control measures
that will ensure that continued releases
are effectively controlled, controlling the
further migration of on-site
contamination, and providing financial
assurance for the ultimate completion of
cleanup. The length of time that
contamination could be allowed to
remain within the facility boundary
would be established on a site-specific
basis, but could be for as long as the
permit remains in effect. Nothing in this
provision, of course, would prevent the
transfer of property subject to a
conditional remedy or other corrective
action requirements. For a further
discussion of the property transfer issue,
see section VLL.L of this preamble.
This type of remedial approach may
often be appropriate for RCRA facilities.
for several reasons. First, permitted
RCRA facilities will typically be actively
managed properties, with viable owner/
operators who can control and restrict
access to the property. Typically.
exposure at such facilities (which have
permits to manage hazardous waste)
will be significantly less than at sites
where access is unrestricted. For
example, actual drinking of ground
water under the facility will not
generally occur, nor would residences
typically be found—as long as the site
remained a RCRA permitted facility.
Therefore, an appropriate remedy for
such a site might be the cleanup of
ground water contamination under the
site to a level consistent with current
exposures. Most RCRA facilities pose
significantly lower environmental and
human health risks than Superfnnd sites,
and therefore the need to pursue
complete cleanup at such facilities will
often be less urgent The use of
conditional remedies in appropriate
situations complements EPA's overall
management goal of addressing me most
significant and urgent environmental
problems first
The Agency anticipates that there
may be a variety of facility-specific
situations under which a conditional
remedy would be appropriate, given the
nature of the contamination problem at
the facility, the capabilities of the
owner/operator and other factors such
as the level of risk and local public
concerns. One example could be a large
facility where the contaminant sources
and releases are of no current threat are
relatively remote from any potential
receptors and can be reliably controlled
to prevent further significant
degradation, and where the owner/
operator can be reasonably expected to
maintain an effective, long-term
presence at the facility, and thus able to
prevent exposure to contaminants
during the conditional remedy. EPA
recognizes that decisions regarding the
appropriateness of conditional remedies
could often have important implications
for owner/operators, as well as others
who may be affected by or who have
interest in the long-term environmental
conditions of these facilities. Such
decisions must be made in careful
consideration of relevant site-specific
factors. The Agency specifically
requests comment regarding which
factors should be considered—end
how—in determining the
appropriateness of conditional remedies,
and whether more formal criteria should
be specified in the rule for making such
decisions.
Conditional remedies would not be
appropriate in situations where EPA or
the authorized State lacks reasonable
assurance that further environmental
degradation will not occur. For example.
a conditional remedy would not be
appropriate in the case of a fast moving
plume or in circumstances where the
hydrogeology of the area suggests that
additional vertical migration will likely
occur despite the implementation of
engineered systems or devices to control
plume migration. Further, conditional
remedies may not be appropriate in
situations where a site with ground
water contamination is located in close
proximity to an environmentally
sensitive area. In the case of Federal
facilities, conditional remedies may be
frequently used because of a
combination of factors, including
technical limitations on the ability to
achieve complete cleanup at facilities
which are often extremely large and
complex, «™i the unique finanrial
constraints placed on Federal facilities
by the nature of the federal budget
process.
The media cleanup standards, source
control actions, or other actions' required
under a conditional remedy may or may
not be sufficient for a final remedy.
Today's rule recognizes that in some
cases, there ore technical limitations to
achieving complete cleanup of ground
water contamination. The proposal
recognizes this and allows technical
practicability to be factored into the
dedsionmaidng process at a particular
site both during the selection of
remediation alternatives to be
considered and in the final
determination of appropriate remedies.
The Agency Is particularly interested
in comments on Oils issue from the
States, who will ultimately be the
implementing agencies lor corrective
action. Comments are solicited as to
whether States support this approach.
and whether they believe it reasonably
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
addresses corrective action problems at
facilities operating under State permits.
Section 264.525(0(2) outlines the seven
specific requirements—or conditions—
that conditional remedies must comply
with. Should any of these conditions not
be met during the term of aTacility's
permit, EPA would either impose new or
additional conditions to ensure
protection, or require the owner/
operator to implement a "final" remedy,
i.e.. a remedy that fully meets the
standards of $ 264.525(a). In any event,
such a final remedy would ultimately
have to be implemented and completed
at the facility before termination of the
permit
Under a conditional remedy the
owner/operator would be required to
achieve media cleanup standards for
any releases that have migrated beyond
the facility boundary as soon as
practicable. In addition, the remedy
would have to prevent against any
further significant environmental
degradation This will typically involve
implementing source control measures
that will ensure that continued releases
(e.g., leachate from a landfill to ground
water) are effectively controlled. In
order to achieve this standard of
protection, substantial treatment of
wastes or other containment measures
will often be required In addition to
such source control measures, a
conditional remedy would also be
required to have implemented
engineered systems or devices to control
the further migration of on-site releases
that have already occurred. For
example, in the case of a plume of "on-
site" contamination (i.e., that had not
yet reached the facility boundary), that
would continue to migrate and further
contaminate the aquifer if left
unchecked, the owner/operator would
be required to install, at a minimum.
some type of ground-water interception
system or barrier system that would
reliably halt such continued migration.
The source control actions or other
actions required under a conditional
remedy to prevent further environmental
degradation may or may not be
sufficient for a final remedy. In some
cases, further treatment of wastes or
extra engineered features might be
required to achieve final remedial goals,
consistent with the provisions for
remedies under I 264425 (a) and (p).
Likewise, the final remedy would also
require compliance with standards for
attaining media cleanup standards
within the facility boundary, as well as
outside the facility.
Under a conditional remedy, any
treatment storage or disposal of wastes
required by the remedy would have to
be done In accordance with the
requirements for management of wastes,
as specified in proposed { { 264.550-
264.559.
Today's proposal would require that
financial assurance for the remedy be
demonstrated. The Agency recognizes
that financial assurance may often be
very important in ensuring the
effectiveness of a conditional remedy,
as well as ensuring that final cleanup of
the facility will be achieved. Comment is
solicited as to the types of financial
assurance requirements that should be
imposed on conditional remedies.
Since a conditional remedy may allow
some contaminated media to remain on
the facility during the course of the
remedy, a critical feature of the remedy
will be ensuring adequate controls to
prevent against exposure to such
contamination. Controls could be
engineered features, such as fences or
other physical barriers to restrict access
to those areas of the facility. Other non-
engineered controls, such as
prohibitions against use of on-site
ground water for drinking water, could
also be required and written into the
permit
EPA solicits comments on the overall
concept of conditional remedies, and on
the specific conditions and requirements
that should be imposed in implementing
such remedies.
C. Permit Modification for Selection of
Remedy (Section 284.526}
After a preliminary selection of
remedy, the Agency will need to revise
the permit to incorporate the remedy.
This decision (selection of remedy) is a
major one in the corrective action
process, and the public is entitled to
review and comment on the Agency's
preliminary decision concerning
appropriate remedial activities atlhe
facility. Moreover, this modification
provides an opportunity for the public to
comment on activities (e.g.. the remedial
investigations and the CMS) that have
led up to the identification and selection
of the remedy. As a result the Agency
believes that a major modification of the
permit is appropriate. Therefore, the
Agency is proposing today in
1284.526(a) to require a major permit
modification for the purpose of
specifying the selected corrective
measures and imposing a schedule of
compliance for implementing the
remedy.
The regulatory authority for a major
permit modification is found In 40 CFR
270.41. as amended by proposed
1270.41(a](5)(ix) of today's regulation.
No changes an being proposed in '
today's rule for the major modification
process, which requires a 45-day notice
and comment period, a response to
comments, and a public hearing if such a
hearing is requested. (Regulations
concerning standards for major
modifications are located at 40 CFR
270.41; governing procedures are found
in 40 CFR part 124.)
Opportunities for public involvement
in the corrective action process beyond
the modification for selection of remedy
are discussed in Section Vm of today's
preamble.
Proposed | 264.526(b) specifies seven
elements that would be included in the
modified permit The proposed
modification and its accompanying
statement of basis would provide a
framework for the facility owner/
operator's and the public's
understanding of the remedial activities
selected for the facility. First the
proposed modification would have to
include a description of the technical
features of the remedy necessary to
achieve standards for remedies as
stated in proposed | 264.525(a). This
description must be complete enough to
enable a reviewer to determine that it
complies with the standards for
protectiveness, attainment of media
cleanup standards, source control, and
waste management practices imposed
on all RCRA remedies under
I 264.525(a). For instance, if an
Incinerator is to be constructed to
incinerate waste at the facility, the
description would generally indicate the
type of incinerator proposed, the part
264 performance standards the
incinerator would meet the capacity.
etc. The remedy description might also
need to specify equipment or design
features needed to address air releases
from the treatment process (e.g.. air
strippers used to remove volatile
organics will generally be required to
have a control device such as a carbon
adsorption unit). The technical features
required should be provided in sufficient
detail to allow meaningful comment and
to provide the facility owner/operator
clear guidance in developing a remedial
design. (See discussion of remedy design
under section VLH of today's preamble.)
At the same time, EPA believes that
many details of the remedy—for
example, the operating conditions of the
incinerator needed to meet the
performance standards or the exact
nature of emissions control devices on
tanks—might not be available at this
stage and would be addressed during
approval of the remedy design.
Second, today's proposal would
require in { 264.528(b)(2) that media
cleanup standards established during
remedy selection be included in the
modified permit
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Federal Register / VoL 55. No. 145 / Friday. July 27, 1890 / Proposed Rule*
30835
Third, proposed fi 284.526(b)(3) would
require that the modified permit
describe conditions the pemittee must
fulfill to demonstrate compliance with
the media cleanup standards
established in the remedy selection
process under 9 264525(6)' For example.
the modified permit might require the
owner/operator to continue monitoring
ground water over a certain period of
time after a cleanup standard has been
achieved to ensure that the level is not
subsequently exceeded. In addition, the
permit might specify where ground
water would be monitored to measure
compliance. Again, specific details on
compliance measurements might not be
available at remedy selection, but would
be addressed through remedy design.
Proposed 9 2M.526(b)(4) would
require the Regional Administrator to
specify standards applicable to the
management of corrective action wastes
in the permit For example, if the remedy
selected specifies use of a temporary
tank at the facility for the purpose of
waste treatment any design, operating
or performance standard deemed
applicable to the operation of the unit
would be included in the modified
permit by the Regional Administrator.
Fifth, any procedures the permittee
must follow to remove, decontaminate,
or close unite or structures used daring
remedy implementation would be
specified in the permit as well as any
post-closure care required. In the
example of the temporary unit used
above, the Regional Administrator
would specify any closure standards
that applied to the temporary unit if the
unit was employed to treat hazardous
waste.
Proposed 1284.526(b)(6) would
require that the modified permit include
a schedule for initiating and completing
all major technical features and
milestones of the remedy.
Finally, the modified permit must
include (under i 264£26(b)(7)) any
requirements for submission of program
reports or other information deemed
necessary by the Regional
Administrator for the purpose of
overseeing remedy implementation and
progress. For further discussion of the
remedy selection process and
components of the decision-making
process, see section VLF of today's
preamble.
The Agency believes that these
minimum requirements—a description of
the remedy's technical features, the
cleanup standards mat must be
achieved, the standards that must be
met to demonstrate compliance with the
media cleanup standards, standards
applicable to the management of
corrective action wastes, requirements
for removal, H
closure,
or post-closure of units or devices
employed during remedy
implementation, a schedule of
compliance, and requirements for
reporting — are the most important
decisions the modified permit must
reflect. Further, they are essential to
inform the public fully of the Agency's
preliminary decision when the draft
permit modification is issued for notice
and comment
In addition to the draft permit
modification itself, EPA would also be
required to publish, under the permit
modification requirements, a statement
of basis. This statement which would
be roughly analogous to the Superfund
Record of Decision (ROD), would
generally describe die basis for EPA's
tentative remedy selection or approval
and an explanation for the cleanup
levels chosen. In addition, EPA would
generally make the remedial
investigation and the CMS reports
available to the public for review. The
scope and content of the statements of
basis will vary widely, of course.
depending on the complexity of the site,
the nature of the proposed remedy, the
level of public interest and other
relevant factors. In any case, they
should be sufficiently detailed for the
public and the facility owner/operator
to understand and comment on the
Agency's tentative decision, and the
studies "nH conclusions leading up to
the decision.
The permittee, based on the remedy
selected and approved in the final
modified permit will be required under
proposed 1 264.526(c) to demonstrate
fjnnnrjfl] assurance for completing aH
required remedial actions specified hi
the modified permit The proposed
regulations for financial assurance for
corrective action (FACA) (51 FR 37854),
as discussed in sections IV J) and
VII.C5 of today's preamble, may be
used as guidelines by owner/operators
for demonstrating the required financial
assurance.
Today's proposed 1 264.526(c) would
require the permittee to demonstrate
financial assurance no later than 120
days after the modified permit becomes
effective. The Agency believes that this
approach is needed since the remedy
proposed for the facility in the draft
permit modification may be altered in
response to comments, and since final
detailed remedy design, construction.
operation, and maintenance plans which
will provide significantly unproved cost
estimates may not be submitted until
after the modified permit is in effect
The Agency chose 120 days to promote
'consistency with other RCRA financial
assurance provisions. Experience hi
implementing the financial assurance
provisions under 40 CFR part 264,
subpart H. has shown that 120 days is a
reasonable period of time for owners or
operators to obtain financial assurance
mechanisms. The Agency is specifically
soliciting comment on this proposed
provision today, and whether 120 days
after the final remedy decision is
imposed is an appropriate length of time
for demonstrating financial assurance.
In addition, proposed | 264.525(c)(2)
would allow the Regional Administrator
in certain circumstances to release the
facility owner/operator's mechanisms
establishing financial responsibility for
closure and post-closure financial
assurance at the time financial
assurance for corrective action is
established. This amendment is
necessary to address situations where
corrective action is conducted at
regulated units—particularly under the
subpart F requirements of 9 264.100—
and the corrective action schedule of
compliance replaces the unit's closure
plan. In these cases, it will generally be
appropriate for the Regional
Administrator to release the facility's
financial assurance for closure and post-
closure for that unit and allow the
faculty to apply the mechanisms to
'financial assurance for corrective
action. In addition, at the point where
the unit subject to corrective action Is
effectively closed in accordance with
the corrective action schedule of
compliance, the Regional Administrator
would have the authority under today's
proposal to release the owner/operator'
from third-party liability requirements
with respect to that unit This proposed
requirement is consistent with the
current provisions of subpart H, which
generally provide for the release of
third-party liability mechanisms at the
time an owner/operator certifies final
closure.
Section 264.526(d) provides for phased
remedies when considered appropriate
by the Regional Administrator. The
concept of phased remedies is similar to
the designation of "operable units" in
CERCLA. Remedial actions at CERCLA
sites are often managed in stages called
operable units since it is often not
feasible, for a variety of reasons, to
clean up an entire site in one action.
Operable units under CERCLA or
remedial phases under RCRA, may
consist of any logically connected set of
actions performed sequentially over
time, or concurrently at different parts
of a site.
One example of a situation where a
phased remedial approach would be
useful is where treatment of waste is
desirable, but when a suitable
-------
/ Vol. 88. Mo. MS / Fdday. fuiy 27. IggQ / Proposed Rulaa
araadty Jo m©8 <
available. al8aough J8 io <
availabls in tho foraoooablo fu8ura. In
ouds CQOOO, ramsdial phaooo might
cosoioS initially of limited Hssaaourao to
otabiliBG tho waotso. to bo followed by a
complete raoponoo action whan on
cppropriato treatment teohnology or
capacity bscoBseo available.
ABOther example of 0 phased
approach would bo a requirement 80
iaotall Q groand-wotor pump and treat
.am ammo
eoaisalo ot Q SWMU (or SWMUo)
ia many caoeo,
OB of tho
io
EQOI
ralsoosa
sxpooura of
homooo or csnoitivo environmental
to hosordouo coaotitiieHto at
0
STO^Uo te otogso, I
ifcitpscol
@w523i'/sp2fQtc? will often
la fej sedifled pssmit to
opadflcaStorao for implementing the
romedy. TBQ ochedulo for gubmisolion o?
the piano would bo included to a
ochedule o? complianca detailed in the
permit Tnio prapoosd requiroment io
analogowo 80 &Q Supsrfund program'o
adoption of dsoigH otendardo following
the Record of Decision on ramedy
oalscMon. TJie Agsncy would approve o?
modify the dsoigss and incorporate it into
the ochodule of compliance.
Designo rsquirad under 0 2S4.S27 must
include opodBcaMoao that
piano and epaciScmtionQ. Thooo piano
will provide taprovod coot estimateo
compared to thooe developed during
modification of the permit Therefore, to
ensure that adequate amounto of funds
are available to cover corrective action
costs, the amount of financial assurance
demonstrated muot reflect the revised
cost estimate derived from the final
construction plans and specifications.
2. Progress Reports (§284.528). Since
implementation of remedied will often
0 204.323 of today'o proposal provideo
that the Regional Administrator may
require periodic progreoo reports from
the information typicaUy required about
conotructioit, operation, and
ajaintenaacs of the oelected remedy.
jjj8 Regional Administrator would
unite and pPOCBoees at facilities in part IS spfflcify. jj,e fosqueacy and format of ouch
" The permittee would i
under propooed 0 S84.527 to oubmitt
:, when o/he approved tho
Such ifsposto would bo
a program
na tas
construction phaoe
implemsntoMoa. Sudb
include opsdfic datoo for major
QO
well oo other oignificant sveffl8o.
Propossd 0 28(5.327^)
' from oite 80 oite.
? tea mood by 8he
ie
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Federal Register / VoL 55. No. 145 / Friday. July. 27, 1990 / Proposed Rules
30637
routine basis from all facilities
implementing remedies; and requiring
development of progress reports which
would be kept on file at the facility and
available for inspection by EPA. The
Agency has tentatively rejected these
alternatives, because it believes that the
variation among sites will require that
reporting (including frequency of
reporting) be tailored to the specific site.
All raw data and information
developed or submitted during remedy
implementation (including design,
laboratory reports, etc.) must be
maintained in the operating record of
the facih'ty as long as the facility
operates under a RCRA permit
including any reissued permit following
initiation of corrective action. This
requirement is proposed in 1264.528{b)
and is necessary to ensure that periodic
reviews at the site will have all data
available for inspection.
3. Review of Remedy Implementation
(§264329). Under the regulatory
authority proposed in | 264.529, EPA
would review remediation activities on
a periodic basis. Such reviews will take
place throughout the design,
construction, operation, and
maintenance of the corrective
measure(s). The Agency's review of
remediation activities will consist bom
of a review of progress reports
submitted by the permittee and, where
necessary, on-site inspections and
oversight of remedy design,
construction, operation, and
maintenance. The Agency intends to
focus on-site inspections on areas
identified for oversight in progress
reports or prior Agency reviews.
The Agency believes that the
authority to perform close reviews of
remediation activities is an essential
element of the corrective action
program; Experience in the HSWA
corrective action program and the
CERCLA remedial program has
demonstrated that timely and close
oversight of cleanup activities is
essential in many cases to ensure that
remedies an effectively implemented.
For example, oversight of the remedy
may indicate that the technology
originally called for in the design plans
is not in fact successfully meeting the
media cleanup standards. Proposed
9 261529 provides EPA with the
authority to take steps to remedy such
implementation problems.
The Agency intends to work closely
with permittees by overseeing remedy
implementation and addressing
problems in a timely manner. Where
problems arise during implementation of
the selected remedy, the Agency will
attempt to settle such problems
informally with permittees to ensure
prompt completion of the remedy in a
manner which adequately protects
human health and the environment. In
some cases, the Agency may determine
that an enforcement action under
section 3008(a) is necessary to compel
compliance with the permit In other
cases, where no resolution of
disagreements appears possible, or
where the contemplated change is one
that warrants additional public
participation, proposed \ 264.529 would
allow the Regional Administrator to
initiate a permit modification using the
procedures laid out in 40 CFR 270.41 or
those proposed today under ( 270.34(c).
If the Regional Administrator believes
that a disagreement over a proposed
provision is suited to alternative dispute
resolution, she/he may seek resolution
using the procedures described in
section VLL7 of today's preamble. A
more detailed discussion of
circumstances which may require permit
modifications may be found in section
VLL of today's preamble.
The Agency also considered, but
rejected, requiring a specific number of
faculty inspections during remedy
implementation. Because the variety of
problems to be addressed under today's
proposed regulation is extensive (as is
the range of proven reliability of
technologies which may be employed to
address the problems, complexity of die
site, and potential for exposure), the
Agency has concluded that frequency of
site reviews must be a case-by-case
decision.
4. Completion of Remedies (§264.530).
Proposed 1264.530 would establish
criteria by which the owner/operator
would demonstrate the completion of
remedies.
Section 264.530 would specify that
corrective measures required in the
permit are complete when three
conditions have been met First under
proposed t264.530(a)(l), the
requirements for compliance with all
media cleanup standards (or alternative
cleanup levels) as specified in the permit
would have to be met For example, if
both a ground-water and soil cleanup
standard are specified in the permit the
cleanup standard must have been
achieved for each medium before the
facih'ty meets the criterion of
compliance with all media cleanup
standards, m addition, after initially
achieving the cleanup standard the
permittee generally would be required to
monitor the medium for an additional
period of time to ensure that the remedy
was in fact complete and that
contaminant levels did not subsequently
exceed the cleanup standards under the
provisions of proposed { 284.525(e). This
requirement is discussed in section
VI.FJ.C of this preamble.
Second, under proposed
{ 264-530(a)(2), all actions required in
the permit to address the source or
sources of contamination must have
been satisfied. This provision is
designed to prevent continued
contamination in the future, One type of
source control which may be required is
construction of a structurally sound cap
on an inactive SWMU to prevent future
contaminant migration to surface water
which could potentially result from
rainfall runoff from an uncovered
SWMU.
Third, under proposed S 264.530(a)(3).
the permittee would have to comply
with procedures specified in the permit
for removal or decontamination of units.
equipment devices, or structures
required to implement the remedy. In
other words, temporary structures or
equipment necessary to conduct the
remedy must be removed or
decontaminated to complete the remedy.
For example, liners or the contents of
temporary waste piles would have to be
disposed of according to appropriate
waste management practices. Units
employed during the remedial activities
to manage hazardous waste will be
required to meet the closure
performance standards for the
appropriate type of unit (Closure would
not be required, of course, if the owner/
operator wished to continue use of the
unit to manage waste and continued use
was allowed in the permit.)
Proposed 8 284.530(b) would establish
procedures that permittees must follow
to document that corrective measures
have been completed in accordance
with the requirements of | 284.530(a).
Upon completion of the remedy, die
permittee would be required to submit a
written certification to the Regional
Administrator by registered mail stating
that the remedy has been completed in
accordance with the requirements of the
permit The certification must be signed
by the permittee and by an independent
professional skilled in the appropriate
technical discipline. The Agency
believes mat a certification by an
independent professional is necessary
because the permittee may lack the
expertise and the incentive to judge
adequately the compliance of the
remedy with the applicable
requirements specified in the permit.
The Agency is not proposing to
specify the types of independent
professionals who must certify
completion of the remedy. The Agency
proposes to require certification by an
appropriate independent professional in
recognition that different certifications
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30838
Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
may require different skills (eg., an
engineer may be appropriate in some
cases whereas a hydrogeologist might
be more appropriate in another).
The Agency considered, but is not
proposing, a requirement that all
supporting documentation be~submitted
along with the certificate of completion.
Since, in most cases, the Regional
Administrator would have required
submission of periodic progress reports
on remedial activities and since the
supporting information must be
available at the facility for inspection.
the Agency believes that submission of
all documentation will not be necessary.
Upon receipt of the certificate of
completion, the Regional Administrator
would determine whether the remedy
has been completed in accordance with
the requirements of proposed 1264.530.
If the Regional Administrator
determines that the applicable
requirements for remedy completion
established in the permit schedule of
compliance have not been met, the
Regional Administrator would generally
notify the permittee of such a decision
and of the steps that must be taken to
complete the remedy. After such step*
have been taken, the permittee should
submit a new certificate of completion
in accordance with the requirements of
this section.
When the Regional Administrator ha*
determined that the remedy Is complete,
the permittee will be released from the
financial assurance requirements for
corrective action under if 26L500(c)
and 204.526(0).
The Agency is proposing, in
{ 264.530(4(1). that the permit will be
modified according to the Class m
procedures for owner/operator-initiated
modifications (1270.42). to terminate the
permit schedule of compliance when all
required corrective action is determined
to be complete.
Generally, remedies required under
subpart S will be considered complete
only when all measures at • facility
have been completed. Thus, if separate
remedies are implemented for several
units at a facility. aJU remedies must be
completed before the Agency considers
corrective action at the facility to be
complete. For example, if a remedy for
releases from two units at a facility is
complete, but a different remedy for
releases from three other units at the
facility is incomplete, the Agency will
not consider corrective action for the
facility complete.
In some situations, however faff,
where essentially separate remedial'
activities addressing releases widely
separated in location and affecting
different environmental media), it may
be possible fef the owner/operator to
demonstrate that some portion of the
remediation required has been
successfully completed though other
required actions are still underway. This
will usually be the case where the
remedy chosen for a facility is a phased
remedy divided under proposed
{ 264.526(d). In such cases, the Regional
Administrator may allow submission of
certifications of partial completion of
remedies by the owner/operator.
Certifications of partial completion will
be handled in a manner analogous to
certifications of partial closure and are
provided today in proposed 9 264.530(d),
which includes a provision for partial
release of the financial assurance
mechanism as well. However, until all
corrective action activities required in
the permit are complete the owner/
operator must continue to comply with
all implementation and reporting
requirements specified in the permit
which have not been specifically
satisfied to date.
5. Determination of Technical
Impracticability (§264.531). This
proposed section is intended to address
situations where a performance
requirement set for a selected remedy in
the permit cannot technically be
achieved after reasonable efforts to do •
so have been made by the permittee. An
example of such a situation might be
where hydrogeologfc and geochemical
factors that were not fully understood at
the time of remedy selection prevent the
attainment of a media cleanup standard
for ground water
EPA will require owner/operators to
put forth active efforts to achieve all
requirements of the selected remedy. If
the selected remedial technology proves
not to be capable of attaining a media
cleanup standard or other remedy
requirement (such as a source control
measure). EPA may require the owner/
operator to •»«!»<»» alternative
technologies that are available and that
may be able to achieve the requirement
If nicfa an alternative technology is
identified, and is compatible with the
overall remedial objectives (04, would
not create unacceptable cross-media
impacts), the permit will be modified to
require implementation of the
technology. (See discussion of review of
remedy implementation under
1264.529.)
• EPA will examine, on a case-by-case
basis, the owner/operator's efforts to
achieve remedy requirements.
Comments are solicited as to what
objective factors may be examined in
making these judgments.
If the Regional Administrator
determines that attainment of a remedy
requirement is not technically
practicable and no practicable
alternative technologies are available, it
will be necessary to determine what
alternative, or additional requirements,
if any, will be needed to ensure that the
remedy adequately protects human
health and the environment If, for
example, attainment of a cleanup
standard for ground water is determined
to be technically impracticable,
additional measures [e.g.. facility access
controls) to control long-term exposure
to the ground water may be needed if
the ground water is not drinkable.
Likewise, if treatment of contaminated
soils to specified levels were not
technically feasible, the soils may need
to be covered or disposed of in a unit
with upgraded engineering controls for
release prevention. In some cases, the
Regional Administrator may determine
that no alternative or additional
requirements are necessary. For
example, the total risk from the site may
be acceptable, although some
carcinogenic constituents may exceed
the desired risk level established by the
media cleanup standard.
If attainment of a media cleanup
standard is determined to be technically
impracticable, it is not the intention of
EPA to modify the standard to a less
stringent level Media cleanup standards
represent levels that are determined to
be protective of human health and the
environment: a finding that such
standards cannot be met does not affect
the desirability of achieving those
levels. A determination of technical
impracticability thus represents a
finding that remediation to protective
levels cannot be accomplished from a
technical standpoint and that the
owner/operator will not be required to
continue to expend resources to meet
the standard.
A determination of technical
impracticability does not relieve the
owner/operator of his ultimate
responsibility to achieve the specific
remedy requirement If such a
determination is made, but subsequent
advances in remedial technology or
changes in site conditions make
achievement of the requirement
technically practicable, EPA reserves
the authority to modify the permit (if the
permit is stifl in force) or take other
appropriate action to require attainment
of the standard or other requirement
/. Interim Measures (Section 284J40)
This section would establish the
Agency's regulatory authority to compel
permittees to conduct interim measures.
As part of its overall strategy for
implementing the corrective action
program. EPA intends to place strong
emphasis on using this interim measure
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Federal Register / VoL 55, No. 145 / Friday, July 27. 1990 / Proposed Rules
30839
authority to expeditiously initiate
cleanup actions, especially in situations
where it is clear that such a measure
will be a necessary component of the
final remedy. The need for interim
measures should be assessed early in
the corrective action process, as well as
in subsequent phases as more
information on releases and potential
remedial solutions become known.
Under proposed § 264.540(a), the
Agency could require the permittee to
conduct Interim measures at a facility
whenever the Agency determines that a
release from a SWMU (or, based on site-
specific circumstances, a threatened
release) poses a threat to human health
or the environment Interim measures
will be specified in the schedule of
compliance, and will generally serve to
mitigate actual threats and prevent
imminent threats from being realized
while a long-term comprehensive
response can be developed.
Interim measures may encompass a
broad range of possible actions. In some
cases, such measures will involve
control of the source of the release.
while in other cases, control of the
contaminated medium, or other
exposure controls, will be necessary.
For example, a permittee responsible for
contamination of a public drinking
water supply may be required to make
available an alternate supply of drinking
water as an interim measure, until the
contaminated surface or ground water
can be remediated. A permittee could
also be required, as an interim measure.
to initiate a ground-water pump and
treat system to control the further
migration of contamination, if it were
determined that further significant
degradation of the aquifer would occur
while options for the ultimate remedy
for the facility are being studied. Other
examples of interim measures include
fencing off an area of contaminated soils
to prevent public access, or overpacking
of drums that an in poor condition to
prevent possible leakage.
The Regional Administrator will
consider the immediacy and mag^i'tiK^f
of the threat to human health or the
environment as primary factors In
determining whether an interim
measura(s) is required. Proposed
8 284.540(b)(lH9} UsU factors which the
Regional Administrator may consider in
determining whether an interim measure
is required. These factors include: (1)
The time required to develop and
implement a final remedy: (2) actual or
potential exposures of nearby
populations or •«*mal« to hazardous
constituents; (3) actual or potential
contamination of drinking water
supplies or sensitive ecosystems; (4)
further degradation of the medium
which may occur if remedial action is
not initiated expeditiously; (5) presence
of hazardous wastes or hazardous
constituents in drums, barrels, or other
bulk storage containers that may pose a
threat of release; (6) presence of high
levels of hazardous constituents in soils
ct or near the surface which may
migrate; (7) weather conditions which
may cause releases of hazardous
constituents or migration of existing
contamination; (8) risks of fire or
explosion or the potential for exposure
to hazardous constituents as a result of
an acddent or failure of a container or
handling system; and. finally, (9) any
other situations that may pose threats to
human health or the environment For
example, consideration of high levels of
hazardous constituents in surfitial soils
at a facility located adjacent to a
surface water body (see 1264£40(b)(6))
used as a drinking water source may
lead the Regional Administrator to
conclude that immediate excavation of
the contaminated soil or other
containment measures are needed to
prevent a threat to the surface water
which could result from runoff after a
heavy rain.
Proposed 1264£40(c) would require
the Regional Administrator to notify the
permittee in writing of required interim
measures, and would require the
permittee to initiate the interim
measures as soon as practicable. In
some situations, such as an actual
emergency situation, the Regional
Administrator might require the interim
measure to be initiated immediately.
with little if any formal procedures.
More typically, however, the Regional
Administrator will initiate a permit
modification under either 127O34 or
1270.41 as appropriate, to specify me
required interim measure. Section 270.41
modification might be used, for example,
if installation of an extensive ground-
water pump and treat system were
required. This would be appropriate
since such a requirement would be
resource-intensive for the owner/
operator, would likely serve as the basis
for a final remedial action at the facility
during a later decision-making process
conducted by the Agency, and would
indicate a serious concern for
concentrations of contaminants in the
ground water about which the public
should receive the extensive notice and
comment opportunities provided by that
procedure. Conversely, if the interim
measure wen designed to address
problems of iessar magnitude, the
procedural requirements of the permit
modification proposed today in 1270J4
may be sufficient
The proposed regulations in this
subsection are similar to those in the
removal section of the NCP under
CERCLA (see 40 CFR 300.415). In many
cases, the Agency expects that needed
interim measures will be undertaken
voluntarily by the owner/operator
without the need for permit
modification. In some cases, however.
the use of CERCLA removal authorities
or Section 7003 of RCRA may be
appropriate; as in a situation where the
permittee is unwilling to respond quickly
to an exposure problem that merits an
immediate response; and where a permit
modification to compel the response
would cause unacceptable delay. For
example, this would be the case if high
levels of constituents had migrated from
the facility and were affecting nearby
drinking water supplies and the owner/
operator was unwilling to voluntarily
make available an alternate source of
drinking water to affected populations.
The Agency would first act to protect
against potential exposures, then act to
compel the permittee to comply with
other conditions necessary to protect
human health and the environment.
Section 264.540(d) indicates the
Agency's intent for interim measures
taken at a facility to be consistent with
any further remedy that will be
• implemented at the facility after full
characterizations of the contamination
under the RFI and selection of the final
remedy under proposed § 284.525.
The Agency has developed guidance
for imposing interim measures under
RCRA. Interim Final RCRA Corrective
Action Interim Measures. OSWER
Directive 9902.4. May. 1988. Contact
Tracy Back (202) 382-3122.
As the discussion above indicates,
interim measures are one type of
corrective measure which may be
required under the authority of section
3004(u) of RCRA. In considering the
statutory requirements for a
demonstration of financial assurance by
owner/operators for taking corrective
action, the Agency evaluated several
approaches to financial assurance for
interim measures.
In many cases, a requirement to
demonstrate financial assurance for
interim measures may serve no useful
purpose and may actually contribute to
delays in facility cleanups. For example.
where an interim measure is imposed
requiring removal of barrels containing
hazardous constituents (similar to a
removal action under CERCLA) it would
be unnecessary to require a
demonstration of Bmmrial assurance,
since compliance would be relatively
inexpensive and could be quickly
completed
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In other cases, interim measures could
be relatively extensive and could be
conducted over a period of several
years. This could be the case, for
example, where a well system*must be
installed to stop a plume of
contamination from further migration at
a highly complex site until a final
remedy could be implemented, or where
a soil treatment system is installed
which would require several yean to
achieve required contaminant
concentration levels. In these kinds of
cases, a demonstration of financial
assurance for interim measures will not
substantially impact the implementation
of the interim measures and would
promote the Congressional intent of
ensuring that adequate funds are
available to complete the required
actions. In such a case, requiring a
demonstration of financial assurance for
an interim measure within 120 days of
the imposition of the interim measure
may be reasonable.
Another option for addressing the
question of financial assurance that was
considered by the Agency, but was
rejected, would have interpreted the
requirement for financial assurance to
apply only to final remedial actions
required by the Agency. Still another
possible reading of the statute might
lead to the conclusion that imposition of
any type of corrective action would
require a full demonstration of financial
assurance. The Agency has concluded
that the objective of the corrective
action provisions, which is to remediate
environmental problems in an
expeditious manner and the financial
assurance objective of ensuring
adequate funding for remediation,
should be balanced on a case-by-case
basis for interim measures. The Agency
specifically solicits comments on this
approach.
/. Management of Wastes (Sections
284.550-264.5S2J
1. Overview. In the course of
corrective action, facility owner/
operators will manage a wide range of
wastes, including both wastes that meet
the RCRA definition of hazardous waste
and those that do not Sections 284.550-
264.552 of the proposed regulations
would establish standards for the
management of these wastes during
corrective action. Under these sections,
wastes that meet the RCRA regulatory
definition of hazardous waste must be
managed in accordance with the
applicable standards of 40 CFR parts
262,264,268, and 280. with certain
exceptions (see following discussion of
temporary units). In addition, statutory
land disposal restrictions will be
triggered when restricted hazardous
wastes are placed into a land disposal
unit and minimum technology
requirements will apply to new or
replacement units and lateral
expansions of existing units. Finally,
non-hazardous solid waste must be
handled according to applicable subtitle
D standards, except where the Regional
Administrator determines that
additional controls are necessary to
protect human health and the
environment
In general, owner/operators will also
have to comply with all other applicable
Federal, state, and local regulations. The
basic responsibility for complying with
any applicable permits and
requirements will be the owner/
operator's; however, the EPA or State
permit writer will consider these
requirements in selecting a remedy and
will take steps to ensure that remedies
selected are consistent with other
Federal or State standards.
2. General Performance Standard
(§264.550). Section 264.550 proposes a
general performance standard for
management of all wastes during
corrective action. Under this standard,
the Regional Administrator may impose
any requirements on the management of
corrective action waste that s/he deems
necessary to protect human health and
the environment This standard applies
both to solid and to hazardous waste
managed as part of RCRA corrective
action requirements. This general
standard derives from the statutory
mandate of section 3004(u) to require
corrective action: as a corollary to this
authority, the Agency is authorized to
ensure that actions taken to implement
corrective actions do not themselves
pose unacceptable threats. EPA Is
therefore obligated to impose controls
on management of wastes, pursuant to
remedial activities, as necessary to
protect human health and the
environment
EPA believes this general
performance standard is necessary
because current regulations governing
. treatment storage, and disposal of solid
or hazardous wastes may not be
adequate in all situations involving •
corrective action. In particular, many
cleanup activities that do not involve
treatment storage, or disposal of
hazardous waste require special can tff
prevent release of hazardous
constituents. For example, dredging of
surface impoundments or excavation of
soils containing volatile organics can
lead to significant releases of hazardous
constituents to the air. potentially
endangering workers or neighboring
populations. When such situations have
arisen in Superfund actions, EPA has
imposed controls on cleanup activities,
such as prohibiting cleanup when the
wind was blowing in a certain direction
or requiring air monitoring and the
cessation of activity when a specific
level was exceeded. Requirements to
control air emissions from RCRA
permitted units, when promulgated, may
not be strictly applicable to certain
SWMUs. Proposed 8 264.550 would give
EPA the authority to impose such
conditions, or other controls, as part of
correction action under section 3004(u).
Section 264.550 proposes general
performance standards for management
of all wastes during corrective action.
Under proposed | 264.550(a), wastes
must be managed in a way that is
protective of human health and the
environment and that complies with
applicable Federal, State, and local
regulations. Facility owner/operators
will be required to comply with all
applicable regulations in carrying out
corrective action; proposed
1284.550(a)(2) codifies this requirement
as a reminder to owner/operators that
RCRA corrective action permit
conditions do not absolve them of other
legal responsibilities.
However, there may be cases where a
State or local law stands as an obstacle
to the accomplishment of Congress*
purpose in enacting section 3004(u), or
directly conflicts with regulations
developed under section 3004(u). EPA
believes mat in such rare cases where
State or local laws could be said to
frustrate the purposes of the statute, a
court might find such laws to be
preempted by RCRA. See, 04. ENSCO.
Inc. vs. Dumas. 807 F.Zd.745 (8th Cir.
1986). Alternatively, in the case of a
State requirement that could jeopardize
implementation of a remedy, it may be
possible for the State to waive that
requirement
3. Management of Hazardous Wastes
(§ 264.551 fa)). In many cases, waste
subject to corrective action will meet the
regulatory definition of RCRA
hazardous waste. A facility owner/
operator would be handling hazardous
waste at a SWMU. for example, if it
contains listed wastes disposed of
before November 19,1980, or the wastes
fail the characteristic test Also, releases
from hazardous waste management
units exempted from permitting
requirements, such as wastewater
treatment .units or 90-day accumulation
tanks, may be hazardous waste even
though the units in which they are
managed are exempt from permitting.
Similarly, soils and ground water
contaminated with releases of listed
hazardous waste will generally be
subject to subtitle C standards. Under
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30841
current rules, a contaminated medium
that exhibits any of the characteristics
identified in subpart C of part 261 or
contains a listed hazardous waste,
Including (with certain exceptions) any
constituent generated by a listed waste
(e.g., leachate), must be managed as
hazardous waste until it no longer
contains any of the waste, is delisted, or
for characteristic wastes, until it no
longer exhibits any of the
characteristics. Where wastes meeting
the RCRA regulatory definition of
"hazardous" are treated, stored, or
disposed of during corrective action,
they will be subject (with certain
exceptions; see discussion below) to the
standards of 40 CFR parts 262,264. and
268 (or, in the case of air emissions, part
269 or the Clean Air Act). Proposed
S 264.551(a) clarifies this point
Proposed 9 264.551(a), however,
would also allow the Regional
Administrator discretion to waive most
procedural requirements associated
with closure of hazardous waste
management units (subpart G of 40 CFR
part 264) for units created for the
purpose of managing corrective action
wastes. Procedural requirements that
may be waived include submission and
approval of closure plans, and specific
time frames for submission and review
of the plan and other activities
associated with closure.
EPA believes that the process for
developing and reviewing remedies as
outlined in today's proposal, coupled
with the procedures that will be
followed in modifying permits to specify
remedies, provides an equivalent and
equally effective means of ensuring that
the applicable closure and post-closure
technical requirements are required of
units that are created and operated for
the purpose of implementing remedies.
Were the subpart G procedural
requirements to remain applicable to
those units, the result would be to have
two parallel, and essentially redundant
(and sometimes inconsistent), processes
for establishing technical requirements
for remedial units. It should be
understood, however, that the general
performance standard for closure (see
8 264 111), and the unit-specific
technical closure standards could not be
waived, and will be applied to new units
created during the remedy.
Waiver of the subpart G procedures is
at the discretion of the Regional
Administrator. In some situations it
would be appropriate to require the
owner/operator to follow the subpart G
process for closure/post-closure for a
unit used in remediation activities. An -
example could be where a unit (such as
a tank) is constructed and operated for
the purpose of implementing the remedy
for the facility, but the owner/operator
subsequently chooses to continue to use
the tank after the remedial activity is
completed, for other hazardous waste
management purposes. Since the tank
would no longer be part of the remedy,
the owner/operator would have the
obligation to follow the normal
administrative procedures for closure of
the tank.
a. Temporary Units (§ 264.551(b)).
EPA is concerned that some technical
requirements for units prescribed in the
current 40 CFR part 264 regulations may
be inappropriate for management of
hazardous waste during corrective
action, and may in fact discourage
prompt cleanup. The Superfund program
has frequently found-it necessary to
build temporary units to store wastes for
short periods of time before treatment or
final disposal In many cases, the
Agency has found that full RCRA 40
CFR part 264 regulatory standards may
not be necessary for such short-term
storage taking place during the course of
remedy implementation, and that full
compliance with these standards could
in fact delay cleanup. For example, for
some remedies it will be necessary to
excavate soils contaminated with
hazardous wastes and store them in a ,
pile for a short time (e.g., a few days or
weeks), prior to treatment Under
current RCRA regulations, the pile
would have to comply with the part 264
requirements applicable to waste piles,
such as minimum technology liner
requirements, ground-water monitoring,
and other operating and maintenance
requirements. As another example,
tanks will often be used for short-term
storage of hazardous wastes in the
course of a remedy: such tanks would
accordingly be required to have full
secondary containment EPA believes
that in many cases applying these
stringent part 264 standards, which are
designed to ensure adequate protection
for long-term management of hazardous
wastes in such units, would be
unnecessary from a technical
standpoint as well as counterproductive
in many cases. In the above example of
the temporary pile, a single liner might
be adequate, with some limited
monitoring, depending on the nature of
the wastes, the environmental setting,
and other factors. Requiring the pile to
meet full part 264 standards would
result in delays in constructing the pile,
and increased expense to the owner/
operator which could otherwise be
directed to other remedial work, without
appreciably increased environmental
benefits. Note that adjustments to
minimum technology standards
applicable to the pile would have to be
done hi accordance with certain
statutory requirements (see following
discussion).
Proposed { 264.551(b)(l) provides EPA
authority to modify 40 CFR part 264
regulatory design, operating, or closure
standards for temporary units, as long
as alternative standards that are
protective of human health and the
environment and comply with statutory
requirements are imposed. In the case of
temporary tanks, for example, the
Regional Administrator would be
making a determination generally
analogous to risk-based variances from
secondary containment requirements for
tanks in §§ 264.193(g) and 265.193(g).
The Agency believes that this
approach to temporary units; that is,
adjusting design and operating
standards for such units on a site-
specific basis, is sensible and practical
within the context of the corrective
action process. The process of
examining and selecting corrective
action remedies will involve a high
degree of Agency oversight and
remedial decisions will be made in
consideration of a number of site-
specific factors. Since remedies can be
tailored to site-specific conditions, a
degree of protection of human health
and the environment equivalent to the
generic national standards can be
achieved, while facilitating the
timeliness and implementability of the
remedies.
This provision for temporary units
could apply to any unit used during
corrective action, except incinerators
and non-tank thermal treatment units
(«.$., pyrolysis units). EPA believes that
modifications of 40 CFR part 264 design
standards should not be allowed for
incinerators and non-tank thermal
treatment units because of the
complexity of these devices and the high
level of public concern about their
operation. Furthermore, the Regional
Administrator would be authorized to
modify only technical standards for
temporary units under this authority, not
performance standards. For example,
secondary containment for tanks might
be modified in specific situations;
however, basic performance standards
relating to releases to the environment—
svch as performance standards in the 40
CFR part 260 air emissions regulations—
could not be modified.
It should be understood that under
this provision for temporary units, only
requirements applied solely by
regulation, and not directly by statute,
may be modified. Statutory
requirements may be modified only to
the extent authorized by statute.
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Federal Register / Vol. 55, No. 145 / Friday. July 27, 1990 / Proposed Rules
Two statutory requirement! in
particular may often be applicable to
temporary units, specifically, the land
disposal restriction requirements of
RCRA section 3004(d)-(g) and 40 CFR
part 268. and the minimum technology
requirements of section 3004(o).
However, the Agency expects that
temporary units may often be able to
meet the statutory provisions for
waivers from these requirements under
section 3004(g)(5) (for the land disposal
restrictions), and section 3004{o)(2) (for
minimum technology requirements). The
major permit modification associated
with the selection of remedy would
provide the public notice and comment
usually associated with a petition
submitted by the owner/operator (a
waiver of land disposal restriction
requirements would, however, also be
published in the Federal Register, as
required by RCRA section 3004(0). In
addition, the statement of basis
associated with the permit modification
will summarize, and the supporting
Administrative Record will provide, the
documentation of the Agency's finding
that the statutory requirements for
granting the waiver have been met
The Agency believes mat waivers
from these statutory requirements will
often be appropriate for temporary units,
and hi some cases may also be essential
to the prompt implementation of
corrective action. For example, in many
cases it will be necessary to place
wastes temporarily on the land beside a
hazardous waste unit when mat unit is
being excavated: this placement would
be an interim step before incineration or
other treatment It has been EPA's
experience hi Superfund that full
compliance with minimum technology
requirements (£A, double linen.
leachate collection systems, and ground-
water monitoring) in such cases may
often be unnecessarily restrictive and
could delay cleanup. Instead, hi cases of
short-term storage, something less nan
minimum technology—for example, a
single rather than double oner*— could
health and the environment The
Regional Administrator could require
design standards less stringent than the
full minimum technology requirements.
so long as they would ensure (consistent
with the waiver provision of section
30M(oH2)) that the controls will be of an
equivalent level of protection for the life
of the unit
Similarly, the application of land
disposal restrictions to the temporary
placement of waste could impede
corrective action to some cases. If the
restrictions applied it would be
impossible to store wastes on the
ground while they awaited treatment
because placement on the ground could
not occur before the treatment The only
alternative would be to leave the waste
untreated in place, or to store it in tanks
or containers, which in some cases
might cause a delay and add to the
complexity of the remedy without
serving public health or the
environment. In such cases, it would be
necessary to demonstrate that the
petition standards for the land disposal
ban have been met so that such
temporary placement on the land would
be allowed.
In modifying 40 CFR part 264 and part
269 design or operating regulatory
standards, and in establishing
alternative standards, the Regional
Administrator would be required to
consider a range of factors, which are
listed in proposed 126t551(b)(2). These
include the length of time the unit wifl
be in operation, the type of unit the
potential for releases from the unit the
type of waste, hydrogeological and other
conditions at the facility, and the
potential for human and environmental
exposure to releases if they did occur.
The Regional Administrator would
specify in the permit design and
operating requirements that would apply
to the temporary unit and the length of
time it could remain in operation, and
requirements associated with its
closure. These conditions would be
subject to public notice ""^ comment as
part of the process far approval of
remedy selection.
Today's proposal specifies a time limit
of 180 days for temporary units. This
time period is consistent with the
closure period for a hazardous waste
unit and the "temporary authorization"
period in the new permit modification
rule. It la expected that many temporary
unite will be needed for much shorter
periods of time; however, EPA also
recognizes that to some cases a
temporary unit might have to remain in
service beyond the 180-day limit due to
unexpected circumstances. For example.
if wastes being stored in a temporary
unit were to be taken to an off-site
facility, and that facility no longer had
the capacity or was unwilling to accept
the waste, it might be advisable to
continue storing the waste to the
temporary unit for a limited amount of
time (e&, 30 days). In such cases, the
facility owner/operator could request an
extension. Requests lor such extensions
would typically be processed as a Class
I modification, with Regional
Administrator approval, under permit
modification procedures of 1Z7MZ.
Such "***** syif^nynfMiyif EOT titinpffTpnf
unite would only be approved where It
is necessary because of unforeseen.
temporary, and uncontrolled
circumstances, and when the owner/
operator is actively seeking alternatives
to continued use of the nnit(s). If the
owner/operator failed to move
expeditiously to remove the unit, the
Agency would deny further extensions
and require the owner/operator to
retrofit the unit to meet all applicable
Subtitle C design and operating
standards, or remove the waste and
close the unit
EPA considered several alternatives
in specifying time limits for temporary
units. One alternative would have been
to not specify a generic time limit for
temporary units m the rule, and allow
the Regional Administrator to set permit
conditions limiting the active life of a
temporary unit on a case-specific basis.
This approach would allow more
flexibility in designating such units,
recognizing that the amount of time a
temporary unit could safely remain in
service may vary significantly,
depending on the type of unit type of
waste, unit location and other factors.
Another approach could have been to
specify a shorter time limit, such as 90
days, which would be consistent with
the provision for on-site accumulation of
wastes by generators (i 282.34)..
Alternatively, a specified time period
longer than 180 days (e.g.. one year) for
temporary unite might also be
appropriate. EPA specifically requests
comments on its approach to temporary
unite, including suggestions for how
"temporary" should be defined.
Today's proposal (f 264.551(b)(2)(ii))
also clarifies that off-site unite (i.e., that
are located outside the facility property)
will not be treated as "temporary unite"
for the purpose of managing hazardous
wastes generated as part of a remedy or
interim measure.
In addition, proposed
{ 2M.551(bX2H!ii} specifies that
temporary unite may only be used for
treatment or storage of wastes that
originate within the facility boundary.
This would preclude, for example,
wastes from a different facility from
being brought to a temporary unit at
another facility for storage or treatment.
However, wastes that were released
from solid waste management unite at
the facility, and mat subsequently
migrated beyond the facility property,
could be recovered and managed hi a
temporary unit in the context of
implementing a remedy. Comment is
solicited on these limitations to the
temporary unit concept
b. Corrective Action Management
Urdtt (§2S4JS81(c);§ 204*01). In many
cases, corrective action at RCRA
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30843
facilities will address broad areas of
contamination, which may or may not
themselves contain discrete waste
management units. For example, soils
surrounding one or more leaking surface
impoundments, landfills,~or tanks may
be contaminated. In devising a remedy
to address this situation the facility
owner/operator, at the direction of EPA,
could consider the contaminated area as
a whole and select a remedy that best
addressed the entire area of
contamination. In these situations, EPA
believes that the entire area of
contamination can properly be
considered a waste management "unit"
under the RCRA regulatory structure.
Consequently, proposed 8 264.551(c)
gives the Regional Administrator the
authority to designate such areas as
corrective action management units
(CAMUs).
As indicated in proposed S§ 264.551(c)
(1) and (2), designation of such an area
as a waste management unit will have
important implications for the
management of hazardous waste within
that area. Specifically, movement or
consolidation of hazardous wastes
within these areas will not
automatically trigger the statutory land
disposal restrictions (sections 3004(d}-
(g)) or minimum technology
requirements (section 3004(o)). Land
disposal restrictions are triggered by
placement of a restricted waste in a
waste management unit (section
3004(k));"""'"""" technology
requirements are triggered by the
creation of new or replacement surface
impoundments or landfills, or lateral
expansions of existing surface
impoundments or landfills (section
3004(o)(l)). Consequently, if an area of
contamination is designated as a unit by
EPA during corrective action, hazardous
waste moved within the unit would not
be subject to land disposal restrictions.
Similarly, moving hazardous wastes
around inside the unit will not constitute
either creation of a new or replacement
unit, or a lateral expansion of an
existing unit; therefore the minimum
technology standards would not apply.
EPA believes that this approach to
defining "unit" in the context of
corrective action is essential to the
implementation of sections 3004(u) and
300B(h) of RCRA, and that it accurately
reflects the realities of cleanup
activities. In addressing a broad area of
contamination, EPA or a facility owner/
operator requires the flexibility to move
hazardous waste around and
consolidate it without automatically
triggering minimum technology or
treatment requirements at every turn.
For example, a typical remedy at a
corrective action sight might consist of
treatment of the most highly
contaminated soil at an off-site
incinerator, together with on-site
consolidation and capping of remaining
soil containing hazardous constituents
at low concentrations. Incineration or
other treatment of the less contaminated
soil might yield few, if any, benefits, and
it might in some cases delay cleanup
and increase risk; for example, risk
resulting from transportation of wastes.
However, in moving the soils for
consolidation, a narrow application of
land disposal restrictions might require
incineration (or other treatment) of the
soil and prohibit the most
straightforward, implementable, and, in
some cases, most effective remedy.
Similarly, imposition of minimum
technology requirements will add to the
cost of cleanups and may, in some
cases, cause delays in implementation,
without providing any significant
environmental benefit
EPA believes that its general
approach to the definition of unit makes
sense not only within the context of
section 3004(u) but also for other
remedial action involving waste already
in place—such as source control taken
in the course of a final cleanup of a unit
which will not receive waste in the
future. Where remedial action is taking
place within an area that has already
been contaminated, there should be
sufficient flexibility to select effective
remedies that can be safely and reliably
implemented. In cleaning up existing
contamination problems, EPA believes
that it will often be unnecessary and
counterproductive to strictly apply to
cleanup activities standards that were
designed to prevent future risks at
operating facilities that will continue to
receive and manage hazardous waste.
In 1264.501, EPA is today proposing a
definition of "corrective action
management unit," which is intended to
clarify the nature and scope of the areas
which may be given this designation.
The definition is as follows:
- • • an ana within a facility as
designated by the Regional Adminittrator for
the purpose of Implementing corrective action
requirement* of this subpart, which is
broadly contaminated by hazardous wastes
(Including hazardous constituents), and
which may contain dUcrete, engineered land
based sub-units."
This definition is intended to place
several important restrictions on how
CAMUs are designated, and on how
hazardous wastes must be managed
within CAMUs. It should first be
recognized that it will be the Agency's
(or State's) role to define the area!
configuration of any CAMU at a facility.
This decision should be made based
upon careful assessment of the extent of
the contamination of soils, location of
existing solid waste management units,
the remedial objectives for the facility.
and other relevant factors. Although
owner/operators may wish to propose a
specific area as a CAMU, the decision
as to whether designating a CAMU is
necessary and appropriate to
implementing a remedy, and if so, the
boundaries of the unit, must rest with
the Agency or the State.
In designating CAMUs, only areas
where contaminated soils or
concentrated wastes already exist will
be included. Uncontaminated or "virgin"
areas of a facility cannot be included
within a CAMU. Likewise, two separate
areas of contamination could not be
combined into one CAMU, since they
could not be considered a single unit.
In some cases, remedial solutions may
involve creating new "sub-units," or
enlarging existing ones within a CAMU.
For example, dispersed, low-level
contaminated soils might be
consolidated into a smaller, discrete
landfill which would then be capped.
Similarly, in some cases an effective
remedial approach could be to remove
wastes from several small landfills
within a broad area of contamination,
stage them in a waste pile prior to
treatment and dispose of the residuals
in a newly engineered "sub-unit" Thus,
it is intended that CAMUs may include
one or more land based sub-units
created or expanded as part of the
cleanup action, as well as pre-existing
solid waste management units.
In specifying that a CAMU may
contain land-based sub-units, the
.proposed definition is meant to clarify
that non-land based units, such as a
tank or an incinerator, would not be
considered part of the CAMU. Thus,
while a remedy might involve
constructing a tank treatment system for
contaminated materials within the area
defined as the CAMU, the tanks would
be subject to ail applicable part 264
standards for tanks, and the residuals
from the treatment systems would also
be subject to any regulatory or statutory
requirements that would apply had the
CAMU not been designated.
The Agency believes that allowing the
creation of land based sub-units within
a CAMU is reasonable and necessary to
realizing the basic objective of the
CAMU concept; i.e.. allowing sensible
cleanup solutions for existing
contamination problems. In essence, a
CAMU can be considered to be a large,
land-based unit Remedial actions such
as treating or consolidating wastes, or
creating new land-based units within
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the CAMU. serve fa effect to enh
the environmental performance and
integrity of the unit
In developing the concept of tne
CAMU as articulated fa today's
proposal, the Agency considered several
alternative approaches. One option
would have been to only allow
movement of wastes into existing
landfill areas within the CAMU; new
land-based unite would not be
considered as part of the CAMU. Thto
option could have caused land disposal
ban and minimum technology
requirements to be triggered relatively
frequently, thus restricting decision
makers' flexibility to upgrade these
areas of the CAMU, end engineer more
effective and protective waste
management systems, fa addition, the
option would likely create substantial
difficulties fa defining what constituted
new unite within the area of existing
contamination.
EPA also considered options that
would have significantly broadened the
CAMU concept Once such option would
have allowed wastes to be excavated,
treated fa a non land-based unit [eg., a
tank) within the CAMU. and the
residuals redeposited on the land
without triggering the land disposal ban.
A variation of this approach would also
allow an incineration or other thermal
treatment system to be considered as
part of the CAMU. Yet another option
considered would have allowed CAMUs
to include land areas at the facility that
were not already contaminated; such
areas might thus be used as sites for
locating new landfills. Although these
options would have offered more
flexibility fa designing remedies, the
Agency has chosen not to propose such
broader interpretations of the CAMU
concept for several reasons. Allowing
uncontaminated land to be mended as
part of a CAMU (and thus potentially
allowing it to become contaminated}
would have contradicted the overaD
intent of the CAMU: that to achieving
reasonable deanup solutions for
existing contamination problems, b
addition, allowing non land-based unite
to be considered part of the CAMU
would, fa effect contradict the uurlon of
the CAMU as a type of land-based unit
(albeit one that to contaminated and
needs to be upgraded to improve its
protectiveness), and could have
complicated the ability to impose the
stringent part 284 standards for
trcfttniout units coco 99 tnctucuroTai*
R should be understood that given
today's proposed definition or any of the
alternative approaches described above,
several fundamental requirements will
apply to CAMUs. Firstly, land disposal
restrictions wfll apply whenever
hazardous wests is placed into a CAMU
from outside its defined area, m
addition, all waste management
activities conducted within the CAMU
wiD be protective of human health and
the environment wiO conform to the
standards for remedies proposed hi
12M.82S(a), be evaluated in terms of the
remedy selection factors of proposed
{ 2M.525(b). and comply with the
cleanup standards of proposed
{ 264.525(d). Finally. aO decisions
regarding the scope of CAMUs and the
nature of remedial activities that wifl be
conducted within them wifl be subject to
public review and comment daring the
remedy selection and permit
modification process.
EPA specifically invites ^^ihiiicnt on
today's proposed approach to defining
CAMUs, and any alternative
approaches which may be viable fa
achieving the remedial goals for which ft
to intended.
Proposed 12fl4.531(c)(4) lists the
factors which the Regional
^VoDunis^rator unii consider "^
specifying closure requtremente for
CAMUs. As with other unite created for
the purpose of implementing collective
action remedies. EPA proposes to not
apply part 204 subpart G procedural
requirements for dosnre to CAMUs (see
previous discussion on dosura of
remedial unite), fa favor of using the
remedy selection and permit
modification process
establish compref
it wiD serve to
sry the technical
y*<|iiiff^fytyfits for the remedy,
addition, under today's proposal, the
specific technical standards for closure
and post-closure (e&. type of cap, scope
of post-closure ground-water
monitoring) of CAMUs would be
determined through tne corrective action
technical uusuie standards of part 204.
Technical requirement! for closure
and post-closure of CAMUs, therefore.
will be established on a site-specific
basis. The specific requirements for
CAMU dosure/post-closun must be
designed to achieve' the general
performance standard of 12B4.SSl(cX»).
Thto standard to essentially the same as
the performance standard for dosura fa
subpart G (see 1284.111). fa addition to
this general standard, the Regional
Administrator will use the decision
factors specified fa 1264J51(c)(41 fa
(the specific closiae and
ate that are
as the potential for exposure to
contaminants should future releases
occur.
This approach to determining dosu e/
post-closure requirements for CAMUs Is
intended to provide flexibility for the
regulatory Agency fas setting appropriate
standards specific to the site conditions.
while also ensuring that adequate long-
term controls are imposed for any
wastes remaining within the CAMU.
This approach to also consistent with
the general process for defining
remedies and for management of wastes
as established fa proposed 19 204.525
and 264.550-662.
EPA considered other approaches for
prescribing (Jusui'B/post-ciosure
requirementB for CAMUs. One approach
would have been to adopt a set of more
specific teq uli eineuts that would be
applied genetically to all CAMUs. This
approach would have been similar to
the iiuieiil RCRA regulations for
closure/post-closure of conventional
hazardous waste units (e^ tanks or
waste piles). This approach was
rejected, however, for two reasons. First
tuo closure requirements for oajEaroous
waste units are designed to apply to
discrete, engineered unite that must also
comply with specific design and
operating standards under RCRA. b
contrast CAMUs wffl typically be
broad, contaminated areas that may
contain discrete or non-discrete "sub
unite" of varying types and
configurations. It would tlierefuie be
impractical to specify generic national
standards for a dass of unite that will
be of such diveislljr, and withiii which it
will make sense to apply different
closure techniques to different areas or
sub-unite of the CAMU.
The second reason for not applying
generic national standard to closure of
CAMUs relates to the nature of the
collective action process. Under
collective action, the Agency has
considerable control over the technical
decision-making process, and cleanup
problems at facilities are typically
subjected to direct Agency review and
oversight In contrast the closure
process under RCRA typically involves
review and approval of owner/operator
plans against established regulatory
standards. EPA believes that the greater
control over technical decisions that to
provided under corrective action allows
a more rite-specific tailoring of dosure
ins based on a thorough
appropriate for the CAMU to ensure that
QTfOflDB4tDOB VtfifluflTu 19
met These decision factors will tedode
considerations of waste end unit and
environmental characteristics, as weu
knowledge of site conditions.
4, Management ofNon-Hazardoin
Solid Waster (§ 2B4.552). fa other cases.
wastes addressed under corrective
action will not meet the specific RCRA
definition of hazardous waste. Many
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Federal Register / Vol. 55. No. 145 / Friday, July 27. 1990 / Proposed Rules
30845
wastes that do not meet the RCRA
regulatory definition of hazardous
wastes contain varying concentrations
of hazardous constituents that if the
waste is improperly disposed of. could
be released to ground water, surface
water, soil, or air. The goal of corrective
action is to protect human health and
the environment by removing these
contaminants from the environment, and
controlling the source of the release—
even if the waste from which the release
originated does not meet the regulatory
definition of hazardous.
Proposed § 264.552 states that non-
hazardous wastes handled during
corrective action must be handled tat
accordance with any applicable subtitle
D standards. The Agency is in the
process of developing more
comprehensive regulations under
subtitle D, and will continue to examine
in that context issues relating to the
applicability of those regulations to the
management of solid wastes undertaken
as part of subtitle C corrective actions.
In addition, the proposal provides the
Regional Administrator authority, under
certain circumstances, to impose more
stringent standards than subtitle D. For
example, a specific waste might not be
Usted as hazardous, but it might have a
high concentration of specific hazardous
constituents, or it might be similar in
composition to a listed waste. In such
cases, the Regional Administrator could
impose subtitle C standards or
standards that were protective given the
circumstances at the site and
characteristics of the waste where
necessary to protect human health and
the environment even though the waste
did not technically meet the definition of
hazardous waste.
K. Required Notices (Section 264.560)
1. Notification of Ground-Water
Contamination. Proposed f 284.560(a)
would require the permittee to notify
EPA and any persons who own or reside
on land adjacent to the facility in
writing within 15 days when s/he
discovers that hazardous constituents
originating from a SWMU at the facility
have migrated beyond die facility
boundary in concentrations that exceed
action levels.
Action levels are defined in proposed
8 284.521 of today's proposal, and are
discussed in detail in section VLB of this
preamble: therefore, they are not
discussed in detail here. However, the
reader should note that action levels are
established using conservative
assumptions to protect human health
and the environment Concentrations
exceeding action levels will not
necessarily result in adverse effects.
Short term exposures to releases above
action levels may often not represent a
threat to human health or the
environment since action levels are
derived using long-term exposure
assumptions. In fact in some cases
constituents at or above action levels
will not ultimately require active
remediation.
This notification requirement is
limited to situations in which the
adjacent land can reasonably be
determined to overlie the contaminated
ground water given current knowledge
of the direction and rate of the ground-
water flow.
EPA believes that it is appropriate to
require such notification in order to
provide adequate awareness for persons
who are. or who could potentially be
exposed to the contaminated ground
water. It is possible that residents near a
facility could be using water from wells
that have become contaminated from
the facility; in such cases, prompt notice
to the individual would be an essential
part of the response action.
The Agency may require the permittee
to initiate an interim measure to address
off-site ground-water releases virtually
immediately, including making available
an alternative drinking water supply
when drinking water supplies have
become contaminated. On the other
hand, the Agency may ultimately decide,
based on further study, mat no further
action will be necessary. Such might be
the case where the ground water is
highly saline, and not usable for
drinking. As explained earlier in mis
preamble, the actual response action
that may be required when ground-
water contamination is identified will be
determined by a variety of site-specific
factors. In any case, an early
notification that an action level has
been exceeded will alert the adjacent
resident or owner to the potential
problem and will allow their informed
comment on further permitting actions
taken at the facility if they have special
concerns. EPA solicits comment as to
what alternative mechanisms or
approaches could or should be required
to alert potential users of ground water
that contamination has occurred from a
facility.
2. Notification of Air Contamination.
Proposed 8 284.560(b) would require the
permittee to notify, in writing, EPA and
any residents or other individuals who
may be exposed to air emissions from
SWMUs above action levels. This
proposed notification requirement
would apply when there is exposure in a
residential setting, or other situation
where long-term exposure to the air
emissions from the facility can
reasonably be assumed. This is
consistent with the overall approach to
corrective action for air releases (as
discussed in section VLB of this
preamble).
This notification requirement for air
would also be triggered when residences
or activities that could result in long-
term exposures become established near
the facility after the initial release
investigations have been conducted and
are within an area where air emissions
have been found to exceed action levels.
Permittees whose remedial
investigations have confirmed
substantial air emissions migrating
beyond their property limits have a
continuing responsibility to identify and
provide notice whenever such exposure
situations occur. If concentrations of
hazardous constituents in air beyond the
facility boundary are found to be
causing actual exposure problems of
concern, the Regional Administrator
may require the permittee, in addition to
the notice requirement to institute an
interim measure to reduce the threat
For example, s/he could require the
installation of a floating cover on a
surface impoundment for the purpose of
reducing the surface area of the
impoundment available to allow the
escape of hazardous constituents to air.
In many cases the release to air will be
reduced or eliminated during the course
of remedial activities at the facility. For
example, a permittee may be required to
excavate and treat wastes contained in
the SWMU or to cover the SWMU with
a cap.
EPA solicits comments on what
alternative mechanisms or approaches
oould or should be required to alert
persons who may be exposed by
releases of hazardous constituents into
the air from RCRA facilities.
• 3. Notification of Residual
Contamination. Under the regulatory
authority proposed in 8 264.560(c). the
Regional Administrator may require the
permittee to provide notice whenever
hazardous wastes (including hazardous
constituents) are left in place in the
subsurface at the facility. This
requirement would apply whether
hazardous wastes or hazardous
constituents left in the subsurface are
contained in a discrete unit or diffused
throughout subsurface soils. The notice
would consist of a notation in the deed
to the facility property, or a notification
via some other instrument used by the
State if the instrument is routinely
searched during the course of
transferring ownership of property.
When such a notice is required, the
notice must clearly indicate the types,
concentrations, and locations of
hazardous wastes or hazardous
constituents that remain at the property.
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Federal Reiistaf / Vol 65. No. 145 / Friday. July 27. 1900 / Proposed Role*
EPA belirvM that the Agency's
authority to allow owner/operator* to
certify completion of their corrective
tion responsibilities and in some
••as, dote or transfer ownership of the
roperty while hazardous wastes remain
in place hi the subsurface is
accompanied by a responsibility to
ensure that future owners of the
property do not inadvertently act in a
way that could result in harmful
exposures to the residual contamination.
This could occur, for example, when a
facility in an area where mixed land
uses are w******* (a£* residential and
light industrial uses) is closed in
accordance with applicable regulations
and ownership of the property is
transferred several times over the
course of a few years. If notice is not
provided in the property deed a new
owner could be unaware of its previous
utg for hazardous waste management
Inadvertantly, the new owner could then
initiate construction or other activities
in a manner or at a location where
disturbance of the subsurface could
result in potentially harmful exposures.
For example, by digging a foundation ia
a certain location, the owner might
unearth an old solid waste management
unit and in doing so damage any
mtfT^Ang controls designed to prevent
releases from the unit One of the mpet
likely situations in which residual
would remain at the
details of any residual contamination OB
the property which could influence
decisions of the new owner rmm^mfr^
property is where facilities have huge
anas of contaminated soils deep in the
subsurface.
The rosjdnsl flim^imtffl***"* notice
requirement proposed today ia
analogous to the existing requirement
contained in 40 CFR 264.119 that facility
owner/operators place a notice in the
deed (or othe
allowable future \
In some cases it may be appropriate
to require the owner/operator to place
the deed notice well before expiration of
the permit For example, a selected
remedy may involve capping (thus.
leaving in place) units or contaminated
soils in an area of the facility. This part
of the remedy could be implemented
well before all other corrective action
requirements at the faculty are
completed. In this situation, it may be
appropriate to require the deed notice as
part of the remedy selection permit
modification, thus providing notice to
prospective purchasers if ownership of
"that portion of the facility were to be
transferred at some point before the
permit is terminated
L Permit Requirement* (Sections
270.1(C}-370.00(C)(3))
1. Requirement to Maintain a Permit
(§270J(c)). Today's proposal would
require an owner/operator to operate
under a valid RCRA permit for the entire
length of time required to comply with
requirements of part 2M. subpart S or P
corrective action. This requirement
would be established by adding to the
existing language of 40 CFR 27Ol(c).
which defines the period during which
owner/operators of RCRA treatment
storage, or disposal facilities must
maintain a permit Where corrective
action ia required under a permit a
permit will be necessary for the duration
of the activities regardless of whether
other waste management activities are
fftntlFtw1 at the facility. For example, at
a storage or treatment facility not
required to have a ]
examined in title searches) within 00
days after the first and the last
hazardous waste units at the facility am
certified ciotftd tat conformance win the
approved closure plan, in compliance
with subpartG standards. This notice is
required in recognition mat post-doeure
care may need to be instituted for some
units (or. in the case of corrective action.
areas of wn*ai"'"*H<«») where
haiardfflis wastes remain hi place. Until
the term of the final facility permit
expires (/.«, all closure, poet-closure,
and corrective action responsibilities at
the facility have been fulfilled), the
permit responsibilities shift to any new
owner or operator who assumes control
of the property. After the final permit
has expired the Agency believes that
prospective purchasers of the property
should be made aware of the past use of
the property, IsgaJ restrictions Imposed
OP its future TIM. *""^ the Iffc*?*"" and
the permittee may decide to <
operation prior to or at the end of the
term of his/her permit and close the
facility according to applicable
regulations, rather than reapply far
snTrthtr permit *•»•«- If that owner/
operator had any remaining corrective
action responsibilities at the facility,
today's proposal would require that the
permit be maintained even after the
hazardous waste units are closed until
all subpart 8 or F requirements have
been terminated
This provision is also likely to nave
iinpffrtttnt f inplici ti ftiw in titiifltiflm
involving transfer of property for which
corrective action obligations under
subpart S have not been fully
discharged An example would be a
facility with a solid waste management
unit causing a release to ground water
that had been issued a permit with a
schedule of compliance nHiv*l-tng tha
owner/operator to investigate tha
release end ultimately implement a
remedy, where the owner/operator
subsequently sold the portion of the
facility property upon which the sotid
waste management unit was located b
this and other situations. EPA believes
that transfer of corrective action
responsibilities to new property owners
is critical to ensuring that RCRA facility
owner/operators ere not able to evade
cleanup requirements by simply selling
the contaminated portions of their
facilities. If such a transfer of ownership
did not also involve a transfer of legal
responsibility for complying with
corrective action permit conditions, the
effect could be a substantial number of
new Superfund sites that could no
longer be addressed under RCRA. EPA
does not believe that Congress intended.
in enacting section 30M(u), to create or
to allow such an evasion of cleanup .
responsibilities. The Agency, therefore,
intends to require new owners of
property et which corrective action
responsibilities have been identified in
the permit to obtain a permit and
comply with the corrective action
requirements specified in the permit
Those corrective action requirements
could alternatively, be specified and
enforced through an administrative
order (e&, under section 7003).
EPA specifically «"HHtf comment on
cleanup responsibilities following
transfer of property. As an alternative to
the approach outlined above (under
which the new owner/operator becomes
.responsible for cleanup) EPA considered
"a provision that would require the
former owner/operator to maintain
corrective action responsibility. Under
such an approach, it is likely that the
former owner/operator's responsibilities
would be limited to those off-site
activities (/.«., activities on the
transnrred property) that the new
owner/operator allowed bin to
undertake. The fuiiuei or new owner/
operator's responsibility to undertake
corrective action on transferred property
may also be dependent upon the status
of corrective action activities at the time
of transfer. For example, a transfer of
property before permit issuance would
probably not implicate section 3004(u)
responsibilities. Transfers occurring
after the permit it issued but before
remedy implementation or interim
measures have begun (e&, some
transfers during the RFI ""^ CMS
stages) should perhaps be subject to
different rules than transfers occulting
after remedial activities have begun.
After consideration of public comment
on these questions, tha Agency intends
to develop a provision governing
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
30847
corrective action responsibilities upon
property transfer for the final rule.
2. Schedules of Compliance for
Corrective Action (§ 270*34). Section
3004(u) of RCRA specifies that "Permits
issued under section 3005 shall contain
schedules of compliance (where such
corrective action cannot be completed
prior to issuance of the permit) * * *."
Section 270.34 of today's proposal would
codify this requirement and provides a
regulatory framework for its
implementation.
Schedules of compliance will be a
major tool for imposing corrective action
requirements because, in most cases, the
complex and sequential nature of the
corrective action process will not allow
its completion prior to permit issuance.
The provisions of today's proposed
regulation, including plans and reports
for remedial investigations and
Corrective Measure Study and remedies,
will, for the most part be implemented
through a schedule. Consequently, the
quality and detail of the permit schedule
of compliance are extremely important if
the objectives of the corrective action
program are to be achieved.
In addition to codifying a statutory
requirement proposed 1270.34{a) states
that a corrective action schedule of
compliance shall "* * * contain terms
and conditions deemed by the Director
to be necessary to protect human health
and the environment" This provision is
derived from the basic statutory
objective of RCRA (protection of human
health and the environment; see section
1003 of RCRA), and is a logical
extension of statutory language found in
section 3004(u) which allows cleanup to
be implemented through a schedule of
compliance specified in the permit
where corrective action cannot be
completed prior to permit issuance. The
Agency believes that inclusion of this
language in proposed 1270.34 is
desirable to clearly assert the authority
of the Region or State to include
requirements hi the corrective action
schedule of compliance to address
contingencies that arise during the
corrective action process and that are
not specifically contemplated by today's
proposed regulation, but that must be
dealt with in order to protect human
health and the environment
Proposed i 270.34(b) would require
the permittee to comply with the
schedule imposed in the permit and
provides a time frame for notifying the
Agency when s/he finds that such
compliance will not be possible. When
the permittee will not be able to meet
the schedule, s/he must initiate a permit
modification under provisions of the
recently issued permit modification rule
(September 28,1988.53 FR 37912.
discussed below). Section 270.42(f) of
this rule establishes procedures for
owner/operators who wish to initiate
permit modifications where the desired
modification has not been specifically
listed as either a Class in. or III
modification. These procedures are
discussed in detail in the permit
modification rule and its preamble. In
addition, a brief explanation of the
provisions of the proposed rule is
included later in this discussion.
In S 270.34(c) the Agency proposes a
specific procedure for modifying
corrective action schedules of
compliance for the purpose of
implementing subpart S requirements.
The proposed 8 270.34(c) mechanism is
important for two reasons. First -since
permits containing corrective action
schedules of compliance will often be
issued before complete information has
been gathered as to the extent and
nature of any releases at the facility,
and, therefore, the corrective action
necessary to address such releases, it
will generally not be possible to
adequately predict (and thus specifically
provide for in the schedule) all
requirements and contingencies
necessary to develop and implement
iuch corrective action at the facility.
Therefore, it may often be necessary for
the Agency to modify the schedule of
compliance to provide for new actions
or to make mid-course changes to
provisions specified in the original
schedule. Secondly, this modification
provides a mechanism to resolve
disputes which may arise between the
permittee and the Agency concerning
the scope or meaning of conditions in
the schedule of compliance when those
disagreements cannot be resolved
through leu formal means. (The
potential use of this modification
procedure for dispute resolution is
discussed in more detail later in this
section of the preamble.)
It should be understood that the
( 270.34(c) procedure will be applied
only in modifying corrective action '
schedules of compliance; it will not be
used to modify terms or conditions of
the permit that are outside the scope of
the schedule. Given this narrower
application, a modification made
according to 1270.34(c) would not
constitute reissuance of the permit
It is the Agency's objective in creating
this modification process for corrective
action schedules of compliance to
ensure that such actions are
implemented expeditiously. while
preserving the permittee's due process
rights, and ensuring adequate public
participation.
The procedures proposed for
modifying schedules of compliance
using this proposed authority are found
in i 270.34{c) (IMS): there are fewer
procedural requirements for this
modification than for a major
modification initiated under the current
authority of 40 CFR 270.41. Under
proposed S 270.34(c)(l), the Director
would notify the permittee in writing of
the proposed permit modification. This
notification would include a description
of the exact change(s) to be made to the
permit and an explanation of why the
change is needed; it would also indicate
the date by which the Director would
have to receive any comments on the
proposed modification. In addition, the
notification would indicate whether any
supporting documentation is available
for review. Further, the notification
would include the name of the Agency
contact designated to receive comments.
At the same time, the Director would
publish a notice of the proposed
modification in a locally distributed
newspaper (§ 270.34(c)(2)), provide
notification to individuals on the facility
mailing list and place a notice in the
information repository being maintained
for the facility, if the permit required
that a repository be established. Each of
these notifications would contain all of
the information included in the notice to
the permittee. The comment period
provided would extend for no fewer
than twenty days after publication of
the newspaper notice (or, for the
permittee, twenty days after receiving
the written notification if the notice
were received later than the date of the
newspaper notice publication).
If the Director does not receive
written comments on the proposed
modification, the modification will
become effective five days after the
close of the comment period S/he will
then notify the permittee and individuals
on the facility mailing list that the
modified permit is in effect and will
place a copy of the modified, permit in
the facility's information repository
where such a repository is maintained.
If written comments on the proposed
modification are received, as provided
in 1270.34(c)(4), the Director will make
a final determination as to what if any.
changes should be made to the
modification. This determination should
generally be made within 30 days after
the end of the comment period. In some
cases, however, it may not be
practicable for the Director to make the
determination within that time frame;
this would not affect the legal validity of
the modification. When the
determination has been made, the
Director will provide notice to the
permittee in writing and to the public .
through a notice in a local newspaper, of
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Federal Restate / VoL 55. No. 145 / Friday. July 27. 1900 / Proposed Rides
the final *trrlsinn on die modification.
The notice will *"^hnfc an explanation
of how comments received were
considered in dw final decision, an
indication of die effective date of the
modification (no later than fifteen days
following dw notification), and a copy of
the final modification. EPA believes that
the abbreviated i 270 J4(c) modification
procedures will strike an appropriate
balance to most cases between dw
public and government's interest to
ensuring expeditions remediation of
harmful situations, and dw permittee's
due process rights.
It should be understood tiiat dw
procedure outlined above is a g»En*ffiii>|>
process, and does not preclude
providing additional steps or
opportunities for review and comment.
For example, me Director could conduct
a public meeting during dw cuuuueut
period, if it was determined to be
appropriate to addressing concerns of
the permittee or die public or bodx In
other cases, dw comment period might
be extended for some period to allow for
more drarough review or comment
Moreover, as noted later, die burden
imposed by some changes may warrant
die more extensive process provided for
in|27O41.
Section 270.34(cXS). as proposed, does
not provide for administrative appeals
of modificstions to cwiecUfe action
schedules of compHance that are made
under die procedures of 1270.34. The
administrative appeal process can be
quite leugdiy, e&psiieuue widi RCRA
permit appeals has been diet appeal
decisions may often take one year or
more. If an owner/operator's appeal Is
denied, s/he dwn has some recourse
through judicial appeal piuceeoji'Hjs.
Thus, dw proposed 127OJ4(c)
modification process assy be
advantageous to situations where
disputes between die Agency snd the
owner/operator will be most effectively
resolved by reacting a final Agency
action expeditioosty (sss discussion
below on dispute resolution). The
absence of an sdmirdstrstive appeal
procedure will not affect dw owner/
operator's right to tadidal appesl of
modification decisions.
When initiating modifications to
corrective action schedules of
compliance, dw Director will decide on
a case-by-case basis which modification
procsdate—127O34{c). or a major
modification under 127041—4s
appropriate. A namber of factors may
influence this decision. Since dw
{ 270.34(c) procedure is less complex
administratively and shook! take
substantially less time to make
modifications effective, it is anticipated
that the process will be ased for
modifications that are relatively
and do not include very large
or changes to die requirements already
specified to the schedule. An example
might be a requirement to increase dw
frequency or methods used for ground-
water sampling. On die other hand,
some Director-initiated modifications,
because of die nature, scope, or
anticipated resource burden of
complying widi dw new requirement,
may be more appropriately handled as a
major modification under I 270.41. One
example of such a situation is die permit
modification for specifying dw remedy
(see proposed f 264.528); dw rale
explicitly requires die major
modification under i 270.41 to these
situations.
In addition to the relative magnitude
of die requirement^ being imposed
through a modification, other factors
such as timing and public participation
considerations may affect decisions as
to which type of permit modification
should be used. For time-critical actions,
such as might be me case for one of
several types of interim measures, die
6 270J4(cj modification would likely be
most appropriate, since the { 270.41
process can take a number of months
before die modification requirements
are effective. Likewise, for 1
requirements that are espec
sensitive or controversial
from die
community's perspective, major
modification procedures, which allow
maximum public Input Into dw
substance of tH** permit m«««Mfl«*aH«i«l
could be Tf fitting.
The two types of modifications
discussed above also have diSsrent
legal conclusions, which will also be a
factor to die derision as to which one
may be more appropriate The proposed
modification w^r 1271X41 is subject to
administrative appeal U1* subject to
judicial review only after tite appeal
process has been completed. (Permit
appeal procedHns are described to 40
CFR pert 124.) As discussed earlier, dw
1270L34(c) nodificarksi would not be
subject to administrative appeal When
it is apparent dwi a Disagreement
between the permittee and dw Agency
over corrective action requirements
cannot be resolved oatside 4ns jwjidsl
process (svch as might be dw cassia
dealing with a recalcitrant owner/
operator). BUS type of modification
would likely be the most direct and
timely means of reaching such
resolution.
The need for flexibility to procedural
requirements for initiation of
modifications to corrective action
schedules of compliance is supported by
an analysis completed for owner/
operator initiated permit modifications.
EPA issued a ruto on September 28,
1988, concerning owner/operator-
initiated permit modifications, which
was dw result of a regulatory
negotiation effort Involving EPA.
industry, States, and public interest
groups (see i 27034 schedules of
compliance for corrective action). In mis
rule, die Agency recognized that
situations in which permittees request
permit modifications represent a
continuum of potential impacts on die
permittee, die public, and die
environment, which, hi turn, warrant a
continuum of piuceduidl requirements.
The rule does not alter major permit
modifications under S 270.41. However,
for permittee-requested permit
modifications (under a new 1 270.42),
die rule establishes a permit
modification classification system, with
each modification defined as either
Class L n, or m. Proposed Class m
permit modification procedures are
similar to die existing procedural
requirements for a major modification
initiated by die Director under 1 270.41
(additional public meetings are required
in me Class m procedures). Class n
procedures are somewhat less
extensive! *"d Class I wMMtiRr-aHoftf,
which are of a limited nature, generally
do not require formal Agency approval
Today's proposal to { 270t34(c) for
modifying corrective action schedules of
nM reflects a balance between
reasonable public participation and dw
Agency's need for flexibility to
procedural requirements for permit
modifications •''"ik"* to tiiat afforded
owner/operators to dia recent permit
modification rule. The relatively
streamlined process associated widi
proposed f 27O34(c) will not only
reduce die administrative requirements
imposed on the Agency, but will also
minimim delays to implementation of
necessary corrective action
requirements to appropriate
circumstances.
It • iomortant to note that for dw
purposes of das provision (as well as all
other provisions of tiis regulation
proposed today), any plan submitted by
die permittee pursuant to a schedule of
comnhanos and approved by dw
Director becomes a* enforceable part of
the schedule. Accordingly, modifications
to such plans will be required to follow
die appropriate procedures of 1 27O41,
270v4«. or 27094(c). fa addition, sook
plans are subject to enforcement under
RCXA section 3008(s).
As Indicated earner In mis discussion.
dw Agency believes tiiat dw proposed
{ 270.34(c) modification procedure wffl
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30843
be used in the case of disputes which
may arise between the permittee and
the Agency. In practice, the Agency
presumes that the permittee and the
Director will be able to resolve most
issues that arise during-ths course of
corrective action without resorting to
the procedures of i 270.34(c). For
example, disputes may arise over the
scope of a remedial investigation and
how many monitoring wells may need to
be installed, or the appropriate soil
sampling procedure. The permit
modification proposed in S 270.34(c)
might be used in this case, although
generally such issues can be resolved
informally by technical staff from both
sides, or through the use of an alternate
dispute resolution process (described in
section VIJL of this preamble). However,
in recognition that cases may arise in
which no agreement is possible, the
Agency is persuaded that it needs the
regulatory authority to modify the
permit, as necessary, to specify
requirements the permittee must fulfill,
and to offer both the public and the
permittee an opportunity for formal
comment on the proposed changes.
Where situations identified by the
Director are determined by him/her to
require immediate action to protect
human health and the environment
there may be insufficient time to
undertake a permit modification even
under the relatively streamlined ,
procedures proposed in 9 270.34(c). In
such cases, the Director may take action
under the removal authority provided in
CERCLA section 104 or require action
under CERCLA section 106 or RCRA
section 7003.
3. Conditions Applicable to All
Permits (§ 270.30(1)(12)). Under
i 9 270.30(1) (IHH) of 40 CFR part 270,
subpart C, the Agency has promulgated
regulations that specify reporting
requirements applicable to all RCRA
permittees. These permit conditions fall
into two broad categories. The first
category coven those situations in
which a permittee must give notice to
the Director of changes affecting the
permit conditions (e.g., planned physical
alterations or additions to a permitted
facility). The second includes those
reports typically required of all
permittees (e.g., manifest discrepancy
reports, biennial reports, etc.). Reporting
requirements contained in 8 270.30 may
be incorporated into the permit either
expressly or by reference.
Today. EPA is proposing to add a new
reporting requirement under { 270.300)
relevant to the submittal of information
pertinent to subpart S corrective action
requirements. Specifically, proposed
9 270.30(l)(12)(i) would require the
permittee to submit information on any
additional solid waste management
unit(s) (SWMU) discovered at any time
during the term of the permit within 30
days of the discovery of this unit.
Further, it would require the permittee to
submit information on newly discovered
releases of hazardous wastes or
hazardous constituents from previously
identified or newly discovered SWMUs
at the facility within 20 days of
discovery of the release(s).
Currently, EPA or an authorized State
identifies all SWMUs at RCRA facilities
during the RCRA Facility Assessment
(RFA) prior to permit issuance. In
addition, 9 270.14(d) requires the owner/
operator to identify SWMUs as part of
the facility's part B application. The
Agency realizes, however, that
additional SWMUs and releases may be
discovered at any time following permit
issuance. Therefore, today's proposal
requires the facility owner/operator to
provide new data relating to SWMUs
and releases from SWMUs during the
life of the permit.
Under 9 270.30(lKl2)(i)(A), the
permittee would be required to submit
the following information on each newly
identified SWMU within 30 days of
identifying the SWMU: (1) Location; (2)
type (e.g., landfill, storage tank); (3)
general dimensions; (4) operating
history;, (5) specification of all hazardous
and/or solid wastes that have been
managed in the unit (if available); and
(6) all available data pertaining to any
release of hazardous waste (including
hazardous constituents) to any media
from the unit The location of the unit
may be indicated on the topographic
map submitted by the facility on its part
B permit application in accordance with
9 270.14(b)(19) of 40 CFR. or may be
submitted on a topographic map of
comparable scale that clearly Indicates
the location of the unit in relation to
other SWMUs at the facility. These data
are the same as those now required in
the part B application under 40 CFR
270.14(d). (See Second Codification Rule
of December 1,1987.52 FR 45786.)
Based on the information supplied by
the permittee under 9 270.30(l)(12)(i)(A),
EPA would require, as necessary (under
proposed 9 270.300)(12)(i)(B)) sampling
and analysis data for the purpose of
determining whether releases
warranting further investigations have
occurred. Further investigations or
corrective measures as necessary would
be imposed by amending the existing
schedule of compliance or by initiating ar
permit modification as provided in
9 270.34, depending upon the extent of
the change needed to cover necessary
corrective action.
Proposed § 270.30(l)(12)(i)(C) would
require the permittee to identify newly
discovered releases from newly
discovered SWMUs or from SWMUs
where no release had occurred at the
time of permit issuance. Information
submitted would include the following:
(1) The type of unit and its location,
clearly identified on a facility map; and
(2) available data pertaining to the
release, including potential exposure
pathways, controls already imposed to
address the release, and action planned
for further cleanup. The permittee would
be required to submit this information
within 20 days of discovery.
EPA is persuaded that these
requirements are necessary to ensure
that both the statutory requirements of
section 30Q4(u) and Congressional intent
are satisfied. (See e.g., S. Rep. No. 98-
284,98th Cong. 1st Sess., 32 (1983).) The
requirement for corrective action is a
continuing one, applying not just to
releases that have occurred prior to
permit issuance, but also to any releases
that occur after permit issuance.
Without such requirements, the Agency
might have to wait until the time of
permit review or reissuance (in some
cases as long as ten years) before newly
discovered units or releases could be
addressed in the permit Including these
requirements in today's proposal will
allow the Director to learn of a release
requiring remediation in a timely
manner.
4. Information Repository (§ 270.36).
Proposed § 270.36 would provide the
Director authority to require in the
permit that the permittee establish an
information repository. The repository
would allow interested parties access to
reports, findings and other informative
material relevant to ongoing corrective
action activities at the facility. A
repository would generally be required
where the RCRA site is similar to sites
listed on the NPL under CERCLA in
terms of the magnitude of contamination
and potential for exposure to hazardous
wastes.
As provided by 9 270.36fb), the
information repository would contain all
public information that the Director
determines to be relevant to public
understanding of corrective action
activities at the facih'ty (i.e., material
determined to be confidential business
information would not be included). For
example, copies of RFI plans and reports
and CMS plans and reports would
generally be included in the repository.
Background material that would also
typically be maintained in the repository
would include copies of relevant RCRA
regulations and press releases.
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30850
Federal Ragbaet / VoL 55, No. 146 / Friday. July 27. 1990 / Proposed Ruka
Hie repository would be located at a
local public library, town haJQ, |««hHlfinfl such a
determination, the Director would
consider the T*t9n* of crmtnn'inprt9".
the scope and complexity of the
remedial action, and the degree of
public interest Second, designated
information repositories under CERCLA
generally house the administrative
record for CERCLA action*. Under the
RCRA permitting program,
administrative record*, which provide
decisions and other parts of the record.
are maintained by EPA Regional offices
(or authorized States) at the location of
the Regional office. Because the RCRA
record is kept elsewhere, where it is
available for public InnpeKtinn, the
Agency does not believe it is necessary
to duplicate the entire administrative
record for RCRA sites at information
repositories.
5. Major Permit Modifications
(§ 27O.41(a)(5)fix). Section
27O41(a)(5Mix) of today's proposal
would add a new provision to the major
permit modification requirements
allowing the Agency to reopen a permit
for good cause to modify a permit for
reason* ariaing from corrective action
requirement* under subpart S of 40 CFR
part 264. The Agency would we mi*
authority to modify permit* after •
remedy ha* been selected under
proposed S 264.525. or to recommence
corrective action after a no-action
decision had been made under S 284.514.
In addition, the Agency might use this
authority to begin corrective action after
notification of a new SWMU or a new
release under S 270.30(1)112). The
Agency believes that it already ha* the
authority to modify permits In this
situation under { 270.41(a)T2). which
allows it to modify permits when new
information justifies the application of
different permit conditions. However,
the Agency is proposing to amend these
regulations to clarify its authority.
Modifications under proposed
{ Z70.41(a)rs)(ix) would undergo the full
permit modification procedures of 40
CFR part 124—that is. there would be
public notice, a 45-day comment period,
and a public hearing, if requested. In
addition, the modification could be
appealed through EPA's administrative
appeal procedures.
The introductory paragraph of
S 270.41 ba* alao been amended to make
it clear that EPA-initiated modifications
may be made pursuant to { 27034(0). as
well as 127041. This paragraph has
been reprinted in full for purposes of
clarity. EPA is seeking to change, and is
seeking *mmmt* only, on those
references to new 1270.34(c) and me
balance of the paragraph,
0. Conforming Changes to
Requirements for Penaits-by-Rule
(§ 27040(bX3); § 270.90{cX3)('riti))- The
subpart S regulations also apply to
RCRA "permils-by-rule" for Class I
hazardous waste Injection wells, and
publicly owned treatment works
(POTWs) that receive hazardous waste
by truck, rail or dedicated pipeline (aee
40 CFR 270.60 and conforming change*
in today's proposal). Today'* proposal
provides
I change* to 127O60
to reflect ae deletion of B 264.101 from
the current subpart F r«»qii<»»n>fnt« The
current "permit-by-rula" requirements
for Class I hazardous waste i
wells (5 270L&0(bK3)) and POTWs that
have a National Pollutant Discharge
Elimination System (NPDES) permit and
that receive h»»flHlffm waste by truck,
rail or ^^fcafad pipeline
(8 27OflO(cM3Xvii)) stipulate that owners
and operator* of these facilities P"itt
comply with the 1264U01 requirements
in order to obtain a RCRA "permit-by-
rule". The references to \ 264.101 in
these two section* have been replaced
with references to the requirements of
today'* proposed aabpart S. reflecting
that these facilities will be subject to all
requirement* in this new subpart
Further infammHnn QQ how EPA plan*
to
types of permit-by-nue facilities can be
found in the preamble to me December
1.1987, Codification Rule (52 FR 45788)
for underground injection control (UIC)
wells and in "Guidance for
Implementing RCRA Permlt-by-Rub
Requirement* at POTWs." issued on
July 21.1987 (contact Permits Division,
Office of Water Enforcement and
Permits, at (202) 475-8545).
7. Alternative Dispute Resolution.
During the process of investigating
releases and studying remedies for
RCRA facilities. EPA anticipates that
some ffiaagreement* between the
Agency and the owner/operator may
arise regarding various to«-tntirjit or
procedural issues. For example, in
defining die technical scope of a work
plan for remedial investigations, the
Agency's technical judgment a* to the
numbers or placement of ground-water
monitoring well* may differ from the
permittee's.
In most cases, the Agency anticipates
that auch disagreements can and will be
resolved through
operator and th* Agency. However, EPA
recognize* that there will inevitably be
some disagreements which cannot be
resolved by rich mean*. In these cases,
there an several option* the Agency
may employ to resolve the dispute and
prevent '"""^y»°*«'« delays in
implementation of collective action
requirements. Such options include the
use of a more formal type of dispute
resolution process: enforcement action
under RCRA section 3008(a); or a
modification of the permit The choice of
options wffl depend on the specific
issues under dispute and the
circumstances at the facility. For
situation* when the requirement* at
issue are clearly defined in the permit
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Federal Register / Vol. 55. No. 145 / Friday. July 27. IBflO / Proposed Rules
30851
ochedule of compliance, but where the
permittee refuses, or otherwise
demonstrates an unwillingness to
comply with the requirements. EPA
would intend to utilize enforcement
options (ft#., section 3008(a)) to compel
appropriate action by the permittee.
Alternatively, a modification to the
permit schedule of compliance (such as
the process defined in today's proposed
S 270.34(c)) may often be chosen as the
appropriate mechanism for resolving
disputes in situations where the
requirement at issue is less specifically
defined and when the Agency and the
permittee are unable to negotiate an
acceptable agreement
The use of enforcement authorities for
corrective action, and the permit
modification process proposed today at
{ 270.34(c) are discussed elsewhere in
today's preamble. The remainder of this
discussion focuses, therefore, on the
potential use of alternative dispute
resolution techniques to resolve
disagreements.
On August 14.1987, EPA's "Final
Guidance on Use of Alternative Dispute
Resolution (ADR) Techniques in
Enforcement Actions" discussing
multiple ADR techniques was issued. In
this guidance document the Agency
articulated its Intention of encouraging
the use of alternative dispute resolution
techniques where there is reason to
believe that one or more of the
techniques discussed in the guidance
may lead to expeditious final
compliance agreements. The Agency
believes that some of the techniques
discussed in this guidance may be useful
in resolving disputes which arise in the
corrective action process under RCRA
permits. A copy of this guidance is
included in die docket established for
today's rulemaking.
In particular, EPA is examining the
use. of a neutral, third-party mediator in
the context of a time-limited, non-
binding negotiation process to resolve
corrective action disputes. The Agency
is not prescribing the use of such a
process as a provision of today's
proposed regulation, however, or any
other process. Given the Agency's
limited experience with ADR to date it
is premature to include any specific
ADR technique within a RCRA
regulatory framework. EPA intends to
encourage, when appropriate, the use of
ADR in certain situations as the RCRA
corrective action program evolves. The
Agency is specifically seeking comment
today on several issues associated with
alternative dispute resolution in the
context of corrective action. These
Issues are: (1) For what types of
corrective eciion issues and disputes
would ADR techniques be most useful?
(2) What techniques (e.g.. mediation.
fact-finding, mini-trials) are most
suitable for this purpose? and (3) Who
should bear the cost (e.g., of third-party
mediators) of alternative dispute
resolution?
M. Conforming Changes to Closure
Regulations (Section 264.113,265.112
and 265.113)
1. General. As discussed further in
section VI1.C. of today's preamble,
corrective actions undertaken at a
facility may affect closure of regulated
units under applicable standards of 40
CFR parts 264 and 266, subpart G. For
example, closure requirements for
regulated units contain certain deadlines
that may be impractical if corrective
action is required at the facility and the
closing unit is being used to receive
corrective action wastes. EPA today is
proposing to amend the closure
regulations in 55 264.113.265.112, and
265.113 to simplify extension of these
deadlines when doing so would assist in
implementing corrective action. The
Agency is also proposing to expand part
265 closure plan information
requirements to include information on
SWMUs.
It is important to note that the part 264
and part 265 subpart G closure
regulations apply only to hazardous
waste management units. Today's
proposed changes to closure regulations
are designed to address potential effects
of subpart S or F corrective action on
the closure of such hazardous waste
management units. Corrective action at
SWMUs that are not used for the
management of hazardous waste is not
subject to subpart G regulations.
In addition, as discussed earlier In
this preamble, S264.551(a) provides the
Regional Administrator with the
authority to waive subpart G
requirements (except for § 264.111) for
units created for the purpose of
managing corrective action waste.
The reader should note that the
proposed changes are for both permitted
hazardous waste units (part 264
standards) and interim status hazardous
waste units (part 285 standards).
Although today's rule primarily
addresses corrective action at permitted
facilities, interim status facilities which
close without an operating permit are
potentially subject to corrective action
under orders issued pursuant to Section
3008(h) of RCRA. or they may wish to
conduct corrective action voluntarily.
Therefore, conforming changes an being
proposed for both permitted and interim
status units.
2. Clarifications. The following
discussion clarifies several points
relating to corrective action and the
closure of hazardous waste management
units, and explains how existing
regulations and authorities can be used
to address potential conflicting interests.
a. Extension of Closure Deadlines—
(1) Notification of Closure. Under
current regulations, when a unit ceases
to receive hazardous waste, the owner/
operator is generally required to notify
the Agency and initiate closure of the
unit (S 264.112(d) or $ 265.112(d}). In
order to perform needed corrective
action without posing unnecessary
implementation problems, the Regional
Administrator may find it necessary to
require suspension of the acceptance of
wastes at the unit temporarily. For
example, it may be necessary to drain
liquids from a surface impoundment to
allow reinforcement or repair of a benn
to prevent migration to a nearby surface
water body. However, closure of the
unit may not be desirable at that time
since available capacity in the unit, once
it is repaired, could be beneficially used
for the disposal of wastes generated in
the course of corrective action. The
Agency believes that the current
requirements at 55 264.112(d) and
265.112(d) provide sufficient flexibility
to accommodate temporary suspension
of waste receipts to facilitate corrective
action without triggering the notice and
closure initiation requirements. These
regulations allow the Regional
Administrator to grant an extension to
the deadline for beginning partial or
final closure if the acceptance of waste
is suspended only temporarily and
additional hazardous waste capacity
remains in the unit. Thus, the Director
may allow an extension of time for the
initiation of closure activities when
capacity in the unit could be beneficial
for disposal of corrective action wastes
from other SWMUo at the facility.
(2) Time Allowed for Closure. For
hazardous waste management units that
will be required to close, but where
corrective action is required prior to or
in conjunction with closure, the owner/
operator may find it difficult to comply
with tile timing requirements of
S 264.113 or 5 265.113. These provisions
currently require that within 90 days
after receiving the final volume of
hazardous waste at a unit the owner or
operator must treat remove, or dispose
of the waote off-site, and that closure of
the unit be completed within 180 days
after receiving the final volume of
hazardous waste. However, extensions
to these deadlines may be necessary
because corrective action may interfere
with the owner or operator's ability to
comply with the deadlines for
completing closure. Sections 284.113 and
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Fodanl
/ Voi 55. No. 146 / Friday. July Zt. 1990 / Proposed Rales
265.119 currently contain provisions ha
entmxliiig closure deaniiriHS under
certain circuinsUnces. EPA believes thai
the need to take corrective action at the
lit. v to receive wastes xrosa other
. WMUs, to already mdodad within the
existing criteria for granting tbeae
extensions. However, to clarify this
point. EPA is proposing today to amend
5 S 204.113 and 285.113 explicitly to
include collective action among the
criteria for granting an extension to the
deadline for completing ctoeure
activities.
b. Modification of Clam Plant.
Corrective action may bring about
rhanga« in «orit and facility design and
operation that will require a resulting
modification to the closure plan and
closure cost estimate for a hazardous
waste nanageBsent unit For example, a
unit may be expanded to accept waste
generated during corrective action at
other SWMUs as part of the remedy for
a facility. Under 12B4.112(c) and
S
plans an required when dismays in
operating plans or tediity 5*<"y effect
the dosure plan. When interim
measures or the final remedy selected
affect the dosure plan for a hazardous
waste management unit both the plan
and the associated cost estimate must
be amended accurdiug to requirements
of snbparts G and H. For permitted
units, the dosure plan and cost "
amendments may be lnT-*"*^1^ in the
permit «n«im>MH««i for remedy selection
or in a separate permit modification, bat
both must be submitted at least 80 days
prior to the proposed change m facility
design or opera ten. For interim status
facilities, amendments to the closure
plan also must be made at least 80 days
prior to the proposed change in facility
design brought about by ths con active
action, or within thirty days if the
change occurs during closure.
J. Clomn Plan Information
Requirement*. The Agency to also
proposing to add 1285.112(bX*) to this
rulflmaking to lequue owners and
operators to include information about
SWMUs at interim status {acuities when
they submit an interim status cfosun
plan. This addition is consistent with the
second HSWA Codification Rule. This
codification rule added i 270.14(4) to
require owners and operators to submit
information about all SWMUs at a
f acuity as part of ths Part B permit
application (December 11987, 52 FR
988). Today's proposed change would
dress the need to coordinate
TBCthw action and closure activities
osing interim status units and
Cities. Since the facility owner/
««tor to mot required to ntO
submit a part B "TTi
dosing under interi
ta
will need a med
inf OBBation to at
*"* • **"**
the Agency
far ottering
the need for
ujjective action at the facility. Today's
proposed addition to interim status
closure plan information requirements is
intended to provide that marAnniaiTi-
N. Conforming Change to Section
204.1(8)
As a conforming change, today's
proposal includes an amendment to
§ 264.1(g) that specifies certain explidt
exemptions bom the requirements of
part 254. However, certain units that are
exempted under I 284.1(g) are,
nevertheless, considered to be solid
waste management units according to
the definition proposed in 1294.501.
Soch units would include on-stte
accumulation tanks and container units,
recycling units, totally endosed
treatment ufJli, elementary
neutralization units, wastewater
treatment mrits, and transfer units. Thus,
today's proposed amendment clarnres
that subpart 8 requirements of part 284
would apply to these units, although the
exemption would continue to apply to
all other part 204 requu eiuents.
VTL Relationship to Other Pnsjrasss
A. Superfund
1. General One of the Agency's
primary objectives in development of
the RCRA corrective action regulations
is to achieve substantive consistency
with the policies and procedure* of ths
remedial action program voder the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA). as amended by the
Supertax! Amendments and
Reaathorization Act (SARA) of 1066.
The fund which may be used for certain
deanup actions under CERCLA. is
cattsd the Hazardous Substances Tmst
Fund, but to commonly known and
referred to as SuperfakL Sections 104
and 108 of CERCLA authorize EPA to
take response actions, mdndmg removal
or remedial measures, when a release or
threat of • release of a hazardous
substance which may threaten human
health or the environment is discovered
Generally, these authorities are used m
situations where contamination has
occurred at attss that are not under the
active control of * RCRA owner or
operator. Where contamination is
related to sctrvtties at hazardous waste
management faculties that an currant*?
operating or I
storage or disposal of risiird*Hit
at any time since November it, 1980,
both RCRA and CBRCIA potential!*
apply.
i ths most compiis&Easivfl set .
of standards anpneabn to saaaerfiaaan
of hazardous waste sites oacte? tha
control of private ownera end operators
will, when prnnmtgatrd, ba fee Section
3004(n) regulation, RCRA caaective
action standards wiii be an important
potentially applicable or relevant and
appropriate requirement for the
CERCLA program. As such, a primary
goal In devetuMnant of the RCRA
regulations will be to establish a
consistent approach between the RCRA
and CERCLA programs. Consistency
will help to ensure mat the regulated
industry can gain no advantage by
proceeding under one program rather
than the other, •*»«*» the Agency
anticipates that similar remedies would
be selected under both.
The corrective action process under
RCRA will parallel the process
established for CERCLA remedial
actions. This process indades
preliminary assessments and site
investigations to evaluate the need for
remediation at specific sites, selection of
remedies where needed to protect
human health and the environment
remedial design and tanplementetion of
remedial action, and operation and •
maintenance to ensure continued
eOecUvenuss of the remedy.
ProoedunUy. the activities under the
two statutes may differ somewhat since
the permittee implements corrective
action under RCRA. whereas the
regulatory Agency, for the most part
does so under CERCLA. (In some cases
CERCLA cleanups are conducted by
responsible parties according to the
terms of an order or consent decree and
with Agency oversight) Nonetheless.
EPA anticipates that the two programs
will arrive at similar solutions to similar
environmental problems, and that
actions undertaken by one program will
be adopted by the other program in
cases when the programmatic
responsibility Cor • site shifts from one
to ths other. Specifically, the Agency
anticipates that then may be a number
of facilities at which substantial
CERCLA remedial studies and/or actual
remediation wiO have been already
conducted at the time a RCRA permit Is
issued (thereby triggering the Subpart S
corrective action requirements). This
situation is nicety to be most common at
Federal facilities. In such cases, if the
remedial work has been eandnetaii
according to the CERCLA NCP. EPA
would eouudar that work to be
consistent with the requirements of
subpart 8, and therefore additional or
different studies or doanup
requirements would be unnecessary. It
however, the remedial activities
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Fodaral Register / Vol. 55. No. 145 / Friday, July 27. 1990 / Proposed Rules
10653
conducted pursuant to the NCP at a
RCRA facility addressed only a portion
of the units or releases at the facility
requiring remediation, the permit would
address any such remaining corrective
action requirements pursuant to subpart
S.
2. Listing RCRA Sites on the National
Priorities List (NPL). EPA is
emphasizing coordinated
implementation of the RCRA and
CERCLA programs. Of particular
importance is the Agency's policy for
listing RCRA facilities on the National
Priorities List (NFL). Section 105(a)(B)(B)
of CERCLA requires EPA to establish
the NPL list to set national priorities
among sites with known or threatened
releases where action under CERCLA
may be warranted. A site must be listed
on the NPL before a remedial action can
be financed by the Hazardous
Substances Trust Fund established
under CERCLA.
The Agency's policy regarding the
listing of RCRA facilities on the NPL
was outlined in a November 23,1985,
Federal Register notice (50 FR 47912).
The policy states that sites that can be
addressed by RCRA subtitle C
corrective action authorities generally
will be deferred from placement unless
they fall within certain exceptions. For a
more detailed discussion of these
exceptions, see 54 FR 41004-6 (October
4.1989).
The proposed RCRA listing policy.
however, does not apply to Federal
facilities. These are listed on the NPL, as
required under CERCA1120, as
amended under SARA (52 FR 17991,
May 13,1987).
3. Use of CERCLA to Supplement
RCRA Authorities. EPA intends to clean
up hazardous waste sites by selecting
the most appropriate response and/or
enforcement authorities from among all
of those available. Accordingly, several
CERCLA authorities may be used at
RCRA facilities. For example, fund-
financed removal actions under
CERCLA section 104 can be taken at
RCRA sites when necessary to respond
promptly to a release. Although
removals may be conducted whether or
not the site is listed on the NPL, such
actions must be undertaken to response
to a release or substantial threat of a
release and must be consistent with the
criteria outlined in the National
Contingency Plan and CERCLA. EPA
may seek reimbursement of costs of
these actions from generators,
transporters, or owner/operators of
treatment storage, or disposal facilities
pursuant to CERCLA section 107.
Where an "imminent and substantial
endangerment" may be posed by a
release at a RCRA facility, the Agency
may employ either a CERCLA section
106 or RCRA section 7003 order. As
noted earner, these authorities will be
particularly useful in addressing
contamination from SWMUs that
requires prompt action.
The Agency may also use CERCLA or
joint efforts with States hi conjunction
with RCRA to address situations of
"area-wide" contamination. Preliminary
investigations have shown that at some
RCRA facilities substantial portions of
on-site contamination is contributed by
adjacent facilities not under RCRA
jurisdiction. Corrective action at a single
RCRA facility alone, therefore, might do
little to restore overall environmental
quality. In these cases, it may be
appropriate to apply both RCRA and
CERCLA authorities or other Agency
authorities in a comprehensive program
to address all sources of the release and
provide complete remediation of the
area. This would allows comprehensive
cleanup of an area (CERCLA trust funds
would be used only where the site
scored 28.5 or higher under the MRS)
that has become contaminated as a
result of activities at multiple facilities,
including both operating and abandoned
facilities.
In situations where CERCLA section
104 or section 108 remedial activities
have been initiated, and where a RCRA
permit is to be issued to the facility, the .
Agency may choose to continue these
remedial actions under CERCLA
authority. In such cases, the CERCLA
cleanup would be referenced in the
RCRA permit, and the Agency would
take steps to ensure that further cleanup
under RCRA section 3004(u) would not
be required at the affected portion of the
facility. At the same time, RCRA may be
used to address other cleanup needs at
the facility that are not addressed by the
CERCLA action underway.
Alternatively, the cleanup may be
shifted to RCRA and the selected
remedy incorporated into tin permit
through a permit modification.
B. PCS Spill Policy Under TSCA
EPA regulations under the Toxic
Substances Control Act (TSCA)
controlling the disposal of PCBs,
published in the Federal Register of
February 17,1978 (43 FR 7150) and May
31,1979 (44 FR 31574). define the term
disposal to encompass accidental aa
well as intentional releases to the
environment. When PCBs in
concentrations of 50 parts per million
(ppm) or greater are improperly
disposed (or when material at leas than
50 ppm got that way through dilution),
EPA has the authority under section 17
of TSCA to compel persons to take
actions to rectify damage or dean up
contamination resulting from the spilL
Before May 4.1987. standards for the
cleanup of spilled PCBs were set by EPA
Regions on a case-by-case basis.
However, EPA believed that uniform.
predictable, nationwide requirements
for the majority of spills would reduce
risks to PCB spill sites by encouraging
rapid and effective cleanup and
restoration of the sites; accordingly. EPA
established a nationwide policy for PCB
spill cleanup. On April 2.1987. EPA
published the TSCA policy for the
cleanup of spills resulting from the
release of materials containing PCBs at
concentrations of 50 ppm or greater.
(See 52 FR 10688.)
The policy requires cleanup of PCBs
to different levels depending on spill
location, the potential for exposure to
residual PCBs remaining after cleanup.
the concentration of the PCBs initially
spilled, and the nature and size of the
population potentially at risk of
exposure. The policy imposes the most
stringent requirements on areas where
there is the greatest potential of direct
human exposures, and less stringent
requirements where there is little
potential for any direct human exposure.
While the policy is expected to apply
to the majority of spill situations, the
policy does provide for exceptional
situations that may require additional
cleanup or less cleanup at the direction
of the EPA Regional offices. Further,
some spills are outside the scope of the
policy. Such spills include: Spills
directly into surface water, drinking
water, sewers, grazing lands, and
vegetable gardens. Final cleanup
standards for these types of spills are
established by the EPA Regional offices
on a site-specific basis.
RCRA corrective action authority
under section 3004(u) applies to PCBs
because PCBs are listed as an Appendix
Vffl constituent in 40 CFR part 281. PCB
releases from solid waste management
units at permitted RCRA facilities are
addressed in accordance with TSCA
PCB spill cleanup policy. These solid
waste management units would often
technically be considered "old spills"
under the spill policy. It is the Agency's
belief that the cleanup levels and
practices discussed in the policy will be
appropriate hi many situations, and that
when necessary, site-by-site evaluations
should still be required.
C Other Elements of RCRA Subtitle C
Program
1. Relationship to Subpart P Ground-
Water Corrsctin Action. Existing
RCRA regulations for ground-water
corrective action (40 CFR Part 284,
subpart F) prescribe a specific approach
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
for detection, characterization, and
cleanup of contaminated ground water
from regulated land disposal units which
received waste after July 28, 1982.
Subpart F is a "prospective" program
requiring that monitoring be established
to detect contamination, and that if
detected, contaminated ground water be
removed or treated in place if or when a
ground-water protection standard has
been exceeded. There is additional
discussion of current Subpart F
corrective action in section IV of today's
preamble.
Achieving a coordinated, facility-wide
approach to cleanup of releases from
both regulated units and other solid
waste management units is a basic
objective of the Agency. However, the
universe of units and contamination
being addressed by subpart S corrective
action regulation is somewhat broader
in scope.
To ensure consistency in
implementing corrective action at both
regulated units (a subset of SWMUs)
and other solid waste management
units, and to achieve environmental
results as rapidly and effectively as
possible, the Agency is developing a
proposal that would restniqture the
current subpart F regulation* to make
them consistent with the key features of
subpart S. These proposed revisions to
subpart F are expected to be issued
relatively soon. It is expected that these
revisions will reference a number of
specific sections of today's subpart S
proposed regulations; likewise, for the
sake of clarity and consistency, the final
subpart S rule may also contain cross-
references (that do not appear in today's
proposal) to certain subpart F
provisions. >
2. Land Disposal Restrictions
Program. As enacted on November 8,
1984. the Hazardous and Solid Waste
Amendments (HSWA) to the Resource
Conservation and Recovery Act (RCRA)
impose restrictions on the land disposal
of hazardous wastes. In HSWA.
Congress specified dates when
particular groups of hazardous wastes
not meeting treatment standards an
prohibited from land disposal unless it
can be demonstrated that "no migration
of hazardous constituents from the
disposal unit or injection zone for as
long as the wastes remain hazardous"
will occur (RCRA section 3004(d)(l).
(e)(l). and (g)(5)). The dates specified by
Congress for triggering the land disposal
restrictions are listed below: •
• Solvents and dioxins by November
8.198ft
• California list wastes by July 8.
1987; and
• Scheduled wastes by August 8,1988
(First Third), June & 1989 (Second
Third), and May 8. 1990 (Third Third).
Note: A separate schedule was established
for hazardous wastes disposed of by deep
well underground injection.
HSWA required the Agency to set
"levels or methods of treatment if
any, which substantially diminish the
toxicity of the waste or substantially
reduce the likelihood of migration of
hazardous constituents from the waste
so that short-term and long-term threats
to human health and the environment
are minimized" (RCRA section
3004(m)(l)). To date, EPA has developed
treatment standards based on the
performance of best demonstrated
available technologies (BOAT) in a
series of five rulemakings. After the
appropriate effective date, wastes for
which treatment standards have been
promulgated must meet those standards
before the wastes may be land disposed.
Where adequate treatment capacity
was not immediately available on the
statutory effective date, the Agency
granted a national capacity variance.
This established an alternative
prohibition effective date for the waste
of up to two years. During a variance,
wastes not treated in compliance with
applicable treatment standards may be
disposed of in surface impoundments or
landfill* only if they meet the minimum
technological requirements (RCRA
section 3004(o)). Furthermore, wastes
granted this variance must be in
compliance with the California list
prohibitions if they are applicable, and
are subject to the paperwork
requirements of 40 CFR 268.7.
The rules promulgated to date are
summarized below:
• Solvent* aadDioxiiu. On November 7.
1986. regulations wen promulgated
establishing the implementation framework
of the LDR program (51FR 40572). In this
rulemaldng, EPA promulgated treatment
standards and effective dates for spent
solvents and dioxin-containing hazardous
wastes identified as EPA Hazardous Waste
numbers FOui-FGCo, F021-F023, and F026-
FOZfl (40 CFR ZSSJO and 268.31).
• California List Waste*. On July 8,1987,
regulations wen promulgated restricting land
disposal of the California list hazardous
wastes (52 PR 25760). Treatment standards
wen established for liquid and nonliquid
hazardous waste containing halogenated
organic compounds (HOCs), and for liquid
hazardous wastes containing polychlorinated
biphenyls (PCBs). The statutory prohibitions
on land disposal of corrosive wastes and
liquid wastes containing certain metals wen
codified and became effective immediately.
• The Scheduled Wastes. On August 8,
1988.4he Agency promulgated regulations for
certain scheduled wastes (40 CFR 268.10),
nferred to as First Third wastes. Treatment
standards wen established for most of the
wastes identified by EPA Hazardous Waste
numbers "F" and "K." Wastes scheduled in
the First Third for which treatment standards
were not set were subject to the "soft
hammer" provisions of 8 268.8. On June 8,
1989, the Agency promulgated regulations for
the Second Third of the scheduled wastes (40
CFR 288.11). In the Second Third final rule.
the Agency also set standards for certain
First Third soft hammer wastes. Third Third
wastes, and newly listed wastes. This rule
also set effective dates for underground
injected wastes. On May 8,1990, the Agency
promulgated treatment standards and
effective dates for the remaining soft hammer
wastes, wastes listed in the Third Third of
the scheduled wastes (40 CFR 288.12). wastes
that were rescheduled to the Third Third, and
five newly listed wastes.
Separate rulemakings for the
underground injection control (UIC)
program established hazardous waste
disposal injection restrictions and
requirements and set effective dates for
underground Injected solvents, dioxins,
California list wastes, and First Third
scheduled wastes (40 CFR parts 124,144,
148, and 148).
Corrective action taken under today's
rule must comply with the land disposal
restriction requirements of 40 CFR part
268. The prohibitions do not apply to
hazardous wastes placed into land
disposal prior to the effective date of an
applicable land disposal restriction, if
such wastes do not have to be removed
or exhumed for treatment. Furthermore,
as explained in the preamble to the NCP
revisions (published on March 8,1990),
the Agency has determined that
placement and thus land disposal, of
hazardous wastes does not occur when
waste is moved or treated in-situ within
a unit This is particularly important for
RCRA corrective action since many
remedial actions are likely to involve
treatment consolidation, and capping of
wastes within existing units. Wastes
moved or treated within such units
would not be subject to the land
disposal restrictions. Placement does
occur, and the land disposal restrictions
apply, when waste is removed from the
unit for treatment or other purposes and
the waste or residuals are returned to
the unit or to a different unit
3. Relationship to section 3004(n)
Standards. RCRA section 3004(n)
requires the Agency to promulgate
standards for the control and monitoring
of air emissions from hazardous waste
management units subject to permitting
standards other than subpart S at
treatment storage, and disposal
facilities (TSDFs). The goal of these
standards is to protect human health
and the environment as necessary from
air emissions associated with
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management of hazardous waste*.
Currently, toe Agency Is developing
standards under section 30M(n) that wfll
apply to certain hazardous waste
management units covered by today's
proposal under section 3004(u). Section
3004(n) standards forairemissions
associated with equipment leaks and
certain process vents at TSDFs were
proposed in February 5,1987 (52 PR
3748) and are expected to be finalized in
June, 1990? standards for volatile organic
emissions from certain other TSDF
emission sources will be proposed at •
later date.
The standards being developed under
section 3004(n) will require engineering
controls at units that manage hazardous
waste. Air emissions will be controlled
through, """ing other thinga, some
combination of coven and add-on
control technologies which capture the
air emissions for recovery or
destruction.
Although standards developed «""i*y
section 3004(n) will only address air
emissions from hazardous waste
management units at TSDFs (a subset of
all SWMUs), they are expected to
provide valuable guidance for
addressing air emissions from other
SWMUs used for management of Don-
hazardous solid waste. In addition to the
standards being developed under
section 3004(n) of RCRA. the Agency is
examining technical approaches and
policy options for regulating, under |he
Clean Air Act, air Pmiminna from
SWMUs in which non-hazardous solid
wastes are managed.
The Agency is today proposing •
specific approach to imposing corrective
action requirements on certain air
releases from SWMUs in today's
proposal The proposed approach is
designed to be flexible enough to be
used in conjunction with the section
3004(n) standards being developed.
When .the section 3004(u) standards are
developed, EPA will make any
adjustments to the sunpart S standards
necessary to ensure a cflnsiflto"* «t»i
complementary approach.
4. Administrative On/en Voder
RCRA section 3OO8(h). The section
3008(h) authority for interim status
collective action orders provides a
sister authority to section 3Q04(u) for
requiring corrective action at non-
permitted RCRA facilities.
Corrective action may be required
under section 3008(h) whether the
facility is operating (prior to receiving •
permit) under interim status, is closing
or is closed under interim status, has
lost interim status, or failed to properly
obtain interim status. Corrective action
orders under section 3008(h) may be
issued unilaterally by the Agency or
they may be issued as consent
agreements between the owner/
operator and the Agency.
In many cases, the entire corrective
action process for a facility will be
implemented under a section 300S(h)
order. However, in some cases a facility
that has been issued a section 3006th)
order will be issued a permit prior to
completion of the activities specified in
the order, hi such cases, the Agency
may require the owner/operator to
continue all or some of the activities
under the order, or may incorporate the
requirements of the order into the RCRA
permit
In any case, EPA intends that
equivalent environmental results will be
achieved whether collective action .
requirements are imposed in an order
under section 3008(h) or a permit
Accordingly. EPA expects that orders
issued under section 300B(h) generally
should follow the substantive
requirements of today's proposal (eg*
remedy selection factors to be
considered), as well as procedural
elements (e#. triggers for moving from
one phase of corrective action to the
next). There will, however, be some
procedural differences between orders
and permits in implementing corrective
action. On April 13,1988, EPA
promulgated rules for administrative
procedures for issuing orders under
section 3006(h). (See 53 FR12256.)
The section 3008(h) enforcement
authority will not be delegated to States.
States which desire enforcement
authorities equivalent to section 3008(h)
and do not already have such
authorities in mri«tirm legislation will
need to enact parallel statutory
enforcement authorities. While
procedural aspects of issuance of
section 3008(h) orders do not duplicate
the procedural aspects of today's
proposed rule for corrective action
under permits, the procedures for both
are designed to ensure equivalent
results and to provide adequate
participation in the process for aO
interested parties.
5. Financial Assurance for Corrective
Action. As discussed in section IV of
this preamble. EPA proposed financial
i requirements for corrective
action (FACA) on October 24,1988 (51
FR 37854). The fourteen commenters on
the FACA proposal generally supported
the flexibility of the Agency's approach.
The procedures presented in FACA and
today's regulatory changes to these
procedures are summarized below.
a. Timing. In today's rule. EPA is
proposing specific language that will
clarify when financial assurance for
corrective action must be demonstrated.
Section 264.526(c) requires that after
selection of the remedy, the Director
shall modify the facility permit and
schedule of compliance to require a
demonstration of financial assurance
within 120 days of the effective date of
the permit modification. This
requirement which IB a clarification of
the requirement proposed in the 1988
FACA proposal, is discussed further in
sections VLF and VLG of today's
preamble.
In addition to this approach. EPA
requested comment in the FACA
proposal on a second, more complicated,
approach. In this approach, the facility
would be required to demonstrate
financial assurance once corrective
action is determined to be necessary,
but before the corrective action
measures and cost estimate are
specified in the permit Adjustments to
the amount of financial assurance would
be required after specification of the
corrective measures and cost estimate in
the permit
Most commenters on the FACA
proposal supported the proposed
approach. However, some commenters
argued that financial responsibility
demonstrations should be made not at
the time the cost estimate is completed,
but rather prior to permitting. The
Agency disagrees, since unnecessarily
early demonstration of financial
assurance may increase the number of
bankruptcies, increase the amount of
unfunded corrective actions, and thus
result in less environmental protection.
b. Cost Estimation. The 1988 FACA
proposal required facility owners or
operators to submit a cost estimate for
corrective action, consisting of two
parts: (1) A year-by-year current cost
estimate of required corrective action in
undiscounted current dollars; and (2) the
sum of these year-by-year estimates of
corrective action costs. The Agency
proposed that third-party costs, rather
than first-party costs, be used to
estimate yearly and total corrective
action costs (i.&, costs of contractor
labor rather than the owner's or
operator's own labor). The corrective
action cost estimate must be revised if
changes in corrective measures alter the
cost or expected duration of corrective
action. The proposal also would require
the owner or operator to adjust the cost
estimate annually to account for
inflation, using either recalculations in
current dollars or an inflation factor
derived from the moat recent annual
Implicit Price Deflator for the Gross
National Product published by the
Department of Commerce.
In addition to the annual inflation
adjustment required under the FACA
proposal. EPA is today proposing in
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Federal Register / VoL 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
§ 2B4.527(c) to require that cost
estimates be revised if necessary, upon
approval of the remedy design. The
financial assurance mechanisms must
be adjusted to reflect any changes in the
cost estimate. This requirement is
discussed further in section VI.H of
today's preamble.
c. Allowable Mechanisms. Under the
October 24.1986, FACA proposal,
owners or operators who are
responsible for performing corrective
action would be required to demonstrate
financial assurance through one or more
of the following mechanisms: trust fund,
surety bond guaranteeing performance,
letter of credit financial test, or
corporate guarantee. A letter of credit
and a trust fund may be combined to
demonstrate financial responsibility and
a single mechanism may be used to
demonstrate financial responsibility for
multiple facilities. The rationale for
authorizing the use of these mechanisms
and for the regulatory framework for
financial assurance for corrective action
is similar to that for the financial
assurance requirements for closure and
post-closure can under part 284, subpart
H (47 FR15032, April 7,1982). The key
differences between the FACA proposal
and Subpart H an that insurance and
surety bonds guaranteeing payment into
a standby trust fund were not deemed
appropriate mechanisms for corrective
action situations and are not allowed.
Additionally, the proposed fund
includes a pay-in period and pay-in
formula which accounts for the costs of
corrective action (see 51 FR 37854 et
seq.).
Commenters on the FACA proposal
generally supported the range of
allowable mechanisms, but offered
specific suggestions for altering the
requirements of particular mechanisms
(e&. shorten the pay-in period for the
trust fund). The Agency will address the
commenters suggestions when the final
FACA requirements an promulgated. In
the interim, EPA intends to rely on the
FACA proposal as a guide. The Agency
expects that in most case* fi"«nc<«l
assurance will be demonstrated by use
of instruments that an consistent with
the proposed regulatory language of
FACA. However, other instruments may
be permissible if the owner or operator
demonstrates, to the satisfaction of the
Agency, that such instruments provide
an acceptable level of financial
assurance.
The fundamental criteria the Agency
will use in evaluating the acceptability
of other instruments are: (1) the
certainty of the availability of funds,
and (2) die amount of funds assured.
The certainty of the availability of funds
from alternate mechanisms should be
equivalent to the certainty provided by
existing financial assurance
mechanisms under 40 CFR part 264,
subparts G and H. For example, the
alternative mechanisms should provide
that the Regional Administrator or State
Director has the sole authority to direct
the payment or use of funds or must
provide for prompt notification of intent
to cancel the mechanism. To be deemed
equivalent in terms of the amount of
funds, the alternative mechanisms
should meet several criteria, such as
providing that the funds cannot be used
for other purposes, and providing that
the amount of funds are equal to the
current cost estimate.
D. RCRA Subtitle D: Solid Waste
Disposal
Today's proposal is for corrective
action at faculties subject to RCRA
permits issued under the authority of
section 3005 of RCRA (i.e., those which
treat store, or dispose of hazardous
waste as defined under RCRA). The
disposal of non-hazardous solid waste
falls under the authority of subtitle D of
RCRA. EPA has two major roles under
subtitle D. The first is to establish
minimum national performance
standards (under the authority of
section 4004) for the protection of human
health and the environment from solid
waste disposal facilities. The second is
to help the States make appropriate
solid waste management decisions by
offering up-to-date technical assistance.
Some of the subtitle D standards for
protection of human health and the
environment from solid waste disposal
facilities could apply or be relevant to
subtitle C faculties. For example.
SS 257.3-257.fl provides safety limits for
the concentration of explosive gases
generated by a facility (defined under
5 257.2 as any land and appurtenances
thereto used for the disposal of solid
wastes). It may be appropriate to apply
this requirement to subtitle C faculties
with solid waste management units that
could generate methane (e.g.. landfills
used for disposal of municipal-type
wastes). Thus, the Agency could require
compliance with the part 257
requirements for explosive gases if such
situations wen encountered at a subtitle
C facility undergoing corrective action
according to subpart S.
Passage of HSWA added section
4010(c) to subtitle D. Section 4010(c)
required EPA to revise criteria
promulgated under section 4004(a) for
facilities that may receive household
hazardous wastes or small quantity
generator hazardous wastes. The statute
indicated that these criteria must
include, at a minimum, ground-water
monitoring necessary to detect
contamination, location standards, and
corrective action, as appropriate. The
statute also indicated that the criteria
should take into account the practicable
capability of such facilities.
On August 30,1986, EPA proposed
these revised criteria for municipal solid
waste landfills (see 53 FR 33313). The
criteria for subtitle D municipal solid
waste landfills most relevant to today's
proposal are the criteria proposed for
ground-water monitoring and corrective
action under subpart G of 40 CFR part
258.
The part 258 subpart G proposal
would require the owner/operator of a
municipal solid waste landfill to
establish a two-phase ground-water
monitoring program. If parameters
established for Phase I monitoring are
detected at a statistically significant
level above background, the owner/
operator must initiate a phase n
monitoring program which includes an
initial test for all constituents listed in
appendix IX of 40 CFR part 264. If the
concentration of any appendix K
constituent exceeds the established
trigger lever, as discussed below, then
the owner/operator must initiate an
assessment of the nature and extent of
the contamination.
Like the subpart F program under
subtitle C, the corrective action program
proposed in 40 CFR part 258, subpart G,
for municipal solid waste landfills
would be limited to releases to ground
water. The corrective action program, as
described in subpart G, would have to
be designed to delineate the area! extent
of the plume of contamination and to
clean up to maximum allowable
constituent concentrations throughout
the plume. Ground-water protection
standards would be set using the same
health and environmental baaed criteria
as those employed in today's proposal
for subtitle C corrective action for solid
waste management units. The
requirements for ground-water cleanup
in the corrective action program
described in the revised subtitle O
criteria an thus very similar to those
described hi today's subtitle C
corrective action proposal The subtitle
D revised criteria will not however,
address procedural requirements;
procedures for implementing the criteria
will be established by the States.
£ RCRA Subtitle I: Underground
Storage Tanks
Section 9003 of subtitle I of the
Resource Conservation and Recovery
Act [RCRA) directs EPA to promulgate
regulations applicable to owners and
operators of underground storage tank
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30857
(UST) systems to protect human health
and the environment Section 9003(c)
specifically requires EPA to promulgate
regulations applicable to owner/
operators of UST systems which require
corrective action in response to releases
from USTs and, further, requires the
owner/operator to report the actions
taken.
Section 9003(h) was added to RCRA
by section 205 of the Superfund
Amendments and Reauthorization Act
(SARA) of 1986, which established a
Leaking Underground Storage Tank trust
fund that can be used by EPA to clean
up releases of petroleum from UST
systems. Alternatively, EPA can order
UST owners and operators to undertake
such cleanup. Under the corrective
action requirements of section 9003(c),
all petroleum UST cleanups will have to
be conducted in accordance with the
requirements in the regulations. The
approach to UST corrective action
adopts the same basic steps as the NCP
requirements for CERCLA actions and
those contained within today's proposed
RCRA section 3004 regulation: control
the release source, determine the extent
of the contamination, determine the
extent of the remediation required, and
take the necessary cleanup actions.
Specific differences in the programs
reflect the different scope and nature of
implementation under the different
programs.
EPA issued final technical standards
governing petroleum and CERCLA
hazardous substance UST systems on
September 23,1988 (— FR ).
Approximately two million USTs will be
affected by the regulations, and a wide
variety of release situations and
hydrogeologlc settings are expected.
These standards would require owners
and operators of leaking UST systems to
take certain actions upon confirmation
of a release. Owners and operators must
report confirmed releases to the
appropriate regulatory authority and
begin immediate cleanup steps.
Immediate measures required under the
proposed standards include mitigation
of safety and fire hazards; initiation of
free product recovery, if applicable; and
assembling of information on the nature
and quantity of the release and site
characteristics. The owner/operator
must submit, to the implementing
agency, reports describing these
immediate steps, as well as the design
and implementation of free product
recovery systems. A corrective action
plan would be required for longer-term
cleanups addressing soil and ground-
water contamination. Cleanup levels
would be established on a site-by-site.
basis as approved by the implementing
agency (typically the State) that would
oversee the cleanup by the owner or
operator.
The first stage of the UST corrective
action process requires immediate steps
to abate imminent safety and health
hazards whenever a release from a
petroleum UST is confirmed The owners
and operators must investigate the
presence of free product and, if present
begin free product recovery. The owner/
operator must also submit information
characterizing the site and the nature of
the release. If, after reviewing this
preliminary information, the
implementing agency determines that
the product may have reached ground
water or that contaminated soil is in
contact with ground water, the owner/
operator must characterize the extent
and location of soil and ground-water
contamination. The implementing
agency will use this information as the
basis for determining, through a site-
specific risk assessment whether the
owners and operators will be required
to undertake a longer-term correction
action.
This second stage of the corrective
action process addresses soil and
ground-water cleanup. The site-specific
analysis is the basis for prescribing the
extent and timing of cleanup that would
be required for longer-term corrective
action. The assessment would be based
on analysis of site-specific conditions
and problems posed by the release.
Factors to be considered include: the
quantity of material released; the
mobility, persistence, and toxidty of the
material; the exposure pathways; its
relationship to present and potential
ground-water well locations and uses;
and any relevant standards.
Technology-based cleanup requirements
would also be possible under this .
approach if: (1) The cleanup level set
during the UST corrective action process
is found to be unattainable with current
technology, (2) it is shown that the
remaining contamination does not pose
a substantial present or potential hazard
to human health and the environment;
and (3) monitoring procedures are
instituted to ensure that the conditions
remain stable or improve.
EPA's approach to corrective action at
underground storage tanks is largely
shaped by the enormous size of the
regulated universe. These factors, as
well as the absence of permitting
requirements for USTs. explain the
procedural differences between
corrective action for USTs and today's
proposal
EPA estimates that then are
approximately two million petroleum
USTs at about 700.000 faculties as well
as 10.000 hazardous substance USTs at
30.000 faculties potentially subject to
subtitle L Because of the size of this
universe, EPA believes that the program
is best implemented at the State and
local level, and that it should be, to the
extent possible, self-implementing. Thus,
the UST rule would require that certain
automatic actions be taken at the
determination of a release: mitigation of
fire and safety hazards, recovery of free
product and repair of the leak or
removal of the tank. These are all
straightforward actions particularly
reitvant to the UST universe and are
amenable to self-implementing
standards. At RCRA permitted facilities,
contingency plans and tank standards
would require comparable action for
hazardous waste units. However, the
Ageacy did sot adopt comparable self-
implementing provisions—beyond the
regular facility subtitle C standards—in
today's rule because of the much wider
vtvtety of units that would be subject to
subtitle C corrective action and the
elect Federal or State oversight afforded
by the permit process.
The UST rule would also require long-
term remedial action for ground-water
and soil contamination, based upon a
site-specific assessment after
immediate action had been taken.
Because of the large size of the regulated
universe, the absence of a national
permitting system under which to carry
out cleanup, and the necessity of local
implementation. EPA believes a
procedurally less prescriptive approach
to selecting cleanup strategies and
cleanup levels is necessary for USTs.
Some USTs are potentially subject to
corrective action requirements under
both subtitle I and today's rule.
Specifically, releases from an UST
containing solid wastes at a RCRA
permitted facility may be subject to
corrective action requirements under
both programs. In order to avoid
confusion and because USTs located at
RCRA facilities will be subject to the
oversight provided by a site-specific
permitting process, today's regulations,
whea promulgated, will be the
applicable corrective action
requirements for USTs subject to section
30M(u). The final UST rules also clarify
the applicability of the subtitle I
corrective action requirements to USTs
located at RCRA permitted facilities by
excluding them from coverage under
subtitle L
F. Federal Facilities
Many Federal agencies have facilities
which require RCRA permits. Some of
these agencies have developed remedial
programs which apply at their facilities
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Federal Register / Vol 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
In addition to EPA program* under the
RGRA and CERCLA statutes. Regardless
of any self-imposed remedial programs,
federally-owned or operated facilities
must comply with all RCRA and
CERCLA requirements (with certain
limited exceptions) in the same manner
and to the same extent as most non-
governmental entities. The objective of
the RCRA corrective action program at
Federal facilities, as at all RCRA
facilities, is to ensure protection of
human health and the environment
Section 6001 of RCRA requires any
agency of the Federal Government
engaged in the management or disposal
of hazardous waste to comply with both
substantive and procedural
requirements under RCRA as well as
with any other applicable requirements
for the management of hazardous waste,
including Federal, State, interstate and
local requirements. CERCLA section
120(a) makes Federal facilities subject to
CERCLA in the same manner and to the
same extent as private facilities. Section
120(1) also makes it clear that the special
provisions for Federal facilities in
Section 120 do hot impair any
obligations they have to comply with
RCRA requirements, including
corrective action. In accordance with
section 120 (c) and (d), EPA has
established a comprehensive Federal
agency hazardous waste compliance
docket and will list Federal facilities on
the CERCLA National Priorities List
(NPL) if they meet the NPL listing
criteria.
Many Federal facilities at which
hazardous wastes are managed will be
subject to both CERCLA remedial action
and RCRA corrective action authorities
In many such cases, EPA intends to
coordinate the application of RCRA and
CERCLA authorities through the use of
interagency agreements (lAGs), as
provided under the authority of section
120(e) of CERCLA. The IAG will provide
the vehicle for explicitly defining the
procedural *nf^ technical requirements
for corrective action, in satisfaction of
the statutory and regulatory authorities
of both RCRA and CERCLA.
While it is the responsibility of
Federal facilities to comply with the
requirements of bom the RCRA and
CERCLA programs, the Agency plans to
continue its efforts to coordinate the
activities required under both programs
with those under already-established
Federal facility remedial programs. For
example, the Department of Defense
(DOD) has developed the Installation
Restoration Program (IRP) to identify
and cleanup contamination resulting
from past waste management practices
at DOD fadlities. IRP conducted
activities will often serve to satisfy
RCRA and CERCLA requirements.
Furthermore, the Agency is aware that
in some cases an Environmental Impact
Study (ESS) will be conducted at a
Federal facility during the same time
frame as the RCRA Corrective Action
investigations and studies are
undertaken. To the extent that the
information generated by the EIS is
deemed relevant by EPA to the needs of
Corrective Action, EPA would not
intend to require duplicative information
to be generated to satisfy corrective
action requirements. In fact it may be
possible in some cases to merge the two
studies into one integrated document
EPA intends, however, to oversee and. if
necessary, direct the scope and
substance of investigations and cleanup
activities at DOD and other Federal
facilities. In addition, EPA anticipates
that many States will exercise oversight
authority under State laws to review
and participate in corrective action
decisions at Federal facilities.
VUL Public Involvement
Effective public involvement efforts
within the corrective action program
will enable die interested public to
receive accurate and timely information
about remedial plans and progress and
to comment on proposed actions at
significant decision points. The statutory
public involvement requirements for
permitting contained hi RCRA section
7004 are elaborated in regulatory
requirements at 40 CFR parts 124 and
270. Today's proposal includes '
additional requirements intended to
promote active and effective
communication between the interested
public, the regulatory agency
responsible for Implementation of the
corrective action program, and the
permittee.
The first required public involvement
ocean before a draft RCRA permit is
developed. At the time the permit
application is submitted, a mailing list
must be assembled by EPA or the State
for the community in which the facility
is located (See 40 CFR 124.10(c)(l)(viii).)
The list serves as an important
communications tool to allow the
regulatory agency to reach interested
members of the public with
announcements of meetings, hearings,
events, and available reports and
documents. Guidance on developing a
comprehensive mailing list is available
in the January 1988 Guidance on Public
Involvement in the RCRA Permitting
Program.
After developing a draft permit the
regulatory agency is required to provide
public notice mat a draft permit has
been prepared and is available for
public review. (See 40 CFR 1*»4.6.) The
notice must be published in a major
newspaper and broadcast over local
radio stations. A 45-day public comment
period on the draft permit must follow
the public notice. If a written request is
received. EPA or the State is required to
hold an informal public hearing. A 30-
day advance notice containing the time
and place of the hearing is required. In
addition, a fact sheet is developed to
accompany every draft permit It
includes the significant factual and legal
bases used in preparing the draft permit
The comment period for the draft permit
will provide the public an opportunity to
comment on corrective action conditions
contained in the permit In most cases,
requirements for the RCRA Facility
Investigation (when necessary) will be
included in the schedule of compliance .
in the draft permit
When a final decision is reached on
whether to issue or deny a permit EPA
regulations require that a notice of the
decision be sent to each person who
submitted written comments on the draft
decision or who requested such a notice.
In addition, a response to all significant
comments must be issued by the Agency
or the State. The response to comments
must include a summary of substantive
comments received and an explanation
of either how they were incorporated or
addressed in the final permit condition
or why they were rejected.
In addition to the established public
involvement activities required during
the permitting process, today's
regulation proposes in | 270.36 to
provide the Director with the authority
to require an additional effort to keep
the interested public informed of
' activities at the site. Proposed § 270.36
would allow tiie Director to require the
establishment of an information
repository that would house documents
pertinent to the corrective action
activities near the facility. The details of
the proposed repository are discussed in
section VLL of today's preamble. In
addition, today's proposal would require
the permittee to mail a summary of the
final report of the RCRA Facility
Investigation to all individuals on the
facility's mailing list to keep interested
persons informed of findings at the site.
Today's proposal would also require a
major permit modification to incorporate
remedy selection. The modification
would provide an additional opportunity
for public involvement This
modification would follow established
public participation procedures under
part 124 for major modifications. In
addition, today's proposal provides that
additional permit modifications initiated
by the Agency or the permittee will be
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30859
classified on the basis of their potential
effect on the permittee, the affected
public, and the environmental impact of
proposed changes. Those that are
classified as major modifications will
follow the existing procedures for major
modifications as described above. Those
that have less significant impacts will
follow the procedures described under
today's proposed { 270.34(c) or those
issued on September 28.1988 (53 FR
37912) for owner/operator initiated
modifications. In all cases there will be
an opportunity for public review and
comment Section V1.L of today's
preamble discusses the classification of
permit modifications for corrective
action and their related procedural
requirements more fully.
There may be some actions taken
during the course of • permit that are
not reflected in the initial permit and are
not the subject of a permit modification.
For example, many of the detailed
activities taken by the permittee in
implementing the RFI or in designing the
CMS plan may not be specified in the
initial permit In some cases, EPA and
the permittee may reach a mutual
agreement about the exact nature of the
required activities (within the general
scope of the permit), and the specifics of
these activities may not be reflected in •
permit modification. In such cases, the
specific activities agreed to will be
documented on the permit record and
the public will have an opportunity to
comment on them when the permit is
modified at the time of remedy
selection. This approach would be
limited to activities that would not
constitute a major change that might
otherwise warrant application of the
public participation requirements
specified in 17004 of RCRA.
EPA believes that the .approach
outlined above provides an appropriate
balance between the need to involve the
public in the remedial process and the
need to proceed expeditiously to remedy
releases to the environment The public
will have a full opportunity to comment
on all remedial activities undertaken
during the term of the permit, and not
otherwise subject to public scrutiny, at
the time of remedy selection. To the
extent that public commenttakes
legitimate issue with such activities,
EPA may need to revisit some of these
activities or modify its decision
regarding the remedy. Accordingly, EPA
will be very sensitive to possible public
reaction in specifying activities to be
undertaken during the course of the
permit without public involvement
Public involvement activities required
in the permitting process and proposed
today for the corrective action program-
are similar, though not identical, to
those established under the Superfund
Community Relations Program.
Activities proposed today are in
addition to public involvement activities
conducted at RCRA facilities targeted
by the Agency for expanded public
involvement because of the high
potential for exposure to the population
or because of a high level of interest in
the community. Public involvement
efforts at RCRA sites listed on the
National Priorities List and/or facilities
which will accept Superfund wastes
should be integrated with concurrent
Superfund community relations efforts
to the extent possible.
EPA and State offices, as a matter of
policy, jointly issue permits. Where
States are authorized to implement only
some portions of the hazardous waste
program, the State and EPA may also
conduct public involvement activities
jointly.
IX. State Authorization
A. Applicability of Bales in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under sections
3008,7003 and 3013 of RCRA. although
authorized States have primary
enforcement responsibility under
section 7002.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), a
State with final authorization
administered its hazardous waste
program entirely in lieu of EPA
administering the Federal program in
that State. The Federal requirements no
longer applied in the authorized State,
and EPA could not issue permits for any
faculties in the State which the State
was authorized to permit When new,
more stringent Federal requirements
were promulgated or enacted, the State
was obliged to enact equivalent
authority within specified time frames.
New Federal requirements did not take
effect in an authorized State until the
State adopted the requirements as State
law.
In contrast under section 300B(g)(l) of
RCRA. 42 U.S.C. 8928(g). new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time that they take
effect in nonauthorized States. EPA is
directed to carry out those requirements
and prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
requirements apply in authorized States
in the interim.
B. Effect on State Authorizations
1. Schedule and Requirements for
Authorization. Today's rule is proposed
pursuant to section 3004(u), section
3004(v), and section 3005(c)(3) of RCRA,
provisions added by HSWA. Therefore,
the Agency is proposing to add the
requirements to Table 1 in 40 CFR
271.1(j), which identifies the Federal
program requirements that are
promulgated pursuant to HSWA and
take effect in all States, regardless of
authorization status. States may apply
for either interim or final authorization
for the HSWA provisions identified in
Table 1, as discussed in this section of
the preamble.
EPA will implement today's rule in
authorized States until (1) they modify
their programs to adopt these rules and
received final authorization for the
modification or (2J they receive interim
authorization as described below.
Because this rule is proposed pursuant
to HSWA. a State submitting a program
modification may apply to receive either
interim or final authorization under
section 3008(g)(2) or section 3006(b).
respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State
program modifications for either interim
or final authorization are described in 40
CFR 271.21. It should be noted that all
HSWA interim authorizations will
expire automatically on January l, 1993
(see 40 CFR 271.24(c)); EPA invites
comment on whether this deadline
should be extended for cause.
EPA invites comment on an expedited
process for granting interim
authorization for today's rule, pursuant
to RCRA section 3006(g)(2), to States
already authorized for HSWA corrective
action pursuant to the initial
codification of section 3004(u) at 40 CFR
264.101 (SO FR 28747, July 15.1985). An
expedited process is needed if such
States are to avoid losing their authority
to issue corrective action permits upon
the effective date of today's rule. This
expedited process would not involve a
detailed review of the State regulations.
Rather, when determining whether the
State's regulations are substantially
equivalent to today's rules, EPA would
consider the State's statutory authorities
to impose similar corrective action
requirements. Because today's rules
clarify the scope of and are consistent
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Federal Register / Voi. 55. No. 145 / Friday. July 27, 1980 / Proposed Rules
with, the July IS. 1986, codification rule
for which tome States are authorized,
theM authorized States already should
have statutory authority to implement
today's rules.
To ensure that today's rules'are
uniformly applied by a State granted
interim authorization under this
approach, a State applying for interim
authorization would be required to
commit in the State-EPA Memorandum
of Agreement, to implementing its
corrective action authorities according
to die subpart S requirements. In
particular, permits issued by the State
must reflect subpart S requirements
even prior to adoption by the State of
regulations equivalent to and no less
stringent than the subpart S
requirements. The State interim
authorization application under this
approach, then, would consist of the
revised Memorandum of Agreement
(MOA), and a revised Attorney
General's (AC) statement certifying that
the State has the authority to enter into
the Memorandum of Agreement and that
permits issued with the conditions
agreed to in the MOA would be
enforceable under State law. EPA
specifically invites comment on whether
State law allows the State to make this
MOA ''^Tnltmant-
EPA believes this expedited process
will mintmjm disruptions to the State
permit process. A State already
authorized for corrective action which
applies for interim authorization for
today's rule shortly after its publication
as a final rule should be able to receive
interim authorization prior to the
effective date and thus avoid the need
for EPA to resume responsibility for
issuing permits off"»«h»»"fl corrective
action conditions in that State.
Although requirements imposed .
pursuant to section 3006(g](l) of HSWA
take effect la authorized States at the
same time as in unauthorized States.
EPA believes that this requirement
applies only to the promulgation of the
regulations identified in 1271.1(0 *nd
only to the extant that these
requirements put the HSWA program in
place. In passing section 3006(g)(l).
Congress was concerned that no delay
occur before these requirements, once in
place in the Federal program, became
effective in authorized States. However,
Congress clearly did not intend for the
authorized State program's authority to
return, in part, to EPA every time EPA
were to promulgate a subsequent, more
stringent modification or addition to
these requirements promulgated under
HSWA. Thus, once the basic framework
for the HSWA provisions has been
promulgated and is essentially complete,
subsequent regulations promulgated by
EPA will be adopted by States
according to the timelines for non-
HSWA regulations in 40 CFR 271.21(e).
In regard to today's rule. EPA is
soliciting comment on whether the
HSWA corrective action requirement*
should be considered essentially
complete with the adoption of these
requirements.
40 CFR 271.21(e)(2) requires that
authorized States must modify their
programs to reflect Federal program
changes, and must subsequently submit
the modifications to EPA for approval
The deadlines by which a State must
modify its program to adopt this
proposed regulation will be determined
by the date of promulgation ofthe final
rule, in accordance with 40 CFR
271 £l(e). These deadlines can be
extended in certain cases (40 CFR
271il(e)(3)). Once EPA approves the
modification, the State requirements
become subtitle C RCRA requirements.
A State that submits its official
application for final authorization less
than 12 months after the effective date
of these standards is not required to
include standards equivalent to these
standards in its application. However,
the State must modify its program by the
deadlines set forth in 40 CFR 271£l(e).
States that submit official applications
for final authorization 12 months after
the effective date of these standards
must include standards equivalent to
these standards in their applications. 40
CFR 271.3 sets forth the requirements a
State must meet when submitting Its
final authorization application.
In addition to meeting the
requirements in 40 CFR part 271. a State
seeking authorization for today's rules
must demonstrate the ability to capably
implement the base RCRA program as
well as the additional HSWA elements.
EPA's assessment of a State's capability
will reflect an evaluation of the State's
entire authorized program. The
assessment will examine not only
whether a State Is effectively
iippfampnHna the base program, but also
how that State may implement
additional program anas.
2. Slates with Existing Corrective
Action Program*. States that an
authorized for RCRA. but not for
corrective action may already have
requirements under State law similar to
those in today's rate. These State
regulations have not been assessed
against the Federal regulations being
proposed today to determine whether
they meet the tests for authorization.
Thus, a State is not authorized to
implement these requirements in lien of
EPA until the State program
modification is approved. Of course.
States with existing standards may
continue to administer and enforce their
standards as a matter of State law. In
implementing the Federal program. EPA
will work with States under cooperative
agreements to minimise duplication of
efforts. In many cases, EPA will be abl*
to defer to the States in their efforts to
implement their programs, rather than
take separate actions under Federal
authority.
Additionally, some States have
received authorization for HSWA
corrective action pursuant to the initial
codification of section 3004(u) at 40 CFR
264.101 (SO FR 28747. July IS, 198S). The
July 15.1985, Codification Rule explains
at SO FR 28730 that a State's
authorization status may change in
response to further implementation of
HSWA, /.&, when EPA publishes
regulations that further define initially
codified rules. A State that was
authorized for corrective action under
the July 15,1985, Codification Rule will
no longer be authorized when today's
rules are promulgated unless the State
applies for and receives interim or final
authorization before the effective date
of the final promulgation of today's
rules. However, if such States have not
obtained interim or final authorization
by the effective date, cooperative
agreements can be used so as to avoid
interruption of ongoing State corrective
action activities. See the above
discussion of an expedited process for
interim authorization of such States.
C Corrective Action and Mixed Waste
Authorization
On July 3,1986. EPA published a
notice that, to obtain ttn<^ maintain
authorization to administer and enforce
a hazardous waste program pursuant to
subtitle C of RCRA, States must have
authority to regulate the hazardous
component of radioactive mixed wastes
(51 FR 24504). Radioactive mixed wastes
are wastes that contain hazardous
wastes subject to RCRA and radioactive
wastes subject to the Atomic Energy Act
(ABA). Radioactive mixed wastes
(except for the component subject to
AEA) are considered to be a "solid
waste" for purposes of corrective action
at solid waste management units.
Therefore, in order to obtain
authorization for corrective action,
States must have previously obtained or
must simultaneously obtain
authorization for their definition of solid
waste, which must not exclude the non-
AEA components of radioactive mixed
waste. This is because States must be
able to apply their corrective action
authorities to mixed waste units.
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X. Regulatory IinpactAnalysti
A Executin Order No, 12ZH.
Regulatory Impact Analysis
1. Background. m conjunction with she
development of today's proposed rule.
EPA performed a regulatory impact
analysis (RIA), as mandated by
Executive Order 12291. These analyses
are required for "major" regulations.
defined as those likely to result in
annual effects on the economy of {100
million or more: a major increase in
costs or prices for consumers or
individual industries; or significant
adverse effects on competition.
employment, investment, productivity.
innovation, or international trade. The
results of the RIA prepared for today's
rulemaking demonstrate that the rule Is
a "major" regulation.
Pursuant to the Regulatory Flexibility
Act. 5 U.S.C. 601 et set}* the Agency is
also required to assess the impact of a
proposed or final rule on small entities
(i.e.. small businesses, small
organizations, and small governmental
jurisdictions]. The results of this
assessment, which was conducted aa
part of the RIA. are presented below in
section X.B.
The complete regulatory impact
analysis document is available in the
docket established for this proposed
rule. The following is a summary of the
analytical methodology used in
conducting the RIA. and the results of
the analysis.
2. Summary and Major Conclusions.
The analysis MWMtm-***! by the Agency
indicates that the corrective action rule
may result in a wide range of coats,
depending on me nature of the rnnedin*
selected in site-specific dedstODmaking.
Given me large, national scope of this
rule, and the flexibility provided by the
provisions' outlined in *^JT propose^
these uncertainties are expressed in the
following discussion.
Overall, the analysis found mat about
31 percent of facilities are projected to
require corrective action for release* to
ground water from solid waste
{Media other rtuin
ground water were not analyzed due to
data and modeling limitations.) The
average annualrzed per facility coats lor
non-Federal facilities under today1*
proposed role are estimated to range
between $14 million to $O4 million. The
total present value national cost of the
proposed rale, a* an increment over the
pre-HSWA corrective action program, to
likely to range between $7 billion and
$42 billion. The cost* of cleaning up
Federal facilities, presented separately.
are much more uncertain and <*""Mt
range between $3 billion to $18 billion.
The above results reflect two of &RE
regulatory alternatives that were
analyzed which the Agency beuevea
reflect the flexibility inherent to the
proposed rule. These alternatives
provide an uppei and lower bound to
the cost* of the proposed rule and reflect
the Agency** uncertainty about several
of the data «"^ assumptions n*od tn
estimating costs, such as the type* of
remedial measure* that will be
ultimately implemented. While both
regulatory alternative* would require
cleanup to health-based level*, the key
distinction between mem is in the
choice of allowable corrective action
remedies. The analysis annmed that the
lower bound option would be more
flexible than the upper bound (eg, by
allowing use of exposure controls in
case* where certain *•""»•**•• were
technically i«rff«"«ih^«» or pr"h*bMi||^y
expensive].
3. Scope and Analytical Approach. In
developing the RIA for today's proposed
rule, the Agency analyzed both
qualitatively and quantitatively several
basic alternative* which could have
been adopted hi structuring the
corrective action rule The alternative*
studied cover a range, from a highly
conservative "cleanup to background'*
approach with very tittle flexibility hi
adjusting remedies for site-specific
conditions, to alternatives which trigger
cleanup of release* hi only limited
circumstances, and would allow, in
many cases, «!•»!*• mfaMifaai to remain
within a facility's piupeUy and beyond.
The analysis indicate* mat these
alternatives have quite different
environmental results, as well as
impacts on the regulated community.
In developing the RIA. EPA assembled
data to estimate the potential sujpe of
the RCRA corrective action program.
The data used in generating these
estimates wa* primarily obtained from
the Agency's ""*'"B database on
RCRA facilities (the "Hazardous Waste
Data Management System." or
HWDUS% and an analysis conducted
for the RIA which examined a sample
set of 65 RCRA Facility Assessment
(RFA) reports. These report* are
typically prepared by EPA or the State*
prior to issuance of RCRA penmts. and
provide pfcihnfnary fi«dfa«fl« as to what
release* have or may have occurred.
and what mvestigatione should be
conducted to vei'ify and/or characterize
the release*. These preliminary RFA
findings were extrapolated to provide
estimate* of the number* and types of
facilities that may require ummllive
action. Certain data from the lepuils
; and distribution of RCRA facilities
mat may need corrective action are
presented hi the following section of mis
discussion.
4. Potential Scope of the Correcov*
Action Program. EPA estimate* that
there are approximately 6,700 facilities
regulated under RCRA subtitle C that
are potentially subject to the corrective
action authorities of sections 3004(u)
and 3006(h). Baaed on preliminary
survey results from RFA fupuils, it is •
estimated that roughly 80,000 solid
waste management units exist at these
facilities; thi* number Includes some
3,000 land-based hazardous waste
management units [e.$.. hazardous
waste landfills and surface
Impoundment*) that were subject to <
corrective action (iiiur to the 1964
*. Tne number of
the quantitative analysis of the RIA. A
summary of the RIA estimates aa to the
solid waste management units at
individual facilities varies widely, op to
as many as 1400. Federal facilities,
because of their large size, typically
contain many more solid waste
management units— en average of 55 per
facility, according to the RFA survey
results. The survey indicated mat there
are an average of 12 solid waste
management units (including hazardous
waste management units] at non-Federal
facilities.
The types of solid waste management
units found at facilities are diverse.
More than one-third (36 percent] are
tanks used for storage or treatment of ;
wastes, t-nndfilla comprise 16 percent
and surface impoundments 15 percent
The TmnainAiF are units such as
container storage areas, piles. land
treatment »""*», incinerators and other
miscellaneous units. The survey also
found a wide diversity within unit
categories in terms of size, age, general
condition, types of wastes managed, and
other factors.
The survey revealed that on average.
62 percent of all facilities have
indications of possible release*, based
nn RFA finding*, imffiriimt tn m«|iiii«
follow-up remedial investigations (A&.
RFIs). Typically, facilities that have
subtitle C land disposal units and
incineratora are more likely to require
follow-up investigations than are
rreatment/ntorage facilities (74 percent
70 percent and 56 percent respectively).
The Aggncy** experience with the
corrective action program to date (aa
confirmed by the RPAsurvey results)
indicate* that one-half of these facilities
(or one-third of me total universe) will
FGQlttW 0OB9ft 1^96 OB Ni^DCuUu ftCOlP^a
baaed on the confirmation of a release
intheRFL
Potential releases of concern most
often noted in RFA finding* are release*
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Fedaral Register / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
to ground water and soil; of all facilities,
30 percent have actual or suspected
releases to ground water, 34 percent to
soil. Facilities with confirmed or
suspected releases to surface water and
air are less common—17 percent and 7
percent respectively, based on the RFAs
surveyed.
Based on the results of the models
used In the quantitative analysis
conducted for the RIA. approximately 31
percent (1,700 RCRA facilities) will have
ground-water contamination requiring
remediation.
5. Qualitative Analysis. EPA
considered three strategies for
implementing corrective action under
the HSWA mandate that permits for all
treatment storage, or disposal facilities
(TSCFs) address releases from SWMUs
to all environmental media. The
following is a summary of each
alternative strategy.
Strategy 1—Cleanup to background
levels as soon as practicable for all
facilities. This strategy represented the
most stringent and environmentally
conservative option of the three.
Regulations modeled after this approach
would require complete restoration of
all contamination back to the unit
boundary, as quickly as could be
practicably achieved. In order to ensure
that solid waste management units
would continue to meet what would
amount to a "zero release" standard,
extensive source controls would be
required, perhaps often involving
treatment or destruction of all wastes
that could cause future contamination.
This strategy would, if implemented,
at least theoretically achieve the highest
degree of protection to human health
and the environment Realistically,
however, current technologies cannot
consistently achieve such a cleanup
standard. In addition, the economic
impacts of such a regulatory approach
would obviously be much greater than
the other options, and could be expected
to cause substantially more owner/
operators to become insolvent thereby
placing additional demands on other
funding sources, such as State or
Federal cleanup funds.
Strategy 2—Cleanup to health-based
levels, with flexibility in tinting. la
broad terms, this strategy would require
cleanup of releases to the unit boundary
to concentration levels safe for lifetime
human exposure. The timing for
achieving these levels would vary
depending on a number of site-specific
factors, such as tho extent and nature of
the contamination, exposure potential
availability of technologies, and other
factors. Source controls would be
required in order to prevent further
releases above health-based levels.
This strategy would also achieve a
conservative level of protection. The
economic impacts of this strategy,
although substantial, would be
considerably smaller than for Strategy 1.
Strategy 3—Cleanup to health-based
standards only where actual or
imminent exposure exists. Under
Strategy 3, corrective actions would be
required only if there was evidence of
actual or Imminent exposure to
contaminated media (e.g., contaminated
drinking water wells), above health-
based standards. The extent of cleanup
would be tied to alleviating that
exposure; cleanup to the unit boundary
would not be required unless exposure
were actually of concern at that point
Required source control measures would
be less extensive than under Strategy 1
or 2. Protection against future exposure
to contamination would rely heavily on
institutional controls.
This regulatory approach would
achieve a minimum level of protection.
as compared to the other two strategies. '
By allowing contaminated media to
remain contaminated based on current
exposure patterns, protection against
future exposure could not be
guaranteed. Thus, Strategy 3 is the least
protective strategy. This strategy would.
however, be substantially less costly to
owner/operators, relative to Strategies 1
and 2.
Today's proposed rule adopts the
Strategy 2 approach. The Agency
believes that this regulatory strategy
provides an optimum balance in
ensuring a high degree of protection of
human health and the environment
while not placing unnecessary burdens
on facility owner/operators.
It should be understood that crafting a
comprehensive rulemaking within the
broad confines of any of the three
alternatives listed above would, of
necessity, require addressing a large
number of specific policy questions.
Thus, a variety of specific regulatory
blueprints could be created under any
one alternative. In this regard, as noted
below, we have developed two
alternatives for the purpose of
quantitative analysis that we believe
reflect the bounds of flexibility of
implementation afforded by this rule
This is reflected in the rule proposed
today, which is generally patterned after
Strategy 2, but also contains certain
regulatory requirements that could be
considered in line with Strategies 1 and
3.
6. Description of Options Analyzed
Quantitatively. In developing the
quantitative analysis for the RIA, a
sunilar range of regulatory options were
assessed as in the qualitative analysis.
For comparison purposes, however, the
analysis also examined a "baseline"
option—in effect the pre-HSWA
corrective action program. In addition,
the Agency developed four regulatory
options, two of which were generally
believed to reflect the flexibility
inherent in the proposed rule. It should
also be noted that in structuring the
modeling logic for this analysis, it was
necessary to make certain assumptions
and use decision rules that vary slightly
from those used in the qualitative
analysis; however, the broad regulatory
alternatives examined in the qualitative*
and quantitative analyses are generally
the same.
The quantitative analysis examined
each of the five regulatory options in
terms of the following criteria: cost
protection of human health and the
environment flexibility in
implementation, and technical
practicability. This analysis evaluates
the effects of each alternative only as it
would address contamination of ground
water.
Detailed information on the data used
in this analysis, and how the models
were constructed, are presented In the
RIA document The following is a
summary of the options modeled, and
the general assumptions used in
constructing each.
Option 1: Baseline (Pre-HSWA). This
option represents requirements under
RCRA prior to enactment of the 1884
HSWA corrective action requirements
and is used as the basis for comparison
of costs and benefits of other options.
Only land disposal units that received
hazardous waste after July 26,1982, and
thus were regulated under part 264.
subpart P, were examined. The
corrective action trigger and target
concentrations are the same, either the
background concentration or a
maximum contaminant level (For
modeling purposes, the baseline
scenario assumed that cleanup targets
would not be established at "alternate
concentration limits" under subpart F.)
Only onsite cleanup within the facility
boundary is addressed. Ground-water
removal and treatment or capping, are
the only corrective action remedies
considered.
Option 2: Immediate Cleanup to
Background. This option is the strictest
of those evaluated All SWMUs, in
addition to regulated subtitle C land
disposal units, were addressed. Any
detectable release to ground water in
excess of background levels would
trigger corrective action, and both on-
site and off-site contamination must be
cleaned up to background levels as soon
as practical. For purposes of this
analysis, we assumed that background
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30863
contamination did not exist and.
therefore, assumed that cleanup to
background was equivalent to deannp
to detection limit*. Some controls am
required with a bias toward excavation
Option 3: Immediate Cleanup to
Health-Baaed Standards. This option ie
similar to the previoas one in that all
SWMUi are addressed, source control
remedies such as excavation are
required, and off-site contamination
must be addressed as soon as detected
However, corrective action would be
triggered oar/ if concentrations wen
detected above a health-based standard,
rether than above background
concentrations. This option involves •
strong preference towards source
control remedies and towards cleanup
of contamination as quickly as possible.
Use of technical infeasibih'ty waivers is
very United, even if remedies cannot
reasonably be expected to achieve the
target In addition, unlike the previous
option, cleanup of on-site contamination
could be deferred until facility closure,
at which point cleanup to health-based
levels would be required.
Option A- Flexible Cleanup to HeaJta-
Based Standards. This option also
addresses SWMUs. and health-based
standards are used as both trigger and
target levels. As in me previous option,
owners and operators may defer
cleanup of on-site releases until facility
closure. However, in this alternative
owners and operators have considerable
flexibility in identifying corrective
action remedies. Here, remedies less
costly than source cuutrul can be chosfn
if they achieve target within a
reasonable time frame. As a decision
rule to reflect the fact that the problems
of scale and other *••*««**•»» difficulties
will preclude certain remedies st
complex sites, remedies that failed to
achieve cleanup in a reasonable period
of time (assumed to be about 130 yean
for this analysis) or that would be
extraordinarily expensive (Le. ovei $150
million) were rejected as
"impracticable.'* Instead exposure
controls would be relied on to prevent
risk in these cases. It is important to
note that this approach is not intended
to imply that remedies of this scope
would never be undertaken, or to define
the limits of freK«ieai practicability.
Option & Flexible Cleanup Bated an
Actual Exposure. This option is the least
stringent of the five. It is similar to
Option 4, except mat cleanup of off-she
exposure could be deferred if then is no
actual human exposure to the release. If
there is an off-site exposure, corrective
action must address the exposure.
Again, under mis option, there is a
flexible approach towards remedy
selection.
The Agency believes that options 3
and 4 provide an upper and lower bound
on the range of outcomes mat may result
during hoplementatkm of the proposed
rule. This range results from the flexible
nature of the proposed rule and the
uncertainty about the choice of
remediation measures hi the fieW and
the performance of the remedies mat are
selected EPA expects that the real
effects of the rule are Kkely to Be
somewhere between mesa two options.
7. Resulti ofQuantitatin Analysis.
The analysis estimated that
approximately 31 percent of all RGRA
facilities wffl trigger cuirecU'vu action in
all the post-HSWA options analyzed as
compared to 14 percent mat would
trigger under the baseline pn-fiSWA
scenario. This reflects die requirement
that all SWMUs, not fust land disposal
units, are subject to corrective action
under post-HSWA options. Note mat
even in the post-HSWA options,
approximately two-thirds of the
facilities wiD not trigger corrective
action for ground water.
It is important to note that differences
in trigger levels did not result in
significant differences in the number of
facilities triggering cutrectrte actions.
However, differences in target levels for
the various regulatory options made a
significant difference in how many
corrective actions were "successful" in
achieving cleanup levels, as is discussed
later in t\A» section In «»«™»fa«faj the
potential benefits of the proposal
(Options 3 and 4) as compared to other
options, the Agency developed an
"effectiveness" test which measures the
degree to which a particular option is
successful in achieving its cleanup level
The results of the test demonstrate that
Options 3 and 4 are the most successful
in achieving the cleanup target. This
analysis supports the Agency's selection
of Options 3 and 4 for the proposed rule.
The effectiveness test should not.
however, be viewed as a measure of all
the potential benefits of remediation off
rnutaniimitpil ground water*
The point when corrective action is
triggered was also analyzed The
analysis demonstrates that, tor Option 2.
in which corrective action must begin
immediately, approximately 20 percent
of all existing RCRA facilities would
initiate corrective action in the first year
of the program. In Options 3.4. and 6, m
which on-sfte corrective action can be
deferred only about 12 percent of aO
facilities would initiate corrective action
in the first year. The ability of a facility
to defer on-site collective actions results
in lower economic impacts.
FOT those facilities that trigger
corrective action, the analysis estimated
the length of time requited for a
corrective action to reduce contaminant
concentrations below the target levels at
all wells within 1,500 meters of the
release Under options requiring cleanup
to health-baaed levels (ie.. options 3,4.
and 5), about 51 to 56 percent of the
facilities reach cleanup targets at all
weD distances within 75 yean of the
initiation of collective action. In
contrast under the two options requiring
cleanup to background, only about 34
percent of faculties triggering corrective
action are projected to achieve targets
within 75 yean. This further confirms
the presumption that achieving cleanup
to background concentrations may be
difficult or impossible to achieve
technically.
As part of the quantitative analysis.
the Agency developed estimates of the
costs of corrective action under different
regulatory options on a per-fadlity
basis, as weQ as on a national basis.
Typical facility corrective action costs
vary significantly depending upon the
specific regulatory option. The cost
analysis demonstrates that the most
stringent post-HSWA regulatory option.
(i.e.. Option 2, or "Immediate Cleanup to
Background") is by far the most costly
option, with a mean present value cost
of over $281 million per facility, and an
annualized per facility cost of about $19
million (at a 3 percent discount rate).
The upper bound proposed rule
option, "Immediate f-l*«"«np to Health-
Based Standards" option (Le, Option 3),
was estimated to have a mean present
value per facility cost of $26.9 million,
and annualized per facility costs of $1.8
million. The lower boond regulatory
option (ie. Option 4. or "Flexible
Cleanup to Health-Based Standards")
was estimated to have a mean present
value cost per facility of f*9 mutton.
finvaKyyil per facility costs of $0.4
million.
The baseline per-f acuity cost is die
lowest of aQ the options at a mean
pf^f«mj »ihig f>f* Trf$j,B miHion and an
annualized per-facitity cost of $013
million. The "Flexible Cleanup Based on
Actual Exposure" option (AA. Option 5)
was estimated to have a mean present
value cost of $18 •»*iHr» and annualized
pet facility costs of $0X3 "»<1K««
The total national cost for BPA's
corrective action program is influenced
by three parameters: The average cost
of each action, the number of facilities
required to undertake corrective action.
and the cost to fadtity owners and
operators of undertaking required
investigations. National costs discussed
below are presented in incremental
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Federal Register / Vol 85. No. 145 / Friday. July 27, 1990 / Proposed Rules
term* (i.e., after subtracting the costs of
the baseline scenario).
The "Immediate Cleanup to
Background" option is the most
expensive, with an incremental total
cost above the baseline pre-HSWA
scenario of $490 billion. This option was
estimated to have an annualized cost of
$32.9 billion.
Among the other regulatory options.
the differences in costs are primarily a
result of differences in timing of cleanup
and in the flexibility afforded In terms of
choosing corrective action remedies.
Option 3 (/. e., "Immediate Cleanup to
Health-Based Standards") was
estimated at a total cost of $414 billion.
with an annualized cost of $2.8 billion.
This option is relatively costly, due in
part to modeling assumptions as to the
types of remedial technologies that
would be employed to meet these
standards.
Option 4 (i.e., "Flexible Cleanup to
Health-Based Standards") was among
the least costly, with a total cost of $7.4
billion, and an annualized cost of $0.5
billion. The costs are lower because, In
general, less expensive technologies are
assumed and, for many facilities, final
cleanup of contaminated ground water
would be deferred for a number of
years, thus reducing the present value
costs.
Option 5 [i.e., "Flexible Cleanup
Based on Actual Exposure"), where both
on-site and off-site cleanup of
contamination could be deferred until
closure if there was no actual exposure,
was somewhat less expensive than the
above option. This option had a total
cost of $5.0 billion, an annualized cost of
$0.3 billion.
Today's proposed regulation is most
similar to Option 3 (i.e., "Immediate
Cleanup to Health-Based Levels") and
Option 4 (i.e., "Flexible Cleanup to
Health-Based Standards"). These results
illustrate that the total national costs of
this rule are likely to range between $7
and $42 billioa The relatively wide
range reflects the uncertainty in a
number of areas, such as the timing of
corrective action, the types of remedial
measures that will be considered, and
the nature and difficulty of remedial
measures that are selected. Overall, the.
Agency believes that this range
represents a reasonable bound of the
potential effects of the rule, and that in
all likelihood, the actual effects will fall
somewhere within this range.
The Agency is committed to trying to
refine these costs estimates before
promulgation of the final rule. To help in
this effort the Agency requests that
commenters provide any .data or
information relevant to the analysis
described in the preamble or in the
accompanying Regulatory Impact
Analysis.
8. Economic Impacts. With the cost
information developed from the
quantitative analysis, the R1A estimated
the financial impacts of the proposed
rule on affected firms. The results are
expressed in terms of predictions of
total costs that facility owners and
operators would not be able to cover
due to insolvency. The results provide
an indication of the magnitude of costs
that could ultimately be faced by
entities other than the immediate owner
or operator of the facility. Alternate
funding sources might include the
Superfund (provided that the facility
would be eligible for Superfund
funding), State remedial action funds,
corporate parents of facility owners and
operators, or, through price increases,
the customers of the firm owning or
operating the faculty. The results of this
analysis are presented in
"undiscounted" numbers, since
Superfund monies are generally
described in undiscounted terms. For
scenarios other than baseline, costs are
presented on an incremental basis
relative to the baseline.
Under the baseline scenario, it* was
estimated that 9 percent of all firms
owning RCRA facilities would be
adversely affected, creating total
unfunded costs of $97 million
(undiscounted) over the next 50 years..
The "Immediate Cleanup to
Background" scenario generated by far
the highest level of unfunded costs.
totaling $74 billion over the next 50
years. The "Immediate Cleanup to
Health-Based Standards" option results
in unfunded costs of over $5.1 billion
over the next 50 years. The "Flexible
Cleanup to Health-Based Standards"
option results in unfunded costs of over
$0.5 billion over the next 50 years. The
"Flexible Cleanup Based on Actual
Exposure" option resulted in a total of
$0.2 billion unfunded costs,
undiscounted, over the next 50 yean.
Based on die RIA analysis. EPA
anticipates that the ability to fund
corrective action costs will vary
between industries. Industries that may
have a relatively low ability to pay for
corrective actions include sanitary
services; coating, engraving, and allied
services; and miscellaneous wood
products. These industries have
relatively low net income levels.
Industries that show a particularly high
ability to pay include petroleum refining.
motor vehicles and motor vehicle
equipment and aircraft and aircraft
parts.
9. Federal Facilities. The RIA
discusses Federal facilities as a separate
entity because, although they only
constitute 6 percent of the total RCRA
facility universe, they contain many
more SWMUs per facility (on average,
55 per site) and therefore, may incur
higher corrective action costs. These
costs must be funded by public money.
Based on the RIA analysis, it is
estimated that of the 352 Federal RCRA
facilities, between 61 percent and 100
percent are likely to require ground-
water corrective action under the.
proposed rule, compared to between 17
percent and 23 percent under the
baseline A rough approximation of the
costs for these corrective actions, per
facility, ranges from $17 million for the
baseline scenario to $1.3 billion for the
"Immediate Cleanup to Background"
option. For the options most similar to
the proposed rule (/.e., "Immediate
Cleanup to Health-Based Standards"
and "Flexible Cleanup to Health-Based
Standards") the mean per facility cost is
estimated to range from $123 to $29
million, or hi annualized costs, from
about $8 to $2 million per facility.
The total Federal facility costs,
incremental to the baseline, for the
options most similar to the proposal
range from $3 to $18 billion; the
annualized costs range from $0.2 to $1.1
billion. Again, this range reflects the
likely bounds on the ways in which the
RCRA corrective action program will
ultimately be implemented for Federal
facilities. Incremental Federal facility
costs for other regulatory approaches
could be $208 billion for the "Immediate
Cleanup to Background" option, or $2
billion for the "Flexible Cleanup Based
on Actual Exposure" option. Baseline
costs are estimated to be $1 billion.
This analysis thus concludes that,
although Federal facilities only comprise
6 percent of the population affected by
the corrective action program, thev
could incur roughly 30 percent of (he
total cost of the rule.
10. Further Regulatory Impact
Analyses. Given the scope and potential
impacts of this ruiemaking, EPA
recognizes the need to continue to refine
its estimates of the costs and benefits of
the rule. The Agency intends to collect
additional data and will conduct
substantial new analyses prior to
finalizing today's rule. In conducting
these studies, the Agency believes that
it will be of particular value to examine
the experience gained in recent years hi
remediating Federal facilities. Large
volumes of information and extensive
technical experience have been
accumulated specifically by the
Department of Defense and the
Department of Energy. EPA intends to
form an interagency working group to
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30865
develop and conduct these further
Regulatory Impact Analyses.
The new analyses will be conducted
in accordance with the existing Agency
guidance on Regulatory Impact Analysis
and the draft Regulatory Impact
Analysis Guidance published in the 1988
Regulatory Program of the United States.
The analyses will explicitly examine the
costs, health and environmental
benefits, and technological limitations
for the key regulatory requirements
contained in the proposal—especially
for the several alternative approaches to
ground water remediation outlined in
the proposed rule. This analysis will
also estimate the aggregate impacts,
identified above, for sites eligible for
remediation under this rule and for
those sites which are listed on the NPL,
and will, therefore, look to this rule as
an ARAR, under the provisions of
CERCLA. Upon completion of the
revised analyses, EPA will solicit
comment on the results of the analyses
and the methodology used to derive
them. The Agency will then assess these
comments, along with comments which
will have been received previously on
the proposed rule. Through these actions
EPA will ensure that the net social
benefits (including environmental and
health benefits) of the rule proposed
today are maximized, taking into
account costs, technological limitations,
risks, and realistic assessments of both
actual and reasonably expected uses of
each site. If the revised RIA. together
with the comments received,
demonstrate that the rule proposed
today does not achieve this outcome, the
Agency will make appropriate
modifications to the final rule, or if
necessary, will repropose the rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act
requires Federal agencies to fully
analyze the economic effects of
regulations on small entities. The
Agency analyzed the economic impacts
for the regulatory options that are most
similar to today's proposed rule (i.e.,
"Immediate Cleanup to Health-Based
Standards" and "Flexible Cleanup to
Health-Based Standards").
The RIA assumes that a small
business is significantly impacted if its
excess of cash Sow over ten percent of
its total liabilities is insufficient to meet
corrective action costs, or if its net
income is insufficient to meet its
corrective action costs.
For the alternative analyzed, it was
found that small firms encounter more
severe impacts from the corrective
action requirements than large firms.
The options most similar to the
proposed rule result in incremental
impacts (i.e., relative to the baseline) on
approximately 0 to 11 percent of small
businesses owning RCRA facilities.
Based on the Agency's guidelines for
implementing the Regulatory Feasibility
Act the results of the analysis as
summarized above, suggest that the
proposed rule does not impose
significant impacts on small entities.
C. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act 44 U.S.C. 3501 et seq. Reporting and
recordkeeping burden on the public for
this collection is estimated at 42,497
hours for the 674 respondents, with an
average of 1.151 hours per response.
(Burden estimates should include all
aspects of the collection effort and may
include time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, completing and reviewing the
collection of information, etc.)
If you wish to submit comments
regarding any aspect of the collection of
information, including suggestions for
reducing the burden, or if you would like
a copy of the information collection
request (please reference ICR #1451),
contact Rick Westlund, Information
Policy Branch, PM-223, U.S.
Environmental Protection Agency. 401M
Street SW., Washington. DC 20460 (202-
382-2745): and Tim Hunt Office of
Information and Regulatory Affairs, '
Office of Management and Budget
Washington. DC 20503. The final rule
will respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
List of Subjects in 40 CFR Parts 264,265,
270, and 271
' Administrative practice and
procedure, Corrective action. Hazardous
waste; Insurance, Reporting and
recordkeeping requirements.
Dated: July 5.1990.
William Reittv,
Administrator.
XL Supplementary Documents
APPENDIX A.—EXAMPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS
[Section 264.521 (a)(2)(l-fe))
Constituent nojno
_uimiUiito
d*cvt>
1f*l -- - , - , . - - . -
lyl Alcohol
ittm
ionic
rtrtitot (?) „-- „-„,-„-, „, „- i.,-, ...., , , ,
ulum cyinWf in r ••••. i - - ••••> I....L
•fhMt bw*>
mrtUnt -- -- H-- ,-, - ,, i ,.- .I i - r-- nii-i
wyUfcm , - --,.,-, ,-.,-- - - -- -„ -i
ifj-cthyihmyQpnthtata ... . ...... , ... . ...
•frt^OTMflhifflaltM'
omodtehloioiTnthino (3)..
iM bennl Dhthalato
Clas»
Q
0
o
82
81 _. ..
Q
B2
Q
P?
Q
A
A
0
Q
4
82
82
82
82
0
o
C
Airtuq/
nT3)
•"••- •••-—
2E— 01
*P O*
1E-02 —
2E-04
i « ...I
7E— OS
2E-02
4E 01
2E— 05
4E-04
3E— 03
3E+01
Water
(mg/LJ
•lc_0fi
2£ 01
4C_OO
BC Aft
6E— 05
KC_A9
2E-06
2E 01
IE— 02
up M
1F—O9
(1)
2E— 00
(1)
2P_O7
9E-Q6
3E— 03
OB Aft
36 -OS
7E— 01
5E— 02 J
7E-00 I
Sottafmg/
kg)
ftp j_m
CC . A9
PC . (VI
1E 00
4E 02
oe.ni
« . A4
op . A1
fiPa.03
3p M
2E 01
5E+01
ftpjti
5E-01
26+03
IP J.A9
2E+04
-------
30866
Federal Register / VoL 55. No. 145 / Friday. July 27, 1990 / Proposed Roles
APPENDIX A.—EXAMPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS—Continued
(Section 294.521 (aH2)(Uv)l
Constituent nama
drtmfctfn ,
Calcium cyanktft ,,,,,.,,....- .........,.,., ,,,,
Carton dtftjfMa .-
Carbon tatracNorida _-« ,r-rT-rr,,.Tn,n,,....,,,1..,..T1I.rirn,nr,.,T,T ^^ «....«.«.„.
Chloral —....-.- .- ,,,.!,.., „
ChlonJant n,,,,,,,.,^
CtiarvratatMTmnn
3 -Thlni JMrtieVini
m-GmOl ., . ,. UT ., , 1
oGraaol ,, . •
rvTr*te
CyanoQtn bfwnMf
ODD, ,,,-,„,-„-„,.„„,.„ - ,
ptpp
PC""
Dftnrtyl phthalate
4 1 nil >ati MI ••!•]•••••
Diatdrin
1 4-O*onant , -
DitutfOtt^ L
EnrtoeuNa'1
C. iJjJtu.il
Erwfrfcfft
Ethyfbtnztfit i
FormaMtffwtt ^ i L i
f^rTTr^Camf L.,i,.i..i,ji i.--,
\\it\\ifiln^lfnm
hlttt lUiaallj^i ''""
Lk*^*^ fnanm riiniMifiTflini n InTiainViil "
MttfrH *>*•+* katont
UftM pMdiion^^
Qaae
R1
n
n
82
B2
n
B2
p
A..
p
n
o
P?, .„...„
B2
r»
Mi
Q
n
B2
p
B*
B2
p
n
B9
p
n
p
p
62
n
Bl
n , ,
n
R9
R9
ft
n
ft
n
92
n
n
ft
"7
B2/C
n
n
n
n
p
P,,,,,.,,,,
0;
0,,,,-- ,
O
w
HP— IV
3E-02..
3E 03
9Pj.m
4E-02
96—06
16-02
Km
3E— 02
2E— O4
9F—OK
7C M
4E 09
6E 01
56 09
•E 02
BE-04
4C 04
6E O7
4C_ O1
2E 02
7E— 02
9E_OO
2E 04
Tf-01
36 +02
7E+01
Water
(mg/U
IP nn
4E-00
3E-04
7H 02
9P (M
fiP~03
2E 01
(1)
oe |M
2F QO
2E 00
7E 01
OC ftft
1F 04
1E— 04
IE -04
4C M\
•e nc
jj{ "•"•"'
1C
-------
Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
30867
APPENDIX A.—EXAMPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS—Continued
[Section 264.521(a)(2)
n-Mttmo-n .iiothidolhytonltttT inn < , ,1 --, .•
n-NitrotodMv-propytefflinft - — •-» j— ""••• ' • ""• ---> i 1-1" ' i r-ir . , ..I
ft-Ni ti oaodiathanolai it
23 4 ft-T*»•%•<•
ThflHtum cMpfftft
Thallium rttnrtt
Thaltnrm tutfatf
Tfrftttrtf
TMMnKwM
M'"">'T^>* . -~—~ ——...II ,......««. —""———• •"
1 1 .g-Ti Mth-tf iJtThti H. ii
TikJiluiottfiyfgf^
Till lilm* Miinin tft • TMlMltiaiM
2.4 5-TrtcNocophtnot
9 A K-Ti k- hL^r^^^wwwa*^**tr >w>M
4 9 4-T«tehbvMVWMM
1/MlAHhtfM f*^ltrt»fato
Mytann ~ .. '
Tbw^ ntvtAf^OriA
dam
B
B2
g
B2
B2
B2_ „.
82
B2
D
A
o
D
o
D
c
n
c
p
o
o
p
p
82
p
p
p
p
p
P, ,,
p
p
0-,,
p
ft
Q
82
o
D.
p
0
Q
{J
P '
P
P
P,
^9
P
P
c
B2
Q
p
B?
p
p
p
p
p
p
Afluq/
m*3)
3E 01
BE— O4
• ••>lllll»lll»u
PF—03
4E 03
2£ 00
*
IE— 01
iP.m
«c on
«e m
1F— OO
7E+03
3E-03
«e j 01
1E+03
BE— O1
7E+02
2E— 01
1E^Q3
Water
(mg/L)
5E 03
ac na
9C AA
5F Ofi
l£ 05
7P A4
2E 05
7E 01
4E 00
9C no
4P > ni
jp AJ
9P O1
3E 02
IE 01
1E 00
9P.A.O1
3E—O9
1P__n9
7Pj.ni
SF OA
2E 00
7E 00
^F 0°
4P_O9
IE 01
2E-01
(1)
-tF_no
IP ftO
ip Q9
7£ QO
IP n9
IP O9
9P MI
7E 04
IE— 00
4E-06
jp
-------
30868
Ftdtnl Ragkt» / Vol. 55. No. 145 /Friday. July 27. 1990 / Proposed Rule*
APPENDIX B—MAXMUM CONTAMMANT
LEVELS
CorMMuOTt
ftnini?
Barton
B«aa(W
Cadmium.- ._ —
Carton WKHaiUa
Gfvonrim wi
1 J-Oiul*ui nattunr
1 1 fhrrtrrffttyrrr
APPENDIX C—RANQ
MCL(ppm)
0.09
1
0.005
0.010
oaos
0.06
O079
0.005
0.007
EOF CONCENT
APPENOW B— MAXIMUM CONTAMINANT
LEVELS— Continued
Conattuanl
2,4-P , ,
2,4.5-TP Saw
End*
!_<•
llndan?
Mr-fin-
H*m* --,„„„„„„„ _,...,;.., ,
RATIONS FOR ESTABLISHING Ml
MCLfppm)
0.1
0.01
0.0002
4JO
OOS
0.004
0.002
0.1
10
EDMPnoTccn
^ •• ^^^M^—HHI^^^BB^Ba^^B^^HMf^^HHH.
APPENDIX B— MAXIMUM CONTAMINANT
LEVELS— Continued
Conattuant
**nlnnli .n
SU~r _.. . •
1.1 I.TrieMotnMlMM
TfUHuiuettiylMM
Tr*MkvM(tunM, tnlxl I ,,,
Vinyl eMDfkte .
MOL(ppm)
0.01
0.06
ooos
OL2
OjOOS
0.10
0002
1 tndudng chtorolotni. bromotonn. broraoacKorv-
mettMn*. and dJbronwchlorocnethan*
ON STANOAROfi MM flAOOtMmc««;
CorwfikMnt fww
Acn*Krtd» , ,,,...,,, ,
AhM*
AlM^oa'm •• . •" ••"
*-•— - -
AnMony
AfMrtc
f ilinli • m
g^lmi -,_-.^-
nim'irliltfiiiiiii tf mi I
Buy frr~i* 1**^*^*
CwMum
djtun llBMlll
2-CMemvAMP^
Crflrtrr "i~^*r
tThOfIB*
OCX)
rrc
DOT .,,.,, -
DMwl uhttMtMi .
CtaM
0
0
B2
R1
0
82
O
82
O
A
A
O
o
A
88
82
82
82
o
0
C
81
o
o
82
o
82
o
O
82
O
A
O
0
o
o
o
o
o
BZ
•2
82
O
S3
92
o
82
c
O
O
82
82
0
MttA*
(UO/M3)
BE-02
IP^M
2E-02
7E-03
2E-00
26-08
4E-02
3E-01
6E-02
3E-00
9E-01
4fc-00
•E-08
1E-00
6E-02
4E-O9
3E-01
2E-02
MnAJr
(ug/«3)
BE-04
2E-04
7E-05
2E-02
2E-06
4E-04
36-03
4E-04
SE-02
9F^O3
46-02
•6-06
1E-«
6E-04
4E— 02
96-03
26-04
Mtt-
Watcr
(mgAi
6E-04
2E-04
«E-01
26-OS
•6-04
aP-oi
36-03
3643
36-02
9P-O)
•6-01
1E-Ot
1E-02
1E-02
6C-O4
8E-03
4E-42
OE-09
26-04
9^Hrn^KUf
Ong/U
SE-oa
2E-00
4E-03
9f±A7
Af=-/M
acjva
36-09
.1F-4K
3E-O4
AP-AS
66-03
1E-04
1E-04
1E-O4
• tfjut
tf-eK
ifjtt
tfJK
26-08
MttSol
(mg/kg)
2E-f01
Ib +02
4C-00
1E-+-04
«CA«
4C^.A1
6C-f01
•C . (M
—
CC^AA
CC^.|M
1E+04
3E4-02
2E-4-02
2E+02
4JC-. fM
«jc^m
MP^.A9
«C • A9
4C-00
MlnSoi
(m^ktf
2E-01
lc-w
4&Jtt
1E>02
4|C_A*
ac^i«
6E-01
AP-A1
— -
A^rifB
aLjvi
1C . AO
"
3E-4X)
2E-00
2E-QO
4C.J)4
4jc_jm
fkCJM
•C^M
46-02
-------
Federal Register / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
APPENDIX C—RANGE OF CONCENTRATIONS FOR ESTABLISHING MEDIA PROTECTION STANDARDS FOR Cx
•Continued
GmwtitMnt nwns
DiOltnlflttFENUVltifM F-T.-I-. ...... . ...
phl^UHMO .. , ,,„.„.,„,
DiHMltiyliriliumnins ....,,- mi •!-,-,,—
nt Diniuut)6m>iid» ™ ......,„, ......m „-„-,-
rmimfcJrtiyiJu -
furrnctrxi .,,--,. ..„,,--,
G|yeMy(lktohy<% .,, ,
UowUvlilJf opo«i»to
f ^ytad!y^
HH«IK,C»lm T MM..,., M.
y^i^j^iyhoiMi , „.. .„....„ „.........!.,.„ »
Hyrtvtn* , ^^ ^^ _,,.,...,
Hydrooon cyanfcj> — — — r....«
lltotnityt ilcOtKM ,„,.-,-— „, ,, j jj.i--i
l«^ntvyrvM
L^K) , . . , „ „
UaUri^ •nhwrirkte
Mtkiic hyrtrwrThi
MfithacryfonMt < ,,,.,.,,,,,,,-, , L ,, ,
Mdhomy.)
M0ttiy1 chtofPdftjffMtt
Methyl ethyl ketont > . ...,,,,,,
Mothyl toobutyt hirtont ....... ..- nm
MBthyt pvithton — •
Mothytone chloride i >
n-Nitroto-fV-fr-butyttuTHnt
n-NttrotCHVirthylurML
Nicflrt
NrcHirt fiflntry durt
Nitric oxide > > «
P^aH^M
Pantachtorob»ni«nt ,
pyi^Q^^Ofry^trrj(>^nT«f»f
PtttheJic •nhyrffWt i ..«•
PntiH-hlnrinatArl M^iMiwH
Pmnamirtft
pynfJJHft i, i, ,
Setfrnknts add
<^tUM-
Strvctmin* ^
daw
82
D
B2
0
D
B2
B2
D
B2
D
D
D
D
B2
0
B2
B1
D
D
B2
B2
B2
c
82
C
D
c
0
B2
0
D
D
c
B2
B2/C
D
D
D
D
D
o
0
D
D
D
B
B2
B
32
82
32
B2
B2
D
A
D
0
o
D
c
0
c
D
D
D
D
D
82
D
D
D
D
D
D
D
D
D
D
MaxAJr
(ug/m3)
2E-03
7E-O3
4E-01
BE +01
SE-01
6E-00
8E-02
4E-02
6E-OS
4E-00
6E-02
2E-01
3E-f01
2E-02
3E-f01
6E-02
2E-01
4E-01
1E-OO
MhAIr .
(ug/m3)
2E-06
7E-06
4E-03
86-01
6E-03
8E-02
8E-04
4E-04
6E-07
4E-02
8E-04
2E-03
3E-01
2E-04
3E-01
6E-04
2E-03
4E-03
1E-02
Max-
WMV
(mo/L)
2E-OS
7E-06
SE-03
3E-01
4E-03
4E-01
4E-OS
ec-04
4E-04
6E-07
4E-02
6E-04
2E-O3
3E-01
1E-03
ee-oi
3E-03
6E-01
6E-04
2E-O4
SE-04
• 1E-OS
7E-01
2E-03
SE-04
MnWttor
(mg/U
2E-07
7E-07
SE-06
3E-O3
4E-OS
4E-03
4E-07
ae-oo
4E-OB
1E-08
4E-04
6E-fOO
2E-OS
3E-03
1E-05
8E-09
3E-OS
SE-03
6E+00
2E-08
SE-08
1E-O6
7E-03
2E-05
SE-06
MtxSt*
(mg/kg)
fiE-4M
1E-00
IE +08
OE+09
• ff-t-tn
TP*.m
6E-01
2E+01
8E-00
1E-02
9f4.ro
1E-01
4E-HM
ffi +03
2E+01
2E+04
5E+01
9E+03
1E-01
9E-OO
1E+01
Sf^JM
1E^O*
3Ea.ni
flP-AA
MinSoA
(mg/kg)
ff-lft
iC^M
1E-00
6E-f01
OP-01
7P » 01
8E-03
2E-41
8E-02
1E-04
&P-OO
1E-01
4E-01
SFj.01
2E-01
2E-f02
5F-O1
BE +01
1E-01
3P-O9
1E-01
9C-IM
1E+02
3E-01
aF^a?
-------
30870
Federal Register / Vol. 55. No. 145 / Friday, July 27. 1990 / Proposed Rules
APPENDIX C—RANGE OF CONCENTRATIONS FOR ESTABLISHING MEDIA PROTECTION STANDARDS FOR CARCINOGENS—Continued
Constituent nww
StyreOt „,.. r- r .r ,„ -
j j 1 j2-Tetrvchtofvthefle •• ..-•••••—•
1^4 tLT^fyf^trfTSTtniTt^n «i_ ..,.».... ,. „„. , ...
111 ,?-T+tT'lftrfOfTEeth>ne •- - T« ^
i ^ rgj-Teii eKfrtor wtf »e* tt ai i»»u H....-....T-T-
Tetrvetnyl lead .«« « —» «—..—.«.,
Tetreff tnyMfthtopynyhOTphjte , , H .,
ThftlKum nttnrte •• - •«... ..... .........r,,,
Toluene . mrm „ i...- — - •• "
Tojtiptiene — ••—•• «»•«*..•.«««.-•»"••.«».«,
I 0 *_'iMi4iiiit»rfteat»J«M«ai . ,,,.,,, ,
1 ^ f Trfchtofoethene •.» i • •"
•I j * Ti1chtofpeth>nt » „-...... —.-
Trichloroetnylene „—...«.... —«...... .
Tri**t****wtnf*k nwMna»H|.infl --.,, .,
9 A at-TtV*O««f»*MetMy ..... , .,
2 4 ft-TftatihjfOBhinol « -m,. .». .. ...
T j 1 TrirttlrvnnhMimvAratir •rk* .
U«n*Hktfn nMfMwbte . .
Yirlnn^ .«
Zinc cywiide •• •— ™ •• •
CtaM
C
c
D
c
C
B2
0
D
D
D
D
0
D
0
0
D
D
D
82
0
0
C
B2
0
D
82
0
0
D
0
0
0
MwAr
(ug/m 3)
1E+01
1E+01
2E-00
1E+02
3E-01
6E-00
2E+01
MnAfr
(ug/m 3)
1E-01
1E-01
2E-02
1E-00
3E-03
6E-02
2E-01
Mn-
WMr
Cng/q
1E-01
1E-01
2E-02
7E-02
3E-03
6E-02
3E-01
2E-01
MinWttv
(mg/U
3E+03
IE-OS
2E-04
7E-04
3E-05
6E-04
3E-03
2E-03
MaxSoD
(mg/kg)
3E+03
3E+03
4E+02
1C . M
...................
'
6E+01
1E+03
OE+03
4E+03
MlnSol
(mg/kg)
'
SF-tO*
ac . AI
4E-OO
• 1P^.A1
"""
"""""
•H*»»***«lM«*
IIHIH
llltf».4JJJ..JUn
'"""""""'""
6E-01
1E+01
6E+01
4E+01
Appendix D: Recommended Exposusre
Assumptions for Use in Deriving Action
Levels
(Sections 264.521 (a)(2); (b); (c)(3): and
1. In deriving action levels for hazardous
constituents in ground-water, assume a water
intake of 2 liters/day for 70 kg adult/70 year
lifetime exposure period.
2. In deriving action levels for hazardous
constituents In air. assume air intake of 20
cubic meters/day for 70 kg adult/70 year
lifetime exposure period.
3. In deriving action levels for hazardous
constituents In soil, which are known or
suspected to be carcinogens, assume soil
intake of 0.1 gram/day for 70 kg adult/70 year
lifetime exposure period.
4. In deriving action levels for hazardous
constituents in soil other than those which
are known or suspected to *»e carcinogens.
assume soil intake of O2 gram/day for 16 kg
child/9 year exposure period (age 1-6).*
5. In deriving action levels for hazardous
constituents in surface water designated by
the State for use as a drinking water source,
assume a water intake of t liters/day for 70
kg adult/70 year lifetime exposure period.
unless intake of aquatic organisms is also of
concern.
Appendix E: Examples of Calculations
of Action Levels
L Governing Equations for Calculating Action
Levels
A. Systemic Toxicant*
C.-PUD-WI/ITA]
where:
enaction level in medium (units are
medium-dependent);
RfDoreference dose (mg/kg/day);
W-body weight (kg);
I ™ Intake assumption (units are medium-
dependent); and
A-absorption factor' (dimensionless).
& Carcinogenic Constituent!
C.-[R*W*LTJ/ICSFTA*EDJ
where:
C.-action level in medium (units are
medium-dependent);
R-assumed risk level (dimensionless) (10"•
for class A & ft 10'1 for class C
carcinogens);
W-body weight (kg):
LT—assumed lifetime (years);
CSF-cardnogenic slope factor (mg/kg/
day)-1;
I.intake assumption (units are medium-
dependent);
A—absorption factor (dimensionless); and
ED—exposure duration (years).
* Assumed to bs 1 lor this sppi
lupe
'Not to bt avinf*d over a TD-yut luetun*.
uw atsninptiaa that the human absorption rat* will
bi DM Mm* at tfa* nt* la tht ftudy upon which KM
RflJ or CPF wat developed.
0. Example Calculations for. Hazardous
Constituents in Air
A. Syttemic Toxicants
Example calculation for 2,4-dinitrophenoL
C.«[OJM2 (mg/kg/d)*1000 big/mg)*70(kg)]/
[20 (m*/d)*lJ-7-0 w/m»
where:
C.—action level in air (jig/m*)
RfD-0.002 mg/kg/day
W-70 kg adult
I-20m'/day
A-l
B. Carcinogenic Constituent*
Example calculation for 1,1,2,2-
tetrachloroethane:
C.-[10-»'1000 Otg/mg)*70 jrrs)*70 (kg)]/.
[0.20 (mg/kg/day)- "20 {m'/dayJ'l'TO
(yrs)]-.175M8/m
where:
C.-action level In air (pg/m^
R-10~'(l.lA2-Tetrachloroethane is a Class
C carcinogen)
W-70 kg adult
LT-70 year lifetime
CSF-azo (ing/kg/day)-'
I-20m'/day
A-l
ED-70 year exposure duration
Dl Sample Calculation for Hazardous
Constituents In Water
A Syttemic Toxicant*
Sample calculation for toluene:
C.-1030 (mg/kg/day)'70 (kg)J/[2 (L/
day)M)-lOSmg/i
where:
Cw-»ction level in water mg/L)
-------
Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
30871
RfD-0.30 mg/kg/day for toluene
W-70 kg adult
I-2L/day
A-l
& Carcinogenic Constituent
Sampla calcnlatton for 1.1A2.-
tetrachloroethane:
Cw-[10-«>70 (kgTTO (yr)]/[020 (mg/kg/
day)'"2 (l/day)*l'70 (yr)J-U5B-^'
Cooffir evtnftft
irvOttrri
nOssol
Cym'ftt
Cyanogen ,
Cywngsn trartde .
pnp
nne
pfYT
Dtbutyl ptithalste
Pbutyli ilti'otairt it
3 T-Dichtoraoafaldk* ,
I7tehlunx8fliio»omtttwif •
: OJIMrifvn^h— w
1-OlchlonMtiylant
4-fH(ttam(>titnOl
g.4-OteMormihen<»yacallc add ._
U-nrMnrnnmntnt
W^hhl
Dtothyl phttwtat*
Oasa
D
D
D
B1
t)
B2
D
D
B2
D
A
A
o
D
A
82
B2
B2
B2
D
D
C
B1
D
o
B2
0
B2
o
• D
B2
0
A
0
0
0
0
o
D
D
B2
B2
82
o
62
82
o
82
c
o
0
62
82
0
82
OmfRTO
(mo/ko/d)
IDE -01
e.OE-03
1 0E— 01
9(f— OA
13€— O3
3.0E-OS
SOE— 03
406—04
4.0E-04
10E-03
TOE— 02
SOE— 02
3.0E— 03
S.OE-03
2AE— 02
2XJE-02
iOE 02
1.4E-03
iOE-01
&OE-04
4AE— 02
1.0E— 01
7AE— 04
2.0E-03
ejjE-os
5.0E- 02
2.0E-02
1U5E— 02
SOE— 03
SjOE-03
5.0E 03
5.0E-02
S.OE-02
S.OE-02
2.0E-02
4.0E-02
9.0E-02
S.OE-04
1.0E— 01
2.0E— 01
9JK— 03
3.0E— 03
1.0E-02
3.0E— 04
5JJE— OS
B.OE-01
InhaUtton
"wsr
SOE— OS
1 0E— 04
e.OE-03
S.OE-03
&OE— 02
caret wy>
Oralatope
(actor (mo/
kQ/oVT
^ IK (M
JE JC_A«
1 7E-f 01
5.7E— 03
111
9 4Cj.A9
4.36—00
1.4E— O2
1 IP nn
t f>C— ftft
4 4C_/M
1 «C_/M
A 1C_Mk
2.4E— 01
3.4E-01
3.4P_ni
c^e /w\
4SE— 01
9ilE— 02
ILAP A1
i APj.m
13E+02
ntetftocti
brf^a^^bMt
IfW^BBDOn
(mg^o/d)'
1 7E+01
CflC . M
23E-01
• AP— nn
0.1E— 00
^ iP^.O1
4 ^p ftt
a IP Q9
I.SE-t-02
-------
30872
FecUral Raster / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
APPENDIX F—LIST OF CONSTITUENTS, SHOWING ACTION LEVEL SOURCE DATA—Continued
Gonstnutfit nww
Otitnthotn ____.
OlnwltiyMttaMrnkw . __________________________
nvOnttrobannrw _.
2.4-Dlntlrephanol
2.3-OrtJrololuan* (and 2.6-. mtorture) _
1 ,4-Otoan* i i . — — ii '
OVtmnfim** 1
1 j-aphOTyfliydrazfew
ntauHtfttm , ii..--,.....,,.
Endotulfan - , -, --'-,,„-,- ,-,,-„,
ffnrjnthal -i,,,, .. -,„ ,., ,
Endrtn .- -»
EpfcHmohydrtn - , .
EtnytotrBtnt , , ,„—-,,„- „,,,-,- -- T , --,
cqff-Ttf'rf - r . -j - . •--
mptacttor ...I-, .
HmcMU'i]'"*' •'•* — - -,-, „ , - - , ,• --- —
Fill* llau— JJ.Ji ~*~"
1 \ffifi^ , „ llr
Hyttreotn tiif* - - .
itofauiyl rtpo^r* n
lawl
in niaiijianailaiitai - - -i, , - i .
Mittwryli n i^"*? IK. .
MittKOT)1 mi '
Methyl Mtiyt tottmt
n tiUhi ^ "** ' — * — * - -
Nirltcl
******* . . . ... .
*• '• »* • * Hi ....
*iflW i
Sodium'cMrid* 1
Ctets
D
B2
0
D
B2
82
0
82
o
D
D
0
82
o
82
81
D
82
c
82
c
Q
o
82
o
D
D
c
82
B2/C
D
o
Q
D
o
0
o
D
Q
D
g
82
B
82
82
82
82
82
0
A
0
0
o
D
c
0
c
0
D
0
0
0
82
0
o
0
0
0
D
D
O
D
OmlRFD
(mg/kg/d)
iOE-02
1.0E-04
2.0E-03
2.SE-02
40E— 05
506-05
2.06-02
3.06-04
2,06-03
1 06 01
2,06-00
4nc_Oi
6.06-04
« <1C Aft
2.0E— 03
TOP— oa
1 oP.m
306—04
2.06—02
3.06-03
306 01
2.06-01
306— 04
606—03
1 06 01
5.06-01
3.0E— 04
1 OE— 04
2.56-02
&JOE-02
60E— 02
2JE-04
8XE-02
2.06-02
1.06-01
SOE— 04
1JE 00
106-05
0.06-03
t.OE-04
3J)E -03
306 -02
"6.0E— 01
ME —06
3.0E-04
2.06-00
S.OE-02
2.06-01
7.SE-02
1.0E-03
3.06-03
6.0E-03
3.06-03
1.0E-01
4.0E-02
Inhalation
RFD(mg/
Kg/d)
9nc_nc
2.06—04
9.06-02
SJ1E— O9
606-04
caranoga
Oral Hop*
factor (mg/
kg/a>1
5.16+01
63E 01
1.16 02
6.0E-01
"*"*"" *""
8.9E-03
A 4Po.ni
......
4.5E-00
».1C— W
D^C-fWJ
TAP .09
nap_nn
UP— 00
90P-.no
41F— O9
i aP— oo
7_SP— Ol
ft^P— on
2.26 +01
7JOE-OO
ZtE—00
4.9E— 03
2.1E-00
776—00
nieaftacti
Inhalation
•top* factor
(mg/kg/d) >
5.16+01
8.0E-01
'
4.26-03
4.56-00
i.lc— 00
D.2t-fU3
7 ftp A9
HOC_ftrt
1 8E*OO
1.46—02
4 TP-j.ft4
1^P.O9
RalP__OO
Z1E-00
• 4E— 01
2.56-01
-------
Federal Register / VoL 65, No. 145 / Friday, July 27, 1990 / Proposed Rules
30873
APPENDIX F—LIST OF CONSTITUENTS SHOWING ACTION LEVEL SOURCE DATA—Continued
Conctttutnt nwrw
Stryctthftt
fi*UVM*
104 •VTaliarhlnmhanjan*
111 9,T«trsVhlnfn»ithan*
4449 T**M/*M/*mA«ti«nA
444 ft-Tfttrnri^nmnhtnftl
TfltrMittnd *— ^
ToUtcttiyMthiupyfophotptmtftm........!.. L
ThftlKC GMMft ' -MiniiMiiiiiiininn -mini L r
TH«llhtm rhiVMM*
Thallium **f*t
ThAdfam MrifiH*
TtltOeeirtCartieildS *
Toditnt
1 ^vTikiMofobunwuf
1 1 1-TilcMofMthane
1 4 »-Til<]l»lMi'ia»h»n«
Tih.lituiu^'iytf* „ .._.
2.4 B-Titu^tBfQptwxrt
^4 fl-TltCMOfflpt>tnOl
t ,2.3-TrtcNofppropanf
Zkw phusphh^
dass
0
c
c
0
c
r
62
0
0
D
0
D
0
D
0
o
o
D
D
82
o
D
B2
D
D
B2
D
o
o
o
Q
•0
Oral RFC
(mg/kg/d)
3.0E-04
2.06-01
3.0E— 02
30E-04
3.0E— 02
1 0E— 02
30E-02
1.0E-07
5.0E-04
7.0E-06
9.0E-CB
S Of-05
tOE— 05
00E-05
6.0E-OS
6.0E-03
5.0E-03
3.0E-01
246—02
A.OE— 02
4M_O9
3XIB— 01
1.0E— 01
1.0E-02
&OE-03
ME— 03
2.0C-00
6.0E-02
&QE— 04
h.hal.llii.1
innvBuon
RFD(mg/
kg/d)
2.0E-00
• aXJE— 03
3.0E— 01
2.0E— 01
30E-01
Ortfttop*
tedor(mo/
kO/d)-l
9AP.O9
9 ftp A9
* 1P A9
1 IE— 00
ISTfT A9
1 IE— 02
A AC— 09
Inhatoflon
(mg/ko/d)>
9 ftp no
1 1P_OO
9 OP no
For the reasons set out in the
preamble, 40 CFR parts 264,265,270.
and 271 are proposed to be amended as
follows:
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
1. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6908,6812(a). 6924, and
6925.
2. Section 264.1 is amended by
revising paragraphs (d) and (g)
introductory text to read as follows:
( 264.1 PwpoMt scope and appflcsMHy.
• • • » •
(d) The requirements of this part apply
to a person disposing of hazardous
waste by means of underground
injection subject to a permit issued
under an Underground Injection control
(UIC) program approved or promulgated
under the Safe Drinking Water Aft only
to the extent they are required by
8144.14 of this chapter and to the tortent
they are included in a RCRA permit by
rule granted to such a parson under part
270 of this chapter.
• • • • •
(g) Except as required under subpart S
of this part governing releases from
•olid waste management units, the
requirements of this part do not apply
to:
(264.101
3. In 40 CFR part 264, subpart F, it is
proposed to remove 1264.101.
4. In 40 CFR part 264, subpart G, It is
proposed to amend 1264.113 by
redesignating paragraphs (a)(l)(U) as
(a)(l)(iii) and (b)(l)(U) as (b)(lpi), and
by adding new paragraphs (aKl)(H) and
(b)(l)(ii) to read as follows:
S264.113 Ctoeurethmritowedtor
(a) • • *
(D * ' *
(ii) Corrective action required at the
unit or tiie facility under subpart S will
delay the completion of partial or final
closure; or
(I)
(ii) Corrective action required at the
unit or the facility under subpart S will
delay the. completion of partial or final
closure; or
• • • • •
5.40 CFR part 264 is amended by
adding subpart S to read as follows:
iforSoM
Waste Miiffia0efiiefit units
284.500 PmpON and applicability.
254401 Definition*.
2MJ10 Rcqvimnent to perform remedial
- tnveatigattona.
284411 Scop* of remedial investigations.
284412 Plans for remedial Investigation*.
284413 Reports of feawdUl Investigation*.
284414 Determination of no further action,
2M41S-2C4419 {Reserved]
284420 Requirement to perform corrective
measure study.
28*421 Action leveb.
284422 Scope of corrective measure studies.
284429 Plans tor correcflve measure
studies.
284424 Report* of corrective measure
studies.
284425 Selection of remedy
284428 Permit modification for remedy.
284427 Remedy design.
284i528 Progress reports.
284429 Revtow of remedy implementation.
284430 Completion of remedies.
-------
30874
Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
204.531 Determination of technical
impracticability.
264.532-284^39 [Reserved]
264.940 Interim measures.
264J41-264.540 [Reserved]
201550 Management of waste*.
264.551 Management at hazardous wastes.
264.552 Management of non=hazardous solid
wastes.
264.553-264.550 [Reserved]
264.580 Required notices.
Subpart S—Corrective Action for Solid
Wast* Itaragsmsftt Units
9264.500 PurpOMandappDcabllNy.
(a) Hie provisions of this subpart
establish requirements for investigation
and corrective action for releases of
hazardous.waste, Including hazardous
constituents, from solid waste
management units.
(b) The owner or operator of a facility
seeking a permit under subtitle C of
RCRA must institute investigations and/
or corrective action, as necessary to
protect human health and the
environment for all releases of
hazardous waste, including hazardous
constituents, from any solid waste
management unit at the facility.
regardless of the time at which waste
was placed in such unit
(c) Requirements for investigations
and/or corrective action will be
specified in the permit The permit will
contain schedules of compliance for
such investigations and/or corrective
action (where such cannot be completed
prior to issuance of the permit) and
assurances of financial responsibility for
completing such corrective action.
(d) The owner or operator must
implement corrective actions beyond the
facility property boundary, where
necessary to protect human health and
the environment unless the owner or
operator demonstrates to the
satisfaction of the Regional
Administrator that despite the owner's
or operator's best efforts, the owner or
operator was unable to obtain the
necessary permission to undertake such
actions. The owner or operator to not
relieved of responsibility to dean up a
release that has migrated beyond the
facility boundary where off-site access
is denied. On-site measures to address
such releases will be determined on a
case-by-case bflftf Assurances of
financial responsibility for completing
such corrective action must be provided.
(e) For protection of ground watat
from landfill*, surface impoundments,
land treatment units, and waste piles
that received baled or identified
hazardous waste after July 26,1982, the
provisions of this subpart apply only as
specifically provided herein.
(f) The provisibns of this subpart do
not apply to:
(1) Permits for land treatment
demonstrations using field test or
laboratory analyses (see { 270.63).
(2) Emergency permits (see 8 270.61).
(3) Permits by rule for ocean disposal
barges or vessels (see 8 270.60(a)).
(4) Research, development and
demonstration permits (see J 270.65).
1264.501 DefMttons.
For the purpose of complying with the
requirements of this subpart the
following definitions apply:
Corrective Action Management Unit
means a contiguous area within a
facility as designated by the Regional
Administrator for the purpose of
implementing corrective action
requirements of this subpart, which is
contaminated by hazardous wastes
(including hazardous constituents), and
which may contain discrete, engineered
land-based sub-units.
Facility means all contiguous property
under the control of the owner or
operator seeking a permit under subtitle
C of RCRA.
Hazardous Constituent means any
constituent identified in appendix Vm of
40 CFR part 261, or any constituent
identified in appendix IX of 40 CFR part
264.
Hazardous Waste means a solid
waste, or combination of solid wastes,
which because of its quantity.
concentration, or physical chemical, or
infectious characteristics may cause, or
significantly contribute to, an increase
in mortality or an increase in serious
irreversible, or incapadtating reversible,
illness; or pose a substantial present or
potential hazard to human health or the
environment when improperly treated.
stored, transported, or disposed of. or
otherwise managed. The term hazardous
waste includes hazardous constituent as
defined above.
Release means any spilling, leaking,
pouring, <"n*Uinfl, emptying, discharging,
injecting, pumping, itsffaping, leaching,
dumping, or disposing of hazardous
hazardous
[Reserved]
constituents) into the environment
(including the •KanA»nm«nt or
discarding of barrels, containers, and
other dosed receptacles containing
hazardous wastes or hazardous
constituents).
Solid Waste Management Unit means
any discernible unit at which solid
wastes have been placed at any time,
irrespective of whether the unit was
intended for the management of solid or
hazardous waste. Such units include any
area at a faculty at which solid wastes
have been routinely and systematically
released.
§ 264.9iv RsQtttrsinsnt to perform
remedial Investigations.
If the Regional Administrator
determines that hazardous waste
(including hazardous constituents) have
been, are likely to have been. or. based
on site-specific circumstances, are likely
to be released into the environment from
a solid waste management unit at the
facility, the Regional Administrator may
specify in the permit schedule of
compliance that the permittee
investigate and characterize solid waste
management units and releases from
solid waste management units at the
facility.
1264411 Scope of reme dart
(a) Investigations required under
1284^10 shall characterize the nature.
extent direction, rate, movement and
concentration of releases, as required by
the Regional Administrator. In addition,
such investigations may Include, but are
not limited to, the following:
(1) Characterizations of the
environmental setting at the facility.
including:
(i) Hydrogeological conditions;
(ii) Climatological conditions;
(iii) Soil characteristics;
(iv) Surface water and sediment
quality and other characteristics; or
(v) Air quality and meteorological
conditions.
(2) Characterization of solid waste
management units from which releases
have been or may be occurring,
including unit and waste characteristics.
(3) Descriptions of humans and
environmental systems which are, may
have been, or, based on site-specific
circumstances, may be exposed to
reieaae(s).
(4) Information that will assist the
Regional Administrator in aittfttting
risks to human health and the
environment from releases from solid
waste management units.
(5) Extrapolations of future movement
degradation and fate of contaminants.
(6) Laboratory, bench-scale or pilot-
scale tests or studies to determine the
feasibility or effectiveness of treatment
technologies or other technologies that
may be appropriate in implementing
remedies at the facility.
(7) Statistical analyses to aid hi the
interpretation of data required under
8 264.510, m accordance with statistical
methods approved by the Regional
Administrator.
(b) Samples of ground water, surface
water, soils, or air which are collected
as part of remedial investigations
-------
Federal Register / Vol. 55, No. 145 / Friday. July 27, 1990 / Proposed Rules
30875
required under | 264.510 shall be
analyzed for those constituents and
parameters determined to be necessary
by the Regional Administrator to
accurately and adequately characterize
the presence of hazardous wastes
(including hazardous constituents) in the
samples.
9264512 Plans for remedial
InveetigaUone.
(a) The Regional Administrator may
require the permittee to develop and
submit a plan(s) for conducting any
remedial investigations required under
8 264.510 of this subpart Such plans
shall be subject to review and approval
or modification by the Regional
Administrator, and shall be developed
and submitted according to a schedule
specified in the schedule of compliance.
Such plans may include, but are not
limited to, the following:
(1) Overall approach, including
objectives, schedules, and qualifications
of personnel conducting investigations.
(2) Technical and analytical approach
and methods for investigations.
(3) Quality assurance procedures,
including:
(i) Data collection strategy;
(ii) Sampling, chain of custody
procedures; and
(iii) Methods of sample analysis.
(4) Data management procedures,
including formats for documenting
analytical results and tracking sample
custody, and other results of
investigations.
(b) Upon approval or modification of
the plan by the Regional Administrator,
the plan shall be incorporated expressly
or by reference as a part of the permit
schedule of compliance. The permittee
shall conduct the studies and
investigations in accordance with the
plan and any other requirements
specified in the permit schedule of
compliance.
9264413 Reports of remedial
(nveatJgatJona.
(a) The Regional Administrator may
require periodic reports to be submitted
by the permittee during remedial
investigations required under 8 264JS10,
and may, based on information from the
investigations, or other information.
require new or modified investigations.
Such modifications will, if necessary, be
specified by modifying the permit
schedule of compliance. . '
(b) Upon conclusion of the remedial
investigations, die permittee shall
submit to the Regional Administrator for
approval:
(1) A final report describing the
procedures, methods, and results of the
remedial investigations, in such format
and containing such Information as
specified by the Regional Administrator;
and
(2) A summary of the report
(c) If. upon receipt of the final report
and summary, the Regional
Administrator determines that the final
report and summary do not fully satisfy
the requirements for the report and
summary specified in the permit
schedule of compliance, or otherwise do
not provide a full and accurate summary
and description of the remedial
investigations, the Regional
Administrator may require the permittee
to submit a revised report
(d) Upon approval of the summary,
the permittee shall mail it to all
individuals on the facility mailing list
(required under i 124.10(c)(l)(viii)).
(e) All raw data, such as laboratory
reports, drilling logs and other
supporting information generated from
investigations required under § 264.510
shall be maintained at the facility (or
other location approved by the Regional
Administrator) during the term of the
permit including any reissued permit
(264.514 Determination of no further
action.
(a)(l) Based on the results of
investigations required under S 264.510
or other relevant information the
permittee may submit an application to
the Regional Administrator for a permit
modification to terminate the schedule
of compliance for corrective action,
according to the procedures for Class ffl
permit modifications under 8 270.42.
(2) The permit modification
application must contain information
demonstrating that there are no releases
of hazardous waste (including
hazardous constituents) from solid
waste management units at the facility
that may pose a threat to human health
or the environment
(b) If the Regional Administrator,
upon review of the request for a permit
modification, reports submitted under
{ 264.513, or other information,
determines that there is no such threat
to human health and the environment
from releases from solid waste
management units at the facility. The
Regional Administrator shall grant the
permit modification according to the
procedures of S 270.42.
(c) Any determination made pursuant
to 8 264.514(b) will not affect the
authority or responsibility of the
Regional Administrator to:
(1) Modify the permit at a later date to
require the permittee to perform such
investigations and studies as may be
necessary to comply with the
requirements of this Subpart, if new
information or subsequent analysis
indicates that there are, or are likely to
be, releases from solid waste
management units at the facility that
..may pose a threat to human health or
the environment or
(2) Require continued or periodic
monitoring under the terms of the permit
if the Regional Administrator
determines, based on site-specific
circumstances, that releases are likely to
occur.
99264415-264.519 [Reserved]
{264.820 Requirement to perform
corrective measure study,
(e) If at any time the Regional
Administrator determines that
concentrations of hazardous
constituents in ground water in an
aquifer, surface water, soils, or air
exceed an action level (as defined
under i 264.521), and there is reason to
believe that such hazardous constituents
have been released from a solid waste
management unit at the facility, the
Regional Administrator shall require as
part of the permit schedule of
compliance that the permittee perform a
corrective measure study, according to
the requirements of 58 264.522-264.524,
except as otherwise provided under
8 264.520(c).
(b) If the Regional Administrator
determines that a constituents) present
in a concentration below an action level
(as defined under 8 264.521) may pose a
threat to human health or the
environment given site-specific
exposure conditions, and there is reason
to believe that the constituent(s) has
been released from a solid waste
management unit at the facility, the
Regional Administrator may require a
corrective measure study according to
the requirements of 88 264.522-264.524.
(c) If an action level has been
exceeded (as provided under
8 264.520(a). but the Regional
Administrator determines that the
release(s) may nevertheless not pose a
threat to human health and the
environment the Regional
Administrator may allow the permittee
to apply for a determination of no
further action, according to 6 264.514.
(d) The Regional Administrator shall
notify the permittee in writing of the
requirement to conduct a corrective
measure study. This notice shall identify
the hazardous constituent(s) which
exceed action levels defined under
8 264.521, as well as any hazardous
constihient(s) identified pursuant to
8 264.520(b).
(e) For purposes of 88 264.520. 264.521.
264.525 (d) and (e). the term
"constituent" refers to hazardous
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Federal Register / Vol. 55. No. 145 / Friday. July 27, 1990 / Proposed Rules
constituent*, as defined in 1 2MJ01. w
well u other hazardous wastes (as
defined in 1 254.501) that are single
chemical constituents.
1264.521 Actton levels.
Action levels are defined asloUows:
(a) Action levels for constituents in
ground water in an aquifer which the
Regional Administrator has reason to
believe may have been released from a
solid waste management unit at the
facility shall be concentration levels
specified as:
(1) Maximum contaminant levels
(MCLs) promulgated under 1 1412 of the
Safe Drinking Water Act (40 CFR part
MIsubpartBfcor
(2) For constituents for which MCLs
have not been promulgated. • .
concentration which satisfies the
following criteria, stunning sxpoonre
through consumption of the water
ftfmtamlnatarf with tiff
(i) Is derived toe
with Agency
health risks of envt ________ .
(51 FR 33992, 34008, 34014, 34828); and
(ii)U based en sdentfflcsflyvaHd
studies conducted in accordance with
die Toxic Substances Control Act
(TSCA) Good Laboratory Practice
Standards (40 CFR part 782), or
. equivalent: and
(HI) For carcinogens, represents a
concentration associated with an ax
upper bound lifetime cancer risk of
1x10— • due to cunUnueus constant
lifetime exposure, and considers the
overall weight of evidence for
carctaogenicily; and
(iv) For systemic toxicants
a concentration to which the
population (incmdmf sensitive
subgroups) could be exposed on a datty
basis that is likely to be wtifcmt
appreciable risk of ik inter tens « '
during a lifetime.
(b) Action levels for canstitasBDJ at i*
which the Regional Adsafcastrator has
reason to believe may have been
released from a sottd waste
management antt at the nw^rshaB be
the criteria specified •
exposure threufh mhalaosn
contaminated with the ssnsf
measursd or estimated at the facility
boundary, or another leeanan closer to
Ae unit if necessary to protod human
health and the environment
(c) Action levels far constituents to
surface water which the Regional
Administrator has reason to believe
may have been released from a sottd
waste management unit at ft* fsdflty
(1) Water Quality Standards
established pursuant to section 303(c) of
the Clean Water Act (40 CFR part 131)
by the State in which the facility is
located, where such standards are
expressed as numeric values; or
(2) Numeric interpretations of State
narrative water quality standards, if
appropriate, where water quality
standards expressed es numeric values
have not been established by the State;
or
(3) MCLs promulgated under the Safe
Drinking Water Act for constituents in
surface waters designated by the State
for drinking water supply, where
numeric values or numeric
interpretations, described in paragraphs
(1) and (2), are not available; or
(4) For constituents in surface waters
designated by the State for drinking
water supply for which numeric values.
numeric interpretations, or MCLs (as
described in paragraphs 1-3 above) are
not available, a concentration which
meets the criteria specified in
12S4fi21(aM2KiHiv). assuming
exposure through consumption of the
water contaminated with the
constituent or
(5) For constituents in surface waters
designated for a use or uses other than
drinking water supply and for which
numeric values or numeric
interpretations (as described in
paragraphs (1) and (2) above) have not
been established, a concentration
established by the Regional
Administrator which meets the criteria
specified in 1264J21(aH2HiHlv).
wnr\Am*ng the uss or uses of the
receiving waters.
(d) Action levels for constituents in
tqjfr that the Regional Administrator
has reason to believe may have been
released from a solid waste
it unit at ma faculty shall be
defined as concentrations which meet
the criteria specified ta
12B4J21(aXZ)(iHrr). assuming
soil contaminated with the constituent
(e) It for a constituents) detected ta
gruand water ta an aquifer, ah*, surface
water or soils, a concentration level that
meets the criterte of 1264£21(aH<0 far
not available, the Regional
Administrator may establish an action
level for the constituent as:
(1) A level that is an indicator for
protection of human health and the
environment using the exposure
assumptions for the tiytii"*! specified
under 1264J2l(aH
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30877
(6) Proposed format for information
presentation.
(b) Upon approval or modification of
the corrective measure study plan by the
Regional Administrator, the plan shall
be incorporated expressly or by
reference as part of the permit schedule
of compliance. The permittee shall
conduct the studies and investigations in
accordance with the plan and any other
requirements as specified in the permit
schedule of compliance.
§264324 Reports.* cormttwmeOTiira
(a) The Regional Administrator may
require periodic reports during the
conduct of the corrective measure study,
and may, based on information from
these reports or other information.
require the permittee to modify the
corrective measure study. Such
modifications will, if necessary, be
specified by modifying the permit
schedule of compliance.
(b) Upon completion of the corrective
measure study, the permittee shall
submit a report summarizing the results
of the study. This report must include •
detailed description of the remedies
assessed pursuant to f 284.522 or
8 264£24(a). The report shall describe
how any proposed remedyfs) meets the
standards for remedies as specified in
S 264.525(8).
(c) Upon review of the corrective
measure study report, the Regional
Administrator may require the permittee
to evaluate further, and report upon, one
or more additional remedies, or develop
particular elements of one or more
proposed remedies. Such further
requirements will if necessary, be
specified by modifying the permit
schedule of compliance.
9264£25 Setocflon of remedy.
Based on the results of the corrective
measure study, and any further
evaluations conducted under
§ 264.524(c), the Regional Administrator
shall, except as otherwise provided
under paragraph (f) of this section,
select a remedy that at a minimum.
meets the standards listed in paragraph
(a) of this section.
(a) Standards for remedies. Remedies
must
(1) Be protective of human health and
the environment
(2) Attain media cleanup standards as
specified pursuant to paragraphs (d) and
(e) of this section;
(3) Control the source(s) of releases so
ds to reduce or eliminate, to the extent
practicable, further releases of
hazardous wastes (including hazardous
constituents) that may pose a threat to
human health and the environment and
(4) Comply with standards for
management of wastes as specified in
8 8 264.550-284.558 of this subpait
(b) Remedy selection factors. In
selecting a remedy which meets the
standards of 8 2ftiS25(a), the Regional
Administrator shall consider the
following evaluation factors as
appropriate:
(1) Long-term reliability and
effectiveness. Any potential remedy(s)
may be assessed for the long-term
reliability and effectiveness it affords,
along with the degree of certainty that
the remedy will prove successful
Factors that shall be considered in this
evaluation include:
(i) Magnitude of residual risks in
terms of amounts and concentrations of
waste remaining following
implementation of a remedy, considering
the persistence, toxidty, mobility and
propensity to bioaccumulate of such
hazardous wastes (including hazardous
constituents);
(ii) The type and degree of long-term
management required, including
monitoring and operation and
maintenance;
(iii) Potential for exposure of humans .
and environmental receptors to
remaining wastes;
(iv) Long-term reliability of the
engineering and institutional controls,
including uncertainties associated with
land disposal of untreated wastes and •
residuals; and
(v) Potential need for replacement of
the remedy.
(2) Reduction of toxidty. mobility or
volume. A potential remedyfs) may be
assessed as to the degree to which it
employs treatment that reduces toxidty,
mobility or volume of hazardous wastes
(including hazardous constituents).
Factors that shall be considered in such
assessments include
(i) The treatment processes the
remedy(s) employs and materials it
would treat
(ii) The amount of hazardous wastes
(including hazardous constituents) that
would be destroyed or treated;
(iii) The degree to which the treatment
is irreversible;
(iv) The residuals that will remain
following treatment, considering the
persistence, toxidty, mobility and
propensity to bioaccumulate of such
hazardous wastes (including hazardous
constituents).
(3) The short-term effectiveness of •
potential remedy(8) may be assessed
considering the following:
(i) Magnitude of reduction of existing
risks;
(ii) Short-term risks that might be
posed to the community, workers, or the
environment during implementation of
such a remedy, tnrJnrfing potential
threats to human health •"** the
environment associated with
excavation, transportation, and
redisposal or containment
(iii) Time until full protection is
achieved.
(4) Implementability. The ease or
difficulty of implementing a potential
remedyfs) may be assessed by
considering the following types of
factors:
(i) Degree of difficulty associated with
constructing the technology;
(ii) Expected operational reliability of
the technologies;
(iii) Need to coordinate with and
obtain necessary approvals and permits
from other agencies:
(iv) Availability of necessary
equipment and specialists;
(v) Available capacity and location of
needed treatment, storage and disposal
services.
(5) Cost The types of costs that may
be assessed include the following:
(i) Capital costs;
(ii) Operation and maintenance costs;
(iii) Net present value of capital and
operation and maintenance costs;
(iv) Potential future remedial action
costs.
(c) Schedule for remedy. The Regional
Administrator shall specify as part of
the selected remedy a schedule(s) for
initiating and completing remedial
activities. The Regional Administrator
will consider the following factors in
determining the schedule of remedial
activities:
(1) Extent and nature of
contamination.
(2) Practical capabilities of remedial
technologies in achieving compliance
with media cleanup standards, and
other objectives of the remedy.
(3) Availability of treatment or
disposal capacity for wastes managed
during implementation of the remedy.
(4) Desirability of utilizing
technologies which are not currently
available, but which may offer
significant advantages over already
available technologies in terms of
effectiveness, reliability, safety, or
ability to achieve remedial objectives.
(5) Potential risks to human health
and the environment from exposure to
contamination prior to completion of the
remedy.
(6) Other relevant factors.
(d) Media Cleanup Standards. Except
as otherwise provided by 1264J25(d)(2).
the Regional Administrator AM specify
in the selected remedy requirements for
remediation of contaminated media as
follows:
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Federal Register / Vol. 55. No. 145 / Friday, July 27. 1990 / Proposed Rules
(1) Regional Administrator shall
specify concentration levels of
hazardous constituents in ground water.
surface water, air or soils that the
remedy must achieve, as necessary to
protect human health and the
environment Such media cleanup
standards will be established by the
Regional Administrator as follows:
(i) The cleanup standard(s) shall be
concentration levels in the affected
media which protect human health and
the environment
(ii) Unless a lower concentration level
is deemed necessary to protect
environmental receptors, cleanup
standards shall be established as
follows:
(A] For known or suspected
carcinogens, cleanup standards shall be
established at concentration levels
which represent an excess upperbound
lifetime risk to an individual of between
1X 10-« and 1 x ID'*. The Regional
Administrator shall use the lxlO~*. risk
level as the point of departure in
establishing such concentration levels.
(B) For systemic toxicants, cleanup
standards shall represent concentration
levels to which the human population
(including sensitive subgroups) could be
exposed on a daily basis without
appreciable risk of deleterious effect
during • lifetime.
(ill) In establishing media cleanup
standards which meet the requirements
of 1264.525(d)(l) (i) and (ii), above, the
Regional Administrator may consider
the following:
(A) Multiple contaminants in the
medium;
(B) Exposure threats to sensitive
environmental receptors;
(C) Other site-specific exposure or
potential exposure to contaminated
media;
(D) The reliability, effectiveness.
practicability, or other relevant features
of the remedy.
(iv) For ground water and surface
water that is a current or potential
source of drinking water, the Regional
Administrator shall consider, maximum
contaminant levels promulgated under
section 141.2 of the Sale Drinking Water
Act (40 CFR part 141 subpart B) in
establishing media cleanup standards.
(v) If the permittee can demonstrate to
the satisfaction of the Regional
Administrator that a specific
concentration of a constituent in a
medium at the facility is naturally
occurring or from a source other man a
solid waste management unit at the
facility, the cleanup level established
under this Subpart for the constituent in •
the medium shall not be below mat
specific concentration, unless the •
Regional Administrator establishes tiiat
(A) Remediation to levels below that
specified concentration is necessary to
protect human health and the
environment; and
(B) Such remediation is in connection
with an areawide cleanup under RCRA
or other authorities.
(2) The Regional Administrator may
determine that remediation of a release
of a constituent from a solid waste
management unit to a media cleanup
standard established pursuant to
8 264.525(d)(l) is not necessary if the
permittee demonstrates to the Regional
Administrator's satisfaction that
(i) The affected medium is also
contaminated by substances that are
naturally occurring or have originated.
from a source other than a solid waste
managment unit at the facility, and
those substances are present hi
concentrations such that remediation of
the release from the solid waste
management unit would provide no
significant reduction in risks to actual or
potential receptors; or
(ii) The constihienUs) is present in
ground water that
(A) Is not a current or jiotential source
of drinking water, and
(B) Is not hydraulically connected
with water* to which the hazardous
constituents are migrating or are likely
to migrate in a concentration(s) greater
than an action level(e) specified
according to § 264.522; or
(iii) Remediation of the releases) to
media cleanup standards is technically
impracticable.
(3) If a determination is made
pursuant to paragraph (d)(2) of this
section the Regional Administrator may
require any alternative measure(s) or
standards he or she determines an
necessary to protect human health and
the environment, including the control of
further releases.
(e) Compliance with media cleanup
standards. The Regional Administrator
shall specify in the remedy requirements
for achieving compliance with the media
cleanup standards established under
S 284 525(d) (or alternative levels under
{ 284.525(d)(l)(v) or (d)(3)), as follows:
(1) The Regional Administrator shall
specify where compliance with such
standards or levels must be achieved, as
follows:
(i) For ground water, the cleanup
standard(s) or levels shall be achieved
throughout the contaminated ground
water, or. at the Regional
Administrator's discretion, when waste
is left in place, up to the boundary of a
waste management area encompassing
the original source(s) of release.
The Regional Administrator shall
specify the locations at which ground-
water monitoring wells must be located
for purposes of:
(A) Monitoring the effectiveness of the
ground-water remediation program; and
(B) Demonstrating compliance with
the ground-water cleanup standard(s) or
level(s).
(ii) For air, the cleanup standard(s) or
level(s) shall be achieved at the location
of the most exposed individual, or other
specified point(s) of exposure closer to
the source of the release, if determined
by the Regional Administrator to be
necessary to protect human health and
the environment The Regional
Administrator shall specify locations •
where air monitoring devices must be
installed, or what emission modeling or
testing, atmospheric dispersion models,
or other methods must be used to
demonstrate that compliance with any
air cleanup standard(s) or level(s) has
been achieved at the point(s) of
exposure.
(iii) For surface water, the cleanup
standard(8) or level(s) shall be achieved
at the point where the release(s) enters
the surface water. For releases that have
accumulated in surface water -
sediments, the Regional Administrator
may, as necessary to protect human
health and the environment, require that
a cleanup standard(s) or level(s) be
achieved at designated locations in the
sediments. The Regional Administrator
will specify the locations where surface
water or sediment samples must be
taken to monitor surface water quality,
and demonstrate that compliance with
any surface water cleanup standard(s)
or level(s) has been achieved.
(iv) For soils, the cleanup standard(s)
shall be achieved at any point where
direct contact exposure to the soils may
occur. The Regional Administrator will
specify the locations, or methods for
determining appropriate locations.
where soil samples must be taken to
demonstrate compliance with the soil
cleanup standard(s) or level(s).
(v) If the owner/operator is unable to
obtain the necessary permission to
undertake corrective action beyond the
facility boundary, and can demonstrate
to the satisfaction of the Regional
Administration that despite the owner/
operator's best efforts, she is as a result
unable to achieve media cleanup
standards or levels beyond the facility
boundary, then media cleanup
standards* or levels must be achieved to
the extent practicable, as specified by
the Regional Administrator.
(2) The Regional Administrator will
specify in the remedy the sampling and
analytical methods, any statistical
• analyses that may be required, and the
frequency(s) of sampling or monitoring
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30879
that may be required to characterize
levels of hazardous constituents in
ground water, surface water, air or soils.
(3) The Regional Administrator will
specify in the remedy the length of tim»
during which the permittee must in
order to achieve compliance with a
media cleanup standard or level,
demonstrate that concentrations of
hazardous constituents have not
exceeded the standard(s). Factors that
may be considered by the Regional
Administrator in determining these
timing requirements include:
(i) Extent and concentration of the
release(s);
(ii) Behavior characteristics of the
hazardous constituents in the affected
medium;
(iii) Accuracy of monitoring or
modeling techniques;
(iv) Characteristics of the affected
media; and
(v) Seasonal, meteorological, or other
environmental variabilities which may
affect the accuracy of monitoring or
modeling results
(f) Conditional remedies. (1) If the
criteria of 1284.525(f)(2) are met, the
Regional Administrator may select a
conditional remedy that protects human
health and die environment under
plausible exposure conditions during the
term of the permit
(2) A conditional remedy must
(i) Protect human health and the
environment; and
(ii) Achieve all media cleanup
standards or levels as specified
pursuant to paragraphs (d) and (e) of
this section beyond the facility
boundary as soon as practicable; and
(iii) Prevent further significant
environmental degretion by
implementing, as soon as practicable:
(A) treatment or other necessary
engineering controls to control any
source(s) of releases; and
(B) engineered measures as necessary
to prevent further significant migration
of releases within the facility boundary.
(iv) Institute effective institutional or
other controls to prevent any significant
exposure to hazardous wastes at the
facility; and
(v) Continue the monitoring of
releases so as to determine whether
further significant environmental
degradation occurs; and
(vi) Include assurances of financial
responsibility for the remedy, and
(vii) Comply with standards for
management of wastes as specified in
99 264.550-264.559 of this subpait
(3) If at any time during the term of
the permit, any condition of paragraph
(f)(2) of this section is violated, the
Regional Administrator shall modify the
permit to:
(i) Require the permittee to perform
additional studies or actions, or
implement additional controls to
achieve compliance with the
requirements of paragraph (f)(2) of this
section; or
(ii) Require additional studies, actions.
or controls as necessary to implement a
remedy which meets the standards of
8 264.525(a).
(4) The permit shall not be terminated
until a remedy which meets the
standards of 1 264.525(a) has been
implemented and certified complete
according to 1 264.530.
S264J2C Pern* modification tor remedy.
(a) The Regional Administrator shall
modify the permit to specify the remedy
selected according to 1 264.525,
according to the procedures for major
permit modifications under 9 270.41.
(b) The permit modification shall
include, at a minimum, the following:
(1) Description of die technical
features of the remedy mat an
necessary for achieving the standards
for remedies specified in 9 264£25(a)
and/or (f). •
(2) All media cleanup standards
established pursuant to 9 261£25(d).
(3) Requirements for achieving
compliance with "wft*
standards, pursuant to 9 264J25(e).
(4) Requirements for complying with
the standards for ""»"«*ft*m<
wastes, pursuant to 99 201550-204^59.
(5) Requirements for removal,
decontamination, closure, or post-
closure of units, equipment devices or
structures that will be used to
implement the remedy.
(6) A schedule for initiating and
completing the major technical features
and milestones of the remedy.
(7) Requirements for submission of
reports and other information.
(c)(l) The schedule of compliance
specified in the permit modification
shall include a schedule for the
permittee to demonstrate financial
assurance for completing the remedy
specified according to 9 264.526(b). The
schedule shall require the demonstration
no later than 120 days after the effective
date of the permit modification.
(2) If the remedy requires closure of •
hazardous waste management unit and
the schedule of compliance for the
remedy supplants or modifies the unit's
closure or post-closure plan, the
Regional Administrator may partially or
fully release existing financial assurance
for closure, postclosure, and third party
liability required under 99 284.143,
264.145, and 264.147. Such releases shall
not be effective until the financial
assurance requirements at
9 264.526(c)(l) are satisfied
(d) A remedy specified in a permit
modification may be separated into
phases. A remedy phase may consist of
any set of actions performed over tim?
or any actions that are concurrent but
located at different areas, provided that
the actions are consistent with the final
remedy.
S 204^27 Remedy deeftQiu
(a) The Regional Administrator may
require the permittee, upon modification
of the permit according to 9 264.526, to
prepare detailed construction plans and
specifications to implement the
approved remedy at the facility, unless
such planrand specifications have
already been specified in the permit
modification. Such plans shall be
subject to review and approval or
modification by the Regional
Administrator, and shall be developed
and submitted in accordance with the
permit schedule of compliance. Upon
approval by die Regional Administrator,
the plan shall be incorporated expressly
or by reference into part of the permit
schedule of compliance. The plans and
specifications must include, but are not
limited to, the following:
(1) Designs and specifications for
units in which hazardous wastes and
non-hazardous solid wastes will be
managed, as specified in the approved
remedy.
(2) Implementation and long-term
maintenance plans.
(3) Project schedule.
(4) Construction quality assurance
program.
(b) Upon approval of die plans and
specifications for the remedy, die
permittee shall—
(1) Implement die remedy to
accordance with die plans and
specifications, and consistent with die
objectives of die remedy specified in die
permit
(2) Place die plans and specifications
in die information repository, if required
under 9 270.36;
(3) Provide written notice of die
availability for inspection of die
approved plans and specifications for
die remedy to all individuals on die
facility mailing list If an information
repository has not been required
pursuant to 9 270.36, die notice shall
specify where die plans and
specifications are available for
inspection; and
(4) Revise die cost estimate used to
demonstrate financial assurance under
9 264.528(c), if necessary.
(a) The permittee may be required by
die Regional Administrator to provide
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Federal Register / VoL 55, No. 145 / Friday. July 27.1990 / Proposed Rules
progress reports during the design.
construction, operation and
maintenance of any remedy. Frequency
and format of reports shall be
determined by the Regional
Administrator and specified injhe
permit schedule of compliance. Such
reports may include, but are not limited
to:
(1) Summaries of progress of remedy
implementation, including results of
monitoring and sampling activities,
progress in meeting media cleanup
•tandards, and description of other
remediation activities.
(2) Problems encountered during the
reporting period, and actions taken or
proposed to resolve the problems
(3) Changes in personnel conducting
or managing the remedial effort
(4) Project work for next reporting
period.
(5) Copies of laboratory reports and
field sampling reports.
(b) All raw data, such as laboratory
reports, drilling logs and other
supporting information generated from
the remedial activities shall be
maintained at the facility (or other
location approved by the Regional
Administrator) during the life of the
permit, including the term of any
reissued permits.
S 264»S2v nswwwo* fefnooy
The Regional Administrator shall
periodically review the progress of the
remedy. Based on such review, the
Regional Administrator may modify the
permit schedule of fwipHanc* to require
additional remedial ""»••"'•• to ensure
prompt completion, safety,
effectiveness, protectiveness. or
reliability of the remedy.
S264JM Completion of
(a) Remedies specified pursuant to
f 284.520 shall be considered complete
when the Regional Administrator
determines that
(1) Compliance with aU media
standards (or alternate levels) as
specified in the permit have bean
achieved, according to the requirements
of 1 284 .S25(e); and
(2) All actions required to control the
source(s) of contamination have been
satisfied: and
(3) Procedures specified for removal,
decontamination, closure, or post-
closure care of units, equipment, .devices
or structures required to implement the
remedy have been complied with.
(b) Upon completion of the remedy,
the permittee shall submit to the
Regional Administrator, by registered
mall a request for termination of the
corrective action schedule of
compliance according to the procedures
for Class ffl modifications in § 270.42.
The request shall include a certification
that the remedy has been completed in
accordance with the requirements of
1 264.530(a). and that all other terms and
conditions specified in the permit
pursuant to Subpart S have been
satisfied. The certification must be
signed by the permittee and by an
independent profeBsional(s) skilled in
the appropriate technical discipline^).
(c) When, upon receipt of the
certification, and in consideration of
public comments and any other relevant
information, the Regional Administrator
determines that the corrective measure
remedy has bean completed in
accordance with the terms and
conditions of the permit and the
requirements for remedy completion
under 1 284J30(a). the Regional
Administrator shall:
(1) Modify the permit to terminate the
corrective action schedule of
compliance, according to the Class in
procedures of 1 270.42.
(2) Upon modification of the permit
release the permittee from the
requirements for financial assurance for
corrective action under |'264.500(c) and
126440.
(d) If a remedy includes one or more
identified phases, the Regional
Administrator may:
(1) Require separate certification that
the remedy phase has been completed
as specified in the permit to be signed
by the permittee and an independent
professionals) skilled in the appropriate
technical discipline(s); and
(2) Release the permittee from the
requirements for financial assurance for
that remedy phase, if the Regional
Administrator determines that the
remedy phase has been successfully.
completed.
Determination of technical
a^H^k^^k^^a^kikJHaB*
•apracasBsny.
(a) The Regional
Administrator may determine, based on
information developed by the permittee
or other information, that compliance
with a requirements) for the remedy is
not technically practicable. In n>^H«^g
such determinations, the Regional
Administrator shall consider
(1) The permittee's efforts to achieve
compliance with the requirements); and
(2) Whether other currently available*
or new and innovative methods or
technologies could practicably achieve
compliance with the requirements.
(b) If the Regional Administrator
determines that compliance with a
remedy requirement is not technically
practicable, the Regional Administrator
shall modify the permit schedule of
compliance to specify as necessary and
appropriate:
(1) Further measures that may be
required of the permittee to control
exposure of humans or the environment
to residual contamination, as necessary
to protect human health and the
environment; and
(2) Alternate levels or measures for
cleaning up contaminated media.
controlling the source(s) of
contamination, or for removal or
decontamination of equipment units,
devices, or structures required to
implement the remedy which:
(i) Are technically practicable; and
(ii) Are consistent with the overall
objectives of the remedy
99 264.532-264J39 [Reserved]
8264*40 Interim i
(a) If, at any time the Regional
Administrator determines, based on
consideration of the factors specified in
8 264.540(b), that a release or. based on
site-specific circumstances, a threatened
release from a solid waste management
unit(s) at the facility poses a threat to
human health, or the environment the
Regional Administrator may specify in
the permit interim measures required of
the permittee to abate, minimize,
stabilize, mitigate, or eliminate the
release(s) or threat of release(s).
. (b) The following factors may be
considered by the Regional
Administrator in determining whether
an interim measure^) is required:
(1) Time required to develop and
implement a final remedy,
(2) Actual or potential exposure of
nearby populations or environmental
receptors to hazardous wastes
(including hazardous constituents);
(3) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems;
(4) Further degradation of the medium
which may occur if remedial action it
not initiated expeditiously,
(5) Presence of hazardous wastes
(including hazardous constituents) in
drums, barrels, tanks, or other bulk
storage containers, that may pose a
threat of release;
(6) Presence of high levels of
hazardous wastes (including hazardous
constituents) in soils largely at or near
the surface, that may migrate;
(7) Weather conditions that may
cause hazardous wastes (including
hazardous constituents) to migrate or be
released;
(8) Risks of fire or explosion, or
potential for exposure to hazardous
wastes (including hazardous
constituents) as a result of an accident
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Federal Register / Vol. 55. No. 145 / Friday. July 27.1990 / Proposed Rules
30881
or failure of a container or handling
system;
(9) Other situations that may pose
threats to human health and the
environment
(c) If the Regional Administrator
determines that an interim measure is
necessary pursuant to 8 264.540(a), the
Regional Administrator shall notify the
permittee of the necessary actions
required. Such actions shall be
implemented as soon as practicable, in
accordance with a schedule as specified
by the Regional Administrator. The
Regional Administrator shall modify the
permit schedule of compliance, if
necessary, to require implementation of
an interim measure, in accordance with
the procedures of S 270.34 or 8 270.41, as
appropriate.
(d) Interim measures should, to the
extent practicable, be consistent with
the objectives of, and contribute to the
performance of any remedy which may
be required pursuant to 8 204.525.
${264441-649 [Reserved]
8264JSO Management of wastes.
(a) All solid wastes which are
managed pursuant to a remedy required
under 8 264.525, or an interim measure
required under 8 264.540, shall be
managed in a manner
(1) That is protective of human health
and the environment: and
(2) That complies with applicable
Federal, State and local requirements.
(b) The Regional Administrator shall
specify in the permit requirements for
units in which wastes will be managed,
and other waste management activities,
as determined by the Regional
Administrator to be necessary for
protection of human health and the
environment
§264451 Management of hazardous
(a) Except as Provided herein and in
paragraphs (b) and (c) of this section
any treatment storage or disposal of
listed or identified hazardous waste
necessary to implement a remedy or an
interim measure shall be in accordance
with the applicable standards of 40-CFR
parts 262,264.268 and 269.
Requirements for closure contained in
subpart G of 40 CFR part 264, except for
8 264.111. may be waived by the
Regional Administrator for units created
or the purpose of managing corrective
ction wastes.
(b)(l) For temporary units (except for
indneratoi J and other non-tank thermal
treatment units) in which hazardous
wastes will be stored or treated, the
Regional Administrator may determine
that a design, operating, or closure
standard(8) applicable to such unit(s)
solely by regulation may be replaced by
alternative requirements which are
protective of human health and the
environment
(2) Any temporary unit to which
aleraative requirements are applied
according to paragraph (b)(ll of this
section shall:
(i) Be operated for a period not
exceeding 180 calendar days, unless the
period is extended under 8 264.551(b)(3)
below; and
(ii) Be located at the facility, and
(iii) Be used only for treatment or
storage of hazardous wastes (including
hazardous constituents), or other solid
wastes that have originated within the
boundary of the facility.
(3) The Regional Administrator may
grant an extension to the 180-day period
of a temporary unit if hazardous wastes
must remain in the unit due to
unforeseen, temporary, and
uncontrollable circumstances. The .
owner/operator must request this
extension as a Class I modification, with
Director approval under the procedures
of 8 270.42.
(4) In establishing standards to be
applied to temporary units, the Regional
Administrator shall consider the
following factors:
(i) The length of time such unit(s) will
be in operation.
(ii) Type of unit and volumes of
wastes to be managed.
(iii) Potential for releases from the
unit(8).
(iv) Physical and chemical
characteristics of the wastes to be
managed in the unit(s).
(v) Hydrogeological and other
relevant environmental conditions at the
facility which may influence the
migration of any potential releases.
(vi) Potential for exposure of humans
and environmental receptors if releases
were to occur from the unit(>).
(5) The Regional Administrator shall
specify to the permit the length of time
that such units will be allowed to
operate, and specific design, operating,
and closure requirements for the unitfs).
(c) For the purposes of implementing
remedies under this subpart, the
Regional Administrator may designate
an area of contamination as a corrective
action management unit
(1) Movement or consolidation of
wastes within a corrective action
management unit will not constitute
placement of hazardous wastes in a
hazardous waste management unit
(2) Consolidation of wastes within the
corrective action management unit will
not constitute creation of a new.
replacement or lateral expansion of a
hazardous waste management unit
(3) In making determinations as to
whether a corrective action management
unit is appropriate for implementing a
remedy at a facility, and/or the nature
and configuration of a corrective action
management unit at a facility, the
Regional Administrator may consider
the following:
(i) The nature, extent and location of
surficial contamination at the facility;
(ii) The potential benefits of a
corrective action management unit in
achieving remedial objectives for the
facility, including (but not limited to):
(A) Expediting the timing of remedy
Implementation: and
(B) Enhancing the effectiveness, coat-
effectiveness, reliability or
protectiveness of a remedy;
(iii) The practicability of alternative
remedial, approaches; or
(iv) Other relevant factors.
(4) The requirements of subpart G of
40 CFR part 264 will not apply to
corrective action management units. The
Regional Administrator will specify hi
.the permit closure requirements for any
corrective action management unit in
consideration of the following factors:
(i) Unit characteristics;
(ii) Volume of wastes which will
remain after closure;
• (iii) Potential for releases from the
unit
(iv) Physical and chemical
characteristics of the wastes;
(v) HydrologicaJ and other relevant
environmental conditions at the facility
which may influence the migration of
any potential releases; and
(vi) Potential for exposure of humans
and environmental receptors if releases
were to occur from the unit
(5) Closure requirements specified for
corrective action management units
under paragraph (c)(3) of this section
shall:
(i) Minimize the need for further
maintenance: and
(ii) Control minimize, or eliminate, to
the extent necessary to protect human
health and the environment post-
closun escape of hazardous waste,
hazardous constituents, leachate,
contaminated runoff, or hazardous
waste decomposition products to the
ground or surface waters or to the
atmosphere.
(6) The Regional Administrator will
specify In the permit post-closure
requirements for any corrective action
management unit as necessary to
protect human health and the
environment including monitoring and
maintenance activities and the
frequency with which they will be
performed to ensure the integrity of the
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Federal Register / VoL 55. No. 145 / Friday. July 27. IflOO / Proposed Role*
cap. final cover, or other containment
system.
(a) Treatment storage and disposal of
non-hazardous solid wastes~pursuant to
a remedy or interim measure required
under this subpart shall be in
accordance with applicable technical
standard* for solid waste management
as specified in regulations promulgated
pursuant to RCRA subtitle D.
(b) For any unit in which non-
hazardous solid wastes will be managed
pursuant to a remedy or interim
measure, the Regional Administrator
may specify additional design and
operating standards for the unites), as
. necessary to protect human health and
the environment In determining
appropriate design and operating
requirements for such units, the
Regional Administrator shaQ consider
the factors specified under
§ 264.551(bX2).
§§
(a) Notification of ground-water
contamination. If at any time the
permitted discovers that hazardous
constituents in ground water that may
have been released from a solid waste
management unit at the fadtity have
migrated beyond the facility boundary
in concentrations that exceed action
levels (as defined under I 284.521), the
permittee shall, within fifteen days of
discovery, provide written notice to the
Regional Administrator and any person
who owns or resides on the land which
overtiea the contaminated ground water.
(b) Notification of air contamination.
If at any time the permittee discovers
that hazardous constituents in air that
may have been released from a sand
waste management unit at the facility
have or are migrating to areas beyond
the facility boundary in concentratione
that exceed action level* (as defined
under 1 26U21J, and that residences or
other places at which continaoaa, long-
term exposure to such constituents
might occur are located within such
areas, the permittee ahafi. within fifteen
days of such discovery:
(1) Provide written notification to the
Regional Administrator: and
(2) Initiate any actions that may be
necessary to provide notice to all
individuals who have or may have been
subject to such exposure.
(c) Notification of residual
contamination. If hazardous wastes or
hazardous constituents In solid waste
management units, or which have been
released from solid waste management
units, will remain in or on the land after
the term of the permit has expired, the
Regional Administrator may require the
permittee to record. In accordance with
State law, a notation in the deed to the
facility property or in some other
instrument which is normally examined
during title search that win. in
perpetuity, notify any potential
purchaser of the property of the types.
concentrations and locations of such
hazardous wastes or hazardous
constituents.
PART ttS-fffTERM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
& The authority citation for part 266
continues to read as followK
Arfharity: 42U.S.C 0905,0904, and 9825.
7. In 40 CFR part 265, subpart G. it is
proposed to amend 8 26&U2(b) by
adding new paragraph (b)(8). and to
amend 9 265.113 by redesignaiing
paragraphs (aXD(ii) as (a)(l)(iii) and
(b)(l)(ii) as (b)(l)(iii), and by adding new
paragraphs (a)(l)(ii) and (b)(l)(ii) to read
as follows:
{265.112 Ctoevre pteitf sjnenonMnt^Oi
(8) Information which complies with
the requirements of 40 CFR 270.14(d) for
all solid waste management units at the
facility.
(265.113 Closure,
doaure.
(a) * * •
(I)"*
(if) Corrective action required at the
unit or the facility under subpart S will
delay the completion of partial or final
closure? or
• •-•«•
(b)* • •
W • • '
(1Q Corrective action required at the
unit or the facility under subpart S will
delay tht «M«»pi*H™» of partial or fi"*l
closure: or
PART 270-EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
8. The authority citation for part 270
continues to read as foflowK
Authority: 42 UAC, §306. 6911 6B2& 8BZ7.
and 6874
9. It is proposed to amend paragraph
(c) of 5 270.1 by adding the following
introductory text immediately before the
sentence which begins "The denial of a
permit for the active life * * •," aa
follows;
1270.1 Pur
and scop* of these
(c) * * * Owners and operators must
also have permits covering any period
necessary to comply with the
requirements of subpart S of part
264.* • •
• • • * •
10. It is proposed to amend S 27030(1)
by adding new paragraph (1K12) to read
as follows:
827030 Conditions applicable teal
(12) Information pertinent to
corrective action requirements, (i) If the
permittee discovers additional solid
waste mjm*ym^nt units or learns of
releases of hazardous wastes (including
hazardous constituents) from previously
identified or newly discovered sotid
waste management units at the facility,
the permittee shall submit the following
information to the Director.
(A) Identification of additional nlid
waste manageagat unify). Within thirtj
days of the receipt of Information about
a previously unknown and onreported
solid waste management unit at the
facility (aa defined in 40 CFR 284 JW1).
the permittee shall submit the following
information to the Director.
(1) The location of the unit on the
topographic map submitted aa part of
the part B application in accordance
with 40 CFR 270.14(b)(19) or a
topographic map of comparable scale
which clearly indicates the location of
the unit In relation to other solid waste
management »«"<*• at the facility.
(1) Designation of type of unit
(3) General dimensions of the unit
(4) When the unit was operated.
(5) Specification of all wastes that
have been managed in die unit if
available.
[6] AD available information
pertaining to any release of hazardous
Wastes (including hazardous
constituents) from the unit.
(B) Ramplinn and nnnly«i« data. The
Director may require the permittee to
perform turnrliPB *"^ analysis of
ground water (which may involve the
installation of weDs). soils, surface
water, or air, as necessary to determine
whether a ralease(s) from such unit(i)
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Federal Register / VoL 55. No. 145 / Friday. July 27,1990 / Proposed Rules
30883
baa occurred, i* likely to have occurred,
or will likely occur.
(C) Releases of hazardous waste. If
the permittee discover! a release of
hazardous wastes (including hazardous
constituents) from a solid waste
management unit at the facility that may
pose'a threat to human health and the
environment the permittee shall within
twenty days of the discovery, submit the
following information to the Director
(I) Identification of the solid waste
management unit(s) from which the
release has occurred, to include the type
of unit and location of the unit clearly
indicated on a facility map; and
(2} Any other information currently
available concerning the release,
including potential exposure pathways.
controls already imposed to address the
release, and any action planned for*
further cleanup.
(il) Based upon information supplied
under (A), (B), or (C) above the Director
may, as necessary, require further
investigations or corrective measures hi
accordance with the standards for
corrective action specified hi 40 CFR
subpart S. Such additional activities
shall, if necessary, be specified by
modifying an existing schedule of
compliance according to § 270.34{c), or
by initiating a permit modification
according to 1270.41.
• • * • •
11. Section 270.33 is amended by
adding the following sentence at the end
of paragraph (a) to read as follows:
{270.33 Schedule* of CompHanee
(a) * * * Schedules of compliance for
corrective action are governed solely by
§270.34.
• • • « •
12.* * * It is proposed to amend 40
CFR part 270, subpart C, by adding new
8 270.34 to read as follows:
S27O34 SchaduiM of compliance* for
corrtcttra action.
Schedules of compliance for
corrective action are governed by this
section and not 8 270.33.
(a) The Director may include a
schedule of compliance hi the permit for
purposes of specifying the terms and
conditions necessary for the permittee
to comply with the requirements of
subpart S of part 264. Permit schedules
of compliance issued under this section
shall contain terms and conditions
deemed by the Director to be necessary
to protect human health and the
environment
(b) The permittee shall adhere to the
schedules specified hi the permit If at
any time the permittee determines that
schedules cannot be met the permittee
shall within 15 days of such
determination, notify the Director and
submit a request for a permit
modification under 1270.42, with an
explanation of why the current schedule
cannot be met
(c) The Director may modify the
permit to include conditions in the
schedule of compliance as necessary to
comply with the requirements of subpart
S of part 204. The following procedures
will be followed unless the Director
determines instead that it is appropriate
to modify the permit pursuant to
J270.41(a)(5)(ix):
(1) The Director will notify the
permittee hi writing of the proposed
modification. Such notice will*
(i) Describe the exact change(s) to be
made to the permit conditions:
(ii) Provide an explanation of why the
modification is needed; and
(ill) Provide notification of the date by
which comments on the proposed
modification must be received. Such
date will not be less than twenty days
from the date the notice of proposed
modification is received by the
permittee, or after the public notice is
published under 1270.34(c)(2);
(iv) Provide notification that
supporting documentation or data may
be available for inspection at the
Regional or State office; and
(v) Include the name and address of
an Agency contact to whom comments
may be sent
(2) The Director shall:
(i) Publish a notice of the proposed
modification hi a newspaper distributed
hi the locality of the facility, which
includes notice of items (l)(iHv);
(ii) Mail a notice of the proposed
modification to all persons on the
facility mailing list maintained
according to 40 CFR 124.10(c)(l)(viii).
Such notice will include items (l)(iHv),
and shall be mailed concurrently with
notice to the permittee;
(iii) For faculties which have
established an Information repository
pursuant to 1270.36, the Director shall
place a notification of the proposed
modification, including items (l)(iHv),
in the information repository
concurrently with actions taken under
OH")-
(3) If the Director receives no written
comment on the proposed modification,
the modification will become effective
five days after the close of the comment
period; the Director will promptly notify
the permittee and individuals on the
facility mailing list in writing that the
modification has become effective, and
will place a copy of the modified permit
in the information repository if a
repository is maintained for the facility.
(4) If the Director receives written
comment on the proposed modification.
the Director shall make a final
determination concerning the
modification within thirty days afUr the
end of the comment period If
practicable. The Director shall then:
(i) Notify the permittee hi writing of
the final decision. Such notification
shall:
(A) Indicate the effective date of the
modification, which shall be no later
than fifteen days after the date of
notification of the final modification
decision,
(B) Include an explanation of how
comments were considered in
developing the final modification, and
(C) Provide a copy of the final
modification;
(ii) Provide notice of the final
modification decision, including
paragraphs (c)(4)(i)(A) and (i)(B) of this
section, hi a newspaper of local
distribution hi the vicinity of the facility;
and
(iii) Place a copy of items (i)(AHi)(C)
in the information repository for the
faculty if such a repository is
maintained.
(5) Modifications initiated and
finalized by the Director using
procedures in { 270.34(c) are not subject
to administrative appeal
• * • • •
B. It is proposed to amend 40 CFR part
270, subpart C, by adding new
f 2T&96 Information repository.
(a) At any time during conduct of
investigations or other activities
required under part 264, subpart S, the
Director may require the permittee to
establish and maintain an information
repository for the purpose of making
accessible to interested parties
documents, reoorts and other public
information developed pursuant to
investigations and activities required
under part 264, subpart S.
(b) The information repository shall
contain all documents, reports, data and
other information which the Director
deems relevant to public understanding
of the activities, findings and plans for
such corrective action initiatives.
(c) The information repository shall
when feasible, be located within
reasonable distance of the facility, or if
not feasible, at the facility. The
repository shall be accessible to the
public during reasonable hours, as
required by the Director.
(d) In the permit schedule of
compliance, the Director shall specify
requirements for informing the public
about the information repository. At a
minimum, written notice about the
information repository shall be given to
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30804
Federal JteyUtef / Vol 66. No. 145 / Friday. July 27.1000 / Propped Rnies
all individual* on the facility mailing
list
(e) Information regarding procedure*
for ffiihmlimifm of comments jh*H bo
made available at the repoaitory.
* • • • •
14. It is proposed to amend 1270.41 by
revising the introductory text and by '
adding new paragraph (a)(5)(ix], to seed
as follows: ;,
(27041
When the Director receives any
information (for example, inspects the
facility, receives Information Mbmlttao}
by the permittee as required la the
permit (see 1 270^). receives a request
for modification or revocation and
reissuanos under I 124A or conducts a
review of the permit file) he or sb» may
determine whether OM or man of th*
causes listed in pengraph
of this section for nodifi
the permji is atiseoed for a new term.
(See 48 CPR 124Jf.eX2U If cause does.
mot exist under this section, the Director
shafl not modify or revoke and reissue
the permit except on request of the
permittee or in irr^r*^ *""*-* with
I 270.34(c). H a permit modification is
requested by the permittee, the Director
shall approve or deny the request
according to the procedures of 40 CPR
270.42* Hie Director may also modify th^
permit schedule of compliance for
corrective action under die procedures
of 1270.34(c). Otherwise, e draft permit
must be prepared and other procedures
m part 124 (or procedures of an
approved State program) followed.
W * ' '
(a) aad (b)
or
cause exists for f«^*fi^«
permit tor the purposes o
with subpart 8 of part 264
revocation and reissuance or both extat
If causa exists, the Director may modify
or revoke and reiaaua fee permit
accordingly, subject to the ttmitatkns of
paragraph (c) of this section, and may
request an updated application if
necessary. When a permit to modified,
only the conditions subject to
modification are reopened. If a permit ie
revoked and reissued, the entire permit
is reopened end rabject to revision and
l&Blapropoeedterevtaeueaegiapk
fb)(3Ki) end (cHSXvH) of 127060 a*
follows:
I270JO Peneftsbynae.
(i) Complies with 40 CFR eubpert &
mnA
(c) * * *
(3)
(Til) for NPDBS permits tsaoed after
November «. 19S4.40 COL subpert &
AUTMORIZATION OP STATE
HAZARDOUS WASTE PROGRAMS
lo, The authority citation for part 271
continues to read as follows:
Authority: 42 V&C. WOB, 0912(a). and am
17. It is proposed to amend 1271,1(0
by adding the following entry ta Table *
ta chronological order by date of
publication:
1X7X1 [AaMaded]
TABI£ 1—REGULATIONS B^izinornNQ
THE HAZARDOUS AND Souo WASTE
AMENDMENTS OF 1964
TB» ot niBUMOH
July27.1M>.
(Fit Doc. 90-18737 FDed 7-aB-«k &4S em]
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(&
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN 1 Q 1991
OFFICE Of
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive
9380.0-17
MEMORANDUM
SUBJECT:
FROM:
TO:
Furthering the Use of Innovative Treatment Technologies
in OSWER Programs
Don R. Clay />>•
Assistant Adminis
Director, Waste Management Division,
Regions I, IV, V, VII, and VIII
Director, Environmental Services Division,
Regions I, VI, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI and IX
Director, Hazardous Waste Division, Region X
Director, Water Management Division, Regions IV and X
I want to exercise further leadership in the use of innovative
technologies—by creating additional incentives for affected groups
such as potentially responsible parties, facility owners/operators,
consulting engineers, technology vendors and the public and by
using tools currently at our disposal. EPA and responsible parties
or facility owners/operators, should be exploring and promoting
more effective and less costly technologies to solve the
considerable problems we face. Consulting engineers and new
technology vendors are essential partners in this process as well.
While I believe our clean-up partners can and will promote the
implementation of innovative technology, we need to inject a sense
of responsible urgency to prevent the expenditure of dollars in
pursuing less effective or more costly remedies. We have made some
important progress to date, and now is the time to broaden our
efforts and expand into additional program areas. Furthermore, we
have a responsibility to provide technological leadership to the
other major environmental clean-up programs society will be
pursuing beyond those administered by OSWER. This leadership will
not only improve the quality and efficiency of cleanups, but will
also help make U.S. firms leaders in the international marketplace
for waste treatment and site remediation.
Printed on Recycled Paper
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Each of the affected groups sees some risk tied to an effort
to "push on the envelope" of technology application. However,
these risks are directly related to potential benefits — both
short-term at a particular site and long-term benefits which will
accrue from knowledge gained by our experiences. Only if some of
us are willing to work constructively with our uncertainty is there
reason to expect significant progress toward more applications of
technologies that are truly innovative.
I understand innovation requires a sense of creativity and may
be accompanied by false starts, second attempts, intensively re-
engineered solutions, and (despite best efforts) some equipment
failures. I recognize that while most will agree with the need
for new and better approaches, the inherent risks associated with
early technology use serve as very serious impediments. The
extensive review and criticism of our programs from both outside
and inside the Agency may have tended to make us averse to
unnecessary risks. It should be recognized that however well-
designed and carefully planned our efforts may be, they may not
meet contract specifications on many first attempts and may need
refinement before routine application can be expected. Indeed,
information gained from a first-time application that fails to
perform as designed may be viewed as a form of success.
In addition, this definition of innovation needs to be
recognized by EPA regional and headquarters managers. Remedial
Project Managers (RPMs) and On-Scene Coordinators (OSCs) must have
support from their managers if an innovative technology does not
work as expected. The program should recognize and assume the
risks inherent in using new technologies. The challenges these
projects present will usually require great efforts from our roost
competent and experienced RPMs and OSCs. They should view these
challenges as career opportunities rather than as career risks.
Innovative treatment technologies should be routinely
considered as an option in engineering studies where treatment is
appropriate. They should not be eliminated from consideration
solely because of uncertainties in their performance and cost.
These technologies may be found to be cost-effective, despite the
fact the their costs are greater than conventional options, after
consideration of potential benefits which could include increased
protection, superior performance, and greater community acceptance.
In addition, future sites will benefit by information gained from
the field experience.
The attached directive is designed to increase field
applications of innovative technologies for cleaning up
contaminated sites. It also encourages expanded application of
existing OSWER policies and emphasizes the value of existing
support activities in this area. It is intended to sharpen the
focus and level of attention by EPA staff and managers on their
mission to provide technological leadership by implementing
existing authorities under the Superfund, Resource Conservation and
Recovery Act (RCRA), Underground Storage Tank (UST), and Oil
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Pollution Act programs. Furthermore, this guidance is intended to
integrate the continual search for improved remedies with the use
of new technologies and to make this objective a permanent feature
of EPA's clean-up programs. It is intended to create an atmosphere
which recognizes that reasonable risk-taking, which is protective
of human health and the environment, is necessary to achieve this
end.
The statement consists of seven major initiatives. The first
four initiatives concern the Superfund program. The first one
addresses some impediments to the full-scale use of new equipment
and encourages expedited funding of remedial design and
construction projects. This initiative also provides contract
flexibility in the start-up phase of selected remedial and removal
actions to assist vendors in establishing a pattern of reliable
operation in order to satisfy contract performance standards. The
second initiative is intended to ensure that innovative
alternatives are thoroughly evaluated for PRP-lead sites that are
early in the planning process. This provision encourages EPA
regions to fund treatability studies and engineering analyses for
promising treatment technologies that might otherwise be considered
unproven by the PRPs and too early in the development process. The
third initiative provides a capability to rapidly evaluate the
efficacy of a PRP-proposed innovative remedy that is offered in
addition to the primary one approved in the Record of Decision
(ROD). This provision entails direct technical support to evaluate
innovative remedies, while moving the remediation process forward.
The fourth initiative seeks to utilize the potential of the removal
program for expanding our experience with the field application of
new technologies. The directive clarifies OSWER's position that
the removal program is an important and viable means for furthering
the use of these treatment alternatives.
Another provision in the guidance is designed to encourage
studies on the potential use of new technologies for RCRA
corrective action. Regions should consider promoting the pilot
testing of promising innovative technologies at a limited number of
sites. In the past, land ban considerations have sometimes
discouraged owners/operators or regions from pursuing such
approaches. This guidance encourages the use of soil and debris
treatability variances, where necessary, to allow innovative
technology studies to proceed. This authority was recently
delegated to the regions.
The sixth initiative recognizes unique opportunities presented
by Federal facilities. We are exploring the potential use of these
facilities for developing and applying new technologies, and
regional offices are encouraged to work with Federal facility
managers to further this objective.
The final provision encourages expanded use of the Federal
Technology Transfer Act as an opportunity for joint technology
assessments with industry. PRPs and owners/operators may sign
cooperative agreements with EPA for services to support innovative
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technology treatability or pilot studies. This procedure offers
the prospect of non-adversarial engagement, outside the regulatory
context, to allow the development of third-party data on
remediation technologies.
I know there is a tension created by the desire to promote new
technology developments within existing management tracking systems
and program commitments and goals. I recognize that these goals
may also be statutory in origin. Issues are certain to arise
concerning the selection and use of new treatment technologies
because of the rapid pace of development in this area. These
issues cannot be resolved by this guidance and must be addressed
through common sense and judgement on a case-by-case basis. There
may be circumstances where program goals and commitments must be
adjusted in order to achieve better clean-up solutions.
Although not specifically discussed in the attached guidance,
EPA is also strongly committed to using innovative technologies in
cleaning up oil spills under the Oil Pollution Act. He have
embarked on an aggressive research program with other Federal
agencies and the private sector to examine clean-up technologies
and remediation techniques. We anticipate this work will lead to
new and improved technologies in this area as well.
This directive is a call for your attention to exploring and
exploiting opportunities for using innovative remediation
technologies. It reflects my personal commitment and belief that
we must invest the necessary resources and take the risks now to
develop the technologies necessary to fulfill the long-term needs
of our hazardous waste clean-up programs.
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OSWER Directive
9380.0-17
GUIDANCE
FOR INCREASING TEE APPLICATION OF
INNOVATIVE TREATMENT TECHNOLOGIES FOR
CONTAMINATED SOIL AND GROUND WATER
INTRODUCTION
The Office of Solid Waste and Emergency Response (OSWER) is
seeking to further the use of innovative treatment technologies in
order to (1) better pursue its statutory and regulatory mandates to
promote treatment to the maximum extent practicable, (2) speed the
availability of performance data regarding newly developed
treatment technologies to many constituencies facing mandates to
clean contaminated sites, (3) broaden the inventory of accepted
treatment-based solutions, and (4) increase the likelihood that
remediation costs can be lowered in the near term through the
demonstration of a larger number of engineering options to solve
site remediation problems.
Both SARA and HSWA give us the framework to consider treatment
as an essential element in our clean-up decisionmaking. Our record
of accomplishment since SARA in selecting treatment technologies
for Super fund remedial and removal projects is very good. However,
our experience in implementing remedies is limited, and we face a
large future obligation to cleanup sites in the RCRA and UST
programs. For example, the large number of cleanups expected under
the RCRA corrective action program may encompass up to 4,000
facilities and 64,000 waste management units.
Section 121(b) of CERCLA requires EPA to select remedies that
"utilize permanent solutions and alternative treatment technologies
or resource recovery technologies to the maximum extent
practicable" and to prefer remedial actions in which treatment
"permanently and significantly reduces the volume, toxicity, or
mobility of hazardous substances, pollutants, and contaminants as
a principal element." This objective of permanent treatment-based
remedies should be applied to RCRA and UST cleanups, within their
respective legislative contexts. To achieve this goal, EPA must
encourage new or innovative treatment technologies that are capable
of treating contaminated soils/sludges and ground water more
effectively, less expensively, and in a manner more acceptable to
the public than existing conventional methods.
Innovative treatment technologies are newly developed
technologies whose lack of sufficient full-scale application blocks
routine consideration for site remediation. They may be new
technologies, or may be available and in use for various industrial
applications other than hazardous waste remediation. As such,
innovative technologies are not part of standard engineering
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practice or the competitive market process where available
alternatives are routinely presented to the government and private
sector. In functional terms, we define as "innovative" those
treatment technologies for source control other than incineration
and solidification/stabilization and pumping with conventional
treatment for ground water. Innovative technologies inherently
require extra effort to gather information and analyze options and
extra engineering and financial risk in adapting them for specific
site applications. In addition, there is extra uncertainty for
people developing such solutions who work in organizations focused
on performance outcomes with high levels of certainty and known
costs.
Existing directives and guidance contain a number of
references that encourage the consideration of innovative
technologies. Policy for the Superfund program was originally
outlined in a February 21, 1989 memorandum on "Advancing the Use of
Treatment Technologies for Superfund Remedies." This memorandum
reaffirmed the use of treatment technologies and summarized
guidance documents and activities that supported the use of
innovative technologies. It cited the need to search for new
technologies that can improve performance and reduce cost. The
importance of innovative technologies was further emphasized in the
Superfund Management Review (90-Day Study) which primarily
contained recommendations concerning technical support and
research. More recently, the National Contingency Plan expects
that treatment will be used for highly toxic and highly mobile
waste and encourages the consideration of innovative methods.
As a result of SARA and this guidance, the selection of
innovative technologies in the remedial program has increased-
dramatically. For the last three fiscal years, almost half of the
selected treatment technologies for source control have been
innovative. However, few full-scale innovative remedies have
actually been implemented. As a result, we are not benefiting from
actual clean-up experience or developing the equipment necessary to
fulfill long-term program needs. This directive seeks to preserve
our momentum with the selection of these technologies, to expedite
their use in remedial actions,to expand the application of new
technologies to other OSWER programs, and to realize the potential
for development and technology application at Federal facilities.
This directive sets forth several initiatives and new
procedures that will help provide incentives for broader use of
innovative technology. Some of these initiatives are directed
toward potential responsible parties and owners/operators, since
they will be assuming a larger share of the remedial projects in
the future. Other new initiatives are intended to remove
impediments to the first-time use of new equipment. The directive
also encourages wider application of available resources and tools.
In addition, Attachment A highlights some important ongoing program
efforts that deserve mentioning.
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STATEMENT 07 INTENT
Innovative treatment technologies are to be routinely
considered as an option in feasibility studies for remedial sites
and engineering evaluations for removals in the Superfund program,
where treatment is appropriate commensurate with the National
Contingency Plan (NCP) expectations. In addition, innovative
treatment-based remedies should be pursued to the extent
practicable for cleanup of RCRA and UST units that pose significant
health and environmental threats similar to those at Superfund
sites. EPA should exercise leadership with state UST programs to
encourage similar approaches for underground tanks. Innovative
technologies considered in the remedy selection process for
Superfund, RCRA, and UST should not be eliminated solely on the
grounds that an absence of full-scale experience or treatability
study data makes their operational performance and cost less
certain than other forms of remediation.
When assessing innovative technologies, it is important to
fully account for their benefits. Despite the fact that their
costs may be greater than conventional options, innovative
technologies may be found to be cost-effective, after accounting
for such factors as increased protection, superior performance, and
greater community acceptance. In addition, experience gained from
the application of these solutions will help realize their
potential benefits at other sites with similar contaminants.
NEW INITIATIVES
This directive prescribes six new initiatives affecting
Superfund and RCRA programs to encourage and further enable the
field application of innovative technologies and their evaluation
for potential further use. It also affirms the use of a relatively
little-used opportunity for joint EPA work with PRPs and
owners/operators to evaluate new technologies.
1. Superfund Innovative Technology Start-Up Initiative.
Designed for Fund-lead projects, this initiative consists
of two efforts to assist the early application of new
technology. First, we need to encourage the expedited funding
of remedial design and construction projects that involve
innovative treatment technologies. OERR will be revising its
Remedial Action funding priority-setting procedures to give
more consideration to innovative technologies. Earlier
funding of these projects will help achieve the technology
development goals of the Superfund program and will provide
EPA with significant data to support future Records of
Decisions (RODs).
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Second, this initiative provides contract flexibility in
the start-up phase of selected remedial and removal actions to
assist vendors in establishing a pattern of reliable operation
that satisfies performance standards. This is intended to
address some of the impediments to the use of new full-scale
equipment; it will support initial start-up and shake-down
costs and modifications necessary to effectively evaluate
whether the selected technology can perform to specifications
prior to beginning actual remediation. In the remedial
program, the Corps of Engineers (COE) will provide separate
contract provisions that will aid in the commencement of
operations of a unit process or integrated set of processes
and will be available only for some proportion of the whole
site remedy (e.g., processing the first 1,000 cu. yds. of a
30,000 cu. yd. site). Funds are not targeted at making the
technology work at any cost, but to aid in clearly
establishing the likely performance adequacy of the technology
prior to the onset of the contracted clean-up effort.
Contracting strategies are being considered to compensate
vendors, regardless of whether they successfully achieve
performance limits. Further implementation guidance for the
remedial and removal programs will be issued later this year.
2. Dual Track RI/FS Initiative (Superfund)
This initiative is designed for PRP-lead sites that are
early in the planning process where there is an opportunity to
conduct engineering evaluations of remedies through the RI/FS
process. This initiative is intended to ensure that
innovative technologies are thoroughly evaluated and that
needed treatability studies are conducted for potential
remedies. This provision should help encourage EPA to take
risks (when faced with reluctant PRPs) that it would not
otherwise take by encouraging a comprehensive evaluation of
technologies. EPA regions may fund additional treatability
studies and engineering analyses for promising treatment
technologies that would otherwise be considered unproven and
too early in the development process. The purpose of this
initiative is to encourage treatability studies to ensure that
alternative remedies that the government believes may have
merit are thoroughly evaluated and considered in the ROD.
Data from EPA treatability studies and the evaluation of
additional innovative technologies have intrinsic value to the
Agency. Therefore, even' if, in a particular case, there may
be some doubt as to EPA's ability to cost recover for these
additional studies (although, in general, the Agency would
expect such costs to be subject to cost recovery), these
studies should be pursued based on their value to the overall
program.
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3. Tandem ROD Evaluation Initiative (Superfund)
As in the previous initiative, this provision is
primarily designed for PRP-lead sites, although it may also be
applicable for some Fund-financed situations. This program
will provide a capability to rapidly evaluate the efficacy of
a PRP-proposed innovative remedy that is offered in tandem
with the primary one approved in the ROD. Both of the
remedies would be part of the proposed plan. Typically, such
an alternate solution would be approved on a contingent basis
in the ROD based on acceptable treatability studies, but it
would need further development and pilot testing during the
design period for the primary technology. Tandem RODs (or
contingent RODS based on formal evaluation) are a decision
vehicle designed to move the process of cleanup toward
expeditious closure, while leaving room for PRPs with a
decided interest in innovative technologies to pursue
additional pilot tests to demonstrate an alternate approach
that is both innovative and potentially cost-effective. This
program is based on direct technical support for regional
project management teams to help resolve technical issues
posed by alternate approaches; it is designed to lift the
burden from the regional project manager of bearing the risks
of evaluating and trying something "new."
Technical support will be provided for focused evaluation
of the PRP work so as to support expedient regional decisions
about the acceptability of the alternate technology. The work
will be carried out with and through the appropriate OSWER/ORD
Technical Support Centers or the SITE demonstration program
and will be conducted as a mini-evaluation of the proposed
alternative so that the data will be available for future
applications. When considering whether to proceed with a
tandem ROD, regions should first consult with ORD concerning
the scope of effort required for the evaluation.
In the case in which the secondary innovative technology
is chosen for implementation (after the completion of pilot
testing) but significant delays to the original schedule have
occurred, the region may consider the engineering problems of
making the full-scale unit operational in assessing stipulated
penalties. That is, in limited cases, stipulated penalties
should not be imposed if the delays are the unavoidable result
of being innovative.
4. Removal Program Initiative (Superfund)
The removal program represents an important and viable
means for expediting the field application of innovative
technologies. The relatively small volumes frequently
requiring response and streamlined contracting procedures
provide an opportunity to complete clean-up projects and
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provide documentation on lessons learned relatively quickly.
Smaller waste volumes at some sites may also allow the use of
pilot-scale technologies under some circumstances.
Although there have been more innovative projects
actually constructed through the removal program than the
remedial program, its potential has not been fully realized.
This is because time constraints often favor excavation and
off-site disposal or treatment and also because of the absence
of clear legislated goals regarding the use of new technology.
This subject was one of the issues addressed in a 1988 audit
report by the Inspector General of Region IV removal sites.
The report has had the undesirable effect of discouraging OSCs
from using these technologies.
This directive is meant to clarify EPA's position on this
issue. It is OSWER policy to further the use of innovative
technologies through the removal program. This includes all
actions, including time-critical actions, where feasible.
These projects are expected to fulfill an important role in
adding to our knowledge base on promising new technologies.
Further guidance will be included in an upcoming document,
"Administrative Guidance for Removal Program Use of
Alternatives to Land Disposal" (OSWER Directive 9380.2-1),
which provides guidelines promoting the use of alternatives to
land disposal.
5. RCRA Corrective Action and Closure Innovative Technology
Initiative
We are currently engaged in efforts to develop best
demonstrated available technology (BDAT) treatment standards
for contaminated soil and debris at CERCLA and RCRA corrective
action and closure sites. These sites present unique treatment
problems that were not generally considered in developing the
current BDAT standards, which were based on data from the
treatment of industrial process wastes. There is general
agreement that wide scale use of incineration is not
appropriate for soil and debris, and there is a need to
explore alternative approaches. The current schedule is to
promulgate a rule for debris in May 1992 and soil in April
1993. Prior to publication of these final rules, a site-
specific treatability variance process UP CFR 268.44 fhU is
available for contaminated soil and debris to establish an
alternative standard for specified waste at individual sites.
The variance process, along with applicable guidance treatment
levels, is described in Superfund LDR Guide #6A {OSWER
Directive: 9347.3-06FS, July 1989), and is intended to be used
as an interim approach until final standards are established.
This initiative encourages the regions to use
treataMIity variances at corrective action and closure sites
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to conduct treataJbility or technology demonstration studies to
gain additional information on the use of innovative treatment
for contaminated soil and debris. The regions should select
appropriate pilot-scale projects with cooperative
owners/operators that can provide data on the capability of
technologies and the treatability of different wastes. The
information from this work should help to expedite corrective
action and closures after the final BOAT rule is published for
soils. It is also possible that early data from this effort
could be available for consideration in the final rule.
Projects should be carefully selected to maximize the
utility of data and likelihood of success. Regional
corrective action staff and regional Superfund staff should
communicate regarding the history of use of treatability
variances in the Superfund program to identify site factors
that require consideration when selecting an appropriate site.
Authority for issuing site-specific variances for
contaminated soil and debris has recently been delegated to
the regions (Decision Memorandum: "Delegation of Authority to
Grant Treatability Variances," from Charles L. Grizzle .to the
Administrator, April 12, 1991). The facility and EPA, in
collaboration with the state, can implement variances for on-
site demonstrations through two mechanisms: temporary
authorization under the Permit Modification Rule, or 3008(h)
orders for interim-status facilities.
6. Demonstration Projects at Federal Facilities (Superfund, RCRA,
and UST)
Federal facilities offer unique opportunities for both
developing and applying innovative approaches to hazardous
waste remediation. Desirable attributes include their often
sizable areas and isolated locations, controlled access,
numerous contamination problems, and increasingly active
environmental restoration programs.
EPA headquarters is exploring the use of Federal
facilities for both site-specific technology demonstrations
and as test locations for evaluation of more widely applicable
technologies. Equally important is the establishment of
mechanisms to ensure timely sharing of information. Regions
are encouraged to suggest innovative approaches and to be
receptive to proposals for innovation from Federal facility
managers, e.g., by building timing and performance flexibility
into compliance agreements in acknowledgment of current
uncertainties associated with innovation.
The Office of Federal Facilities Enforcement (OFFE) will
work with the regions to identify locations for sponsoring
potential test and evaluation activities. With assistance
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from the Technology Innovation Office, OFFE will develop
necessary policies and guidance to ensure that support for
innovation is congruent with other program and environmental
objectives.
7. Joint Technology Assessment Opportunities with Industry under
the Federal Technology Transfer Act
During the clean-up planning and implementation process,
PRPs or owners/operators should be reminded of the opportunity
to engage EPA in evaluation studies and other arrangements at
their expense to determine whether innovative technology
concepts would be operative in the situation they are facing
or other similar situations. Under the Federal Technology
Transfer Act (FTTA) of 1986 and Executive Order 12591,
cooperative agreements related to research, development, and
technology transfer can be expeditiously executed (i.e., in
less than 60 days) between industry and government. In this
case, such arrangements would allow the PRP to reimburse EPA
for facilities, support services, and staff time spent in
joint evaluation of early technology treatability or pilot
studies. As projects progress into the later planning stages,
careful judgement needs to be exercised to avoid new work that
will result in unproductive delay, while remaining sensitive
to important new technology developments. .,
Since this program is conducted in the research and
development arena, it offers the prospects of non-adversarial
engagement, outside the regulatory context, to allow the joint
development of credible data about remediation technologies.
This opportunity should be especially advantageous to (1) PRPs
and owners/operators capable of early planning for technology
options at a few sites and desirous of early EPA input, as
well as (2) PRPs and owners/operators faced with a number of
similar waste sites in the future— under Superfund, RCRA
Corrective Action, and the UST program—who want to develop
more uniform, cost-effective technology proposals for such
sites. Basic information about the FTTA is described further
in Attachment B.
IMPLEMENTATION
The first six initiatives involve field testing new
technologies that may benefit by technical assistance from the
Office of Research and Development (ORD). ORD represents an
objective third party that can be easily accessed through the
existing OSWER/ORD support structure. This structure consists of
five laboratories, which constitute the Technical Support Centers
(both for Superfund and newly established for RCRA), the Superfund
Technical Assistance Response Team (START) program, the
Bioremediation Field Initiative, and the Superfund Innovative
8
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Technology Evaluation (SITE) program. Several of these programs
are discussed later in this memorandum, and Regional offices are
encouraged to use them. OSWER has asked ORD to give priority to
requests for technical assistance under this directive, and we will
use our existing priority-setting systems to accommodate needs
articulated pursuant to this directive.
BROADER APPLICATION OF AVAILABLE RESOURCES AND TOOLS
In addition to these new initiatives, the application of other
important existing policies and efforts should be broadened.
o Furthering Innovative Remediation at Leaking UST Sites
State and local UST programs have identified 100,000
confirmed leaks, and this number may triple in the next
several years. The majority of sites currently undergoing
corrective action are being remediated through pumping and
treating ground water and excavation and off-site disposal of
contaminated soil. The national UST program has established
corrective action streamlining as one of its top priorities.
The program's strategy includes promoting the use of improved
technologies that will produce better and faster cleanups at
lower cost than traditional methods.
The UST/LUST program has worked closely with the Office
of Research and Development and private companies to foster
the development of innovative site assessment and cleanup
technologies, such as field measurement techniques, soil vapor
surveying, vacuum-enhanced free-product recovery, active and
passive bioremediation, and vacuum extraction. These
technologies now must be moved from demonstrations to routine
use in the field. Regional offices should increase their
efforts to make state and local managers and staff, as well as
cleanup consultants and contractors, more familiar with these
non-traditional but proven technologies. Headquarters will
continue fostering the development of even newer tools and
techniques and should increase its support of regional efforts
to achieve broader use of improved technologies.
o Further Enabling State Innovative Technology Leadership
First, the CERCLA core funding program provides an
opportunity to assist states in establishing innovative
technology advocates. Core program cooperative agreements
help support state response programs to ensure involvement in
CERCLA implementation activities. This may be a vehicle for
promoting new technologies where the state and region agree it
is appropriate. This approach is currently being utilized
with success in Minnesota. The advocates can serve an
important role of promoting the development and use of
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innovative technologies in the state CERCL& programs, with
obvious spinoff benefits for their RCRA and UST programs. Some
states have shown a strong interest in new technologies, and
we should do everything possible to support their efforts and
encourage initiatives at the state level.
Second, last year's HCR& Implementation Study highlighted
the opportunity to empower a few states interested in
furthering technology development,, Regions should b® op®n &nd
encouraging of state appliestions for authority for RCRA R&D
psrmitting? permit modification,, tr@afcaJb.il I ty Delusion? &nd
permitting may seasides1 a eo©perativ@ effort with th© region
for issuing these permits,, Th® 5RD6D activities eould involve
treatability studies for a sit® or activities to help develop
and commercialise a technology. This package ©f authorities
will allow new technology developers and users to flourish in
selected states„
In addition to th© Federal Facilities Initiative above,
states may want to work directly with Federal facilities in
developing pilot sites for innovative technology„ Th©s@
activities do not have to be limited t© final remedies, but '
may also inelud© tr@atabi.lity tdsti, pit® gtabilisatien, aM
demonstrationso Federal facilities under both CERGL& and RCR&
authority may b© particularly well suited for integrating
clean-up activities with innovative treatment technologies„
Model RI/FS Uork Flan and FSF Notice Letter .Demand for
Innovative Optiena
Som® regions hmv®fi £©£• analy^i® in t,h® RI/FS and
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technology is being considered, these studies will help
provide performance information that should assist in the
engineering evaluations. Funds are budgeted annually in the
SCAP based on expected need for conducting treatability
studies. Data and reports from these studies should be
forwarded to Glen Shaul at ORD's Risk Reduction Engineering
Lab. The appropriate protocol and format for these reports
can be found in the "Guide for Conducting Treatability Studies
Under CERCLA" (EPA/540/2-89/058). Information contained in
these reports will be available through the Alternative
Treatment Technology Information Center (ATTIC).
Every effort should be made to conduct or, as
appropriate, to evaluate the PRP's treatability study. In
planning for this activity, oversight funding should be
requested through the SCAP budget process. Oversight of PRP-
lead treatability studies may be funded through the
enforcement budget. In situations where PRPs recommend use of
innovative treatment technologies at a site, but where
treatability study data are insufficient, EPA policy allows
the Agency to fund and conduct technology-specific
treatability studies. The costs associated with the conduct
of these treatability studies are recoverable under Section
107 of CERCLA.
Tracking and Expediting SITE Demonstrations
A recent Inspector General audit of the SITE program
focused on delays in matching Superfund sites with
technologies. This has contributed to overall delays in
completing demonstration projects and technology assessments.
In response, OSWER is encouraging greater participation in the
SITE program and will begin tracking regional site nominations
as a reporting measure in STARS (see "Implementation of an
OSWER Recommendation from the Office of Inspector General
Audit Report on the Superfund Innovative Technology Evaluation
(SITE) Program"—memorandum dated January 2, 1991). OSWER
will support the designation of additional regional FTE for
support of SITE program demonstrations and recognizes the
potential for time delays in RI/FSs at sites with
demonstration projects. ORD management has also agreed that
SITE demonstration projects must be more responsive to
regional needs for treatability data.
Recently, ORD completed an internal management review of
the SITE program. The purpose of the review was to evaluate
the program's impact on Superfund remediation activities and
to identify any changes needed to improve the program.
Several changes already adopted are directed at making the
program a more integral component of regional office Superfund
site activities. The SITE program will make the design of
technology evaluations sufficiently flexible to meet the
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regional offices' needs for treat ability studies before remedy
selection is made. SITE demonstration data will be presented
to the RPM or OSC on a fast turnaround basis so that the data
are available to be factored into the remedy selection
decision. The SITE program will take advantage of ongoing
remediation activities as a source of technology evaluations
and technology transfer where possible. In addition, the
program will use sites that are being evaluated under the
START program and projects that are identified pursuant to
this directive, as potential test locations for SITE
evaluations.
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ATTACHMENT A
Existing Program Efforts to Further Innovative Technologies
OSWER has several other ongoing efforts directed toward
furthering the application of innovative alternatives through the
acquisition and efficient use of data, reduction of technical
uncertainties, and elimination of contracting impediments. These
programs represent important resources that should continue to be
used. The first two resources, that are of interest to the UST,
RCRA, and Super fund Programs, concern the collection and use of
data:
o Technical Support and Information Management
Readily accessible information on innovative technologies
is a major priority of the Superfund program. This objective
is being met through the utilization of on-line computer
systems, direct expert technical assistance, and support for
field activities to evaluate the performance of a given
technology. Currently, EPA maintains several computer
databases that may be accessed for information on treatment
technologies. These databases include the Alternative
Treatment Technology Information Center (ATTIC), the OSWER
Bulletin Board (CLU-IN), the ROD Database, the Hazardous Waste
Collection Database, and the Computerized On-line Information
System (COLIS). These systems include information on the
application of innovative technologies and may be used to aid
networking among OSCs and RPMs. Due to the general shortage
of cost and performance data on new technologies, use of these
databases is important to provide the most current information
available.
Technical assistance is available to Superfund and RCRA
staff through ORD's Technical Support Centers and the
Environmental Response Branch, OERR. Part of this effort
involves networking among project managers through the
engineering and ground water forums. In addition, as part of
an initiative to provide direct technical support to OSCs and
RPMs, the Superfund Technical Assistance Response Team (START)
has been established to help evaluate the potential use of
technologies. Currently, technical experts from EPA's Office
of Research and Development are providing long-term
consultation and support at 35 sites with complex treatment
technologies issues. In addition, ORD is assisting the
Superfund program in developing protocols for conducting
treatability studies, so technologies can be evaluated using
standardized parameters. ORD is also providing a staff person
in each Regional office to serve as a liaison with their
engineers and scientists.
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Bioremediation Field Initiative
Begun in the 4th quarter of FY 90, this program is
intended to provide more real-time information on the field
application of biotechnology for treating hazardous waste.
Currently, over 131 CERCLA, RCRA, and UST sites have been
identified as considering, planning, or operating full-scale
biotreatment systems. The major focus of this initiative is
to furnish direct support in evaluating full-scale cleanup
operations and technical assistance for conducting
treatability and pilot-scale studies. Several sites have
already been selected for participation in the program.
Performance, cost, and reliability information generated from
these bioremediation studies will be used to further develop
a treatability study database that will be made available to
regional staff.
Procurements for Innovative Technologies
Over the past several months, OSWER has been working with
the Procurement and Contracts Management Division (PCMD) to
address particular issues associated with the procurement of
innovative technologies. As these issues are resolved,
regions are encouraged to use the new provisions^ to the extent
possible. The first issue concerns the contracting for
treatability studies. Under the Federal Acquisition
Regulations (FAR), firms are restricted from performing both
the design and construction of a project. EPA has determined
that this prohibition applies only to the prime contractor
responsible for the overall design, and not to subcontractors
performing treatability studies. . The EPA Acquisition
Regulations are being amended to clarify this point and to
allow possible exceptions for contractors to work on both
design and construction on a case-by-case basis.
A second issue concerns constraints on contractors
working for both EPA and later working for a potentially
responsible party (PRP) at the same site. This constraint was
originally imposed on contractors to avoid conflicts of
interest. Innovative technology is a special exception within
these general guidelines. Rather than automatically assuming
a contractor should first be precluded from working for a PRP
after working for EPA, it is EPA's intent and commitment to
first permit contractors and/or subcontractors performing
evaluations of innovative technologies for the Agency to later
work for the PRPs in as many instances as possible. Only in
rare instances would EPA envision not permitting such work to
be performed for the PRP. EPA and PRPs often work together in
the spirit of cooperation and site work may be divided
accordingly. The Agency has therefore determined not to
preclude PRPs from using EPA contractors to perform such work
as treatability studies. In addition, we want to ensure that
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vendors who perform treatability studies for EPA may also
remain eligible to support PRP-lead design or construction
work. This position is reflected in the final conflict of
interest provisions for Superfund contracts which are
currently being prepared and were initially published in the
Federal Register as a proposed rule.
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ATTACHMENT B
United States
Environmental Protection
Agency
Office of Research and
Development
Washington. DC 20460
EPA/600/9-90/050
November 1990
&EPA Opportunities for Cooperative R&D with
EPA: The Federal Technology Transfer Act
Both the U.S. Environmental Protection Agency (EPA)
and private industry seek new, cost-effective technologies to
prevent and control pollution. In the past, however, legal and
institutional barriers have prevented government and
industry from collaborating in developing and marketing
these technologies. Also, the efforts of many companies to
develop new technologies have been stymied by a lack of
resources, such as scientific experts in particular fields or
highly specialized equipment The Federal Technology
Transfer Act of 1986 (FTTA) removes some of these barriers
to the development of commercial pollution control tech-
nologies.
The FTTA makes possible cooperative research and
development agreements (CRDAs) between federal laborato-
ries, industry, and academic institutions. CRDAs set forth the
terms of government/industry collaboration to develop and
commercialize new technologies. According to the Act, these
agreements will foster the technological and industrial
innovation that is "central to the economic, environmental,
and social well-being of citizens of the United States."
What Can Industry Gain from Signing a CRDA
vtfthEPA?
Access to High-Quality Science
EPA's 12 research laboratories employ over 600
scientists and engineers. Many of these laboratories combine
world-class expertise with state-of-the-art equipment and
fully permitted testing facilities. Certain types of environ-
mental research, such as development of innovative tech-
nologies for treating hazardous wastes, require the collabora-
tion of experts in many different fields. This type of interac-
tion is easily adapted at EPA laboratories, because they are
inter-disciplinary in nature.
Expanded Communication Channels Between
Government and the Private Sector
CRDAs build working relationships between the
government and the private sector. All parties benefit from
the different perspectives that government and private sector
scientists bring to an R&D project.
GOVERNMENT UNIVERSITY
Exclusive Agreements for Developing New
Technologies
Until recently, industry had little incentive to cooperate
with federal laboratories because any technologies developed
during joint research remained in the public domain for all to
use. Now, under some CRDAs, companies are given
exclusive rights to market and commercialize new technolo-
gies that result from the collaboration.
Licensing and Research Agreements:
How Do They Work?
The procedure for setting up a cooperative R&D or
licensing agreement under the FTTA is designed to encour-
age collaboration between industry and EPA laboratories.
For industry, the key advantage of the process is the speed
and ease with which the agreements can be negotiated and
signed. CRDAs are not subject to federal contracting or grant
requirements. In addition, each laboratory director has the
authority to establish CRDAs for that particular lab, and this
decentralization of the decision-making process reduces the
administrative procedures involved.
Another important advantage is that CRDAs are flexible
enough to fit the goals of many different sizes and types of
companies. For example, under the FTTA, a company can
support applied research at an EPA laboratory while reserv-
ing first rights to involvement in any technology that results.
Or. if the scientific mechanism that makes a company's
product work is unknown, the company can cooperate with
an EPA laboratory to identify this mechanism. A company
can also share space and equipment with EPA in a combined
effort to develop an innovative technology.
Interested?
Several companies already have CRDAs with EPA,
including Exxon, Shell Oil. Ford Motor Company. Dow-
Coming, Hewlett-Packard, and CH,M Hill, as well as several
small businesses.
For further information about this program please write
to:
Mr. Larry Fradkin, FTTA Coordinator
Office of Technology Transfer and Regulatory Support
Office of Research and Development
U.S. Environmental Protection Agency
26 West Martin Luther King Drive
Cincinnati, OH 45268.
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